Law360 Quotes Bryan Hawkins on Implications of Pandemic on Whether Laid-Off or Furloughed Workers Can Vote in Union Elections

Labor and employment partner Bryan Hawkins was quoted in Law360 in an article titled “NLRB Offices Grapple With Virus Layoffs’ Effect On Unit Votes,” published November 20. (Subscription required.) The article discusses issues facing National Labor Relations Board (NLRB) officials when they make decisions as to whether workers laid off or furloughed due to COVID-19 can vote in a union election.

The NLRB historically based its decision on if laid-off or furloughed workers can vote in a union election on the workers having a “reasonable expectancy of recall in the near future,” taking into consideration several factors, one of which is what assurances were given to workers about their chances of coming back to work.

Despite vague statements on a Texas casino’s marquee and website and comments made by its managers to furloughed employees as to when they would return to work, the lack of a reasonable expectation that the workers would be recalled led to the NLRB’s August 2020 reversal of a decision by one of its regional directors to hold an election on the workers’ bid to unionize. The first time the NLRB applied the precedent to pandemic-related furloughs, Hawkins believes it is indicative of employers being given more discretion as the economic effects of the pandemic linger.

“Whenever you see the word ‘reasonable’ in a standard, you’re going to get a very diverse range of decisions, and ... a lot of this is just based on the evidence before the board at the time, how it’s presented, what the specific factors are,” Hawkins said. “But I think that as this proceeds and the longer this goes on for, I think you’re going to see the term ‘reasonable’ interpreted in a way that’s more deferential to employers going forward.”