Lessons from Google

It is no secret that private-sector union membership has dramatically decreased over the past several decades. This reality has forced labor organizers to get creative with their efforts. Perhaps this is one reason why stories of a union presence at tech industry giant, Google, have recently gained so much attention. Reports of a “minority union” at Google began to swirl earlier this year after a group of several hundred Google employees announced their creation of the “Alphabet Workers Union.” Named for Google’s parent, Alphabet, Inc., the Alphabet Workers Union was supported by, and now affiliated with, the Communication Workers of America. The union claimed its membership quickly grew to more than 800 members.

Unlike the agendas of many traditional labor unions, improving wages and benefits do not appear to be among the Alphabet Workers Union’s top concerns. Instead, it claims to be largely focused on issues such as creating an inclusive workplace, promoting diversity, and rejecting harassment, discrimination, and retaliation. Further distinguishing it from the prototypical union is the fact that the Alphabet Workers Union is operating as a minority union. This designation has significant consequences on whether the employer has a duty to recognize and/or bargain with the union. The situation at Google poses the questions for other private-sector employers in industries where unionization is not common: what is a minority union; and how could it impact my company?

Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to self-organize and bargain collectively through representatives of their own choosing. Section 7 gives employees the right to join a union. Typically, through a National Labor Relations Board (NLRB) election proceeding, if a majority of employees in a defined bargaining unit vote for a union, the union becomes the exclusive representative of all unit employees and a statutory duty is imposed upon the employer to bargain with the union on behalf of all unit workers. Though this is an oversimplification of the certification and election process, it is fundamental to labor relations in the United States. 

A minority union is a union that does not have the support of a majority of bargaining-unit employees. Unlike a union that enjoys majority support, a minority union represents only those employees who affirmatively choose to join it. There is no formal election process, no NLRB proceeding, and no formal recognition procedure. 

While an employer may choose to recognize and bargain with a minority union on behalf of its members, it has no legal duty to do so. This means an employer does not have to bargain with minority unions over the wages, working conditions, discipline, or discharge of the union’s members. An employer also has no obligation to furnish requested information to a minority union or provide the union access to its facilities. This stands in stark contrast to an employer’s duty to bargain with an NLRB certified union. 

Traditionally, collective-bargaining agreements are a cornerstone of the company-union relationship, but an employer has no obligation to negotiate or reach an agreement with a minority union. Even if an employer consents to bargain, the scope of any such relationship with a minority union must be limited to those employees who have consented to the union’s representation. In fact, it is unlawful for an employer to extend exclusive status to, or negotiate an agreement covering all unit employees with, a minority union. Over the objection of minority unions, the NLRB and courts have also consistently held that an employer has no statutory duty to bargain with a minority union even on a members-only basis. 

Though there is no obligation to recognize or bargain with minority unions, employers should take care to remember that the NLRA more broadly protects collective action. It is undeniable that employee support for a minority union is activity protected under Section 7. Therefore, an employer cannot take adverse action against employees for joining or supporting a minority union. 

Much of a minority union’s impact will be determined by the employer’s response to it. That there is no NLRB certification and that employers have no legal obligation to recognize or negotiate with a minority union potentially stymies much of the bargaining power traditional unions can leverage. Though minority unions cannot force employers to sit at the bargaining table, they can use other strategies such as social media, political pressure, and traditional media attention to influence managerial decisions and advance the interests of their members. As is the case with the Alphabet Workers Union, minority unions may be more interested in furthering equity issues and drawing attention to employer conduct and policies, rather than addressing wages and benefits. In the current social and political climate, these efforts can be effective. Even still, employers must be careful to not submit to the demands of a few at the expense of the majority of employees who do not support the minority union.

Finally, whether the Alphabet Workers Union becomes a trend-setter, or an isolated case remains to be seen. The fact that the Communication Workers of America is supporting this initiative suggests minority unions may be a future concern, particularly for employers and industries in which a majority of employees prefer to remain union free.      

Thomas G. Eron is a member (partner) of Bond, Schoeneck & King PLLC. Located in its Syracuse office, he is chair of the firm’s labor and employment law department and a member of its management committee. Contact Eron at teron@bsk.com. Hannah K. Redmond is an associate attorney in Bond’s Syracuse office. She focuses her practice on representing employers in labor and employment-law matters. Contact Redmond at hredmond@bsk.com

Though health-care chief financial officers (CFOs) still occupy a traditional role in many organizations, the role has significantly expanded in recent years. No longer can a CFO of a major health-care system simply focus on cash flow, financial planning, and balancing the books. Today, the role must be more strategic and visible — both inside and outside the organization.

Here are three ways a modern health-care CFO can add more value to his or her organization.

1. Be more visible

Visibility within the organization is critical. Today’s CFO can’t be holed up in her office. She must be more visible, walking the hallways, meeting people, and taking her leadership outside of the finance department. From physician-network teams and registration/scheduling to telemedicine and population health departments, the CFO must take an active role to ensure she has her pulse on what is going on — always with an eye to ensuring that patients have access to quality, affordable care throughout the system. Health care today is broader than the four walls of the hospital. Its reach includes the emergency room, the physician’s office, the home, and the community. Because the CFO often weighs in on where money is best spent, this leader needs to have visibility to every aspect of the system. The CFO can play a critical role in helping deliver the best health-care experience for a health system’s patient population.

2. Focus on community health

Health systems are a community asset and sometimes even the crown jewel of the community. A dynamic CFO works with community leaders to ensure that the health-care needs of the community are being met. Much work has been done around the social determinants of health, so we know that where people live, learn, work, and play affects a wide range of health and quality-of-life risks and outcomes. Being ever-present and building strong bridges to the community can preserve or even grow market share. But most of all, it can lead to better clinical outcomes, with happier and healthier patients. Community involvement allows people to have frequent positive experiences with their local health-care system, which ultimately supports the system’s success and competitive advantage.

3. Build relationships with local employers and their employees

It’s important that the CFO develop relationships with local employers and employees as these groups fund the lion’s share of health care today. When employers pay more than $20,000 per year for their employees’ family premium, the CFO should understand that these local employers want value for their money and that the health system, in part, is responsible for that. The Employer’s Guide to Financial Wellness 2019 Report from Salary Finance states that “a majority of employees feel financial stress, with 56 percent of employees considering themselves financially unwell.” When the average out-of-pocket expense on a health plan is $8,000 and the average patient has about $400 in savings for emergencies, CFOs will need to explore and welcome new financial-security programs that help their patients accept care when they need it. Times are changing and innovative financing models are starting to spring up to replace traditional revenue-cycle solutions. Becoming familiar with them and how local employers are looking to use them to help put confidence back behind that insurance card creates a win-win for all parties. 

For today’s CFOs, it’s no longer just about the internal workings of the finance department or the health system that employs them. It’s about collaborating with the entire health-care ecosystem, including the payer, employer/patient, and the provider. Developing and maintaining partnerships across the system, the community, and with local employers has never been more important to a CFOs success.      

Tim Susterich is chief provider network strategy & contracting officer at HealthBridge Financial, Inc. (www.myhealthbridge.com). He has more than 30 years of financial, business development, and operations experience in the health-care industry, including serving as a hospital CFO.

During these times of unprecedented uncertainty, many Americans believe that President Joe Biden’s administration will introduce sweeping changes to our country’s tax code. After all, every president since Bill Clinton has signed into law a new tax bill within 12 months of the beginning of their first term. 

One area that many taxpayers and practitioners alike are keeping their eye on is the qualified opportunity zone (QOZ) incentive, which was part of the Tax Cuts and Jobs Act of December 2017. The concept of QOZs was very much a bipartisan idea even before the Tax Cuts and Jobs Act, but over time, the qualified opportunity zones’ incentive has been viewed by many as a Republican tax policy and has received more than its share of negative press as the incentive has unfolded over the past couple of years.

There a few areas in particular that QOZ stakeholders are focusing on when it comes to the potential for new tax-law changes.

Potential increase in capital-gains tax rate

For an investor to take advantage of the QOZ incentives, one must have realized a capital gain that is eligible to be contributed into a qualified opportunity fund. By doing so, you can avoid having to pay tax on that capital gain until as late as 2026. But if we see an increase in the tax rates that apply to capital gains, what rate must be used when computing the tax owed on those gains in a future year? 

In a perfect world, the equitable answer would be for those investors to recognize their capital gains at the same tax rate that was in place at the time they deferred such gains into a qualified opportunity fund. However, there is currently no such provision in the tax code.

On the other hand, if the capital-gains tax rates happen to increase in future years, the rate rise may serve as a catalyst for increased investment into QOZs, since taxpayers would be able to defer larger amounts of capital gains as a result. However, even if a QOZ project has investors deferring substantial capital gains into a qualified opportunity fund, other incentives and sources of capital — bank financing, New Markets Tax Credits, Historic Tax Credits, etc. — will still be necessary in order to make these projects possible. 

Potential for residential rental real estate to not qualify as a QOZ trade or business

In the previous session of Congress, Senator Ron Wyden (D–Oregon) had introduced the Opportunity Zone Reporting and Reform Act in the Senate as a proposed bill (S. 2787). The bill was never voted on in that session of Congress, but if it had been enacted as written, residential rental real estate would not qualify as eligible QOZ property unless a minimum of 50 percent of the units available for rent are rent-restricted and occupied by lower-income individuals. In addition, self-storage properties and stadiums would have also become ineligible QOZ property.

Since the enactment of the Tax Cuts and Jobs Act, the vast majority of qualified-opportunity-zone businesses we have seen have been residential rental real-estate projects. If specific types of businesses were to no longer be eligible QOZ businesses, further guidance would be needed for not only businesses, but investors as well. 

Increased reporting requirements

We have seen bipartisan support for more robust reporting requirements for qualified opportunity funds. In addition, the U.S. Government Accountability Office (GAO) recently issued a report indicating the need for additional oversight of the QOZ tax incentive. Such oversight would be accomplished in part by collecting data from qualified opportunity funds on an annual basis, by filing Form 8996 with their annual income-tax return. Some of these additional reporting requirements could include, but not be limited to, the following criteria:

• Number of jobs created

• Dollar amount of capital gains invested

• Dollar amount of improvements made to property

• Number of residential rental units available

If these reporting requirements were to be enacted as written, significant penalties could apply for noncompliance with these rules.

COVID-19 Opportunity Zone relief 

In addition to the potential changes described above, QOZ stakeholders should also take note of the changes being made due to impacts of the pandemic. On Jan. 19, 2021, the IRS issued Notice 2021-10 to provide additional relief for qualified opportunity funds, as well as their investors and other stakeholders. Key provisions of Notice 2021-10 include:

• More time to defer capital gains: The deadline to re-invest certain eligible capital gains into a qualified opportunity fund is extended to March 31, 2021. This applies to eligible capital gains where the 180-day deadline to defer the gain ends on or after April 1, 2020 and before March 31, 2021

• Additional relief from 30-month substantial improvement period: The period from April 1, 2020 through March 31, 2021 is automatically disregarded for purposes of measuring the time in which property must be substantially improved.

• Additional relief from 90 percent asset test for qualified opportunity funds: To the extent any semi-annual testing date falls on or after April 1, 2020 and through June 30, 2021, any failure by a qualified opportunity fund to meet the 90 percent asset test during 2020 or 2021 is automatically deemed to be a result of reasonable cause, and the penalty for such failure will be $0.

• Additional time for working-capital safe harbor: QOZ businesses are allowed a 24-month extension of the original 31-month working-capital safe-harbor period if they have working-capital assets whose safe-harbor period ends prior to June 30, 2021.

• Additional time for reinvestment period: a qualified opportunity fund that has an interim sale of qualified opportunity-zone property receives an additional 12 months to reinvest the proceeds from such sale into other qualified opportunity-zone property, as long as the original 12-month reinvestment period includes June 30, 2020.

There is still untapped opportunity in opportunity zones

When considering what the future may bring, investors and business owners should not overlook the many unique opportunities created by the QOZ incentive. The rules and regulations promulgated under the previous presidential administration have made it progressively less cumbersome for businesses and investors to use the QOZ incentive as a catalyst to spur additional economic development in many different communities that have not seen any meaningful economic investment in decades. 

While real-estate projects have dominated the conversation when it comes to qualified opportunity zones, careful planning can allow operating businesses, such as manufacturers, to see much greater after-tax returns on investment than can be achieved through investments in real estate alone. In addition, operating businesses will spur the creation of jobs and otherwise help promote positive social change within their respective communities.

While the QOZ incentive is certainly a once-in-a-generation opportunity afforded by the tax code, stakeholders should remember that the QOZ incentive will not magically make a bad project successful. Rather, it can potentially provide another source of funds to make a sound investment opportunity even more attractive.  

Joseph Wutz is a principal with The Bonadio Group. He is a member of the accounting firm’s real estate and construction teams and spends most of his time overseeing tax consulting and tax-compliance projects for businesses in these industries. Contact Wutz at jwutz@bonadio.com.