Going Through Withdrawal – Strategies for Minimizing Your Multiemployer Pension Withdrawal Liability, Protecting Your Assets and Saving Your Business

Join Conn Maciel Carey Labor & Employment Practice Group partner, Mark Trapp, on November 14, 2018 when he presents an interactive workshop to help unionized employers understand and analyze what is often the most critical challenge facing their business – multiemployer pension withdrawal liability.  Attendees will learn innovative and aggressive techniques and strategies to address this issue and proactively secure the future of their company. Increasing Money Graph

This workshop will also discuss the current legislative environment for multiemployer pension plans and issues, particularly the work of the Joint Select Committee on Solvency of Multiemployer Pension Plans, charged with preparing a report and recommended legislative language by November 30 to “significantly improve the solvency” of multiemployer pension plans and the Pension Benefit Guaranty Corporation.

Workshop attendees will:

  • Gain a broad understanding of the challenges facing employers who participate in a multiemployer pension plan

  • Discover strategies for assessing and minimizing their withdrawal liability risks through collective bargaining and business planning

  • Examine the status and possibility of legislative relief from the Joint Select Committee on Solvency of Multiemployer Pension Plans

Click here to register.

NLRB Seeks to Change Joint Employer Test by Rulemaking

By:  Mark Trapp

On September 14, 2018, the National Labor Relations Board (“NLRB” or “Board”) published a Notice of Proposed Rulemaking (“Notice”). In its Notice, the Board states its belief that the “rulemaking will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships.” At base, the Notice is an attempt to return the Board to its pre-2015 standard, which the Obama-era NLRB overruled in the controversial Browning-Ferris decision issued that year.

If enacted, the rules would provide a stronger degree of clarity and predictability to business owners and tighten the standard for finding one business to be a joint employer of another employer’s employees. Moreover, by enacting the standard through rulemaking, rather than adjudication, the NLRB decreases the likelihood of the standard being overturned by a later Board. Continue reading

At the NLRB, Big Labor’s Clock Has Not Yet Struck Midnight

By: Mark M. Trapp

shutterstock_424794466As part of an apparent package deal to move through the Senate numerous Trump judicial and other nominees, President Trump on Tuesday re-nominated Democratic member Mark Gaston Pearce for another term on the National Labor Relations Board (“NLRB” or “Board”). Pearce, who has served on the Board since 2010 (when he received a recess appointment from President Obama), saw his latest 5-year term expire at midnight on Monday, only to be renominated within 24 hours.

Pearce served as Chairman of the Agency for nearly six years until President Trump installed his own Chairman in early 2017. His renomination by Trump comes in the face of sharp criticism from the business community and Republicans, upset that in his more than eight years on the NLRB, Pearce was a consistent vote for pro-union outcomes, including the controversial Browning-Ferris joint-employer decision in 2015. An August 17th editorial in the Wall Street Journal summarized the business community’s complaints against Pearce as follows:

Among other labor hits, Democrats allowed graduate students to unionize; required employers to disclose to unions the names, phone numbers and email addresses of workers; and protected workers who vilify their employers on social media. Mr. Pearce also ruled that employees who had resigned their union membership after their labor contract expired could be dunned for back dues. A D.C. Circuit Court of Appeals panel overruled his decision in June. As chairman, Mr. Pearce snubbed Republican colleagues. GOP member Brian Hayes told a member of Congress in 2011 that Mr. Pearce wasn’t sharing information and public comments on the board’s “quickie election” rule that trampled employers’ due process rights. Mr. Pearce then accused Mr. Hayes of threatening to resign to deny the board a quorum, which prompted an investigation by the board’s Inspector General. Mr. Hayes was exonerated, but Mr. Pearce jammed through the election rule anyway without letting him vote. A federal judge appointed by Mr. Obama blocked the rule because the board lacked a quorum.

If confirmed by the Senate, Pearce will not upset the recent 3-2 Republican majority on the NLRB, which is traditionally staffed by three members of the president’s party and two members of the minority party. But many Republicans and business advocates remember the precedent set during the Obama presidency, which repeatedly left open Republican seats when those members’ terms expired, including once for a full two years. This allowed the Obama-era Board to utilize lengthy 3-1 Democrat advantages to reverse over 4,500 years of NLRB precedent, according to one study.

Now with Trump in office, many business owners and Republicans hope to reverse as many as possible of the Pearce-led changes, a task which would become much easier were Pearce’s seat to remain vacant. Many cases are decided by random three-member panels, and if the Board is 3-1 Republican, no such panel will have a Democratic majority, and cases decided without dissent can move more quickly through the NLRB’s internal processing. In addition, the Democrats have been pushing to force the recusal of Republican members John Ring and William Emanuel on the joint-employer issue. A Pearce confirmation combined with the recusal of these two Republicans would give the Democrats a 2-1 majority on perhaps the biggest issue to many business owners.

It will be interesting to see whether Pearce can make it through Senate confirmation as, for now, it does not appear that the nomination is a “done deal” in that Chamber. In the meantime, the Board will operate with four members. Many employers and business owners large and small would like to see this period extended as long as possible, even if Pearce is ultimately confirmed. If and when Pearce is again confirmed, he would serve until August 27, 2023.

Of course, we here at Conn Maciel will be keeping an eye on this issue of importance. For now, for employers it’s “four-speed ahead!”

Free In-Person OSHA and Labor & Employment Client Briefing in Chicago – September 25, 2018

Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tuesday, Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.

This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments.  They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s own Labor & Employment and OSHA specialist attorneys.  There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.


Agenda

1:00 PM – Registration and Networking

1:30 PM – OSHA Panel

  • Angie Loftus (OSHA Area Director – Chicago North Area Office)
  • Nick Walters (Former OSHA Regional Administrator – Region 5) Continue reading

Mitigating Risk for Rogue Employee Speech

shutterstock_angry manGenerally, employers can be held vicariously liable for the tortious conduct of an employee committed within the scope of his or her employment.  This often arises in the context of negligence cases, such as automobile and workplace accidents.  However, employers can also be held liable for defamatory statements made by their employees when those statements are made within the scope of their employment.  Therefore, it is important to mitigate this risk through effective policies and procedures and employee training.

Employers do not need to police employee communications around the clock.  However, employers can and should provide clear policies about employee conduct in the Continue reading

DOL’s Persuader Rule Rescinded

As we reported back in 2017, the Department of Labor (“DOL”) had promulgated a proposed rulemaking to rescind its controversial 2016 “Persuader” Rule.  Less than a year later, the Persuader Rule has been officially rescinded as of Tuesday, July 17, 2018.  In a news release announcing the Persuader Rule Rescindedrescission, Nathan Mehrens of the Office of the Deputy Assistant Secretary stated, “By rescinding this Rule, the Department stands up for the right of Americans to ask a question of their attorney without mandated disclosure to the government.”  This statement addresses one of the most significant sources of conflict over this Rule, both during and after its promulgation, and clearly identifies an important outcome of the DOL’s decision to withdraw it entirely.

Continue reading

With New General Counsel, NLRB Will No Longer “Robb” Employers from Implementing Sensible Work Rules

By: Mark M. Trapp

On December 14, 2017, two days before the term of then-NLRB Chairman Philip A. Miscimarra expired, the existing Republican majority-Board issued its decision in The Boeing Company, 365 NLRB No. 154 (December 14, 2017). As readers of this blog learned not long after, the Boeing case illustrated “the profound difference in the way the Board under new General Counsel Peter B. Robb intends to evaluate employer rules and workplace policies versus the perhaps overzealous and less employer-friendly approach of the Obama-era Board.”

Employee Handbook 2This statement has been borne out in Robb’s recent issuance of Memorandum GC 18-04, Guidance on Handbook Rules Post-Boeing. As Robb notes in the new memorandum, Continue reading