The bill was effective upon the governor’s signature Jan. 8.

The law empowers a labor union to file a complaint in court against a contractor or subcontractor for unpaid wages on behalf of workers in certain construction, reconstruction, demolition, alteration and maintenance projects, regardless of whether the workers belong to the union or are unaffiliated with any union.

“It is our expectation that empowering labor unions to pursue actions in court on behalf of construction workers, whether they belong to the union or to no union at all, will inure to the benefit of all workers in this industry and their families,” the governor said in a statement. 

“Every worker should be properly compensated for the work they undertake — no exceptions,” Murphy said in a press release issued in conjunction with the bill-signing. “This bill allows unions to take up for those workers without representation seeking wage claims.”

State Sen. Troy Singleton (D), Assemblywoman Annette Quijano (D) and Assemblyman Anthony Verrelli sponsored the bill.

“This bill signifies a monumental shift in protecting workers’ rights, extending the reach of unions and ensuring that no worker is left behind in the pursuit for fair wages and just treatment,” Quijano said. “Unions being able to start wage claims could encourage employer compliance and potentially lessen the state’s need to closely monitor and enforce these laws.” 

Business groups had opposed the bill, arguing that the legislation “would allow labor unions to act in the place of the state government by filing lawsuits on behalf of workers they don’t represent,” The Center Square reported. 

Labor groups, on the other hand, applauded the new law.

Laborers’ International Union of North America Vice President and Eastern Regional Manager Mike Hellstrom said that the law provides an additional layer of support to construction workers who might find themselves on the losing side of a wage dispute and denied pay they had already earned.

“It is good news for New Jersey, for law-abiding employers and, most of all, for workers,” Hellstrom said.

New Jersey is one of two dozen states without a right-to-work law, which prevents employees from being forced to pay union dues as a condition of employment, the Society for Human Resources Management noted. Right-to-work laws generally apply to both private and public sector employees.

The New Jersey case dates back to 2018 when a nurse at a county-run facility requested to resign from her union and, therefore, stop paying union dues. A state law required such requests to be made within a 10-day period each year. The nurse missed that window, and the union denied the request. The next time the 10-day period rolled around, the nurse refiled her request, and the union approved it.

Within a week of submitting the second request, according to court records, the nurse filed a lawsuit against the county claiming that “delaying her ability to stop paying union dues violated her First Amendment rights by compelling her to subsidize union speech.” 

In March 2020, the union sent the nurse a check to refund the dues, plus interest. Since she received the refund, in June 2021, the district court ruled that the nurse no longer was a union member and therefore lacked standing to bring the lawsuit. The case was dismissed.

Nevertheless, the nurse appealed her case on the grounds that “the check she received after her resignation from the union did not moot her damages claims against the union,” according to court records. 

The appeals court agreed, in part. Although it said that the nurse was within her rights to sue the public-sector union, she lacked standing after the dues were refunded to her.

“We will affirm the District Court’s orders in part, vacate them in part, and remand the damages claim against the union to the District Court for resolution,” Judge Peter J. Phipps wrote.

The ruling is based on a situation in which Tesla prohibited workers from wearing T-shirts displaying union insignias. The NLRB opined that any effort to quash union sentiments, including by forbidding the wearing union apparel, buttons and stickers, was unlawful on the face of it. The NLRB determined that the burden was on the employer to show special circumstances that justify their decision.

“[It’s] kind of a high bar to overcome that,” Labor Attorney Louis J. Cannon Jr., who is with Baker Donelson’s Baltimore office and a specialist in long-term care law, told the McKnight’s Business Daily. 

Tesla appealed the decision to the 5th Circuit, which considered what the employer’s rule is for the restriction and whether it is lawful. The court found that unions can take issue with employer restrictions to some extent but that employers do not have carte blanche in establishing policies.

“But [unions] can’t come out of the gate and say that any kind of restriction is unlawful,” the lawyer explained.

“So I would say, the bottom line on the 5th Circuit’s opinion is that as long as you’re [the employer] not outright banning all union insignia of any kind, you’re probably going to be OK as long as you can articulate a reason why you’re restricting [buttons],” Cannon said. “So it’s going to really be more of a balancing test versus what the Labor Board has said, that we think all restrictions are illegal.”

An employer cannot, for example, prohibit union buttons and stickers while at the same time allowing employees to enforce sports team markings on their uniforms, he said. An employer cannot allow sports emblems and political campaign buttons but then draw the line at union insignia.

“You can’t all of a sudden care about your policy when it involves the union,” Cannon said.

Application in long-term care

The issue of wearing insignias is a little different in long-term care, however, according to Cannon. 

“If you’re looking in the context of nursing homes or home health or anything in healthcare, if you’re directly interfacing with patients, the employer can restrict displaying union insignia on the uniform, ” he said.

In the instance of caregivers working directly with residents, he said, it would be akin to making a political statement.

“The idea is that it’s exactly like you’re bringing a charged issue in front of a patient who might be ill, and that’s just not right. We’re going to allow the employer [to place a restriction], Cannon said. 

But this latitude to restrict symbols on uniforms only applies to resident-facing employees, he emphasized. 

“And if you’re in that situation, the employer can tell you you can’t do it,” the expert said.

Gray areas exist, however, he added.

“And it becomes a little bit difficult to enforce that, because sometimes you have people who do spend part of their shift in private areas, but then they’re coming into patient care areas, and how do you deal with that?”

Until recently, unions have been largely unsuccessful at convincing senior living workers to join their ranks. But there are some pretty clear signs that the times, they are a changing.

Unions recently captured some eye-popping contract settlements. In August, American Airlines agreed to give its pilots a 46% pay increase over four years. Also in the summer, UPS workers won raises of $7.50 an hour over five years, with drivers’ wages climbing to $49 an hour.

More than 85,000 Kaiser Permanente workers won raises of 21%, with a guaranteed minimum of $25 an hour for company workers in California.

But perhaps the most notable recent victory goes to the United Auto Workers. The UAW launched a six-week, surgical strike against the nation’s largest automakers:  Ford Motor Co., General Motors and Stellantis.

The Big Three quickly caved and agreed to 25% pay increases that will raise top pay to about $42 an hour. With a little overtime, many workers soon could be earning six-figure incomes, putting them solidly in the middle class. The union also gained pension improvements and other concessions. 

The list of union victories goes on, but you probably get the general idea. Unionized employees are killing it these days.

To understand the implications for senior living operators, it’s important to consider the three main drivers of increased union activity: soaring living costs, rising income inequality and the significant pay gap between workers and top executives. Funny enough, all three are in play when it comes to senior living.

Adding to the mix is a low unemployment rate and an abundance of job opportunities.

Moreover, high-profile victories such as the one UAW workers achieved might inspire organizing efforts across various other sectors, potentially leading to future contract talks and strikes.

If there’s any comfort to be had here for management, it’s worth noting that despite the recent surge in labor activism and growing support for unions among the public, union membership rates have been on the decline for decades. 

In fact, only 6% of private-sector workers in the United States currently belong to unions, a fraction of the 35% in 1953.

Additionally, the rise of the gig economy has made it harder for workers to unionize, as some large companies classify employees as “contractors.”

In recent years, labor laws have had a significant impact on the state of unions. Some states have passed “right to work” laws that undermine the financial resources and bargaining power of unions. Furthermore, some states have rolled back union protections, creating a challenging environment for organizers in areas with little history of organized labor.

All things considered, it is essential for long-term care providers to stay informed, understand the evolving labor laws and proactively address employee concerns to maintain a harmonious working environment while navigating the changing dynamics of the labor market.

As never before in recent memory, employees are in a position to  challenge their employers for higher pay, better benefits and clearly defined career paths. If and when they feel employers are not treating them well enough, they are that much more likely to start looking for the union label.

John O’Connor is editorial director for McKnight’s Senior Living and its sister media brands, McKnight’s Long-Term Care News, which focuses on skilled nursing, and McKnight’s Home Care. Read more of his columns here.

The new joint-employer standard released Thursday by the National Labor Relations Board will present greater risk for employers that contract with services providers, “creating greater liability for the actions of others,” according to senior living experts.

The NLRB said its new joint-employer standard reflects a “legally correct” return to common-law principles and a “practical approach” to ensuring employers respect their bargaining obligations. But senior living industry advocates said that the issue is complex and that the rule represents a “significant departure” from current law.

“This rule moves from a 2020 rule that set out a simplified determination of ‘joint employer’ status to one that significantly expands the standard, making it easier to establish an entity’s status as a joint employer,” Jeanne McGlynn Delgado, American Seniors Housing Association vice president of government affairs, told McKnight’s Senior Living. “This will present greater risk for any employer who contracts with services providers — such as staffing agencies or subcontractors — in terms of creating greater liability for the actions of others.”

Of particular concern, Delgado said, is the rule’s requirement that joint employers both must bargain with the union representing the joint employees and may be liable for unfair labor practices committed by the other employer. She added the rule also could serve to incentivize more union-organizing efforts.

Many long-term care providers routinely enter into contracts to provide services to residents, including temporary staffing contracts, therapy, food service and maintenance agreements, LeadingAge said, adding that providers also often share service agreements with hospitals or other providers sharing their campus. 

LeadingAge called the new standard “much broader and more vague” than the existing rule in its previous comments.

“Our concern with the new rule is that aging services organizations will face challenges in determining how to align existing business models and arrangements to this new standard, such as contracts with services providers, or to structure new arrangements, in a way that can reasonably be expected not to result in a joint-employer determination,” LeadingAge Vice President of Legal Affairs Jon Lips told McKnight’s Senior Living. 

“If actual control, reserved control — whether exercised or not — direct control and indirect control of one or more essential terms and conditions of employment may all be sufficient to establish status as a joint employer, it creates additional uncertainty compared to the existing rule, and with it the risk of expanded collective bargaining obligations and of liability for unfair labor practices committed by an organization’s business partners, with respect to that partner business’ own employees,” he added.

Senior living advocates had voiced their opposition to the proposed standard during the comment period.

Argentum signed on to comments from the Coalition for a Democratic Workplace, which recommended that the NLRB “start over or leave the current standard in place.” The coalition argued that the rule was “arbitrary and capricious, diverges from the common law, ignores federal law, congressional intent, and court precedent, and would undermine collective bargaining and destabilize labor relations.”

The new standard

Under the new standard — scheduled to be published in the Federal Register today — a joint employer is defined as an entity that shares one or more of an employee’s essential terms and conditions of employment related to compensation, work hours and schedules, duty assignment and supervision, work rules and discipline, employment tenure and working conditions.

The new rule rescinds the 2020 final rule, which the NLRB said made it easier for joint employers to avoid that status because it set a higher threshold for possessing or exercising substantial direct control over conditions of employment. The agency said the new rule provides extensive guidance on rights and responsibilities in situations where joint-employer status has been established.

“The board’s new joint-employer standard reflects both a legally correct return to common-law principles and a practical approach to ensuring that the entities effectively exercising control over workers’ critical terms of employment respect their bargaining obligations under the NLRA,” or National Labor Relations Act, Chairman Lauren McFerran said in a statement. 

The NLRB received more than 13,000 comments after publishing a notice of proposed rulemaking in the Federal Register on Sept. 6, 2022. The new rule goes into effect Dec. 26. 

Legal reaction 

Law firm Fisher Phillips said the “controversial” rule will result in increased union organizing and collecting bargaining efforts. 

In a blog post, firm attorneys said that instead of requiring actual direct control over essential terms of and conditions of employment, even potential retained (but unexercised) indirect control over working conditions could be deemed sufficient to label a business a joint employer for labor relations purposes.

Fisher Phillips recommends that employers review written service agreements and underling practices; review franchisor-franchisee arrangements; work with an attorney to evaluate service contacts and related documents for language reserve the right of control over workers; assess vulnerability to union-organizing efforts; train managers in best practices in dealing with third-party staff, franchisees and contractors; and create clear policies on the role of third-party vendors. 

Emily Harbison, a partner at law firm Reed Smith, told McKnight’s Senior Living that the new rule makes it much easier for a senior living provider to be deemed a joint employer of someone from a third-party staffing agency. 

That fact means senior living providers may have to bargain with a staffing agency-related union with respect to “any” terms and conditions of employment that it possesses the authority to control or exercise the power to control. Providers also potentially could be liable for unfair labor practices committed by the other employer and may be subject to union picketing or boycotts during labor disputes.

“While the new rule will likely be challenged, senior living providers who use staffing agencies or temp agencies — or otherwise obtain services from individuals who are not their direct employees — should consider their policies and practices around the exhaustive list of the seven key terms and conditions of employment that the new rule considers to determine the risk they may be deemed a joint employer,” Harbison said.

Senior care advocates LeadingAge and the American Health Care Association estimate that the proposed mandate could cost up to $7.1 billion in the first year alone. They also argue that high rates of staff turnover would make it difficult for many employers to comply with this proposed requirement. According to a recent study published in the Journal of the American Medical Association, however, “labor unions representing nursing home workers, such as the Service Employees International Union (SEIU), argue that unions can decrease turnover by improving job quality, thus helping to maintain a stable workforce and improving resident care.”

Researchers used cross-sectional regression analysis to estimate the association between the presence of a healthcare workers union and total nursing staff turnover rates in US nursing homes.

According to the data, the presence of a union was associated with a 1.7 percentage point decrease in staff turnover.

“When more than 75% of nursing homes in a county were unionized, the facility-level presence of a union was associated with a 9.0 percentage point decrease in staff turnover,” wrote Adam Dean, PhD; Jamie McCallum, PhD; and Atheendar Venkataramani, MD, PhD; et al. 

Unionization might be one way to reduce staffing turnover, however, Christian Bergman, MD, commented in a separate piece, “in the broader framework of staff retention it may be important to consider a person-centered approach to job satisfaction.”

Bergman suggests that nursing homes find ways to retain staff members by improving employee satisfaction and working conditions.

“Unionized nurses may report better employment rights, improved workplace conditions, and advocacy opportunities but some common drawbacks include union dues, mandatory and unpaid strike policies, lack of performance incentives, and mandatory mediation,” he wrote.

This sentiment echoes findings of a recently published study emphasizing the importance of experienced nurse and administrator retention as perhaps equally important for providing quality care. 

“Given the recently announced federal minimum staffing mandates, there is a lot of policy focus at the moment on boosting the number of staff hours per president day. But our results suggest that we should also be giving similar weight to finding ways to retain staff and reduce turnover in an effort to improve nursing home quality,” said study co-author Brian McGarry, PhD, of the Division of Geriatrics and Aging in the Department of Medicine at the University of Rochester.

In fiscal year 2023 — Oct. 1, 2022, through Sept. 30, 2023 — the agency saw 22,448 cases filed. That’s an increase of 10% over the prior fiscal year and the highest number of cases filed since fiscal year 2016.

The NLRB saw increases in both unfair labor practice charges and union representation-related activities. Unfair labor practices charges rose from 17,988 in FY 2022 to 19,854 in FY 2023. During the same time frame, 2,594 union representation petitions were filed, representing a 3% increase over FY 2022.

“Dedicated NLRB employees have continued working hard to increase the board’s productivity, but the continuing surge in case intake has again increased our year-end backlog,” NLRB Chairman Lauren McFerran said in a statement.

The increase in fillings lowered the median age of cases pending before the NLRB just a tad, from 108 days in FY 2022 to 106 days in FY 2023.

“Although the agency tremendously appreciated the $25 million increase in funding for FY 2023, and used every extra dollar to address critical staffing vacancies and infrastructure needs, additional resources are necessary to enable the board to expand staffing capacity and continue processing cases more efficiently,” McFerran added. 

The increase in filings in the agency’s field offices resulted in a corresponding increase in workload for the adjudicative side of the agency. The board issued 246 decisions in contested cases during FY 2023, slightly more than the 243 decisions handed down in FY 2022.

“Our committed and talented NLRB career employees continue to process cases with professionalism and care,” General Counsel Jennifer Abruzzo said. “The President’s budget requests $376 million for the agency, which is much needed to effectively and efficiently comply with our congressional mandate when providing quality service promptly to the public in conducting hearings and elections, investigating charges, settling and litigating meritorious cases, and obtaining full and prompt remedies for workers whose rights are violated.”