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INSIGHT: The ‘New Normal’ in Labor Relations as Businesses Reopen

June 1, 2020, 8:01 AM

After months of closures due to Covid-19, some businesses are taking tentative steps to reopen. Yet, they are confronting a “new normal” in labor relations, rather than a simple return to “business as usual.”

As they reopen, businesses must prepare for a host of labor relations challenges ranging from a spike in employee activism to direct organizing drives. These challenges all stem from employee perceptions of job insecurity, alienation, and unsafe work practices, which are unlikely to be altered as the pandemic continues.

For example:

  • Unionized employers must respond to demands for premium pay, enhanced workplace safety protections and other concessions. They must also prepare for potential strikes and protected work stoppages due to abnormally dangerous health conditions.
  • Non-union employers should brace for a surge in organizing activity.

Protected Concerted Activity During the Covid-19 Crisis

Unsurprisingly, labor organizations have already started to exploit these employee anxieties in both unionized and non-union workplaces to secure their place at the table. Both unionized and non-union employees, with the support of labor organizations, are engaging in protected concerted activity to bring pressure to bear on their employers.

These protected concerted activities include:

  • Appeals to the news media;
  • Appeals to the public via social media;
  • Walkouts/sickouts in response to hazardous working conditions; and
  • OSHA or other administrative complaints.

These actions overwhelmingly target “essential” employers. Recent walkouts at Amazon, Instacart, and Perdue shine a national spotlight on worker demands, in the hopes of effectuating change outside of the traditional collective bargaining relationship.

Employers must now focus on developing effective public relations responses and business operations strategies, while simply trying to stay afloat during these unprecedented times.

Employers should expect labor organizations to continue this strategy in the months and years to come, even as “non-essential” businesses begin to reopen. Protected concerted activity will continue and even increase as employers resume operations and require employees to report to work.

By latching onto worker frustrations and demonstrating the power of collective action, unions are hoping to win back some relevancy in the modern workplace. It appears to be working: a growing number of American workers have adopted a positive view toward organized labor.

Ensuring Workplace Safety as Businesses Reopen

The most popular rallying cry for unions during the ongoing Covid-19 pandemic is worker safety. By verbalizing employees’ fears and spurring employer action, unions have a platform to demonstrate their effectiveness in a variety of “essential” trades. Non-unionized employers should expect unions to use these successes to curry support for organizing efforts, particularly in historically unrepresented industries. Unionized employers should anticipate demands for hazard pay, additional paid leave, and other changes to terms and conditions of employment, along with requests for information about its Covid-19 response.

An employer’s most effective response is making health and safety a priority. Without question, every employer is concerned with ensuring the health and safety of its employees, customers, vendors and the public.

However, employers must take affirmative steps to demonstrate their commitment to a safe, healthy, and productive work environment, including:

  • Following CDC and local government guidance regarding personal protective equipment, sanitation, and social distancing;
  • Reviewing/revising workplace safety policies and publicizing those policies; and
  • Training all employees to adhere to those policies, consistently disciplining those who fail to do so.

It is critically important that employees are aware of the steps being taken to ensure their health and safety. It demonstrates employers are listening to their concerns and responding appropriately, eliminating the need to involve an outside third-party to speak on their behalf. It also engenders trust, which is particularly important during this period of uncertainty.

Effective Communication Is Key When Responding to the ‘New Normal’

Indeed, one fact remains unchanged regardless of an employer’s union status: employers must establish clear lines of communication with their employees. This requires employees to re-evaluate what that looks like, as employees may be physically disbursed in this era of social distancing. Face-to-face meetings, the form of communication relied on by employers for eons, have been severely curtailed or, in the case of larger town hall meetings, eliminated altogether.

Unions will use this lack of communication to their advantage. Over the last decade, unions have adopted a more modern approach to organizing and member services, focused more on social media and electronic forms of communication. Put simply, unions are now more sophisticated than ever when it comes to delivering their message from a distance—and they have a running start on employers that rely upon conventional communication strategies.

Employers would be wise to employ a similar strategy to positively and effectively engage with their workforce. This may include:

  • Disseminating information by social media presence, including LinkedIn, Instagram, Twitter, and Facebook;
  • Replacing in-person town hall meetings with webinars or video meetings (via Zoom or Microsoft Teams); and
  • Promoting programs, opportunities, special company occasions, recognizing employee performance and hosting virtual happy hours via video platforms.

At a minimum, employers must continue to engage employees directly and interactively as part of the “new normal.” This is critical to ensure strong labor relations and, for non-unionized employers, honoring employee choice in remaining union-free.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Todd Lyon is co-chair of Fisher Phillips national Labor Relations Practice Group and partner in the firm’s Portland and Seattle offices where he represents public and private sector employers in all facets of labor relations.

Lisa Vickery is a Labor Relations partner in the Portland office of Fisher Phillips where she represents employers in labor negotiations, labor arbitrations and administrative hearings, as well as litigates on behalf of her clients before the NLRB.

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