Unions and Labor Round-up

July 13, 2011

In what appears as a concerted effort to shortchange small-business input in the regulatory process on rules that pose a significant burden for small businesses, three new labor regulations continue to move forward. NSBA has weighed in on the National Labor Relations Board (NLRB) proposed rule to dramatically alter the elections process, urging a delay in the comment period and more public hearings. Meanwhile, the Department of Labor (DOL) is pushing ahead on two rules: one would eliminate the “advice exemption” which would target small companies that hire consultants during a union campaign; and the other would expedite the implementation of a new wage formula for H-2B workers.

NLRB Elections Rule

As previously reported, the NLRB  has proposed a new rule to amend and shorten the union-organizing election process. The new rules will: require employers to give union organizers electronic files with employees contact information; shorten the time within which a union election must take place following the filing of an election petition; limit pre-election processes by deferring litigation of most voter eligibility issues until after the election; make post-election reviews discretionary; and require pre-election hearings to begin just seven days after a petition is filed.

While the proposed rule itself will dramatically tilt the elections process against small businesses members, the process NLRB has instituted also is tilted against small business. The rule was published June 22 with a comment deadline of Aug. 22, and only established one public hearing for July 18. Furthermore, NLRB announced June 27 that anyone interested in testifying at that public hearing must notify the board by July 1, a mere five days later.

NSBA, along with various other business interests, is urging the NLRB to extend the comment period—the deadline for comments was set for Aug. 22—and commit to holding more than one public hearing, which was all the proposed rule allowed for.

Small-business owners rarely have attorneys or labor specialists on staff and often must become a regulatory expert or hire outside help (see below for details on another, separate rule which would impact even this.) In this economy, neither option is workable for small-business owners.

Please click here to read NSBA’s letter to the NLRB.

Please click here to view the full rule.

Please click here to see what Senate Health, Education, Labor and Pensions Committee Ranking Member Mike Enzi (R-Wyo.) had to say about the rule and its process.

NSBA will be submitting comments on this rule. Please tell us how this rule will impact you by clicking here to e-mail us your comments.

DOL Advice Rule

Adding insult to injury, the DOL is moving forward with a proposed rule that would require employers to disclose arrangements with consultants whether or not those consultants communicate directly with employees. Currently, there is an exemption that allows an employer to hire a consultant without reporting it if he/she is only giving “advice” to the employer, and not reaching out directly to employees. This rule narrows that exemption for employers, however does absolutely nothing to require labor unions to report their hiring of lawyers and consultants.

This rule is particularly detrimental to small businesses which, as stated above, rarely have attorneys or labor specialists on staff, forcing the owners to seek outside help to ensure their interests are represented in a union campaign. Eliminating the so-called “advice exemption” is a direct affront to small businesses ability to fully educate their workforce and have all the advantages a large corporation has in a union campaign.

Please click here to view the complete rule.

The comment period ends on Aug. 22, and NSBA will be submitting comments. Please tell us how this rule will impact you by clicking here to e-mail us your comments.

DOL H-2B Wage Rule

DOL on June 28 announced its plan to expedite the effective date of a proposed rule which would increase wages for H-2B workers by $1.23 to $9.72 per hour. The initial rule had an effective date of Jan. 1, 2012, however the new proposal—based on a court order—would accelerate the effective date to Oct. 1, 2011. Despite the original final rule, published Jan. 19, 2011, specifically stating that, “The Department recognizes the rapid wage increases may create burdens for employers who chose to participate in the H-2B program…”

DOL failed to complete an Initial Regulatory Flexibility Analysis (IRFA) on the new rule to expedite the effective date, and essentially stated that the burden has not changed from the original rule, only the timing of that burden. The U.S. Small Business Administration (SBA) Office of Advocacy (Advocacy) has submitted a comment letter to DOL outlining the myriad problems with DOL’s expedited rule and their failure to truly support their claim that the new “rule will not have a significant economic impact on a substantial number of small entities.”

One of Advocacy’s key concerns is the contradictory nature of DOL’s insistence the rule will not constitute a significant burden with the assertions DOL made in the original rule where DOL clearly admits a burden exists. Advocacy also criticized DOL’s extremely narrow comment period of a mere 11 days.

Please click here to view Advocacy’s letter.