USA Law and Practice Contributed by: Chuck Baldwin, Ken Siepman, Bonnie Martin and Justin Allen, Ogletree Deakins
ity and morale. Companies pushing return-to-office mandates have had to use desk sharing given space limitations. That approach can increase collaboration and sociability and optimise pricey square footage, but there are also challenges involving confidentiality, privacy and hygiene issues. Companies are also utilising fractional employees, individuals who work part-time for one or more employers, usually offering specialised expertise (eg, financial, legal). This approach offers flexibility and cost-savings for employers, but there are attendant issues involving preserving confidentiality, employee morale, and classification (employee or contractor). One concrete example of a new work approach is unlimited paid time off (PTO) or unlimited vacation. This has been attractive to some employers and com - panies because it highlights autonomy and respon - sibility. However, one challenge has been that some employees feel they have less ability to use PTO, whereas some employers have encountered what they believe to be excessive use of the policy. Unlim - ited PTO can also create unexpected legal challenges. In jurisdictions requiring payment of PTO or vacation upon termination, companies can face claims for large payments on the basis of unlimited PTO. Employers using this approach should consider adding provi - sions that require some employer approval on the timing and length of PTO, criteria for any payout at termination and interaction with other leave (medical or family). Although wellness programmes can help with work - force morale, there are potential legal issues to be aware of. Making wellness programmes voluntary instead of mandatory helps avoid some risks, as does being careful about the type and amount of informa - tion requested and collected.
in “protected, concerted activity” in the workplace regarding the terms and conditions of their employ - ment and, if they choose, to organise a union. Although 29.5% of American employees belonged to unions in the 1960s, union membership in the private sector has declined steadily since then and current - ly stands at just 5.9%. In contrast, the percentage of union employees in the public sector has grown markedly in the past 20 years and currently stands at 32.2%. The NLRA prohibits private sector employers from interfering with, restraining or coercing employees in the exercise of their rights to organise a union or their rights to engage in other concerted activities for mutual aid or protection. The NLRA also protects employees’ right not to organise a union and not to engage in other concerted activities. 6.2 Employee Representative Bodies Section 9 of the NLRA prescribes general rules con - cerning the election process. The NLRB and the courts have also developed processes through which employees have the opportunity to cast an informed vote in an election to determine a union’s representa - tion status. In December 2023, the NLRB issued new guidelines on the conduct of representation elections, thereby revising rules implemented under the prior adminis - tration that were considered by unions to have tilted the process in favour of employers. The newly revised rules seek to advantage union interests in the election process. This is not surprising, as the administration that passed the rules was openly pro-union, and deci - sions from the NLRB through 2024 reflected such pro- union leanings. Once elected, the role of the union is to represent the interests of the employees in the bargaining unit fairly and negotiate the terms and conditions of employ - ment with the company. These include wages, ben - efits, and other terms and conditions such as seniority, overtime and work schedules. Under the NLRA, subjects of bargaining are divided into two categories:
6. Collective Relations 6.1 Unions
The NLRA, enacted in 1935, was designed to provide rules to limit “industrial warfare” following a period of violence and unrest between employers and employ - ees. The NLRA protects employees’ rights to engage
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