Union efforts to organize workers are on the rise. Most notably, several high-profile employers are at the forefront of recent union campaigns, including Amazon, Starbucks and now Apple.

Amazon

Employees at Amazon’s Staten Island, New York warehouse voted in favor of union representation two weeks ago: 2,654 for and 2,131 against representation.  Now, the union is seeking to organize another smaller Amazon facility across the street. In Bessemer, Alabama, for the second time in two years warehouse employees voted against union representation. This time the votes were 993 against and 875 for representation. Approximately 400 of those votes are contested meaning the results could change depending on what happens with these challenged ballots.

Both of these Amazon elections reflected low voter turnout. Low voter turnout makes it easier for unions to obtain majority status as it only takes a “majority of those who actually vote” to win representation, not a majority of those employees eligible to vote. On April 20, 2022, the union, without explanation, withdrew a petition for election at Amazon’s Bayonne, New Jersey location.

Starbucks

At last count, 20 Starbucks stores have voted in favor of union representation, including two in Buffalo New York and one in Knoxville, Tennessee. A third store in Buffalo voted against union representation, as did another store in Springfield, Virginia. In all, employees at 220 stores have sought elections for union representation.

Apple

On April 20, 2022, employees filed a petition for a union election at Apple’s retail store at the Cumberland Mall in Atlanta, Georgia. The union is the Communications Workers of America. The Cumberland Mall store has 107 employees. This is the first attempt to unionize at an Apple retail location.

Why the big push on union organizing?

Many pundits cite the Biden administration’s pro labor stance, and even President Biden himself has spoken out publicly supporting the pro labor movement (a role typically avoided by prior presidents). Additionally, the Biden administration has appointed pro-union advocates at various federal agencies who are influencing these activities, most notably National Labor Relations Board General Counsel Jennifer Abruzzo. 

Abruzzo has issued advice memoranda indicating that she is asking the board to prohibit “captive audience” meetings (which we blogged about here). Abruzzo also is seeking to overturn an employer’s right to require a board election be held rather than relying on union authorization cards, evidencing majority support by its employees who are seeking union representation (referred to as a card check “recognition.”)

More developments are certainly forthcoming as the economy lags and post-pandemic effects continue to emerge. Cautious employers will take a look at their workforces and see what they can do to stay union free.

Employers take note — there is a new NLRB general counsel in town, Jennifer Abruzzo, and she intends to make some changes. Specifically, she issued a recent memo that proposes change to long-standing law about what are called “captive audience meetings.”

What is a captive audience meeting?

For nearly 75 years, employers have had the right to hold mandatory meetings with their employees to explain the company’s view on unions and union organization efforts. These meeting were fine as long as what was said in the meetings was not coercive or restraining and basically was truthful fact or opinion (and was not held within 24 hours of a union election).

What is changing?

Abruzzo’s proposed change would make any mandatory meeting about unions large or small – unlawful no matter what was said. The change is premised on the belief that meetings like this are coercive by their very nature. If employees could not refuse to come to the meeting, an NLRB charge alleging a legal violation could be filed.

Takeaways

Apparently, Abruzzo intends to direct the NLRB offices to pursue such charges even though the law has not changed. This could cause expense and distraction to employers even though no law has been broken. So, be aware that these captive audience meetings are under scrutiny, and plan wisely when considering holding one about unions until this current new challenge works its way through the agency and the courts.

Guaranteed confidentiality with regard to employee disputes may be becoming a thing of the past if the current tide of legislation continues. As we blogged about several weeks ago, Congress just banned arbitration agreements for sexual harassment claims. Even more stringent than that new federal legislation, Washington and California have both recently passed a “Silenced No More Act,” which restricts confidentiality provisions in certain employment agreements. 

Washington’s Law

The new Washington law bars employers of Washington residents from using non-disclosure and non-disparagement provisions in any agreements to prohibit employees from discussing instances of harassment, discrimination, retaliation, and wage-and-hour violations. Not only can employers not attempt to enter into agreements with such provisions, but they also cannot enforce such provisions in agreements that have already been executed. Employers may, however, continue requiring confidentiality as to the amount of a settlement (even when related to these categories of claims), and they may also continue using confidentiality provisions to protect proprietary company information. The law contains an anti-retaliation provision and recognizes a civil cause of action for aggrieved employees to collect damages of $10,000 or more, as well as attorneys’ fees, for an employer’s violation of the statute.

California’s Law

California’s version of the Silenced No More Act (SB 331) amends the state Fair Employment and Housing Act, which — following the “Me Too” movement — already prohibited settlement agreements preventing the disclosure of information related to claims of sexual harassment, sexual assault, sex discrimination, or alleged retaliation related to complaints about sex discrimination. SB 331 clarifies that agreements cannot restrict an employee’s disclosure of information related to claims of sexual harassment, assault, discrimination, or retaliation. More broadly, agreements entered on or after January 1, 2022, cannot prohibit disclosure of allegations of harassment or discrimination based on any protected category, not just sex. As with the Washington law, SB 331 allows for confidentiality of the settlement amount and of other proprietary company information. SB 331 also specifies that a claimant’s identity may remain confidential if he or she prefers.

SB 331 contains certain additional parameters that do not apply to negotiated settlements of claims filed in court or with an administrative agency, or else submitted through an internal workplace complaint procedure. So, if you are entering employment agreements, separation agreements, or other general agreements with current employees, you need to consider the following from SB 331: 

  • You cannot require the release of claims or rights under SB 331 in exchange for a raise or bonus, or as a condition of employment or continued employment. 
  • You must now include the following language in any agreement that restricts an employee’s ability to disclose information: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”  
  • For separation agreements, you must disclose that the departing employee has the right to consult an attorney before signing an agreement, and must allow at least five days to consider the agreement before executing it. 

Takeaways

If you have employees in California or Washington, you should revisit your template settlement agreements and ensure you are not about to run afoul of these new laws. Additionally, employers nationwide should take inventory of their arbitration agreements in light of the new federal law, and keep an antenna up in case additional “Silenced No More” legislation crops up in other states.