Employers throughout the country are deciding how best to reopen their operations given the ongoing public health crisis and resulting government restrictions. In a prior alert, we emphasized that private-sector employers must be aware that their employees ― whether unionized or not ― are legally entitled under the National Labor Relations Act (NLRA) to collectively protest working conditions, raise safety issues to management and take other similar actions.

This alert focuses on organized labor’s current potential for growth, the most frequent requests made in relation to employees’ resuming their jobs and the preemptive action employers can take to better deal with possible unionization during these uncommon times.

In recent months, unions have been capitalizing on the fears employees feel associated with the risks presented by returning to work. One of the biggest pitch points unions use is selling job security to non-unionized employees in attempts to get their “business” (i.e., organize them), despite the current economic climate being anything but secure. With membership declining, unions recognize that they cannot allow this organizing opportunity to pass and are expanding their focus to all employees.

Employees Returning to Work and the Rising Threat of Unionization

Employees working during the pandemic, and those returning soon to their physical work locations, face unprecedented challenges due to this public health emergency. This is obvious. But by following governmental mandates limiting occupancy, enforcing social distancing and facial covering requirements, and other safety-related rules (that vary by jurisdiction and industry) employers can reduce employee concerns. If not, employers may be fined by government regulators and be forced to shut down operations again. In addition, employers who disregard employees’ valid safety concerns face a heightened risk of unionization.

That said, even if an employer follows all reopening instructions, they are still not safe from union organizing. Employees now, more than ever before, are susceptible to the “promises” and “guarantees” often advanced by unions when organizing a workforce. The only difference today is that union rhetoric will have an enhanced “safety,” “protection” and “urgency” message attached to it, along with the typical ― but seldom guaranteed ― assurances that unions put forth. Wages, benefits and job security usually carry the most weight for employees when considering a union and these concerns have only been exacerbated during these times. Some employers have already experienced an increased interest in union membership from their employees as a byproduct of this virus.

Common Demands Surrounding Reopening and/or Expansion of Operations

Employees frequently turn to unions as their voice to get what they want at work. This is true in any environment, not just the current one. Now, however, employee concerns ― whether in terms of job protection, increased wages/benefits or other working conditions ― are more aligned during these unique circumstances, thus allowing for organizing efforts to be broadened and streamlined across the masses.

These are some of the typical requests unions are currently making on behalf of employees.

• “Hazard” pay in the form of wage increases or bonuses, additional pay differential for hours worked, or other forms of alternative compensation (which may apply more to jobs requiring frequent public interaction and/or providing an essential public service);
• Job security in the form of employment guarantees once reopening or expansion gets underway;
• Work schedule accommodations to reduce the number of employees in a facility at once (e.g., shortening the workweek, adjusting start/end times, staggering shifts and maintaining work-from-home flexibility);
• Suspend or relax attendance policies and associated disciplinary action;
• General (or increased) availability of employer-sponsored sick leave (paid or unpaid);
• General (or increased) availability of personal protective equipment, virus testing capabilities and other work-related safety improvements;
• Right to refuse work ― and accompanying job protection ― if employee is a member of a high-risk population, such as those who are immunocompromised or have underlying health conditions (e.g., diabetes, lung disease, heart disease);
• Right to information when and/or if an employee tests positive for COVID-19 (request would likely be qualified by not requiring identifying information, but only that a positive result exists and assurances that any shared workspace has been appropriately sanitized);
• Health insurance guarantees during any COVID-19-related absence;
• Financial assistance for COVID-19-related medical expenses;
• Provide employees with extra breaks to wash their hands and clean their work areas; and
• Provide employees with guidance on maintaining unemployment insurance benefits if reopening or expansion is on a limited basis and employees are still eligible for coverage.

Employers should be prepared to respond to these and other forms of demands from unions attempting to organize their workforce.

Best Practices Moving Forward in the COVID-19 Era

As discussed, organized labor is capitalizing on the fear, anxiety and anger of employees during these uncertain times. In furtherance of their agenda and goal of increasing membership, unions are often behind the protests and workplace demonstrations related to COVID-19. In response, employers should be attentive to employee workplace concerns, provide regular feedback and generally keep a pulse on all communications and actions related to any job dissatisfaction (provided, of course, no employer conduct violates the NLRA). 

For instance, preemptively implementing any of the above-referenced items in updated policies and procedures in response to COVID-19 would go a long way towards boosting employee morale. Many businesses, however, cannot afford to offer monetary incentives to their employees, having been financially crippled by governmental stay-at-home orders and a massive decline in consumer spending. To this end, when employers can offer non-monetary benefits to employees, e.g., relaxing attendance policies or maintaining a partial work-from-home schedule, they should consider such options.

At the end of the day, a union is also a business, and it is built on employees and their corresponding dues, fees and other assessments collected. Unions have become noticeably more active during these unusual times that have offered them the prospect of growth resulting from previously uninterested factions of the workforce seeking possible representation. Customary telltale signs of organizing in today’s environment will typically involve employee concerns about workplace safety, job security and increased wage/benefit demands for coming into work. In each respect, unions will refer to employers as careless and claim their responses to these matters are insufficient, while at the same time giving nonguaranteed assurances of different outcomes if they are involved. Accordingly, employers should reach out to experienced labor counsel to get ahead of any potential organizing. Employers must be vigilant in making a concerted effort to train their management, educate and be responsive to employees, and modernize their workplace policies during these unfamiliar times.

In sum, employers who do their best to identify and address employee relations issues caused and/or worsened by COVID-19 will be in a better position to stave-off unionization. Otherwise, unions will make the most of those situations and benefit from the message that they ― and not the employer ― can “solve” all employee problems.

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