HR That Works Blog

In response to a District Court decision issued late Monday, the National Labor Relations Board has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.

Board Chairman Mark Gaston Pearce said the Board is reviewing the court decision and considering its response. “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

Acting General Counsel Lafe Solomon today withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today.

About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.

Click here for website version.

The above entry is the May 15, 2012 NLRB News Release.

April 30, 2012 was the effective date for the new National Labor Relations Board rules governing representational elections. All NLRB election petitions filed starting today will be subject to these new rules. In advance of the rules, the NLRB’s General Counsel’s office released a guidance memorandum last week clarifying several of the rules. The highlights of this memo include:

• On the day an election petition is filed, a notice of hearing will be issued and a pre-election hearing will be scheduled within 7 days or 5 working days.
• Regional Directors are encouraged to narrow the issues at a pre-election hearing and conduct a pre-hearing conference, if necessary.
• The new rules provide that “disputes concerning individuals’ eligibility to vote or inclusion in appropriate unit “ordinarily” need not be litigated or resolved before an election. In his memo, the General Counsel said that eligibility to vote issues should only be litigated at a pre-election hearing if 10 percent or more of the unit is in dispute.
• When deciding voter eligibility issues, the hearing officer is expected to apply the Board’s Specialty Healthcare framework. As we discussed in our Specialty Healthcare Watch blog posts on February 13th and February 14th, the Board will first look to see if the unit proposed by the Union is a “readily identifiable group” and shares a community-of-interest. If so, then the unit is valid and the employer must establish that additional employees it seeks to include share an “overwhelming community of interest.”
• Disputes over whether an employee is a supervisor will not be considered at the pre-election hearing, if the employees in dispute constitute less than 10 percent of the voting unit.
• The hearing officer retains discretion on whether post-hearing briefs will be filed. When post-hearing briefs are not allowed, the parties will be allowed time at the hearing to make an oral argument or submit a brief as an exhibit.
• At the hearing, the officer should ask the parties entitled to receive a voter eligibility list (Excelsior list) if they wish to waive all or any part of the 10-day period they are entitled to have the list.
• Pre-election appeals of hearing officer and regional director decisions will only be granted in “extraordinary circumstances.” For most intents and purposes, neither side will have meaningful review of a hearing before an election.
• Post-election appeals are also more limited. Post-election exceptions and requests for review will now filed directly with the Regional Director, not the NLRB. The Board may grant or deny requests for review of Regional Director decisions, but a denial should be treated as a summary affirmance of the actions of the Regional Director.

Right now, the Labor Board uses a 42-day timeframe from the filing of a petition to an election. The new rules and GC memo do not specifically establish a new timeframe. However, given the changes outlined above, the 42-day period will be shortened. The precise amount of time will depend on whether 10 percent of the possible eligible voters are in dispute, thus necessitating a more complex pre-election hearing, and if the Union waives its right to the voter eligibility list for the 10-day period. A fair estimate is that the election period could be as little as 28 to 30 days with these changes. This means that employers will have fewer opportunities to communicate with employees about the pros and cons of unionization once a petition is filed, thus making it even more important that employers plan now a proactive strategy now that addresses unionization.

A court challenge to the new rules is still pending in federal court. We will inform you of that ruling when it is decided.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

A federal district court judge has partially invalidated the National Labor Relations Board’s (NLRB) rule requiring private sector employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). 

The Rule

In August 2011 the NLRB adopted a final administrative rule that requires covered employers to post a “notice to employees” regarding their rights under the NLRA.  The notice describes the NLRA and informs employees of their rights under the NLRA, including but not limited to their right to organize a union to negotiate with their employer about their wages, hours and other terms and conditions of employment.  

The NLRB’s rule also establishes several penalties for non-compliance.  Under the rule, the NLRB may find that an employer commits an unfair labor practice where it fails or refuses to post the notice.  The NLRB also may toll the NLRA’s six-month statute of limitations for filing unfair labor practice charges if employers fail to post the notice.  Finally, the NLRB also may use an employer’s failure to post the notice as evidence of an unlawful motive in unfair labor practice proceedings where motive is a disputed issue. 

At the time it adopted the rule, the NLRB announced that it would take effect on November 14, 2011.  The NLRB since delayed the rule’s implementation date to April 30, 2012, amid substantial controversy surrounding the rule.

The Lawsuits

Shortly after its adoption, the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW) filed lawsuits in federal district court challenging the rule.  They argued that the NLRB lacked authority under the NLRA to promulgate the rule and that the rule violated the First Amendment. 

The District Court’s Opinion

Judge Amy Berman Jackson upheld only that portion of the NLRB’s rule that requires employers to post the notice to employees regarding their rights under the NLRA.  She determined that the NLRB is granted broad rulemaking authority under the NLRA and is not limited to enacting rules that address only particular statutory sections.  Finding that the NLRA places the NLRB “squarely at the heart of labor management relations,” the judge held that the dissemination of information about employee rights under the NLRA—as the NLRB’s rule requires—“is well within its bailiwick.” 

The judge also found that the NLRB provided a reasonable explanation for adoption of the notice requirement: in order for employees to fully exercise their rights under the NLRA, they must know that those rights exist, and requiring employers to post notices of those rights raises employee awareness.  Finally, she concluded that the NLRB did not act arbitrarily when it adopted the notice requirement because it relied on empirical and anecdotal evidence demonstrating that many employees are unaware of their rights under the NLRA—including the fact that a comparatively small percentage of private sector employees are represented by unions. 

On the other hand, the judge invalidated those portions of the rule tolling the statute of limitations for filing unfair labor practice charges and finding that failure to post the notice constitutes an unfair labor practice.  The NLRA expressly limits unfair practices to those enumerated in Section 8 of the statute, and similarly, Section 10(b) expressly establishes a six-month statute of limitations.  The judge concluded that the NLRB’s rule impermissibly expanded the reach of both of these provisions.  Notably, however, the judge found that nothing prohibits the NLRB from finding on a case-by-case basis that failure to post the notice constitutes an unfair labor practice.

Lastly, the judge rejected the claim that the NLRB’s rule violated the First Amendment because it compelled employers to speak against their will.  According to the judge, the notice constitutes “government speech” because its content and message are controlled by the government, and therefore is not subject to the First Amendment’s Free Speech Clause. 

What It Means

Although the judge invalidated two portions of the rule, she upheld the notice requirement, and that portion of the NLRB’s rule remains valid.  Further, the NLRB is permitted to rely on an employer’s failure to post the notice as grounds for the finding of an unfair labor practice on a case-by-case basis.      

As a final note, the plaintiffs in this matter did not specifically challenge that aspect of the NLRB’s rule that permits the NLRB to use an employer’s failure to post the notice as evidence of unlawful motive in its unfair labor practice proceedings.  As a result, the judge found that that portion of the rule remains valid.

For now, employers who are covered by the NLRA must plan to post the notice on April 30. Another challenge to the rule is pending in a federal district court in South Carolina. We will continue to monitor that case and will keep you updated as to further developments.

By Jennifer Dunn, Amy Moor Gaylord, Chris Johlie

Article courtesy of Worklaw Network firm Franczek Radelet.

“All labor that uplifts humanity has dignity and importance, and should be undertaken with painstaking excellence.” — Martin Luther King, Jr.

This issue discusses:

• Editor’s Column: Seven Employment Practice Trends to Follow
• What Can Employers Do About Off-Duty Conduct?
• Ninth Circuit Overrules NLRB on Employee Protections
• Employee Loses FMLA Protection for Not Cooperating
• Why Are Employees So Unhappy?
• Online Time
• Play Social Scientist
• Form of the Month: HR That Works Mission Poster

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Seven Employment Practice Trends to Follow

The law is an evolving landscape. Here are some items to watch for in 2012.

1. The continued influence of the NLRB over the private workplace — Not only is the NLRB continually making it easier to organize; it has also ventured into the social media arena, and has begun reviewing independent contractor issues (the board focuses on these issues because independent contractors can’t unionize).
2. Continuing attack on the independent contractor classification — The IRS and state agencies want their tax dollars and are clamping down on 1099 misclassifications. See  www.dol.gov/whd/workers/misclassification/ and www.1099timebomb.com.
3. Increasing coordination among agencies — If you misclassified someone as an independent contractor, not only can they now organize your company, but the IRS and state agencies will probably be coming after you for back taxes, failure to supply Workers’ Compensation insurance, overtime, and other expenses. If you have independent contractors, I encourage you to look at the Independent Contractor Training Module, which includes a report, a checklist, and more.
4. Continued rise in disability accommodation claims — Because more and more Americans are becoming disabled, you can expect a continued growth in disability accommodation claims. Last year, the EEOC was very aggressive on failure to accommodate claims. For example, Verizon had to pay handsomely because its no-fault attendance policies violated both the ADA and FMLA. As always, you can get help from legal counsel and use the resources of the Job Accommodation Network.
5. An increase in benefits related claims — It seems as if every employer is looking for a plan to reduce its overall benefit costs. Over the year, we’ve been questioned about all sorts of carve-out schemes, the impact of putting employees onto somebody else’s payroll, giving one group one plan and another group of employees a different plan, asking people to use their Medicare instead of company benefits, and so on. This activity is sure to generate ERISA and discrimination claims. The DOL has just updated its Affordable Care Act pages. See www.healthcare.gov/law/index.html, www.dol.gov/ebsa/healthreform and Frequently Asked Questions from Employers Regarding Automatic Enrollment, Employer Shared Responsibility, and Waiting Periods.
6. Social media craziness — It’s only just begun. The risk implications can be severe and immediate. Not having a well-thought out policy is a big mistake. See the Sample Social Media Policy on HR That Works and have an attorney review it.
7. Restrictions on background checks — The EEOC and state agencies are clamping down on employers’ ability to obtain credit and criminal background information. Make sure you use a background check company such as Global HR Research that knows the law.

What Can Employers Do About Off-Duty Conduct?

In many states, the answer is nothing as long as the conduct is legal. Here’s an excellent summary of legislation protecting employees created by the Conference of Legislators.

Ninth Circuit Overrules NLRB on Employee Protections

The Ninth Circuit, known as the most liberal and employee-friendly federal circuit in the nation, recently overrode an NLRB ruling on employee protections. In this case, an employee complained legitimately about working conditions, but lost his protection when he started berating his manager, calling him plenty of F-word names we cannot repeat here and also telling him that he was stupid, nobody liked him, and that everybody talked about him behind his back. During the employee’s outburst, he stood up, pushed his chair aside, and told the manager that if he fired him the manager would regret it. The manager then fired the employee.

The Court reminded us that in order for an employee to lose NLRA protections, it would consider these factors:

1. The place of the discussion
2. The subject matter of the discussion
3. The nature of the employee’s outburst
4. Whether the outburst was in any way related to a fair labor practice

The Board is required to balance those factors carefully. In the end, the Act permits some leeway for impulsive behavior, which must be balanced against the employer’s right to maintain order and discipline. As the Court reminded us, if an employee is fired for denouncing his supervisor in obscene, personally degrading, and/or insubordinate terms, the employee may lose the protection of the National Labor Relations Act. When the Court looked at the language, the physically aggressive nature of the employee, and his flat-out belligerence, they decided that he had lost his protections.

As mentioned in previous posts, the NLRB has now waded into social media waters with these conversations. So far, its decisions have been very pro-employee, as was the underlying decision in this case. Click here to read the case.

Employee Loses FMLA Protection for Not Cooperating

After being terminated, a plaintiff filed an FMLA retaliation claim; however, she could not prove any improper employer conduct, only improper conduct on her part. The plaintiff’s untimely documentation under the FMLA resulted in her eventual termination, which the court then upheld. It also rejected any argument of “intermittent leave,” because this was not indicated in the FMLA certification or by agreement.

A note from the court to the wise:

“Employers facing questionable certifications have two preferable options: 1) they can require the employee to obtain a second opinion from a different provider at the employer’s expense; or, 2) after granting the employee the opportunity to correct any shortcomings, they can obtain the employee’s permission to clarify or authenticate a questionable certification with the original health care provider. Although these measures are discretionary, utilizing them would avoid the factual disputes and questions of reasonableness that conceivably arise from the employer’s decision to classify an FMLA request as facially invalid without first working with the employee to resolve any discrepancies.”

Click here to read this case, a classic example of the FMLA gone wrong.

Why Are Employees So Unhappy?

Poll after poll describes how dissatisfied today’s workers are. For example, in a recent poll by Staples, 33% of employees said they feel unappreciated at work, while 38% were searching for a new job. Likewise, in the annual Education and Work poll conducted by Gallup, dissatisfaction with healthcare benefits increased 11 points in the past three years, followed by a seven-point increase in dissatisfaction over the potential for promotion at work. According to the poll, job issues causing the most dissatisfaction were: On-the-job stress (34%), health insurance benefits (30%), compensation (30%), employer retirement plan (28%), chances for promotion (26%), vacation time (20%), recognition for work accomplishments (19%), job security (18%), and amount of work required on the job (17%).

What can we learn from this? Here are my observations:

1. Half of employees are more satisfied at work than the other half. This is the way it always has been and always will be.
2. Stressful financial times cause us to focus on productivity, efficiency, and running lean — which generates a lot of stress. As business owners and managers, we should do everything possible to acknowledge this stress and try to do something about it. For example, do you encourage your employees to take breaks or do you really keep your fingers crossed, hoping they’ll work through them at their desks? If you don’t already have a wellness plan, you should create one because it can help with stress management.
3. Health insurance benefits have greater meaning to employees than straight compensation. In his book, Predictably Irrational, Daniel Ariely explains that health care benefits are a social contract, while compensation is an economic contract. Apparently, a dollar spent on benefits is worth more in total impact than a dollar spent on compensation — something that you should bear in mind when gutting your benefit plans.
4. Years ago, the Gallup organization did the largest poll about employee retention ever conducted. It concluded that there were three main reasons for turnover:
   • The person in the job is a misfit; they don’t have the skills or personality profile to succeed in it. In a sense, both employee and employer are filling a gap that will be short lived.
   • A lack of perceived career growth or opportunity. Here’s where management has to step in with such tools as career ladders, career days, succession planning, and an overall discussion about finding the opportunity at your company.
   • The most important relationship an employee has is the one with his or her immediate boss. Guess what? Half of all bosses are above average and half of them are below average. Which half do you have managing for you? How much training do you offer managers on being better managers? Do yourself a favor and take advantage of the extensive training on HR That Works that will help them be better managers.
5. It’s essential for management not to crawl into a cave during stressful times. Rather, they need to stand out front, give honest information, and handle the tough questions. Unfortunately, at too many companies, people are surviving as individuals, rather than as a team.
6. As Steven Covey says, begin with your circle of influence. Start right where you are and focus on those people you work with or manage directly.

Online Time

According to a Nielsen poll, here’s how Americans spend their time online:

The chances are that when your employees access the Web at work, this is what they’re doing. The survey doesn’t break down the percentage of time in each of these categories that’s related to personal matters. However, you can assume that — unless you’ve encouraged or allowed your employees to go online for business purposes — most of their use is going to be personal.

As we discuss in the Social Media Training Module, this is a battleground in the workplace. Employees are demanding greater and greater freedom, flexibility, telecommuting, multitasking, etc. It’s how they were raised. Older managers who try to control this new workforce closely find themselves causing dissatisfaction and non-productivity in the process. They also have to consider that dissatisfaction can spread like wildfire through mobile devices and might be protected by the National Labor Relations Act and a variety of other laws.

Here’s the solution: Have a dialogue with your workforce about the use of the Web, social media, mobile devices, etc. Acknowledge that, although the workplace has changed, productivity remains the bottom line. This is another reason why the ability to benchmark performance results is more important than ever. Do you really care if employees spend half their day on their mobile devices, if during the other half of their day they meet or even exceed benchmarks? Although this might rub us the wrong way, is it really something that we should worry us? For example, I use a number of independent contractors through programs such as Elance. I don’t police any of them. I’m simply hiring them to produce results — which is exactly what you’re doing, or should be doing, with your employees. The question is, to what extent is that result clarified? To what degree can inappropriate use of mobile devices undermine activities that enhance your bottom line? Just as important, which employees are using mobile devices in a way that’s helping to grow your business? How can you learn from those employees?

As mentioned, the Social Media Training Module offers a one-hour webinar on this topic, as well as a shorter update video that explains NLRA constraints on social media use by employees. The personnel forms also include sample policies on the use of social media and mobile devices.

Play Social Scientist

I’ve coached many executives over the years. One of the questions I ask is whether they spend more time reading about other companies’ stories or creating experiments and stories of their own. More than half of the executives admit that they spend more time focusing on the outside than looking on the inside. To help executives, I encourage them to play social scientist.

1. Be a good observer.Step back and take a mile-high view of the environment. Look at the situation with fresh eyes. If you were a social scientist who walked into your company today, what would you observe about it? Simply being “present” in your situation is the best way to be an observer of it.
2. Conduct surveys. Social scientists love surveys. You can ask any question you want. Let your imagination be your guide. Consider creating a Survey Question of the Month all employees are required to answer. When this begins producing results, you might bump it up to two a month, or even one a week. Make sure that these surveys solicit ideas, as well as opinions.
3. Generate data.The next step is to translate your observations and survey results into data you can use. For example, what do your observations and survey results tell you are the 20% of critical factors that would generate 80% of the desired results? Usually this 20% consists of three things. What’s the data around it?
4. Run experiments to verify your data.Now that have some information, play with it. If employees tell you that what they want more than anything else are improved benefits, then dig deeper. Create experiments that compare the perceived value of improved benefits versus other equally attractive options.
5. Finally, publish your results. Educate your stakeholders on what you’ve learned and how using this valuable information can improve their career and the company. Of course, when you publish your results, you’ll be open to critical judgment, as well as praise and understanding. That’s what comes with sticking your neck out.

P.S. HR That Works Tools to consider using include a variety of employee surveys, HR department survey, benchmarking report, and tools.

Form of the Month

HR That Works Mission Poster (PDF) – This poster defines us — what we care about, who we are, what we do. How could you create a fun poster like this for your company?

Podcast

Click here to to listen to this month’s newsletter podcast.

On January 25th the NLRB issued its second lengthy memo on Social Media use by employees. Like the first report, it is disjointed, poorly organized, and leaves employers with more questions than answers. In this 25-minute video Don Phin goes over the learning that can be gleaned from the report. This is a video that applies to every employer!

Citing concerns about delays in processing grievances through parties’ contractual grievance-arbitration procedures, NLRB Acting General Counsel Lafe Solomon has proposed that the Board consider revising the existing policy of deferring charges to arbitration in certain circumstances. To see the press release and additional information, go to http://www.nlrb.gov/news/acting-general-counsel-seeks-changes-deferral-policy.

Very simply, the NRLB non-employee disputes are taking too long to go through the delegated arbitration process and so the Board will be deciding these cases directly to speed up resolution. It will be interesting to see how they will be able to take on this burden with a tight budget. Whether you agree with the approach or not, this is yet one more pro-union move by the Administration.

It seems as if the National Labor Relations Board has lost touch with reality. In case after case, it has protected employees hell bent on complaining about everything from work assignments to tucking in their shirt or having to take their hat off. They can complain about poor marketing campaigns, curse out their bosses, wear shirts that defame the company, and do about everything else possible to not do their jobs. Whether you consider the administration to be in the pocket of the unions or not, they’ve taken a very aggressive stance at the NLRB. Consistent with recent DOL practices, the NLRB has shown their litigation muscles and paraded their record enforcement in terms of fines, penalties, and back wages recovered.

Collectively these agencies are particularly aggressive when it comes to union organizing, wage and hour, health and safety, and employee misclassification (whether exempt vs. non-exempt or employee vs. independent contractor). Critics claim that this litigious approach is nothing more than a money-making opportunity, figuring the more auditors and enforcement personnel they hire, the more revenue they can bring in that exceeds the cost of those hires. The aggressive approach of the DOL, NLRB, and OSHA has not missed attention in the press. For example, there was a great deal of media coverage when the NLRB made its effort to prevent Boeing from moving its manufacturing plant out of Washington State.

What’s an employer to do?

1)      Stay on top of the law whether you have 15 employees or 1,500. Ignorance of the law is not an excuse that will garner any sympathy.

2)      Where possible, purchase employment practices liability and other coverages to mitigate against these risk exposures.

3)      Use the proper strategies, tools, and training to make sure you comply with today’s myriad of laws. There is a ton of great tools on HR That Works.

4)      Don’t hesitate to rely on expert assistance the second you realize you don’t know what you’re doing. This is a complicated area even for the lawyers!

“You’ve got to find what you love – and that’s as true for your work as it is for your lovers. Your work is going to fill a large art of your life, and the only way to be truly satisfied is to do what you believe is great work. The only way to do great work is to love what you do. If you haven’t found it yet, keep looking. Don’t settle!”  —Steve Jobs

This issue discusses:

• Editor’s Column: Yesterday’s Over With, So Don’t Be a Dinosaur
• HR Wisdom
• Desperate Times Create Desperate Employees
• The End of the NLRB’S Reign?
• EEOC Sues Employers for Accommodation Violations
• EEOC Charges Hit Record Highs
• Making Your Next Hire
• The Ultimate in Religious Accommodation
• NLRB Poster Requirement … One More Time

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Yesterday’s Over With, So Don’t Be a Dinosaur

The past is gone. Poof. No mas! The challenge is that most of us are deeply rooted in the past and find a great deal of comfort in it – whether it was good or bad. We hear ourselves saying to both loved ones and people in the workplace, “When I was young…”

It’s frightening to go through today’s rapid change. As Buckminister Fuller stated, we’re going through a period of “accelerating acceleration” in which things are happening faster and faster — at a faster rate. Today’s rate of change is generating a significant amount of dislocation, uncertainty, and fear — and that doesn’t feel good.

For the first time in generations, we’re looking to those younger than us for advice — primarily in technology. We’re living in a technological age. It’s not just about production and information, but how technology affects every aspect of our lives.

What are you or your company doing to drive past this fear of change? Have you set out to learn from younger workers? Have you invited them to educate and enlighten you on today’s technologies? Will you and your company embrace the need for this invitation or will lose out to competitors who do?

Change makes us uncertain about what we can contribute and how this contribution can create job security and personal growth. If we can’t do things the “old school” way, then what are we going to do? For example, many employees somehow feel affronted when their company decides to offshore everything, from data management to customer service. What’s left for us to do?

How do we drive past this fear? How do we choose not to play victim to the great change? Fundamentalist religion has blossomed worldwide as one answer. In a sense, we’ve decided to prohibit change. I’ve seen bosses and employees take a fundamentalist view about their work too, doing everything they can to block, sabotage, and resist change. The problem is that when we look backward hoping for a sense of security, we can turn into pillars of salt. Although we might not die physically, we’ve surrendered in our minds. Now all you have to look forward to is retirement — and it can’t come fast enough.

I remember speaking to a top executive at a billion-dollar organization about an opportunity in her business. Her entire conversation was about the lack of support she received from other corporate departments and the retirement she’s looking forward to with her husband. When I asked, “what’s your edge?” she didn’t have one. I can tell you that her department will be going in only one direction — and it’s not one that will please shareholders.

It’s very difficult to break up a relationship with another person, especially when this person is the “former me.” The past provides a false sense of strength in the familiar.

I was speaking with a 63-year-old human resource executive who was laid off from a major corporation and then hired by one of my business partners to help implement our program. This man called our customer support service because he didn’t know how to download and open a Word document. Two days later, he called me to ask a question he could have easily found the answer to on the HR That Works web site. When I began to try to show him where he could get the information, he cut me off and told me that he didn’t “like all this new technology” and wasn’t very interested in using it. He actually asked me if I could send him a three-ring binder with the materials from the web site!

The role of Wisdom within all of this change is to understand and communicate what is continuous or cyclical. For example, long-term investors warned novice dot-com and real estate investors about the rule that cuts across investing: “If it’s too good to be true, it probably is.” If these novices listened to the wisdom of the Warren Buffets, they wouldn’t be in a financial mess today. We need to listen to the wisdom that things will always change. Then we have to project our will firmly into the future. We must be open and invite new ideas. We have only begun our life’s story — and many exciting chapters lie ahead.

Here are some steps you can take to reach this goal:

1. Identify those things that you wish could have remained the same. You might wish there were no cell phones or electric cars, then recognize the past is over with, give it its proper funeral, and run like heck to embrace what has replaced it.
2. Invite an Innovation and Wisdom Dialogue among your workforce. What timeless lessons and cutting-edge technologies can be shared? How can we allow the people in our organization whose strength is wisdom to utilize this ability? How do we empower those whose strength is technology to make full use of those abilities?
3. Realize that if you don’t embrace change, you will — or should be — be let go. I’ve seen too many employers face paralysis in letting employees go because they were once productive in the old way of doing things.

We need to force the hand of change. You can create your own game plan for embracing change and moving forward, have your managers do it for you, or start planning an early and unfulfilling retirement. The choice is yours!

HR Wisdom

In light of the discussion about change and enduring wisdom, here’s what I consider the wisdom available to HR managers:

• Great HR practices generate a competitive advantage, whether you have five or 5,000 employees.
• The “tipping point” in human resources is the hiring process, which has a greater impact on productivity, teamwork, constant improvement, profitability, and compliance than any other factor.
• According to the HR That Works Cost Calculator, there’s at least a 10% cost or variance of payroll in your human resource practices. For example, if you have a $1 million payroll, your cost or variance is at least $100,000. You’ll need to bring in, at a minimum, $400,000 to put that $100,000 back to the bottom line.
• The greatest risks in employment practices are uninsurable. Despite all the noise of the legal community, poor hires, high turnover, and lack of productivity left on the table every day have the greatest impact to the bottom line. Every company should cap its employment practices liabilities by purchasing Employment Practices Liability Insurance (EPLI).
• You need to find HR exciting to be any good at it — even if it’s only one of three hats you’re wearing.

Desperate Times Create Desperate Employees

At a recent HR presentation for CEOs, three of the 15 executives present reported that an employee had embezzled from them or engaged in other financially destructive activity during the past few months. We’re getting similar questions on Hotline calls from Members. Here’s the reality: If you don’t have significant checks and balances around your money, you’re conducting a social experiment and making your business easy prey for the desperate, greedy and villainous.

In one of these cases, a new HR director told the payroll company that she was given a substantial raise only days after joining the company, the payroll company never questioned it, and she made off with thousands of dollars. As the Russian proverb states, “Trust, but verify.”

The End of the NLRB’S Reign?

Many employers, including Boeing (which the National Labor Relations Board blocked from moving to an aircraft assembly facility in Charleston, South Carolina), have been upset with the NLRB for the past few years. In this newsletter and our Webinars, we’ve discussed the Board’s efforts to make unionization far easier, as well as to expand the National Labor Relations Act to social media postings. The NLRB has not had a full complement of five board members for five years. When Craig Becker’s term expires this year, the Board won’t have enough board members to rule on labor disputes. Republican lawmakers will surely try to block any nominations President Obama appoints to the Board. Many employers feel that the NLRB is trying to do through administrative pressure what Congress would not do through legislation.

Expect the Board and Administration to push right up to Election Day.

EEOC Sues Employers for Accommodation Violations

According to a SHRM article, the EEOC has filed disability lawsuits against:

• Ford Motor Company for failure to allow an employee with a gastrointestinal condition to telecommute.
• Kohl’s Department Stores for refusing to accommodate a diabetic employee’s request for a regular schedule.
• SITA for rescinding a job offer when it found that an applicant who needed surgery for cancer asked to delay her start date.
• The Scooter Store for refusing to accommodate an employee’s request for a temporary leave of absence due to a knee injury and then firing him.

Here’s the point: The EEOC is on the warpath when it comes to disability accommodation. Go through the process. Take a checklist approach. Treat your people the way you would want to be treated. Get professional help if you need it. The HR That Works Hotline is a good place to a start for Members as is the Job Accommodation Network: http://askjan.org/.

EEOC Charges Hit Record Highs

The EEOC received a record 99,947 charges of discrimination in fiscal year 2011, which ended Sept. 30 — the highest number of charges in the agency’s 46-year history. EEOC staff also delivered more than $364.6 million in monetary benefits for victims of workplace discrimination. This is also the highest level obtained in the Commission’s history. The fiscal year ended with 78,136 pending charges — a decrease of 8,202 charges, or 10%. In previous years, the pending inventory had increased as staffing declined 30% between fiscal years 2000 and 2008. Comprehensive enforcement and litigation statistics for fiscal 2011 will be available in early 2012.

Making Your Next Hire

In this tight economy, many employers are reluctant to make any new hires. This is a big mistake. The first thing to consider is who it is that you should get “off the bus.” Our test has always been this: If the employee quit today, would you be relieved or upset? If the answer is “relieved,” then do what you have to do: Let this employee go or put them on some type of performance plan that guarantees their success or departure. One of the problems with trying to resurrect poor employees is that they tend to look for job security by filing claims, hoarding knowledge, or other conduct which will make their staying on board even more costly. In our experience, when you let these people go you really learn the truth about them.

Now that you’ve “culled the herd,” don’t replace them immediately with the same level of employee. Instead, take away the lowest value work of the existing team and hire an entry-level employee who you can groom in your way of doing business. How much $10, $15, or $20 an hour work can you take away from the existing team? Do they want it taken away from them or not? Instead of hiring an entry-level employee, many companies outsource administrative tasks to consultants and other third parties.

Taking this approach will increase workforce productivity and revenue per employee. You’ll also be able to give existing employees a raise because they’re adding more value to your organization.

Remember, when recruiting entry-level employees, provide them with a career map so they can see the opportunity in your business. HR That Works has sample “career ladders” to consider.

The Ultimate in Religious Accommodation

This summer, New York City enacted the most “progressive” statute on religious accommodation in the workplace. Follow these guidelines, and you’ll be “safe” in any jurisdiction.

According to the new law, the term “reasonable accommodation” means, “such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity’s business. The covered entity shall have the burden of proving undue hardship. In making a determination of undue hardship … the factors which might be considered include but shall not be limited to:

(a) the nature and cost of the accommodation;
(b) the overall financial resources of the facility or the facilities involved in the provision of the
reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(c) overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and
(d) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

“In making a determination of undue hardship with respect to claims for reasonable accommodation to an employee’s or prospective employee’s religious observance … the definition of ‘undue hardship’ set forth in paragraph (b) of such subdivision shall apply.

“(b) ‘Reasonable accommodation,’ as used in this subdivision, shall mean such accommodation to an employee’s or prospective employee’s religious observance or practice as shall not cause undue hardship in the conduct of the employer’s business. The employer shall have the burden of proof to show such hardship.

“‘Undue hardship,’ as used in this subdivision shall mean an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system). Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:

(i) the identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer;
(ii) the number of individuals who will need the particular accommodation to a sincerely held religious observance or practice; and
(iii) for an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

“Provided, however, an accommodation shall be considered to constitute an undue hardship, for purposes of this subdivision, if it will result in the inability of an employee who is seeking a religious accommodation to perform the essential functions of the position in which he or she is employed.”

This language should seem familiar because it matches that of disability accommodation. Of course, the definition of “reasonable accommodation” under the ADA is litigated on a case-by-case (Don’t you just love the uncertainty of it all?). To learn more, go to http://www.nyc.gov/html/cchr/home.html.

NLRB Poster Requirement … One More Time

With so many employers taken by surprise, the NLRB extended its poster requirement to April 30. As of April 30, 2012, most private sector employers are required to post a notice advising employees of their rights under the National Labor Relations Act. As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws. The notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. Employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there. You can get the poster, read a FAQ and learn more by going to https://www.nlrb.gov/poster.

This poster is an invitation for disgruntled employees to organize and otherwise complain about work conditions. The only defense is good personnel practices and readily available legal help if you need it. HR That Works Members should watch or listen to the recorded Webinars we did on NRLA requirements. You are also encouraged to post your literature on the wall. Let employees know the company vision, mission, goals and values. Share employee success stories. Remember, the workforce needs a drama. You have a choice of who will write the script.

Here is the poster language that employers should be concerned with:

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
• Question you about your union support or activities in a manner that discourages you from engaging in that activity.
• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
• Threaten to close your workplace if workers choose a union to represent them.
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten or coerce you in order to gain your support for the union.
• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
• Take adverse action against you because you have not joined or do not support the union.

If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

Form of the Month

I-9 Compliance Frequently Asked Questions (PDF) – There were so many questions after our I-9 Webinar that we created this FAQ to help.

Podcast

Click here to to listen to this month’s newsletter podcast.

The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.  

Most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date of April 30. The notice is available at no cost from the NLRB through its website, www.nlrb.gov, which has additional information on posting requirements and NLRB jurisdiction.

Over 65,000 written comments were received by the NLRB in response to its proposed ambush election rules, which would result in holding elections as quickly as ten days after the filing of a petition. The Board had open hearings for two days in July to hear comments from business and labor about the proposed rules. In our July issue of the Employment Law Bulletin, we predicted that while the Board would be very hospitable and act like it truly cared about concerns expressed by the business community, it would move forward with establishing the rules in the manner they were proposed.

In an effort to issue the final rule before the Board has only two members and therefore would be unable to do so, Board Chair Mark Pearce held a vote among the three Board members–himself, Craig Becker and Brian Hayes–yesterday, November 30, 2011, to approve a scaled-back version of the original ambush election rules. (Becker’s term expires at the end of December. Hayes, a Republican and former Senate staffer, has aggressively and publicly opposed the Board’s notice posting rule and these proposed rules.)

As a result of yesterday’s 2-1 vote in favor of changing the Board’s election rules, some but not all of the rules in the original proposal are now slated for a final vote, some time before Becker’s term expires and after the final rules are circulated to all three Board members.

Yesterday’s vote represented at least a brief retreat from the original rules, which would have resulted in union elections being held as quickly as ten days after the filing of a petition. Instead, the new rules narrow the scope of pre-election hearings, virtually eliminate pre-election appeals, and strike down the current rule providing that a vote cannot be held sooner than 25 days after the Board’s Regional Director issues a Direction of Election. Although the final rule is a significant step back from forcing a union vote within ten days of a petition, it certainly opens the door for Regional Directors to schedule union votes much sooner after the petition is filed. Indeed, the clear intent of the rule is to encourage elections within the first 25 days after the filing of a petition, much sooner than the current average of 38 days between the filing of a petition and a union vote.

Member Hayes has spoken out against the Board’s attempt to implement these rules without a clear quorum and has even hinted that he may resign prior to the final approval of these rules, which would prevent a two member Board from implementing what’s left of the ambush rules.

As we have stated previously, we expect ambush election rules–in some form–to become effective, whether it’s a result of this Board’s action or actions by the Board after new appointees are seated. Either way, whatever action this Board takes is likely to be challenged in court.

Article courtesy of Worklaw® Network firm Lehr, Middlebrooks & Vreeland, P.C.