USA – TEXAS Law and Practice Contributed by: Alana Ackels and Katie Beaird, Bell Nunnally & Martin
feel so remote if employees can attend a virtual reality meeting with their colleagues. Some cities and industries in Texas have embraced new work set-ups, while others show no signs of embracing the new trends. For those that are moving in the “new work” direction, it will be necessary to still maintain clear expectations of productivity, work qual - ity and standards of conduct. These details can get lost in the shuffle of new work arrangements, which will make documenting working hours and disciplin - ing employees for not meeting expectations difficult. Unions in the USA surged during the Second Industrial Revolution in the late 1800s and early 1900s. Howev - er, in the 1970s and 1980s, the USA experienced the age of computers and a Presidential administration (under Ronald Reagan) that was largely anti-union. Between 1975 and 1985, union membership fell by five million. By the end of the 1980s, less than 17% of American workers were unionised. Until recently, unions were traditionally thought of as being only for the public sector or certain industries (eg, the airline, transit and automotive industries). The current union activity in the USA is in markets and industries that have not traditionally been unionised – in particular, retail and hospitality. Recently, more than 200 Starbucks stores officially voted to unionise, according to the NLRB. First-ever unions have also been formed at an Apple Store in Maryland, Trader Joe’s grocery store and the national retailer REI. What differentiates this union activity from previous union activity is that it is concentrated among young work - ers and sometimes college-educated young workers who feel over-worked, under-paid and over-educated for the jobs they have. Many have decided to band together to demand more. According to Gallup data from 2021, there is a 77% approval rate for unions among young adults aged 18 to 34. 6. Collective Relations 6.1 Unions
Generally, the top reasons employees cite for joining a union are: • “the company ignores my complaints and does not care about me”; • “my boss does not respect me”; • “the company does not care about safety”; • “I do not like my pay or benefits” or “I do not understand how pay and benefits are calculated and awarded”; and • “my boss plays favourites, and I am not treated fairly”. What the USA experienced immediately after the pan - demic had not been seen for decades, or maybe ever – employees are asking for more and they are, in many respects, controlling the market. This has tapered off a bit as experts predict a US recession; however, in the meantime, there has been a large resurgence of unions. Companies need to be aware of these issues and make sure that they are being addressed in the workplace. Even in states such as Texas that are largely anti-union, union organisation is growing in popularity. 6.2 Employee Representative Bodies The National Labor Relations Act (NLRA) was passed by Congress in 1935 to encourage collective bargain - ing by protecting workers’ full freedom of association. Although many have viewed the NLRA as antiquat - ed because it protects union activity and organising efforts, there has been more NLRB activity with the new surge of organising efforts in the USA. Even outside a unionised workforce, the NLRB safe - guards employees’ right to engage in protected con - certed activity. This means that discussions or com - ments regarding wages, hours, working conditions or other terms and conditions of employment by more than one employee – or by someone speaking on behalf of others – cannot be restricted and are protect - ed under the NLRA. The NLRB has cracked down on company social media policies in recent years where these policies appear to restrict protected concerted activity by employees on social media. In McLaren Macomb, Case 07-CA-263041, the NLRB ruled that an employer cannot demand that a laid-
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