On January 20, 1991, the German heavy metal band Scorpions (probably best known for their arena rock anthem "Rock You Like A Hurricane") released their ballad "Wind Of Change." The song (in addition to spawning a "conspiracy theory" podcast) presaged the fall of the Berlin Wall and end of the Cold War, which ushered in a new geopolitical era marked by rapid economic and other changes and the need to adapt to a new world order.
As we move through our current historical moment, cautiously optimistic about our emergence from COVID-19 and still in the early stages of a new federal administration with markedly different policy priorities, we are sailing through the opening stages of our own "Wind of Change" moment in national and local labor and employment policy. The signs of it are everywhere.
At the federal level, the Senate has confirmed noted labor advocate Marty Walsh as Secretary of Labor, and the new Department of Labor has swiftly withdrawn Trump-era guidance relating to critical joint employment issues, with more guidance changes expected in short order. Former NLRB General Counsel Peter Ring was immediately ousted after he refused to resign on Inauguration Day and, after the EEOC General Counsel similarly refused to step down, President Biden recently did the same to her. At the same time, Congress is looking to make union organizing easier and, as discussed in this week's companion article, is actively considering a federal ban on employee noncompetition agreements – a trend that has seen growing momentum at the state level as well. And these are just some of the already-implemented or possible changes happening at the federal level.
Thematically similar policy movements are under way in many state and local jurisdictions. California just extended its statewide requirement to provide COVID-19-related supplemental paid sick leave into 2021. And though its potential passage may be dubious – at least in its current form – Colorado has just introduced legislation that would make sweeping, very employee-friendly changes to its anti-discrimination laws. Additionally, more and more states continue to legalize recreational cannabis usage – including New York just last week – creating new challenges for employers looking to manage their right to enforce drug-free workplaces without infringing on employees' legal off-duty activity.
Such policy implementation does not come without its counterpoints and backlash, particular in this still highly partisan climate. Florida, along with other states, recently passed legislation creating significant COVID-19-related shields to protect employers and others from legal liability arising from COVID-19-related circumstances. It is not hard to imagine similar legislation continuing to come in the future from traditional "red" states, in response to the perceived pendulum swing following the last two national elections.
A Wind of Change Indeed
It is an obvious understatement that for an employer trying to sail its organizational ship in search of both compliance and overall business success, these shifting winds, inconsistent across political boundaries, pose significant challenges. As they unfold, employers often react in one of two basic ways: (i) grouse about the constantly changing landscape and having to react to the shifting winds that pose seemingly constant battles against business objectives; and (ii) accept that while changing winds may blow harder at times, changing winds are always blowing and the best strategy is not grounded in constant reaction, but rather a proactive search for how to make constant improvements to stay ahead of the compliance curve while still sailing in the direction of business goals.
You can probably guess that both this author and the Foley Labor and Employment team prefer the latter and the opportunity to work as strategic partners with clients to understand and then stay with and ahead of change and risk. This often requires acceptance and getting comfortable with the uncomfortable. For example, regulation and workplace protections will always at some level restrict certain avenues to pursue business imperatives.
But rather than focus on what the law prohibits, we often find the better approach is to stay focused on the business need, accept that while its pursuit may not always be 100% possible through the initially preferred mechanism, the law will still almost always allow employers to pursue business goals through legitimate means. The current trend on legalization of recreational cannabis is a great example. Yes, it is becoming increasingly risky to screen for cannabis on pre-employment or post-accident drug screening. But that restriction creates an equal – and ultimately perhaps more effective mechanism – to address violations of drug-free workplace policies and create a series of rules and expectations more equitable for all.
For the foreseeable future, the current wind of change is going to keep blowing hard as political interests jockey for position in a post-COVID-19 world with full (though tenuous) majority control of the federal government by one political party. But even as employee-friendly and other policies move to the fore, employers can still sail their ships onward, understanding that resisting sailing into the wind is a losing proposition. Rather, the captain simply needs to take a different tack, working with the wind to continue moving in the desired direction and relying on good relationships with strategic partners to help guide the way.
Smart and savvy businesses can both recognize the value of their strategic human resources leaders and practical-minded legal partners and accept the need to find ways to successfully sail into the wind, not resist it, while constantly asking, "How do we navigate this storm while staying on course?" For our part, the Foley Labor and Employment team is ready to help.
Originally Published by Foley & Lardner, April 2021
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