PODCAST

The Labor Law Insider

Tom Godar

Tune into Husch Blackwell’s newest podcast, the Labor Law Insider, with members of our labor and employment law team for conversations about recent and anticipated developments in laws and regulations that affect the workplace. Each episode will provide guidance on best practices and strategies that employers should implement as the environment for businesses in all sectors of the economy continues to evolve.

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Project Labor Agreements Part II
Jun 1 2022
Project Labor Agreements Part II
On May 13, 2022, we released Part One related to President Biden’s Executive Order 14063 mandating Project Labor Agreements (“PLA”). Our Labor Law Insiders, Tom Godar, Rufino Gaytán and Michael Schrier, began to explore the requirement that contractors and sub-contractors on large federal construction contracts “negotiate or become party to a project labor agreement with one or more appropriate labor organizations.”In Part Two of this discussion regarding the impact of the Executive Order, we explore how this requirement of PLAs for construction agreements greater than $35 million may indeed be another avenue that unions might use to organize construction employees. Our Insiders tackle the potential use of publicly available information mandated under the new PLA regulations, and how, in combination with wages dictated by the Davis-Bacon Act, unions might identify and target union-free employers for organizational activity. This disclosed information may be one more helpful piece of information for unions, courtesy of the Biden administration and its effort to be the most union-friendly administration ever.The guests also explore when we might expect publication of the regulations, and how they might resemble or differ from those already in place under the current Obama-era PLA Executive Order. The Federal Acquisition Regulation Council may issue such new regulations as soon as June 4th of this year.Importantly, attorneys Gaytán and Schrier will discuss possible legal challenges to these regulations, as well as cautions for those non-union entities who might seek the benefit of large government contracts and in so doing, become entangled in the PLA’s with various unions. For contractors inexperienced in such matters, engaging in PLA work may have hidden trap doors wholly apart from potential union entanglement for union-free companies.We invite you to listen to this interesting presentation, not only for the specifics of the PLA impact, but to assess the breadth of impact that a seemingly simple expansion of regulations can have on both union and non-union federal contractors alike.
Project Labor Agreements Part II
Jun 1 2022
Project Labor Agreements Part II
On May 13, 2022, we released Part One related to President Biden’s Executive Order 14063 mandating Project Labor Agreements (“PLA”). Our Labor Law Insiders, Tom Godar, Rufino Gaytán and Michael Schrier, began to explore the requirement that contractors and sub-contractors on large federal construction contracts “negotiate or become party to a project labor agreement with one or more appropriate labor organizations.”In Part Two of this discussion regarding the impact of the Executive Order, we explore how this requirement of PLAs for construction agreements greater than $35 million may indeed be another avenue that unions might use to organize construction employees. Our Insiders tackle the potential use of publicly available information mandated under the new PLA regulations, and how, in combination with wages dictated by the Davis-Bacon Act, unions might identify and target union-free employers for organizational activity. This disclosed information may be one more helpful piece of information for unions, courtesy of the Biden administration and its effort to be the most union-friendly administration ever.The guests also explore when we might expect publication of the regulations, and how they might resemble or differ from those already in place under the current Obama-era PLA Executive Order. The Federal Acquisition Regulation Council may issue such new regulations as soon as June 4th of this year.Importantly, attorneys Gaytán and Schrier will discuss possible legal challenges to these regulations, as well as cautions for those non-union entities who might seek the benefit of large government contracts and in so doing, become entangled in the PLA’s with various unions. For contractors inexperienced in such matters, engaging in PLA work may have hidden trap doors wholly apart from potential union entanglement for union-free companies.We invite you to listen to this interesting presentation, not only for the specifics of the PLA impact, but to assess the breadth of impact that a seemingly simple expansion of regulations can have on both union and non-union federal contractors alike.
Project Labor Agreements Part I
May 13 2022
Project Labor Agreements Part I
In part I of this series, Husch Blackwell's Labor Law Insider host Thomas Godar is joined by two experienced counsel regarding labor and employment law and federal contractor issues. Husch Blackwell Attorney Michael Schrier is co-Chair of the ABA Public Contract Law Section’s Employment Safety and Labor Committee, which is engaged in monitoring and potentially influencing regulations regarding federal government use of PLAs. Husch Blackwell Attorney Rufino Gaytán is often asked by clients to assist in assessing whether engagement in what are often high-ticket federal construction contracts and PLAs may have hidden trap doors, especially for those who are not frequent federal contractors. This episode of the Labor Law Insider Podcast explores the federal government’s expanded mandate for use of PLAs, and its potential for further encouraging unions to organize union-free companies which choose to participate in such projects.Be sure to join us for for this and Part II for and interesting look into Project Labor Agreements and how they fit in to the overall pro-union strategy of the Biden administration.
Offensive Speech in the Workplace - Part II: Drawing the Line
Apr 18 2022
Offensive Speech in the Workplace - Part II: Drawing the Line
In this Labor Law Insider podcast episode, Tom Godar is joined by Husch Blackwell attorney Sonni Nolan and firm alum Kat Pearlstone, as they conclude their exploration on protection of employee’s speech under the National Labor Relations Act (NLRA). In episode #10, the first in this series, the Labor Law Insider explored how disrespectful, crude and offensive speech may still be protected as concerted expressions under the NLRA. In this episode the panelists look at the standard for review of potentially protected speech, how threats of violence are treated under section 7 of the NLRA, the tricky world of social media comments that target people or business, and some best practices to eliminate or at least reduce the risk of an unfair labor practice charge.The good news is the return to the more helpful standard for assessing whether protection should be accorded an expression made by the employee. First, the employee will have to demonstrate that he or she engaged in protected conduct, that the employer knew of such conduct and the employer acted with animus against the protected activity by counseling, discipline or discharge. Upon this proof, the employer would have the burden to respond and offer a legitimate business reason, not based on protected Union activity, for its action. General Motors LLC, 369 N.L.R.B. No. 127, 2020 BL 270474.One area which can cross the eyes of an employer is related to possible threats of violence, and whether they would be entitled protection under the NLRA. In those cases, the Board may assess whether a provocative statement, is mere hyperbole, or a legitimate threat of violence. Kiewit Power Constructors Co., v. NLRB, 652 F.3d 22 (D.C.Cir. 2011). Employers would be asked to excuse certain threatening words as essentially not credible but are left with the near impossible task of ferreting out real threats from just excited expressions.Another focus of the discussion is on statements receiving protection made via social media comments. Indeed, as employees work from home at an increasing rate during and following the COVID pandemic, more of these offensive and possibly harassing or threatening comments may come through the internet and social media as opposed to directed activities in the workplace. As a result, employers will have a very difficult job of not only interpreting whether these statements may be protected, but even investigating these comments. For instance, it is not unusual that employees who are identified as making these social medial comments would deny making those statements and merely claim that their account was hacked. This presents a very difficult burden for the employer to prove or disprove that an account was hacked, yet at least some decisions experienced by our Labor Law Insiders suggest that that is precisely the burden the employer would carry. This may be true in the context of a disciplined or fired employee claiming an Unfair Labor Practice, or if actions were challenged, not under the NLRA but, for instance, in the context of an arbitration under a collective bargaining agreement appeals process. Further, other “innocent” employees complaining about comments, may not offer sufficient proof of harassing or threatening conduct if the victim making the complaint has since deleted the text or other comment from his or her social media feed.  At least one option for the employer is to ignore gross or disrespectful comments on the internet or through social media, with the hope that they will soon fade away, and with the recognition that rising to the bait of such comments with a response may only render greater public dialogue and further exposure of often untrue statements.As with so many of these issues, the panelists urge hiring and retaining excellent supervisors who are trained not to react, but to act with deliberation upon receiving or reviewing such obnoxious comments. Most employers have crafted policies which prohibit disrespectful speech, but supervisors must be trained in filtering through such policies to understand the implications of protected speech under the NLRA. In those cases, of course, counsel should be consulted for the latest iteration and interpretation of the breath of protected concerted action as interpreted by the NLRB and the Courts.
New York Amazon Employees Vote for Union: What Do We Learn?
Apr 5 2022
New York Amazon Employees Vote for Union: What Do We Learn?
Tom Godar, of counsel at Husch Blackwell, and host of the Labor Law Insider, explores the impact of the successful union election campaign at Amazon’s Staten Island distribution center. This is in contrast to the ongoing failure of the union-organizing campaign at the Bessemer, Alabama facility, where Amazon workers have thus far voted, a second time, to reject a union-organizing campaign there. Labor Law Insider alum, Rufino Gaytán, a member of Husch Blackwell’s Houston office, observes that the election by the homegrown Amazon Labor Union in New York was different than most large organizing campaigns. The Staten Island campaign was led by Amazon employees, Christian Smalls, and his friend, Derek Palmer, who had no Union organizing experience and were not affiliated with any AFL-CIO established Unions. This campaign exploited the treatment of its leaders, and especially Mr. Smalls, who was characterized by senior management as “not smart or articulate”, and was terminated by the company. Their tactics included a very personal and direct approach which resulted in 2,654 “yes” votes for Union representation out of a reported 8,325 eligible voters. This success was aided by several decisions by the National Labor Relations Board, when Mr. Smalls and other union supporters sought reinstatement following their termination from employment and brought Board charges seeking greater access to the employees by those engaged in organizing for the union. In addition, the organizers relied heavily on social media presentations broadcasting and attempting to refute captive audience presentations by management or witnessing the arrest of Mr. Smalls in near real time when he was allegedly trespassing at the Amazon facility. This low budget union organizing campaign led by amateurs was in stark contrast with the recent vote in Bessemer, where the Union received only 875 yes votes following a second election, while the employees rejecting the Union garnered nearly 1,000 votes. The union-friendly Board, led by its General Counsel Jennifer Abruzzo, forced a second election, rejecting the results of a vote taken about a year ago, which the union lost by a two to one margin. That campaign has been led by a national union pouring in money and professional organizers and receiving support from politicians and celebrities. Mr. Gaytán suggests that both management and Union organizers have much to learn from this successful effort for the Amazon Labor Union in New York City, and offers analysis and observations garnered from his own experience advising employers. This highly personalized union campaign, which put a spotlight on employer policies and disciplinary actions, should spark managers everywhere to think differently about treatment of employees well before any Union activity begins, and certainly suggests that employers should change their approach in responding to Union threats and Union campaign activity.
Offensive Speech in the Workplace - Part I: Crossing the Line
Mar 28 2022
Offensive Speech in the Workplace - Part I: Crossing the Line
In this Labor Law Insider podcast episode, Tom Godar and fellow Husch Blackwell attorneys Sonni Nolan and Kat Pearlstone explore the breadth of National Labor Relations Act (NLRA) protection of employee speech that can be disrespectful, crude or offensive. These protections extend to both the non-union workplace and the unionized workplace. Employers are charged with drawing a line at the workplace, curbing offensive, disrespectful, harassing and discriminatory remarks. These disrespectful remarks can be oral or written, placed on employer-maintained bulletin boards or disseminated through social medial. However, under Section 7 of the NLRA, employees have great latitude to engage in protected speech, even when considered offensive or crude or when it targets individuals or businesses. As both National Labor Relations Board (NLRB) and court decisions reveal, there are many instances when employers, whether dealing with a union-represented or a non-unionized workforce, cannot discipline or terminate an employee for what might otherwise be considered prohibited conduct either in the workplace or impacting the workplace. Oftentimes a protected comment or statement can occur in a non-union workplace when employees are criticizing management or management policies, disrespecting specific managers or owners, or even harassing co-employees. These aggressive and offensive expressions can also occur when a union is attempting to organize in a non-union workplace. An employer’s initial reaction is often to discipline or discharge, consistent with a policy that prohibits such disrespectful or harassing speech. These expressions can also take place when a unionized workforce is engaging in a strike or picketing activity. Indeed, some of these statements can be seen as discriminatory or harassing, based on protected characteristics such as race, but may still receive protection under Section 7 of the NLRA. Employers are called upon to exercise extraordinary discretion in the balancing of Section 7 rights of protected and concerted expression with the rights of employees to work in a place free from discrimination or harassment under federal and state law. This podcast explores many of these issues and reviews both cases as well as practical circumstances in which these questions arise. A companion podcast, to be released in about two weeks, will delve more deeply into the issues of expressions which might be construed as a threat of violence, as well as those made in the social media context. Our expert panelists will then describe when these free speech protections become so disloyal, reckless or maliciously untrue as to lose protection. Kat and Sonni will also assess other cases in which the NLRB may find such obnoxious expression merely to be “protected hyperbole.” This podcast will begin to offer guidelines on recognizing where those lines are drawn, and how to avoid the enormous cost and distraction of serious NLRB litigation focused on employee speech. Importantly, that companion podcast will also explore with greater depth the steps employers can take to curb such expression in the first place, and how to respond to disrespectful and offensive speech, threading the needle of enforcing well-drafted policies and keeping away from violation of employee rights under the NLRA. Stay tuned, and look for that podcast in mid-April.
Understanding the Risk of Strikes Faced by the Healthcare Industry
Feb 28 2022
Understanding the Risk of Strikes Faced by the Healthcare Industry
Healthcare workers and employers have faced enormous pressures during the pandemic, struggling with competing issues related to public health and worker safety. In 2021 there were 14 health care worker strikes, including a handful of works stoppages that lasted weeks or even months. These strikes by healthcare workers related to demands to improve terms and conditions of employment such as hours, safety protocols, and staffing. Wages seemingly took a back door to these issues in several instances. Other unions threatened significant strikes as part of the bargaining process, including a threatened work stoppage of 32,000 workers in California, who reached a last-minute settlement with Kaiser Permanente. Yet, strikes in the healthcare industry can be particularly disruptive to the communities they serve, whether undertaken by professional staff, or those who perform the maintenance, food service or other hourly functions in a hospital or nursing home setting. Further, there is reason to anticipate greater organizing activity in the health care sector, and often that activity is accompanied by work disruptions as part of the campaign, or after a successful union vote when the parties are bargaining or reach impasse on a first collective bargaining agreement. Join our Labor Law Insiders: Husch Blackwell's Tom Godar, Terry Potter, Adam Doerr and Rufino Gaytan as they discuss the unique vulnerabilities faced by the healthcare industry at this juncture of history, including the impact on bargaining and of expanded union organizing activities. Our Insiders also explore some actions that employers can take to reduce the possible conflicts between employees and management during this time of extraordinary challenge in the health care market.
The Pandemic Economy: Do Recent Strikes Portend the Resurgence of Unions?
Feb 8 2022
The Pandemic Economy: Do Recent Strikes Portend the Resurgence of Unions?
The data and Husch Blackwell's labor law attorneys suggest that a union resurgence in most industries is at best uncertain and perhaps unlikely. How does the continued low level of union membership affect the likelihood of union resurgence? Should employers expect to experience significantly increased union membership drives and associated strikes? Which industry is more vulnerable to union organizational efforts? To hear the answer to these and other timely questions, listen to Husch Blackwell's labor law group discussion about whether the recent labor protests and strikes signal an increase in the risk of labor disruption for employers.
Beware the Unfair Labor Practice: Not Just for Unions Anymore
Nov 12 2021
Beware the Unfair Labor Practice: Not Just for Unions Anymore
In this episode, Husch Blackwell's Tom Godar, Kat Pearlstone and Sonni Nolan take an in-depth look at what an unfair labor practice is, why non-union employers need to be wary of these federal law violations, and how to avoid running afoul of the National Labor Relations Act (NLRA). They also discuss National Labor Relations Board (Board) General Counsel Jennifer Abruzzo’s recent guidance regarding the types of remedies available when an unfair labor practice occurs.
Employer Guidance: Reducing the Risk of a Successful Union Campaign
Sep 29 2021
Employer Guidance: Reducing the Risk of a Successful Union Campaign
Shifting social issues in and outside the workplace along with significant public support for labor unions subjects all companies to the risk of a successful organizing campaign, resulting in a unionized workforce. Tune in to our podcast to learn about the steps all employers should take to protect their direct relationship with employees.
The Unions Are Coming! The Unions Are Coming!
Sep 2 2021
The Unions Are Coming! The Unions Are Coming!
The Labor Law Insider takes on the recharged union optimism and activity in this podcast episode. Moderator Tom Godar is joined by members of Husch Blackwell’s Labor Law team, Terry Potter, Tom O’Day, and Rufino Gaytán, to discuss the increase in public support for unions, recent changes in organizing activities by unions, and implications for employers. With the benefit of their more than 100 years of combined experience in labor law, our panel discusses actions employers should take to maintain a direct relationship with their employees as unions attempt to increase their organizing efforts in the workplace.
The Biden Administration - Expected Changes at the NLRB, Part III
Jul 30 2021
The Biden Administration - Expected Changes at the NLRB, Part III
In Part III of the Labor Law Insider series focused on expected changes at the National Labor Relations Board, Husch Blackwell attorneys David Hertel and Laura Malugade discuss, with Tom Godar, two potential developments that would change the labor law landscape and enhance union organization efforts: 1) permitting unions to organize and represent small units of employees within an employer's workforce called micro-units, and 2) union efforts to organize remote workers. Tune in to learn about these potential developments and strategies to proactively address the expected changes.
The Biden Administration - Expected Changes at the NLRB, Part II
Jun 10 2021
The Biden Administration - Expected Changes at the NLRB, Part II
In Part II of the Labor Law Insider series focused on expected changes at the National Labor Relations Board, Husch Blackwell attorneys Tom Godar, Kat Pearlstone and Rufino Gaytán discuss the impact of the impending policy shift on employer policies and workplace rules regarding employee access to IT systems for nonwork-related communications, facially neutral workplace rules that negatively impact protected concerted activity, confidentiality obligations during internal investigations, and limitations on abusive workplace conduct. We hope you enjoy the discussion.
The Biden Administration - Expected Changes at the NLRB, Part I
Jun 9 2021
The Biden Administration - Expected Changes at the NLRB, Part I
Husch Blackwell attorneys Tom Godar, Kat Pearlstone and Rufino Gaytán offer insights on how the changes in National Labor Relations Board leadership under the Biden Administration will likely affect employers and the workplace. Tune in to receive guidance.