Polsinelli PC attorney Jay Dade knew early on that 2020 would not be a typical year for his labor relations practice.
One of the management-side attorney's clients sought in mid-March to expand its leave offerings, before Congress set a national standard with the Families First Coronavirus Response Act. Because this client's workers were part of a union, this meant revisiting their collective bargaining agreement during its term. Often, parties will leverage this sort of mid-term request to win concessions in other areas of the contract. Not so in 2020.
"The union's response, to their credit, was simply, 'Thank you,'" Dade said. "[The union] could have looked at the situation and said, 'Well, let's look at some other things.' They did not, because it appeared to me at that time … that the concern on both sides was, what can we do to help our employees?"
Not all dealings between businesses and unions this year have been quite so collegial, but they have been far from normal. From negotiating contracts over video chat to navigating a web of new legal benefits and obligations, labor attorneys on either side of the union-management divide have faced a host of novel challenges posed by the coronavirus pandemic.
Novel Issues
Workers and employers were confronted with several novel issues amid the rapid spread of COVID-19 in the late winter and early spring. In unionized environments, these concerns sparked talks between workers and employers.
Squire Patton Boggs LLP of counsel William Kishman said many of his early negotiations for businesses concerned layoffs, which employers must generally hash out with unions before implementing. As shutdown orders forced businesses across the country to close or scale back nonessential operations, unions sought to enforce contract language protecting more senior workers' jobs or allowing them to transfer, Kishman said. Leave and child care were also hot topics, he said.
These early talks were generally amicable as both sides fought for their shared interests in keeping the workplace humming, Kishman said. But parties have begun to dig in as the pandemic has worn on.
"Unions and employers are starting to recognize that because this is going to be a longer-term issue, and it's likely to continue at least midway into next year, that it's more important for both sides to really work to advance their interests," Kishman said.
Attorneys have also had to help their clients understand new federal and state laws that arose out of the pandemic, including the Coronavirus Aid, Relief and Economic Security Act, which provided funds to help businesses keep their doors open and expanded jobless benefits for workers displaced by the pandemic.
Samuel Morris, a partner with
Godwin Morris Laurenzi & Bloomfield PC who represents unions, said his practice "quickly devolved into deciphering the hastily crafted CARES Act legislation" and the reams of guidance the
U.S. Department of Labor issued on the complex law. Early on, it was unclear how benefits would be paid, how large they would be, and who would get them, he said.
"As the clarifications unfolded, we were able to work with covered employers to explain their obligations, and to urge the larger non-covered employers to at the very least meet the benefits afforded by the act," Morris said. Morris also helped union members navigate "overworked" state unemployment systems, he said.
Union side attorney Julie Gutman Dickinson said she has also spent much of her time this year helping workers, especially those from communities of color that make up a disproportionate share of the low-wage workforce. Working with the Los Angeles County Federation of Labor, Dickinson's firm has staged food drives, handed out personal protective equipment and helped workers secure COVID-19 tests, she said.
"We have to focus on saving lives and preventing economic disaster," the
Bush Gottlieb attorney said.
Going Remote
The pandemic has also seen the practice of labor law go remote, as attorneys negotiate contracts and arbitrate disputes over Zoom, and worker organizing shifts from the workplace to the internet.
In some ways, the shift to videoconferencing has been rocky, said Kurt Larkin, a
Hunton Andrews Kurth LLP partner who represents businesses. In his experience, contract talks go smoothest when the parties can connect with each other. That's tougher over video, which affords fewer chances to build a rapport via conversations away from the bargaining table, he said.
"It's just difficult to really connect in a meaningful way," Larkin said. "At a certain point in long labor negotiations you have to work together to get it done, and to get to the heart of issues that may be preventing agreement. It's harder to do that when you're separated physically."
Kishman, the Squire Patton Boggs attorney, said Zoom bargaining was awkward at first, but that feeling quickly dissipated. He recalled representing a business in talks with a longtime bargaining partner with whom the company has a mostly smooth relationship. Past sessions were very formal, but the parties let their guards down during the pandemic, he said.
"One labor rep, she had her daughter sitting in her lap for an entire negotiating session," Kishman said. "There's just a lot more humor in the process."
Worker organizing has also moved mostly online in the pandemic, Bush Gottlieb's Dickinson said. Typically, workers plan actions or pitch unionizing to their colleagues in person, but that's not feasible during the crisis, she said.
"All the unions I'm working with are using social media left and right, a lot more phone calls," said Dickinson, who has trained workers via video conferencing during the pandemic. "But there still is some level of limited, in-person protest, particularly with essential workers."
No Going Back
While these changes to the practice of labor law are rooted in the COVID-19 pandemic, some may persist after the crisis abates.
After several months of conducting hearings and negotiations entirely over videoconference, Polsinelli's Dade said he expects to continue virtual meetings in the long term. In-person sessions may be necessary to push contract talks past the finish line, but videoconference is a fine format for the early stages of talks, especially if it saves the parties the hassle and expense of travel, he said.
"I have a client that I think may very well, the time of their next contract negotiation, we may be looking at … a hybrid where some sessions are done virtually," Dade said.
The pandemic has also made active supporters of many workers who were previously tepid on their union membership, said Morris, the union attorney. During the pandemic, unions have provided workers with personal protective equipment, tempered layoffs and furloughs in bargaining, and in some cases secured hazard pay for their members. Nonunion workers have not enjoyed these benefits in many cases.
"Employees have seen the benefit of union efforts to ensure a safe workplace," Morris said.
And conditions may be ripe for a wave of organizing after the crisis wanes, Hunton's Larkin said. The pandemic has heightened many workers' insecurities and shown the precarity of their jobs, which tends to drive workers to form unions. The pandemic has so far prevented unions from capitalizing on these concerns en masse by making it tougher for them to talk to workers, but this may change, Larkin said.
"The pandemic has created a general concern … for the future," Larkin said. "The atmosphere is rife with the potential for unions to seize on that from an organizing perspective."
--Editing by Haylee Pearl.
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