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Legal Shifts Are Giving Support to New Labor Movements

With the economic downturn largely in America’s rearview mirror as job creation and employment continue to rise, there’s been a lot of talk about the quality of many of those new roles. Whether it’s fast food workers or retail employees, the most prominent new labor issue is not whether there are jobs to be found, but whether those jobs offer a living wage. Over the past several months, workers in minimum- and low-wage positions have made increasingly louder demands for higher pay and unionization rights through a string of walkouts and protests around the country. Perhaps a matter of serendipitous timing or the signal of a cultural shift, it seems that lawmakers and courts are giving life and validity to the movement, and employers should start taking notice.

Consider the situation at America’s biggest retailer, Walmart. For the third year in a row, Black Friday shoppers across the country were met by protests from workers and sympathizers demanding a base pay increase to $15 per hour and the right to form a union. Actually, the number of Walmart workers comprised only a small portion of the protesters, with the majority being members of other unions offering support. Whether the protesters actually represent the sentiment of all or even most Walmart workers largely depends on which side of the divide is offering an opinion, but an administrative law judge for the National Labor Relations Board (NLRB) recently sided with employees who said they were unfairly disciplined by the company for their efforts to organize workers.

The ruling, from Washington DC, concerned complaints from workers at two California stores affiliated with Organization United for Respect (OUR) Walmart, which seeks higher pay and benefits for employees in Walmart’s 4,000 US stores. One of the stores’ managers had told workers that they would “shoot the union,” and anyone returning from a strike would be looking for a new job. The judge ordered the company to stop applying pressure on employees to discourage work stoppages and altered the company’s dress code to allow pro-union shirts. As expected, Walmart strongly disagrees with the decision and is evaluating its next steps, which will almost certainly center around looking to get the decision overturned, lest the pro-union movement be given too much traction.

Unfortunately for Walmart, victories in silencing the union movement may be hard to come by if another NLRB decision is an indicator of where things are going. In this one, the board ruled that employees were free to use company email to organize and discuss working conditions outside of work. Although there’s a bit of biting the hand that feeds them involved, the gist of the decision is that the ubiquity of email as a communications device is such that, if a company already supplies it to its employees, those employees are free to use it for the purposes of organizing a union if done outside work hours. The decision, while limited in its scope, is a significant change from the stance it previously took, which the majority attributed to the importance that electronic communications play in our lives today.

One of the most unexpected recent victories for employees in “big box” stores like Walmart didn’t come from the courts, however, but from the San Francisco Board of Supervisors, who unanimously passed the “retail workers’ bill of rights.” Instead of focusing on unions or minimum wages (San Francisco’s minimum wage is already almost $11 per hour, and voters in November chose to increase it to $15 by 2018), this act sought to help ensure that workers didn’t suffer from underemployment due to irregular and insufficient schedules. Aimed at large retailers using sophisticated software that optimizes efficiency, sometimes at the expense of common sense or fairness, the law, among other things, seeks to bring stability to schedules that might see workers getting 38 hours one week and only 12 the next by requiring that schedules be posted two weeks in advance and that extra hours first be offered to the existing workforce before bringing in extra help.

Although the San Francisco law is limited to the city, which itself does not have a lot of the big box retailers affected by it, the hope among labor activists is that it spreads to other cities in California and, eventually, across the country. A similar federal bill, the Schedules that Work Act, was proposed in Congress some months ago, but it isn’t expected to get the traction needed to pass right now. If current trends continue, that could change in the coming years. As labor and employment laws continue to morph and evolve, it’s important to have sound guidance to prevent problems and protect your rights. At Mays & Kerr, we represent both plaintiffs and defendants in employment matters, including employment discrimination, wage and hour, FMLA, and more, with offices in Atlanta and Nashville.  If you live in Georgia or Tennessee and need an experienced Atlanta employment law attorney, contact us today at 1-877-986-5529.

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