Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As expected, individuals in several U.S. cities have taken to the streets to engage in protests and other acts of civil disobedience in an effort to push for a $15/hour minimum wage for fast food workers and to promote unionization. Organized by the "Fight for 15" movement and supported by the SEIU, the coordinated protests have reportedly resulted in multiple arrests and considerable business disruption. More significantly, there are indications these protests might expand to other industries.
Specifically, the SEIU is bringing home care workers into the fray. The union has kicked off a social media campaign among home care workers to encourage their support and participation in the Fight for 15 protests. The SEIU has been actively targeting the home care industry for union organization, despite the recent Supreme Court setback in Harris v. Quinn, in which the Court held that compulsory union agency fees imposed on Illinois home care workers violated the First Amendment. The SEIU is likely attempting to carry the Fight for 15 momentum to this sector.
Employers in both the fast food and home care industries, therefore, should anticipate increased labor-related activity and be mindful not to improperly interfere with lawful employee conduct related to the movement. Section 7 of the National Labor Relations Act (NLRA) protects an employee's right to engage in concerted activity for the purpose of mutual aid and protection. These rights apply to both union and non-union employees. Concerted activity includes individual employees seeking to initiate group action, or a group of employees trying to bring group complaints to management, regarding employment-related concerns. Any adverse employment action taken in response to an employee's participation in Fight for 15 could be an unfair labor practice if it interferes with, coerces, or restrains the employee's rights guaranteed by Section 7 of the NLRA. Remedies for unfair labor practices include reinstatement with full back pay and interest. Employers found to violate the NLRA may also be required to post a notice to all employees outlining the NLRA violation and the remedy. Note, however, that certain related conduct may not be considered "protected" by the NLRA. The NLRB has been issuing decisions involving just how far "protected" concerted activity rights of employees extend. The law is in flux.
Labor's focus on the home healthcare and restaurant industries is in keeping with the Department of Labor's new Wage and Hour Administrator, David Weil's, belief that such industries, which are often franchises, are frequent violators of wage and hour laws. In a report he submitted to the DOL in 2010, Weil claims that many workplace law violations are due to the "fissuring" of the workplace, which he attributes to "subcontracting, franchising, third-party management, changing workers from employees to self-employed contractors, and related contractual forms that alter who is the employer of record or make the worker-employer tie tenuous and far less transparent." Although during a December 2013 Senate committee hearing Weil clarified that his concern is not with the franchise model per se, but rather with employers using franchising improperly as a means of subverting the law, franchise employers are taking cold comfort in that position, particularly in light of recent National Labor Relations Board activities.
In July, the NLRB General Counsel announced that his office intends to name a parent franchisor as a respondent in cases involving alleged unfair labor practices committed by franchisees if the parties are unable to reach a settlement. Meanwhile, in a separate case under consideration by the Board, the agency has solicited briefs to help it decide whether to adhere to its existing joint-employer standard or adopt a new one. The topic has garnered sufficient attention to warrant a House Subcommittee hearing the first week Congress resumes.
The current Fight for 15 movement, therefore, can be viewed as part of greater efforts by the Administration to hold franchises in general – starting with the restaurant and home healthcare industries in particular – to stricter wage and hour scrutiny. In addition, it is likely not a coincidence that these protests are occurring two months shy of the November elections, in which many Democratic members are using minimum wage and pay equity issues as part of their campaign narratives.
The ultimate irony of the union involvement in this strategy, however, is that reportedly, a U.S. Chamber of Commerce analysis has found that more than 40 full-time SEIU employees earn less than $15 per hour. It will remain to be seen whether the Fight for 15 crusade can be seen as an election year fad, or an enduring "civil rights"-style movement.