MSSHRM's 2014 Mississippi Legislative Report
Mississippi Legislature strengthens free choice rights for employers and employees during 2014 session
Typically, the Mississippi Legislature defers to Congress on all employment legislation unless the relevant issue is one on which Congress has failed to act and one which strongly affects Mississippi employers. Indeed, outside of Governor Barbour’s tort reform efforts over a decade ago, Mississippi employers have primarily focused their attention on federal legislative initiatives because those are the ones that most often affect how they administer and apply HR practices. However, the 2014 Mississippi Legislature responded somewhat differently by passing four new laws that directly affect Mississippi employers.
Three of these laws were passed in an effort to strengthen Mississippi’s existing right to work laws and preserve the rights of both employers and employees to freely decide upon union representation. The other law will facilitate access to the information necessary to conduct background checks.
Senate Bill 2473
Senator Terry Brown of Columbus and Senator Giles Ward of Louisville sponsored Senate Bill 2473 entitled “The Prohibition Against Employer Intimidation Act.” This Bill primarily addresses the now common organizing technique by which some unions use a “top down” strategy that first targets management by seeking the employer’s execution of a “neutrality agreement.” Certain unions have been known to obtain management’s consent to these agreements through coercive threats and/or “corporate campaigns” whereby the union targets the employer’s customers, suppliers and contractors in various ways to adversely affect that employer’s business. If successful, these campaigns can persuade management to sign a “neutrality agreement” in which the employer waives its right to oppose a secret ballot election in favor of recognizing the union whenever it collects a certain percentage of authorization cards. These neutrality agreements also typically provide that management is prohibited from saying anything negative about the union during its organizing drive. A good example of such an agreement is the one the UAW obtained from Volkswagen in Chattanooga. Some Volkswagen employees objected to the Company’s card check recognition last fall because they claimed the UAW misled and bullied them in obtaining the authorization cards required for the Company’s recognition of the UAW as their bargaining agent. The employees prevailed on their objections and thereafter forced a secret ballot election in February which resulted in the UAW’s defeat. If the Volkswagen employees had unsuccessfully challenged the propriety of these authorization cards, then they would have been barred from seeking a secret ballot election for at least six months thereafter under existing NLRB precedent. Although the Volkswagen employees ultimately prevailed against the UAW’s organizing efforts, neutrality agreements can and often do pave the way for unions to organize in geographic areas and industries that they could not if a secret ballot election were required.
The Mississippi Legislature, largely upon party lines, passed Senate Bill 2473, in order to strengthen an employer’s rights to oppose such top down organizing tactics. Senate Bill 2473, which was based on similar laws passed in other states, may deter some unions from using such top down organizing tactics in Mississippi. Governor Bryant signed this law, and it will become effective on July 1, 2014.
Senate Bill 2797
This Bill was also sponsored by Senators Brown and Ward, and it was also passed mostly along party lines. This Bill complements Senate Bill 2473 in that it prevents both state and local government entities from requiring that any employer execute a neutrality or “labor peace agreement” that in any way waives that employer’s legal rights to oppose union organizing efforts in exchange for receiving a contract from that governmental entity. Although such contractual provisions are not as prevalent in Mississippi as in other more union friendly states, the Mississippi Legislature recognized that such potential also existed here and proactively responded by invalidating such contractual conditions. However, this law does not prevent the State from requiring the use of specific project labor agreements to the extent those are required by federal grant funds and otherwise lawful under federal law. Governor Bryant has also signed this Bill, and it becomes effective on July 1, 2014.
Senate Bill 2653
Senate Bill 2653 was also sponsored by Senators Brown and Ward. This Bill prohibits unions from picketing or obstructing an employer’s entryways, sidewalks or adjacent property in any way that “unreasonably interferes” with either its employees’ or customers’ access to the facility. Importantly, this Bill also protects both management’s and employees’ private residences from the same type of interference and obstruction and includes a prohibition on the use of vehicles to carry out such interference. It also lessens the burden of proof required to obtain injunctive relief against the union by eliminating the necessity for showing that the union’s interference is causing “irreparable harm,” a difficult burden to meet under existing Mississippi law. If a union agent violates this new law, then he can be fined $500 and jailed for up to six months. This law also becomes effective on July 1, 2014.
Senate Bill 2689
Senate Bill 2689 was sponsored by Senator Brown, and it becomes effective on July 1, 2014. This law prohibits any local government entity, such as a City/County Clerk, from adopting any rule, practice or ordinance that in any way interferes with an employer’s ability to obtain the information necessary to perform background checks on applicants or current employees. This new law makes it much easier for employers and/or the background check agents they retain to gather local civil and/or criminal records by expressly commanding that the custodians of such records and information make them available when the information is sought for the purpose of conducting a background check. While this law will likely be construed to permit such local government entities the right to charge reasonable fees in connection with retrieving and copying such records, it should be construed to prohibit such entities from restricting access to such information unless there is a specific statutory basis for doing so such as the current restrictions on releasing Youth Court criminal records.
