Welcome to the Bringing the Human Back to Human Resources
podcast. I'm Tracy Chernoff, and I've
spent my entire professional career in HR.
Each week, we'll explore the delicate balance between people
and business, with the aim to reconnect the two and create
meaningful outcomes. Listen in as I share my own
experiences, challenge the status quo, and chat with guests
from various industries about our mission to bring the human
back to human. Resources.
Hi, everyone. Welcome back to the podcast.
You know the drill. Don't forget to rate, review and
subscribe wherever you're catching this episode.
And this episode is our monthly Policy Pulse.
And so I have, of course, our resident helper here, Brian
Driscoll, who is an attorney. And you know, of course, as you
know from all the previous Policy Pulse episodes, kind of
like our resident guru on all things employment law or things
I could at least affect people in the workplace.
And you know, of course, with anything else, this is not legal
advice, as you know, but more so kind of hopefully a discussion
that's a little bit more targeted toward some of you who
might need to kind of keep an eye on some things as they kind
of come through and happen. And so a lot of what we'll be
talking about today might not actually be in existence just
yet, but is more so kind of a look forward or something to
anticipate should there be any final determinations or
decisions that kind of come out of some of these things.
So Brian, of course will be will be able to explain a little bit
more on those fronts. But we're going to start with
talking about the the National Labor Review Board, AKA the
NLRB. And a quick snippet here is that
President Trump has nominated James Murphy and Scott Mayer to
fill vacant seats on the NLRB. And if confirmed by the Senate,
these nominees will restore a functioning quorum to the five
member board, which has been hamstrung since May and unable
to issue decisions. This signals a potential
significant course correction and labor law.
So Brian, I will pass to you because I think there's even in
that one statement, there's probably a lot, a lot to unpack.
Yeah. So for a couple of months now,
the NLRB has not had a quorum, like you said, 55 members on the
board, but they've only had three.
So they haven't been able to issue any rulings, any
decisions. So if these two people are
confirmed by the Senate, then they'll have they'll have the
quorum again and they'll be able to make some make some changes.
What we expect to see, we'll go through a few of them, but what
we expect to see are lots of probusiness changes.
So removal of of some Biden era decisions, even going back as
far as some Obama era decisions that could be on the chopping
block. Interesting.
So when we think about some of those decisions, can you walk us
through what might be on the chopping block then?
Yeah. So you know we've talked about
previously and I'm sure people have have paid a lot of
attention to the non compete issues that have been going
around the last couple of years. Same type of thing with
confidentiality and and non disparagement provisions.
Previously there was a an NLRB decision that held severance
agreements that contained confidentiality clauses and non
disparagement clauses could possibly violate employee rights
even if the severance was signed voluntarily.
Essentially keeping them quiet with would be against the
leaving employees, right? Under the new board, we're
anticipating that this would just be removed reinstating the
prior the prior board ruling that post employment
restrictions do not interfere with employees NLRA rights.
And so it would essentially mean that employees would still be
bound by confidentiality and non disparagement clauses.
So what that means in practice is that if you're, if you're
leaving a company and you sign a severance agreement or at the
beginning of your, your employment with the company,
you, you negotiate A departure package.
It will probably include a non disparagement clause, which
means that you can't leave a Glassdoor review that speaks
poorly of the company or your manager or the owner.
You can't talk with other employees negatively.
In practice, a lot of this stuff can be hard to prove, but it's
still, it's still in the contract.
It's still something that technically you're you're bound
by. So it's like it, it basically it
could be enforceable if someone were able to figure out that
someone were disparaging the company if they were potentially
bound to that. That's interesting.
I, I mean, I'm curious, obviously I can see both sides
here. As an employee, I can see, well,
you know, you want to have the right to express your experience
from, you know, what the company experience was as an individual.
And I can also see from the employment side or the employer
side why these agreements are so important because of, you know,
like a company could do everything right?
And that agreement is something that they really, you know, kind
of lean on in the event that someone who's really disgruntled
is kind of trying to tear things down.
So I could see both sides. So I'm curious like what the
pros and cons would be to basically either overturning
like changing some of the these rulings or keep, you know, like
what I guess what the pros and cons would be either way, maybe
that's the best way to to phrase it.
Yeah, I think the, I think in my opinion, I think the the
biggest, the biggest sort of broad brush change that we'll
see here. It's no secret this
administration is extremely probusiness and, and many of
their decisions, many of the, the people that have been
nominated to key to key positions are extremely
probusiness. And so we're going to see that
trend. The, I think the the overarching
theme for the administration in possibly overturning, reversing
some of these prior decisions is to prevent businesses from
having to spend what they see as unnecessary litigation money.
Instead of having to spend money to go after a prior employee
for, for a Glassdoor review and an Indeed review or, or for
talking poorly to current employees, they, the company
could then use that money to hire more people or put more
money into R&D or just save cash.
That I think is the, you know, everything comes down to money,
right? Like I think that is, I think
that's the ultimate, the ultimate overarching theme that
we're, that we see across all of these is that it just comes down
to this administration wants to help businesses retain cash.
And I think that's that's, I think that's the ultimate,
ultimate goal. Got it.
And then as it relates to like the state by state laws, like is
there is there any impact there where this is obviously a
national ruling, but then could states have their own kind of
set of principles or laws that potentially are more or less
strict than the national ruling? So the states can't have
anything that's less strict, but they can have more strict, at
least for now. I anticipate that there there
might be a challenge before the Supreme Court that would make
these decisions nationwide and and void any state laws that are
more strict. But take California for example.
We've used them in in our discussions previously with the
non competes. Same thing would be the case
here. They may keep the non
disparagement confidentiality clauses the the sort of the
boundaries that currently exist, even if the NLRB takes a step
backwards. So if you're in California, you
might nothing, nothing effectively might might change
for you if if the NLRB reverses course.
Got it right. That makes sense.
So I think it's, it seems to me that of course HR leaders are
going to have to kind of keep a pulse on some of these things.
There are great like newsletters and articles that kind of keep,
you know, the I, I'm subscribed to like the Human Times
newsletter. And they generally send a lot of
international pieces of information actually that that
could impact HR or the workplace people.
And so I would probably recommend people to, to find
some newsletter that resonates either with their industry or
that gives them information that keeps them up to date, because
this is something that could have systemic changes with how
businesses operate. I mean, the non compete alone,
that's something like even in my husband's work, they were
talking about that in the last year or so, Like how does that
change? Because in in a lot of fields
and a lot of industries, he's in healthcare, there's, you know,
there are restricted covenants and non competes that really put
a lot of restriction on how you can actually work and where you
can work. And that, you know, they're,
they're pros a lot for a lot of pros for the employer in that
regard and a lot of cons for the individual.
So it'll be interesting to see how all this shakes out.
And I know there are some other kind of things to discuss within
some of these national kind of potential changes, one of which
is, you know, recognition of unions and specifically related
to Cmax. Am I saying that correctly?
Cmax. Cmax.
Yeah, Cmax construction. Right.
Yeah, Cmax construction materials specific, I'll see.
And that they dramatically altered the process for union
recognition, requiring employers to either, this is a prior
ruling, by the way, to either voluntarily recognize a union
based on a card check or promptly file an RM petition for
a secret ballot election. Crucially, if an employer
commits any unfair labor practices during the pre
election period, the board could issue a bargaining order
compelling recognition regardless of the vote outcome.
So there's an anticipated shift here, right?
And I, I, I realize that this might not necessarily be for
every union, but related to this particular case.
Could you walk us through that? Yeah.
Again, theoretical in nature at the moment, but we would expect
that if if these two people are confirmed to the NLRB, they
would they would reverse course on on this prior ruling
essentially allowing employers to to reject the physical card
based union recognition and election process.
It would there this kind of is combined with with another union
issue that might be reversed and Amazon has actually filed filed
a charge in in that one. So there's something in in union
meetings called the captive audience.
And that is a long standing, long standing provision from the
NLRB that that requires people, employees to sit in a meeting
where the employer tells them essentially why unions are are
are bad for them. So the the the new board could
restore sort of reverse course again on that for these captive
audiences. So that would allow employers to
then once again say, we don't want you to join a union.
We don't need a union. We're all we're just a family
here. We're just everybody's,
everybody's wonderful. You don't need a union to
protect your rights. We're doing the best by you.
Trust us. So under the under a binary
ruling that sort of what I just laid out that that sort of
conversation could not be forced on employees.
Employees would have the option to sit there and listen to that
or leave. We could see that sort of take a
step back. So these two things together are
sort of attempting to weaken unions across the country, like
you said, not necessary for for everybody in the country.
I think union membership is down now below 50% nationwide.
So it's not, it's not as widely wide, it's not as wide of an
issue as it used to be. But these two things would
certainly take a step back, allowing for more employer again
my words, more employer persuasion in in the anti union
space. Interesting.
You know, maybe I'm mistaken here, but I was always under the
impression that at least at the federal level, maybe it's
President Trump, maybe it's others, that there was a general
like pro union stance, like more generally speaking, right?
There. So, yeah, it's certainly not
with this administration there. There used to be in the gosh,
this is going to test my memory now.
I think it's sixties, 60s or 70s union.
In the 60s or 70s, union membership peaked at something
like 8085% of the country. And that's where we saw a lot of
progress with employee rights. We saw minimum wages in
different industries increase. Yeah, Labor Day exactly.
That's, that's a union thing. So we then in, in the 80s with
Reagan, we started to see a decline in union membership as
deregulation really, really wiped a lot of, a lot of things
out. And but as you and I have talked
about before it, even if you're not a member of a union, but you
are in an industry that is is governed by a union or you're in
an area of the country where union membership is extremely
high, you actually still see benefits where union membership
is high. Wages are also higher than than
the national average. So unions do have a positive
impact even if you're not a member.
Interesting. Interesting.
Yeah. I mean, it's funny.
When I was, when I started working in HRI, was working at
Target. That's like where I always say
that's where I sharpen my knives and stuff like that.
It was a great experience. I remember there was so much
discussion on Labor Relations and that we were really like
trained on how to communicate that we like, quote UN quote,
protect our signatures and that we should encourage it.
Like part of the training, even for employees is to protect your
signature. Like only sign things that you
really believe in. Like if there was no coercion,
obviously it was like, you know, really trying to explain what
happens if you do sign a card, for example, in this case, or,
or, you know, sign up or for something.
And there was one instance where like a particular CVS pharmacy
within a Target store did end up unionizing.
And I think it kind of put a lot of even more emphasis, I should
say, on Labor Relations at Target and, and just the
training in general, which is really interesting.
And, and it's funny, it's never come up again in my career.
Like there was never again a focus on Labor Relations.
I don't know if it's because that was the largest corporation
that I had ever worked for or if there was, you know, there's an
impact there, but there's there like everything, there are two
sides to everything. There are pros and cons.
Some people who are in unions say that, you know, like I have
family members who are part of unions, for example, based on
the industry that they're in. And they're like, I love my
union. It really protects my interests.
There's always, you know, especially like teachers unions,
for example, they're always like, you know, fighting for our
interests. And then I hear from the other
side of the coin, it's like, well, I really don't like my
union. I never have any control.
I don't have any say. They kind of just decide what
matters to them. And frankly, that is kind of
like the case for anything. You could see both sides every
just because it's a union and two industries doesn't mean that
it's going to be properly run or run in a way that people want to
to see it run every single time. And then I see it on the other
side where it's like in a non union environment, there's so
much more control as an employer to be able to change or or
maneuver and adjust the ways in which we support the teams.
But I've said before on the podcast that a lot of the times,
at least in my experience, union discussions come up when people
are really unhappy or feel that their interests are not being
supported or considered. So there is definitely an
element to that where businesses are businesses who maybe don't
want to see employees unionized potentially they're inclined to
protect the interests of their employees still and really lean
into employee engagement and satisfaction and how they
support the people who drive their business.
Just my my opinion. Exactly.
And that's, that's where unions can have sort of a, an ancillary
impact on, on companies, on businesses that don't, that
aren't unionized. They see that, OK, you know,
this Target is, is unionizing, this Starbucks is unionizing.
And we understand that it's because employees feel like
they're, they're being overworked, underpaid, not
getting the benefits that, that they think they should have.
So let's, let's increase ours. Let's let's increase our wages,
let's increase our benefits, let's add some benefits.
Those can be those can be positive impacts that that
again, unions can sort of have that have that knock on effect
from for, for for their neighbors.
Right, right. You mentioned deregulation
actually as part of this discussion, which is a good
segue for us because there is a change, a pretty big change at
the with regard to the Department of Labor and, and a
lot of deregulation that we're seeing here.
And so the Department of Labor has launched one of the most
sweeping deregulatory efforts in recent memory, advancing over 60
proposals in response to President Trump's executive
order to rescind 10 regulations for every new one issued.
So what does that mean? What are some of the proposed
deregulations as a result of this?
So some of the most notable things are one of them.
Again, not applicable to to everyone, but OSHA is is a big
one. And it would, this would really,
in my opinion, harm some some workplace safety issues.
The they want to roll back reporting requirements for
muscular musculoskeletal disorders.
So that would be like, you know, you're sitting at a computer all
day typing and, and carpal tunnel starts to develop.
You get pain in the wrist. You go to the doctor and that
would currently you would report that to your employer.
They would have to make some accommodations for you.
They would have to report that to the federal government that
there is there is someone suffering from from this type of
injury at work. That would no longer be the
case. So these types of things think
construction workers and back injuries, any, any type of of
work specifically or mostly manual labor, but it would it
would roll back a lot of those reporting requirements, which
ultimately reduces the payouts for workers comp.
So again, going back to the money conversation, this then
would would keep employers rates low.
Got it, got it. I noticed there was something
also on some fiduciary plan changes under the ERISA, which
for those who might not know their requirements related to
really like, I mean, maybe I'm maybe I'm not an expert in this,
but my understanding is like requirements related to any type
of like retirement contributions plans that are might be in
place. Like for example, I've been,
I've worked with Fidelity before and they have, you know,
fiduciary rule. They have a fiduciary that they
work with and their plans and they're all kind of compliant
under the ERISA. But what are some of those
revocations that you're seeing under some of these rollbacks?
So, yeah, like you said, under, under ERISA, the, the, the plan,
the plan manager, which is often the employer has a fiduciary
duty to, to ensure that, that the their employees money is
being managed properly, that the fees are normal, not outrageous.
And, and those would be rolled back.
Essentially. It would be similar to to some
of the rollback that we're seeing on personal credit cards
and overdraft fees from banks. So that again, was was a Biden
era rule where overdraft fees, I think had to be capped at like
25 bucks or something. The Trump administration wants
to remove that. So, you know, they can charge
100 bucks if you overdraft by a dollar or something like that.
This is the same type of thing you would see, you would see
fiduciary duty drop. There might still be some level
of fiduciary duty, but you would see a drop in litigation.
So if investments are improper, if you know if if instead of
putting putting the the employees funds into a whole
market fund or diversifying across many different areas,
they put everything in, I don't know, they put everything in
Bitcoin. 100% of your funds are in Bitcoin, and Bitcoin crashes
that would be that would absolutely trigger trigger
litigation. And now it might be more
difficult for employees to prove that the plan manager failed in
their fiduciary duty. I see, I see.
Very interesting. Yeah.
I mean, I'm, I guess I'm trying to better understand this.
So basically the possibility here is that for part of the
deregulation is that for every new regulation that's not just
proposed but basically approved and issued, 10 regulations will
be rolled back. How are those rollbacks decided?
Is it like based on this new issue is based on employee
benefits and so we're going to rollback 10 regulations within
that category like how is that going to work?
I think, I think they're throwing darts, honestly.
I, I there, there doesn't seem to be a there's, there's no
correlation. So like if you're to your
example, if, if you're, if you're adding a new rule on or
rolling something back on on employee rights, the other 10
that are eliminated don't have to be related to employee
rights. It can.
It can be whatever they're, whatever they feel like today.
Got it, Got it. Interesting, interesting.
I guess we'll see what happens there.
I mean, I know there's one other point here that we kind of have
in our notes that I think is probably worth talking about
with regard to this deregulation.
And that's around the independent contractor rule that
was present during the Biden era Department of Labor.
But I don't remember what that rule was other than maybe the
potential for misclassification and having to really make sure
that you go through like the test, for example, to ensure
that contractors are contractors are not employees.
But I guess I wasn't, I, I, it'll be interesting to hear you
kind of explain that. I'll say I'll, I'll call us for
now. Yeah.
So the so the independent contractor rule has changed.
That is the one thing that that that we can talk about here that
that's not theory that has actually changed.
So the I won't get to in the weeds, but like the, the, the
test for whether somebody is an employee or an independent
contractor under the, the Biden, the Biden proposal was more
employee friendly. The essentially the burden was
on the employer to show that this person is not an employee.
That has shifted. It is now back to what it was
previously where it's it the burden is more on the employee
to show that they are an employee.
So you, you have what is it today it's almost 60% I think of
the country that that is gig working in some fashion, whether
full time or or part time and that's mostly done on a 1099
basis independent contractor basis.
So what we're seeing is a lot of employees, a lot of workers who
are working as independent contractors and some of those
are probably employees essentially for employers and,
and for the HR pros listening, everybody probably already knows
this. But the, the, the big picture is
when, when you're looking at whether somebody is a 1099
independent contractor or an employee, do you as the employer
control their work hours, what they do and when There's more to
it than that, but those are kind of the, that's the big picture
item. If you if you do any of those
things, the worker is an employee, not an independent
contractor. Yeah, the I did an episode on
this. I can't remember if it was this
year or last year, but I did talk about how important it is
to ensure correct classification and I shared resources in on
where people can go and find the test.
And you're right, there are more elements to that, but it is
pretty important that it happens a lot.
And it's actually something that I've learned in managing a
global workforce in the last several years is that the
contractor rules that we understand in the US are kind of
like held in other countries. Like there are other countries
that that do prefer like their employees in other countries
like in Brazil and Argentina and other places where they prefer
to be contractors. I think it's because of some of
the tax laws, but the the potential for misclassification
remains just as high as in other as as it does here.
And so I would encourage anyone who is managing a global
workforce to really understand each country's kind of standard
on that. And most people are probably,
you know, kind of tuned in and, and focus on the US and
generally the larger the company, the more resources you
have in those particular local markets.
But where then you have like someone in HR who knows what
they're doing in those countries.
But still, you know, it's, it's not lost on me that there are
likely people who are managing international workforces and
they really need to think about that.
So that's all very interesting and not theoretical for the US.
Very, very interesting there too.
I'm going to have to go and take a, a look and a refresh on the,
the test and make sure that I'm, I'm up to date as well.
And so all of these things that we've talked about today, of
course, put a lot of onus on HR pros and as they always do,
because we are, you know, the subject matter experts in this
alongside our legal colleagues. And so there are some things
that we should be proactive in, which is really focusing on
compliance, auditing our handbooks, of course, preparing
for some of these, especially when we think about like union
activity, preparing for those types of motions and movements
within organizations, tracking all of these changes or
potential changes that may come. And then of course, assessing
impact on business OPS. And I don't know if there's
anything that you want to add here.
I obviously went over kind of the the high level elements
there, but what advice do you have to HR leaders so that they
can really think about this and and be prepared?
So what I was thinking this morning while while putting some
notes together for for our our call today, I was thinking,
thinking about it like weather. This is kind of like a shifting
weather pattern. Some pads might clear up and
some might get even stormier, but you have to you got to look
out the window to keep running. With this analogy, you got to
look out the window to see, to see where the clouds are.
And I think that that's, that's probably the most important
thing for for HR professionals, whether they're in a A20 person
company or a 2000 person company is to, to understand what's on
the horizon, to be able to prepare for it.
There's just, you know, as you and I talked about before,
there's, there's just so much happening right now and there's
a lot of whiplash in the HR space.
And so it's it's being prepared without being reactionary.
I think is, is one of the most important sort of mindsets to
have. You know, whatever you see on
the news today, it doesn't mean you need to run and and write a
whole new handbook. Right.
I mean. It might, but it doesn't, it
doesn't automatically mean that. So I think the, the yeah, the
the big take away is to again, stay in, stay on on top of
things, understand what matters for your business, understand
where your weak points are. You know, you talked about
auditing a minute ago. I would, I would add to that
sort of unrelated to some of the conversation we've had today.
But while we're talking about auditing I nines that is that is
huge right now. That is, that is ISS door entry
point into your company. So make sure your I nines are,
are in order and separate from everything else.
So yeah, I think it's, it's really just, it's staying on top
of things. And I know that many HR
professionals are already underwater and overworked with
everything that they're doing, trying to manage.
So one more thing might be, might be a little bit too much.
Yeah, exactly. But to your point, you know,
there's, there's great resources.
There's, there's people like me who can help out.
There's, there's podcasts like yours, which are a great
resource. There's also, I subscribe to
several law firm employment law firm newsletters.
There's some great ones and and making sure that you're just
staying on top of of what's happening in in your area of the
country. Yeah, totally.
And actually, it really is a great time probably for HR pros
to think about outsourcing some of this to your point, like
bringing in Someone Like You to really be able to help navigate
some of these things related to their company or their industry
or their state. You know, sometimes we're just
not the right people to own every single thing.
And that's OK. Like, I, I mean, even just to
like put it into a different perspective.
When I was working still in, in retail, we went from like 1HR IS
or HR information system to another and we were like, we
can't manage that migration. Like it's way too much.
We have all these like regular day-to-day operations that we
have to manage. So we brought in a consultant
and they managed in the migration and it was great and
they did a great job. And so that's like a, you know,
another quote, UN quote, real life example of how sometimes
outsourcing these things is that the best is really the best way
forward. Because then you're bringing in
a real expert for some of these things who can help you navigate
and who can really consult on what changes you you need to
make versus what changes you you need to think about potentially
making as you know time goes on and decisions are made.
So Brian, thank you so much for another great policy pulse.
I don't know which number this is, but I feel like it's number
5 or 6. I think we've been going strong
for a few months here. We have been, yeah.
And I, I think we've got at least another few months of, of
some, some rapid developments, yes.
I think so. I think so.
So in that case, I'll let you go and I will see you in another
month as well. All the listeners.
So thank you so much again for all of your insights and helping
us to navigate some of these upcoming potential changes.
Thank you, Tracy. Appreciate it.
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