James Madison groupies rejoice! All others can share my confusion.
Called the “Father of the Constitution,” scholars credit Mr. Madison for his significant role in the fundamental design of the United States Constitution, where power was distributed between the states and the federal government, and power within the federal government was distributed among three co-equal branches. The idea being that these bodies would each independently act as a check on the others, reducing the prospect for the centralization of power and the ultimate loss of fundamental freedoms.
Why do I bring this up? In the last ten days we have witnessed some key examples of these checks and balances at work. While the Trump Administration has pressed forward with an agenda to make it easier for manufacturers to navigate in the employment arena, state governments have imposed ever increasing restrictions on them. Consider the following examples:
On August 1, the National Labor Relations Board announced that it was soliciting briefs from interested parties to review the precedent permitting employees to use a manufacturer’s email systems on non-working time for union organizing or other protected activity. The announcement has been viewed by many as a signal that the Trump Board will eventually reverse the Board’s 2014 Purple Communications decision.
On July 31, the Massachusetts legislature adopted a sweeping new non-compete statute, banning all non-competes for hourly workers and otherwise severally limiting their use. You may find the text of the new law here, and I am happy to give full credit to the excellent work of Beck Reed Riden LLP on their Fair Competition Law website.
Most recently, on August 7, voters in Missouri overwhelmingly rejected an anti-labor “Right to Work” ballot measure – a measure which would have outlawed compulsory union membership in the private sector.
These three events in a very short period of time demonstrate the rapid and sometimes conflicting trends taking place right now. Manufacturers with multi-state operations would be wise to closely monitor legal developments which impact their work force.