Labor & Wages

NLRB “Ambush Elections” Rule

On December 13, 2014 the National Labor Relations Board (NLRB) published its final rule to representation-case procedures, commonly referred to as the "ambush elections" rule, which will dramatically shorten the election window during union organizing campaigns from the median of 38 days to as few as 14 days. This proposed change to election procedures would leave employers almost no time to speak with their employees about the impact of unionization on their workplace and benefits and cuts the time workers have to review all of the facts and make an informed decision about their representation.

The rule would also force employers to turn over confidential information about employees to union organizers such as e-mail addresses and telephone numbers. Resolutions (H. J. Res. 29/S. J. Res. 8,) were passed by both the House and Senate in spring of 2015 and, if enacted, would nullify NLRB’s rule. 

However, President Obama vetoed the measure and an override proved unsuccessful. In June 2015, the U.S. District Court for the Western District of Texas upheld the NLRB’s ambush election rule and the rule was ultimately upheld upon appeal. Additional legislation that would amend the election rule has been introduced but has not seen much movement beyond the House Ed & Workforce Committee. In December 2017, the NLRB introduced a Request for Information, that asks three questions:

  1. Should the Election Rule be retained without change? Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  2. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or
  3. Should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

In May 2019, the Protecting Right to Organize (PRO) Act (H.R.2474/S.1306) was introduced, which included provisions that would codify the ‘ambush’ rule into law. On December 18, 2019, the NLRB published a direct final regulation that reverses several of the “ambush” provisions. Some of the ways the new regulation restores some balance between employers and unions in the election process are: allowing employers to challenge such key issues before a vote as composition of a bargaining unit; setting the time before an election to no less than 20 business days and increasing the time for an employer to turn over a voter list from two days to five. 

IEC opposes efforts to shorten the timeline for union elections and favors proposals to roll back the NLRB’s expedited election rule. 

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'Persuader' Rule

In March 2016, the Department of Labor (DOL) finalized a revision to the “persuader” rule which changes federal disclosure rules to make it more difficult for employers to access legal counsel and legally communicate with employees about the pros and cons of a particular union, or unionization generally.

Currently, employers, consultants, and attorneys must disclose any arrangements to persuade employees about their decision on whether or not to unionize if the consultant or attorney directly communicates with employees. This is meant to ensure employees know the employer has hired the third party to communicate with them. If the attorney or consultant does not communicate directly with the employees, but instead, only advises the employer about how to legally communicate with employees, then no disclosure is required.

DOL’s rule narrows the scope of this “advice” exemption so that virtually all interaction between employers and labor lawyers or consultants will be subject to the disclosure requirements. In doing this, the Board will limit employer access to counsel, make it harder for employers to find competent counsel to represent them, and provide more opportunities for unions to catch unsuspecting employers mistakenly running afoul of complicated labor laws. The changes will also make it harder for employers to train supervisors on how to communicate with employees about labor issues without violating the law.

All of these repercussions make it less likely employers will exercise their federally protected free speech rights to discuss the pros and cons of unionization with employees, which was the clear design of the change.

In late June 2016, the U.S. District Court for the Northern District of Texas issued a preliminary injunction in the case of the National Federation of Independent Business, et. al. v. Perez, delaying the implementation of the persuader rule, which was set to go into effect on July 1, 2016.  In fall 2016, the same court issued a permanent injunction, thus stopping the rule completely from taking effect. In summer 2017, the DOL published a notice of proposed rule-making asking if the persuader rule as proposed under the Obama administration should be rescinded. In July 2018 DOL formally rescinded the rule completely. In May 2019, the Protecting Right to Organize (PRO) Act (H.R.2474/S.1306) was introduced, which included provisions that would codify the persuader rule into law.

IEC opposes DOL’s radical change to the “advice” exemption and supports the current rule, which only requires reporting requirements when a third party addresses employees directly.

Secret Ballot

Legislation was introduced in the 113th Congress that would guarantee workers a vote on union representation with the protection of a secret ballot free from coercion. The “Secret Ballot Protection Act” guards against “card check” provisions included in the failed Employee Free Choice Act (EFCA) that would have denied workers a secret ballot in union elections and imposed mandatory card check certification. 

Similar legislation was introduced in the 114th and 115th Congresses in the form of the “Employee Rights Act,” which would amend the National Labor Relations Act (NLRA) to mandate a secret ballot election for all union-held elections, and redefine the term “majority” to mean “the majority of all the employees in the unit, and not the majority of employees voting in the election.” The Protecting the Right to Organize (PRO) Act (H.R.2474/S.1306), pending in the 116th Congress, includes provisions that would eliminate the secret ballot in union elections.

IEC supports proposals guaranteeing employees the right to a secret ballot in union organizing elections and opposes eliminating this right.

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Joint Employer Standard

At the end of August 2015 the National Labor Relations Board (NLRB) released its decision on a new interpretation of the “joint employer” standard in a case known as Browning-Ferris Industries of California, Inc. The Board discarded its long-standing bright-line test whereby two companies would only be considered joint employers if they share or co-determine those matters governing the essential terms and conditions of employment. 

In addition, the prior standard required control over the employees to be direct and immediate. The NLRB’s new standard deems a joint employer to exist even where one company only has the right to exert indirect or potential control over the terms and conditions of another company’s employees.

Consequently, it’s likely that contractors could be held liable for various labor law violations of a completely separate contractor where they have no ownership stake, depending on their business relationship. A contractor may also be exposed to another company’s collective bargaining obligations, and economic protest activity, including strikes, boycotts, and picketing.

During the first half of the 115th Congress, the “Save Local Business Act” (H.R.3441), which would repeal the new joint employer interpretation and return the law to the standard that has been in place for decades under the National Labor Relations Act and Fair Labor Standards Act, was introduced and passed the House. Similar legislation has yet to be introduced or acted upon in the Senate. Policy riders to defund implementation of the standard are also pending. Browning-Ferris is currently appealing the ruling.

In December 2017, the NLRB overturned the Browning-Ferris standard in a case known as Hy-Brand, returning the standard to its pre-Browning-Ferris status. However, the Board later revoked the decision based on a determination by the Agency’s Designated Agency Ethics Official that Member Emanuel should have been disqualified from participating in Hy-Brand. In September of 2018, the NLRB issued a notice of proposed rulemaking asking if the Board should consider returning to the old joint employer standard. Comments for the proposed rule were due on January 28, 2019.

On December 28, 2018 the D.C. Circuit Court of Appeals issued a mixed opinion on the BFI appeal, in which it determined BFI should not be considered a joint employer, but still found the NLRB’s analytical structure valid. In February of 2020, the Republican NLRB issued a final rule that returns joint employer to the pre-BFI standard of direct and immediate control. The DOL followed suit in April 2019 with a proposed rule to modify the definition of joint employer under the Fair Labor Standards Act (FLSA). DOL issued its final rule in January 2020 that provides much needed certainty under the FLSA.

The PRO Act (H.R.2474/S.1306) also includes provisions that would codify the indirect and potential control standard established under BFI.

IEC opposes DOL’s radical change to the “advice” exemption and supports the current rule, which only requires reporting requirements when a third party addresses employees directly.

Project Labor Agreements (PLAs)

PLAs on federal contracts require contractors to agree to collective bargaining and union hiring. PLAs increase costs by limiting competition for federally-funded projects. Executive Order 13502, signed by President Obama in early 2009, encourages federal agencies to use PLAs. As of January 2020, President Trump has not acted on the Obama executive order. 

IEC opposes the use of union-only PLAs and supports legislation and any effort to ensure open competition on federal construction projects.

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During summer 2015, the Department of Labor (DOL) issued a final rule that would alter what “white collar” workers would be eligible to receive as overtime, which means it would affect the management teams and other staff within an electrical contractor’s operations. The Fair Labor Standards Act (FLSA) currently entitles “blue collar” employees, such as electricians, overtime pay. DOL’s proposal would require those white collar employees making less than $917 per week or $47,476 annually be paid overtime. 

This is a significant increase over current law, which requires paying overtime to employees making less than $455 per week or $23,660 annually. Furthermore, the rule includes automatic increases in the salary threshold every three years in perpetuity, regardless of economic conditions and without the input of stakeholders.

Late in the 115th Congress, various pieces of legislation were introduced to delay or gradually implement the new overtime threshold. In November 2016, a Federal judge for the U.S. District Court for the Eastern District of Texas blocked the new rule, which was set to go into effect on December 1st. The Obama administration filed and was granted an expedited appeal, that carried over into the Trump administration. Under the Trump administration, the Department of Justice (DOJ) recently filed court documents defending the DOL’s authority to set the “white collar” exemption salary level, but not the level set in the 2016 final rule ($47,476).

DOL reopened the rulemaking process and issued a request for information (RFI) seeking public comments on what the salary threshold for white collar employees should be and other possible changes to the regulations.

In March 2019, the DOL released a proposed overtime rule with a revised threshold that was lower than what was proposed under Obama. The rule went final in September of 2019 and took effect on January 1, 2020. The final rule requires paying overtime to workers who do not earn at least $35,568 a year ($684 a week), even if they’re classified as a manager or professional. The rule also did not revise the duties test and did not include automatic adjustments.

IEC opposed the Obama administration’s drastic increase to the “white collar” overtime threshold and its proposal to adjust it automatically on an incremental basis without notice and comment. IEC supported the Trump administration’s proposed overtime rule.


In July 2014, President Obama issued the Fair Pay and Safe Workplaces Executive Order 13673, which requires contractors to report violations on 14 different labor and employment laws and “state equivalent” laws taking place in the past three years for contracts exceeding $500,000. Once awarded the contract, a company would be required to update this information every six months for the life of the contract. Subcontractors, whose value of the contract exceeds $500,000, would be required to do the same, but through the prime contractor. 

Ultimately, federal contractors could be deemed “not responsible” by contracting officers and lose out on federal contracts without due process based on their reports. In October 2016, a court issued a preliminary injunction, blocking the rules implementing the order from going into effect. Shortly after taking office, President Trump signed a resolution passed by Congress that revoked the blacklisting rule.

IEC opposes this overly bureaucratic, unfair, and unworkable system to determine whether a company is deemed “responsible” and fit to work on a federal contract.

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Paid Sick Leave

On September 29, 2016, the Department of Labor issued its final rule to implement Executive Order 13706, which requires covered federal contractors to provide employees with up to seven days (56 hours) of paid sick leave per year. The rule permits an employee to take paid leave to care for anyone with whom the employee has a “significant personal bond” that is like a family relationship, regardless of a biological or legal relationship. 

The proposed rule’s tracking and reporting requirements alone would place significant burdens on small electrical contractors, further deterring them from procuring federal contracts. This paid sick leave mandate applies to new contracts that are entered into on or after January 1, 2017.

IEC opposes DOL’s mandate to require federal contractors to provide employees working on covered contracts 7 days of paid sick leave per year due to its overly broad nature and burdensome tracking requirements.

Davis-Bacon Act

The Davis-Bacon Act is a Depression-era law that requires payment of the locally prevailing wage on all federally-funded construction projects. Due to inefficiencies and inaccuracies with the program, the federal prevailing rates are often the local union rates and not the prevailing market wage rates.

Davis-Bacon increases costs on federal construction projects by requiring the use of a system that is inefficient and inaccurate, and limits competition due to its significant paperwork and reporting requirements. The “Davis-Bacon Repeal Act” would repeal the prevailing wage requirements but has never garnered much support or seen much movement.

 IEC supports repeal of the Davis-Bacon Act and favors updating federal prevailing wage laws.

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“Salting” is a technique whereby undercover union applicants known as “salts” attempt to apply for job openings with merit shop contractors, with the stated goal of attempting to organize the contractor’s employees to join the union. Salts may also want nothing more than to harass a contractor by creating a situation that forces the contractor into making personnel decisions that violate federal labor law and lead to lawsuits and fines for the contractor. 

Under current law, an employer cannot discriminate against a salt simply because of an alleged conflict of interest or due to a “potential” violation of company policies even when the applicant’s intent is to damage the potential employer’s company.

IEC supports legislation to protect merit shop businesses and their employees from aggressive subversion by salting, and that permits employers to not hire salts.

Prevailing Wage Rates

The Department of Labor currently relies on the Wage and Hour Division to determine federal wage rates as they apply to contractors and subcontractors performing on federally-assisted contracts of $2,000 or more.

Legislation was introduced in the 115th Congress that would transfer the responsibility for determining wage rates in federal construction projects to the Bureau of Labor Statistics (BLS), which uses a more accurate and scientific method of calculation.

IEC favors having the Bureau of Labor Statistics, rather than the Department of Labor, determine wage rates in federal construction projects.

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Contact the national staff member below for any questions regarding advocacy.