Labor Relations

US Department of Labor headquarters sign

The issue

Since President Trump took office, the Department of Labor and the National Labor Relations Board have rolled back pro-union policies adopted under former President Obama and have begun to return to their traditional roles as impartial arbiters of labor-management issues. DOL has pursued action to reverse an expanded definition of “joint employer” that exposed independent companies to seemingly limitless liability and increased lawsuits over labor disputes. The department has also proposed modernizing federal overtime rules in a reasonable manner after a U.S. District Court judge struck down Obama-era regulations that would have greatly increased the number of workers who must be paid overtime. The NLRB has reversed a ruling that allowed the creation of “micro-unions,” has proposed commonsense rules on the definition of a joint employer to replace its own expanded definition, and is considering whether to reverse regulations that allow “ambush” union elections.

NRF has welcomed the moves as a sign the Trump administration is “serious about restoring common sense to the rulings governing America’s workplaces.”

However, with Democrats now in control of the House, legislation has been introduced that would broadly expand the power of the NLRB and codify both the Obama-era joint employer definition and a number of other initiatives put forward by organized labor over the years. NRF has told Congress that the Protecting the Right to Organize Act supports “radical proposals that have been rejected by the courts, the agencies charged with administering them and/or Congress.” With Republicans in control of the Senate and White House, the PRO Act is not expected to become law, but NRF is working to ensure that the sweeping measure is defeated.

Other ongoing labor-related issues include efforts to reform the controversial Affordable Care Act, state and local laws that would limit flexibility in retail scheduling, flawed SEC pay ratio regulations, and long-stalled efforts at immigration reform.

Why it matters to retailers

store employee stocking shelves

Faced with years of declining membership in traditional strongholds such as manufacturing, union leaders have targeted traditionally non-union industries. Among them is retail, where only about 5 percent of employees are union members. Both the micro-union ruling and the ambush election regulations sought to make unionizing retail workers easier, the first by allowing unions to concentrate on smaller groups of workers and the second by giving retailers less time to respond. The micro-union ruling also had the potential to make it difficult for a retailer to move workers between stores or departments or cross-train them for different jobs. The expanded joint employer definition exposed companies to more lawsuits over labor disputes, potentially laying the groundwork for unionization attempts.

NRF advocates for balanced labor laws

NRF chairs the lobbying committee of the Coalition for a Democratic Workplace, which was formed to oppose anti-business and anti-worker labor laws, regulations and rulings that threaten job creation and economic growth. NRF supports workplace rules that promote workplace flexibility and economic growth, while opposing onerous policies that intrude on business operations, undermine employees’ privacy rights, and lead to unnecessary costs for retailers. NRF has worked with the White House and Congress and in the courts to oppose the joint employer, ambush election and micro-union measures, among others.

warehouse working moving a pallet of merchandise

NRF backed a federal lawsuit to block the NLRB’s 2011 micro-union ruling, which allowed bargaining units to be formed in a single store of a retail chain or a single department of a store, but it was nonetheless upheld in court.

NRF also went to court to block ambush election regulations adopted by the NLRB in 2014, which allow a union organizing election to be held in as little as two weeks after it is requested rather than the previous average of five weeks. That, too, was upheld by a federal judge but could now be reversed by the board