NLRB Potpourri: Recent Decisions

Personnel Changes To Cure Employee Grievances:    The National Labor Relations Board (“the Board”) recently held that an employer violates the National Labor relations Act (“the Act”) by announcing during a union organizing campaign that it hired a bi-lingual human resources manager to improve workplace communications.  The Board found that the hiring was made to […]

Personnel Changes To Cure Employee Grievances:

   The National Labor Relations Board (“the Board”) recently held that an employer violates the National Labor relations Act (“the Act”) by announcing during a union organizing campaign that it hired a bi-lingual human resources manager to improve workplace communications.  The Board found that the hiring was made to address an issue of poor employee communications that existed in the workplace.  The hiring was presented as an improvement in working conditions allowing employees to better communicate with managers.  The Board reasoned that the violation was committed by announcing the change as an improved working condition.  Presumably, hiring a bi-lingual manager would have been legal if the employer had not made a big fuss over it and presented it as a solution to an employee grievance.  What employers should take away from this is that if a campaign issue involves the hiring or firing of management personnel to appease employees, do not make the change and tell employees it was done to remedy their dissatisfaction.  If the change is made and the employees figure it out on their own, the same benefit will be attained.  The case is Newberg Eggs, Inc., 357 NLRB No. 171. 

Decision on Work Rules:

   The Board has ruled that a work rule stating: “unauthorized soliciting of contributions on company premises” was prohibited violated Section 8(a)(1) of the Act because it was not limited to working time and because it expressly restricted protected activity.  Even though it was limited to solicitation of contributions, a solicitation of contributions to support an incipient organizing drive, to help a fired fellow employee, and for many similar purposes is protected. 

   A rule subjecting employees to discipline for the “inability or unwillingness to work harmoniously with other employees” was, also, found to violate the Act because the rule was sufficiently imprecise such that it could encompass any disagreement or conflict among employees, including those related to discussions and interactions protected by Section 7.  The Board’s precedent for finding a violation was a case holding that a rule prohibiting “loud, abusive or foul language” was a violation because it did not define abusive or insulting language.  Good thing the Board doesn’t have jurisdiction over kindergarten children. 

   Employers will be glad to know, however, that work rules prohibiting “leaving a department or the plant during a working shift without a supervisor’s permission” and “stopping work before a shift ends or taking unauthorized breaks” are valid, but a rule that simply prohibits “walking off the job” is a violation because employees will think that they are not permitted to strike since the term “walk out” is commonly used as a synonym for a strike.  The case is 2 Sisters Food Group, 357 NLRB No. 168.

 Back Pay to Undocumented Immigrants:

   The Supreme Court ruled in Hoffman Plastics Compound v. NLRB that the Board cannot award back pay to employees who were not authorized to work in the U.S.   The current Board does not like this decision and is doing what it can to limit it.   Recently, the Board ruled that a Respondent employer cannot raise a defense to back pay liability based on an employee’s legal work authorization status unless the employer can show facts at the stage in which it is called upon to raise all of its defenses that the employee was not allowed to lawfully work in the country.   In some cases, this ruling will result in undocumented workers receiving back pay awards even though the Hoffman decision prohibits that result.  Member Hayes dissented and stated that Congress, not an administrative agency, is the appropriate body to re-write the law if it disagrees with the Supreme Court.  The case is Flaum Appetizing Corp., 357 NLRB No. 162.   Given that the Board will prohibit an employer from inquiring into lawful work status unless it knows for certain at the time it has to file its answer that the employee is here illegally, it is fairly certain that the Board will not make any independent inquiry of anyone. 

 For more information or any questions concerning labor law or related issues, please contact Bill Trumpeter at 423-785-8318.   The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations.  As always, readers should consult a qualified attorney for specific legal guidance.  Should you need assistance, please call 1-800-275-7303.ext 318

 

What if: A union business agent shows up in my office with a petition or a stack of cards and asks to meet with me. What should I do?

Should you find yourself in this situation, you are probably kicking yourself for not having used BizKeys to learn about why employees want to form unions and what you could have done to avoid getting to this point.  If your employees have signed authorization cards and you were not aware of what was going on, […]

Should you find yourself in this situation, you are probably kicking yourself for not having used BizKeys to learn about why employees want to form unions and what you could have done to avoid getting to this point.  If your employees have signed authorization cards and you were not aware of what was going on, or more likely, your supervisors saw it but didn’t know what to do, you are probably wishing that you had used the BizKeys videos on early warning signals of union activity to train your supervisors.   OK, so you didn’t, but you are faced with the immediate situation and what you do and how you handle it is very important. 

Unless you want a union, do not accept the cards or the petition from the individual.   What he wants you to do is accept the cards and say that it looks like the employees want a union.   If you do that, you may very well have granted recognition  to the union as your employees’ exclusive bargaining agent. 

If presented with such a situation, tell the person presenting you with the cards or petition that you do not believe that a majority of your employees would voluntarily designate a union as their exclusive representative and that if the union wants to waste its time it should file a petition with the National Labor Relations Board (NLRB) and ask for a secret ballot election so your employees can make a voluntary, uncoerced decision in the privacy of a voting booth. 

The next thing you should do is call your labor lawyer because you are already behind the eight-ball and will have a lot of campaigning to do to reverse the momentum the union will have established.   

For more information or any questions concerning labor law or related issues, please contact Bill Trumpeter at 423-785-8318

The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations.  As always, readers should consult a qualified attorney for specific legal guidance.  Should you need assistance, please call 1-800-275-7303.ext 318.

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NLRB Issues Quickie Election Rules

The National Labor Relations Board (NLRB) continues its agenda of administrative labor law reform that Congress failed to pass when efforts to enact the Employee Free Choice Act (EFCA) were unsuccessful. In recognition of the fact that Member Becker’s recess appointment is to expire on December 31, 2011, reducing the Board to only two members, rendering it unable to act due to a lack of a quorum, the two Democratic appointees have voted to adopt new rules that will speed up the election process. The part of the overall rule proposal adopted yesterday provides:

   The National Labor Relations Board (NLRB) continues its agenda of administrative labor law reform that Congress failed to pass when efforts to enact the Employee Free Choice Act (EFCA) were unsuccessful.    In recognition of the fact that Member Becker’s recess appointment is to expire on December 31, 2011, reducing the Board to only two members, rendering it unable to act due to a lack of a quorum,  the two Democratic appointees have voted to adopt new rules that will speed up the election process.  The part of the overall rule proposal adopted yesterday provides:

  • The National Labor Relations Act provides for a pre-election hearing to determine whether there exists a “question of representation” to be resolved by an election. Currently, parties can raise issues at the hearing that are not relevant to that question, which can result in unnecessary, expensive, and time-consuming litigation for the Board and all parties. The first proposed amendment gives the hearing officer authority to limit the hearing to matters relevant to the question of whether an election should be held.
     
  • Most cases involve only routine issues based on well-known principles of Board law. In such cases, regional directors can reach a fair and sound decision based on the record from pre-election hearing, including closing arguments. Parties may currently file briefs after the hearing, but the briefing adds nothing to the regions’ decision-making process in such routine cases and substantially increases the parties’ litigation costs. The second proposed amendment authorizes the hearing officer to decide whether to permit briefing depending on whether the case presents issues that would benefit from it.
     
  • The Board’s current rules require parties to file two separate appeals to seek Board review of pre-election issues and issues concerning the conduct of the election, respectively. Appeals concerning pre-election issues must be filed before the election, and are often subsequently mooted by the results of the election. The third amendment reduces unnecessary litigation by consolidating the two appeals into a single post-election procedure and by avoiding altogether appeals of issues that become moot as a result of the election.
     
  • The fourth amendment follows directly from the third, by ending the practice of delaying the scheduling of elections to permit time for a pre-election appeal. (In any event, even under the current rules, the delay does not serve its stated purpose because the Board typically permits the election to be conducted and directs that the ballots be impounded while it considers the appeal.)
     
  • In keeping with the effort to avoid multiple appeals in a single case, the fifth amendment would narrow the circumstances in which a request for special permission to appeal to the Board would be granted. Such permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review. (Board review would remain available following the election on all issues for which permission to appeal was denied or not sought.)
     
  • The sixth amendment would simplify appeal procedures and avoid litigation of appeals that do not present a serious issue for review. It would do this by giving the Board discretion to hear and decide any appeals to the election process, whether they concern pre-election or post-election issues. 

 

     What this means to employers is that the time between the filing of the petition and the holding of the election will be substantially reduced.   Employers wishing to remain union free will have to be proactive.   Supervisors and management should be trained to recognize early warning signals of possible union activity and be  equipped  with information as to what they can and cannot do in such circumstances.  Work rules and policies need to be reviewed for legality and implemented before the union comes knocking.

     The current Board’s labor law reform has occurred through issuance of decisions in unfair labor practice cases that overrule employer-friendly precedent in favor of labor unions, aggressive use of discretionary injunctive procedures, enhanced remedial measures, and controversial rule-making efforts such as the new quickie election rules and the notice posting rule that was adopted earlier this year.

For more information or any questions concerning labor law or related issues, please contact Bill Trumpeter at 423-785-8318

The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations.  As always, readers should consult a qualified attorney for specific legal guidance.  Should you need assistance, please call 1-800-275-7303.ext 318.

 

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NLRB Overrules 20 year precedent in Non-Acute Care Unit Determination Case- May Have Broader Implications.

The NLRB continues its administrative labor law reform by overruling cases that simply do not jive with its current political ideology.  As Chairman Liebman departs after almost 14 years of service under three presidents, the NLRB will once again be short-handed as there will be only three (3) members unless and until the President can […]

The NLRB continues its administrative labor law reform by overruling cases that simply do not jive with its current political ideology.  As Chairman Liebman departs after almost 14 years of service under three presidents, the NLRB will once again be short-handed as there will be only three (3) members unless and until the President can get one or two more members confirmed, or until he makes a recess appointment.  As Chairman Liebman is exiting her position, the NLRB has been busy getting out some decisions in which it has overruled existing case law while it has three (3) votes of the four (4) existing members to do so.  Traditionally, the NLRB is supposed to have five (5) members and at least a 3/5ths majority is desired when overruling precedential cases.  Member Becker’s recess appointment expires on December 31, 2011,  and the Board will, once again, be reduced to two (2) members.  

The 3-to-1 decision in Specialty Healthcare and Rehabilitation Center of Mobile finds that Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other nonprofessional employees. It overrules the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities.  The majority stated that the appropriate unit determinations for  employees in non-acute care medical facilities will be subject to the same “community of interest” standard  traditionally applied at other workplaces.  The NLRB ruled that where an employer argues that a proposed unit inappropriately excludes certain employees, the employer will be required to prove that the excluded employees share “an overwhelming community of interest” with employees in the proposed unit.  

In dissent, Member Brian Hayes stated that he would adhere to Park Manor. “which established a balanced legal standard maintained in non-acute care health care unit cases without controversy for 20 years (and without any objection from the party seeking review in this case).” 

He also disagreed that the majority’s statement of the community of interest test was consistent with precedent.  In his view, “the majority accepts as the definitive standard for unit determinations in all industries an ‘overwhelming community of interest’ test that will make the relationship between petitioned-for unit employees and excluded co-workers irrelevant in all but the most exceptional circumstances.

As Member Hayes points out, the test approved by the majority not only impacts cases in the non-acute health care area, but all employers.  If the “overwhelming community of interest” standard, which the majority says is “existing” law, is followed, it would mean that in almost all cases, the union’s petitioned for unit will likely be deemed appropriate, despite the fact that Section 9(c)(5) of the Act itself says that the extent of the union’s organizing is not controlling.  While extent of organizing may be considered as a factor, when this majority says that the employer will have to prove an “overwhelming community of interest” of employees outside the union’s proposed unit in order to get them in the unit, that is code for meaning the employer loses.   This decision could result in a union going in any company and picking off distinct groups of employees in a plant or office, petitioning for an election in that small unit, then moving on to the next group.  Couple this decision and the NLRB’s expected issuance of the proposed ”quickie election” rules and employers will have little opportunity to defend against the fracturing of its workforce into many small units of employees who have a community of interest among themselves, to the exclusion of other employees who will also be impacted by the decisions of the unit petitioned for by the union.    The standard set forth by the majority effectively eliminates Section 9(c)(5) from the Act. 

W. G. Trumpeter
Miller & Martin PLLC
 
Suite 1000 Volunteer Bldg.
832 Georgia Avenue
Chattanooga, TN 37402
Phone (423) 785-8318
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NLRB NOTICE: SHOULD EMPLOYERS POST THEIR OWN NOTICE?

       By: William G. Trumpeter, Esq.   Miller & Martin P           btrumpeter@millermartin.com    The National Labor Relations Board (NLRB) has decreed by its rulemaking authority, that employers that are covered by the National Labor Relations Act (“the Act”) must post an official notice to all employees who are protected by the Act advising them of their […]

       By: William G. Trumpeter, Esq.

  Miller & Martin P

          btrumpeter@millermartin.com

  

The National Labor Relations Board (NLRB) has decreed by its rulemaking authority, that employers that are covered by the National Labor Relations Act (“the Act”) must post an official notice to all employees who are protected by the Act advising them of their rights under Section 7 of the Act.   Those rights are: the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or for mutual aid or protection, or to refrain from any or all of the above.

The original date for the posting was November 14, 2011, but that date has been postponed until January 31, 2012.   There are at least three lawsuits filed by employer organizations that are challenging the legality of this new rule. Those lawsuits are pending.   Employers need to think about what they will do if the rulemaking authority is upheld and a notice is required to be posted. 

Many employers object to the posting of the NLRB notice as an infringement of their right of free speech.  There is nothing in the Act itself that requires a notice be posted.  A notice has not been required since the original passage of the Wagner Act in 1935.    Section 8(c) of the Act protects the employers’ right of free speech to express their views about unions so long as the statements do not constitute threats of reprisal or force or promise of benefit.

In the comments accompanying the rule, the NLRB has made it clear that employers retain the right guaranteed by Section 8(c). Therefore, an employer, should it choose to do so, may post a notice of its own explaining its views on unionization.   The decision as to whether to post a side notice, or publish a statement about unionization of its workforce, is a call each individual employer will have to make.  

Some employers may choose to post a notice alongside the NLRB official notice explaining that the NLRB’s notice is required to be posted.   The employer’s notice could go on to lawfully state its reasons why it believes unionization would be wrong for its employees and the company.   It could lawfully emphasize that the employees also have the right to NOT engage in union activities, that they have the absolute right to refuse to sign a union authorization card or petition, and that no one has the right to illegally harass or threaten them if they refuse.  

Many employers have similar provisions in their handbooks or policy manuals.  Many feel that the best way to head off union organizing is to educate the workforce as to what it means to sign an authorization card.   Many times employees sign such cards simply because they are asked by a friend to do so or because they think the company doesn’t care.   Sometimes they are told it is just to get an election.  Frequently, as evidenced by secret ballot results, many employees simply sign to get their co-workers or union organizers to leave them alone.   If the workforce is educated, the chances that the organizing campaign will go on undetected by management will decrease dramatically.     

Other employers might choose not to post such a notice or have such a provision in their handbooks because they do not perceive a union threat or because they have public relations concerns about the effect of such an “anti-union” message.   Perhaps they have unions in other facilities and such a notice would only antagonize that union.  

The decision to post a side notice or to have a separate statement expressing one’s views about unionization is a business decision.  If you decide to develop such a message, it is always wise to have a lawyer experienced in labor law review the language to make sure it is in compliance with the very latest NLRB and court rulings.   

The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations.  As always, readers should consult a qualified attorney for specific legal guidance.  Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303 ext. 318..

 

 

 

  

 

Why Did DOL File Suit Against This Business?

I investigated a transportation business that had classified its drivers as independent contractors and paid them a percentage of revenue derived from their hauls. No overtime wages had been paid. The motor carrier exemption did not apply (rock was hauled from Texas quarries to Texas construction sites). The drivers worked long hours, in part because of arriving several hours before the quarry opened in order to be near the front of the line.

(A case study from my Wage and Hour Division enforcement career)

I investigated a transportation business that had classified its drivers as independent contractors and paid them a percentage of revenue derived from their hauls. No overtime wages had been paid. The motor carrier exemption did not apply (rock was hauled from Texas quarries to Texas construction sites). The drivers worked long hours, in part because of arriving several hours before the quarry opened in order to be near the front of the line.

The “final conference” (to disclose findings) was conducted with the owners and management officials, and the firm’s attorney, at the attorney’s office. I explained that the drivers are FLSA employees and that they are subject to FLSA provisions (including overtime compensation). I explained how to comply (required records, hours worked rules, correct way to compute overtime wages, etc.). Before I could ask for an agreement to comply, the attorney went on a tirade against me personally and the DOL. He stated that I had no business even investigating his clients, as they were doing nothing wrong, and that the drivers are independent contractors. I finally was able to insist on an agreement to comply, but that was a mere formality. The attorney continued to insist that the drivers are not employees, and that his clients will not pay overtime compensation.

DOL policy is that, when an employer refuses to comply, the case is referred to the DOL Solicitor for injunctive action to secure a court order for compliance and payment of back wages. I submitted the case file to my superiors with a litigation recommendation. After suit was filed, another investigator and I spent several days copying records in the defendants’ office. At a deposition hearing, the defendants and their new attorney apologized for the rudeness of the initial attorney. I informed them that I had dealt with very few attorneys who were less than diplomatic, and that the initial attorney in this case was far from representative of the legal profession. The new attorney agreed with that assessment.

Settlement was ultimately reached, the defendants agreed to an injunction, and back wages were paid.

This case would not have been considered for litigation had the employers agreed to comply and to pay back wages. Even upon their initial reluctance to comply, they would have been afforded an opportunity to meet with the Wage and Hour Division District Office management prior to a litigation decision had their representative been reasonable. Resolution was clearly possible at much less expense and inconvenience to the owners of this business.

Suggestions for employers from this experience:

  •  Much time and money can be saved by conducting a self-audit. This should be accomplished long before you become the subject of a DOL investigation.
    • Ensure that your employment relationship and exemption determinations are correct and that your pay plans meet FLSA requirements.
    • If nonexempt employees are paid commissions, make certain that overtime wages are being correctly computed. This DOL opinion letter http://www.dol.gov/whd/opinion/FLSANA/2008/2008_09_22_12NA_FLSA.htm includes a clear explanation of the correct method to be used in computing overtime compensation. The same approach is usually applicable to job rate or piece rate arrangements.
  •  If your FLSA practices are questioned by a DOL investigator –
    • Listen to the explanations provided and ask relevant questions.
    • Keep in mind that it is possible to disagree with the investigator without being arrogant.
    • If you are not convinced that the investigator is correct in his/her assertions, request a “second level” conference with a District Office management official.
    • If you have representation, make certain that your attorney will not be a “loose cannon” and that he/she is knowledgeable of the FLSA (or is willing to learn).
    • Do not refuse to make needed corrections until you are certain that “fighting the battle” will be worth the investment.

 Concluding Remarks

If the Wage and Hour Division conducts an investigation of your business or organization, be open-minded as to the possibility that there are violations. The investigator is probably more knowledgeable of technical FLSA rules than you or your attorney. However, that does not mean that you should not raise questions. DOL investigators do make mistakes. In some cases, the investigator reaches conclusions without considering key facts. Exemptions are occasionally overlooked. An intelligent and open-minded dialogue can encourage the investigator to reconsider the initial conclusions. Even if the assertions are essentially correct, there might at least be room for negotiation. The investigator should agree to allow you or your attorney a reasonable period of time (at least a week) to review the matter. Further, as I previously indicated, it is often productive to request a meeting with a District Office management official to discuss unresolved issues.

During the “final conference” or other discussions with the investigator, make extensive notes. A written report will not be provided to you.

If the investigator presents a “summary of unpaid wages” and asks you to sign it, do not do so until you are convinced that you owe the back wages and that computations have been done accurately. You have the right to secure a copy of computations.

You should always consider obtaining representation when under DOL scrutiny. DOL does not have the authority to prevent an employer from securing professional guidance. In more than three decades of DOL enforcement experience, I dealt with hundreds of attorneys and consultants. They generally “brought to the table” knowledge, expertise, and negotiating ability that the employer did not possess. The attorney in this case study was clearly an exception.

I encourage you to review the self audit guide I prepared for BIZKEYS.  This self audit guide “Wage & Hour – Fair Labor Standards Act (FLSA)” can be found in the Self Auditing section of the BIZKEYS website.

You can contact Mr. Jennings at:  Morris@FLSA-SCA.com

 

Temporary Help, Making It The Best It Can Be (Part 2)

Access To The Work Area Where Temporary Employees Will Be Working   In order for a staffing company to best serve you and their employees, they must know as much as possible about the jobs and workplace where they will be working.  How many employees does your company hire without first showing that person the job site […]

Access To The Work Area Where Temporary Employees Will Be Working  

In order for a staffing company to best serve you and their employees, they must know as much as possible about the jobs and workplace where they will be working.  How many employees does your company hire without first showing that person the job site and letting them experience the general environment in which the work will be performed?  Probably none.  HR professionals know and understand the value of visits to the various departments/work areas to get a general sense of how employees are doing, to compliment them when you hear good things about their work habits, and encourage them when you hear they are falling short of expectations.  In general, you give them an opportunity to speak with you regarding any employment or personal issues they may have.  It allows you to “sense the pulse” of the workforce.  It can provide valuable information regarding  potential problem areas.  These and other meaningful functions cannot be effectively accomplished without access to the work areas.  Of course, these visits must be done with minimal disruptions to the work activity of employees and must always be scheduled and approved by the client (especially with the supervisor or manager over the specific work area).  Good communications and procedural requirement must always be adhered to when making on-site visits.  If permitted, you should draft a protocol for staffing company workplace visits.  It can be a very helpful tool if used properly.

Investigating workplace accidents and  injuries involving temporary employees is just as important to a staffing company as for you when your employees are involved in an workplace accident or injury.  The temporary help company is confronted with unique challenges in providing a safe work place for their employees in that they have no control or responsibility over the various work sites where they place employees.  A top notch staffing company normally has a Safety and/or Risk Control Manager, with sophisticated policies and procedures governing all aspects of safety, ADA, drug free workplace policies, accident investigation, etc.  Hopefully, you are familiar with the safety policies of the staffing company you use and have met the staffing company’s person responsible for safety/workers’ compensation compliance.  If not, contact them and ask to meet with them to review safety policies and establish protocol for accident investigation and other safety issues regarding temporary employee.  You should provide emergency information to supervisors and managers should a temporary employee be injured on the job (client supervisors and managers need to know the protocol).

Participation In Client Meetings, Activities, and Goals

I believe much can be gained from participation of temporary employees in client employee meetings, activities, goals, and other workforce initiatives.  First, it seems to help promote the one goal, one purpose philosophy.  Quite often temporary employees feel as though they are not a part of the team or are seen just as temporary workers that will probably work a day or two and then quit.  Including them in department meetings and activities and giving them recognition for good performance helps to make them feel a part of the “team”.  Being friendly and speaking to them as you do other employees does wonders for their morale.  One example is to include them in safety meetings.  I often attended client supervisor meetings and was given time to address issues involving temporary employees and to ask questions of how to make our service better.  It was very productive and brought out a lot of good thoughts and ideas that greatly improved our service and overall relationship with those clients.

Our Risk Control Manager often gave presentations during client safety meetings and helped many of our clients set up and develop safety plans.  In addition, our temporary employees and staff were occasionally invited to client company picnics.  

There were many such occasions that brought a sense of accomplishment to me, and I feel it brought the same feeling to the clients we served.  As was mentioned earlier in this article, staffing companies bring with them a multitude of resources and helpful ideas.  Hopefully, you will see the benefit of some of these suggested opportunities and will invite your staffing company to participate in selected meetings, events, etc.

Good Communications Are Essential

 

Are You Proactive or Reactive

 Does your company use the same standards for employment and workforce compliance as required for other functions such as Accounting, Manufacturing, Engineering, etc?  For example:  Does the HR function have a quality system such as that used in manufacturing to assure the product is made to comply with specific standards?  Does your HR function require […]

 Does your company use the same standards for employment and workforce compliance as required for other functions such as Accounting, Manufacturing, Engineering, etc?  For example:  Does the HR function have a quality system such as that used in manufacturing to assure the product is made to comply with specific standards?  Does your HR function require certification standards for supervisors and managers to assure their understanding and compliance with required standards?    Accountants are certified, so are welders, forklift operators, truck drivers, etc.  Why not supervisors and managers?  Manufacturing has specified training requirements.  Does the HR function?  From my experience of over 30 years as a HR Manager and Business owner I can tell you with some certainty that most (if not all) non compliant issues are the product of poor business practices, bad policies and supervisors and managers improperly handling employment related issues.   It is a given fact that laws, regulations and interpretations are continuously changing.  That requires regular and continuous training of supervisors and managers (anyone with supervisory responsibilities over other workers and those in policy making positions).

It is not easy to be proactive.  It requires a specific plan with quality checks, audits, evaluations, certifications, training, policy reviews and process reviews.  Candidly, it requires a constant, scheduled review of the entire scope of employment and workforce issues.  

I have witnessed the worst of work stoppages and unionization, the anxiety, stress and repercussions of discrimination and EEOC complaints, the disruptions and financial cost of non compliance and poor business practices and policies.

I have also seen the value and rewards of compliance and good business practices and policies.  As a consequence I became a strong advocate of being proactive.  There will always be those employees who will challenge you with frivolous complaints and charges and law suits.  However; there is great satisfaction and defense of those charges and complaints that comes with having your “house in order”. 

 I have often used and quoted the wisdom and inspiration of the great and legendary coach of the Green Bay Packers, Vince Lombardi.  I would like to share one that I have read many times, that hung on my office wall for most of my business career, and remains there today.  I see it each day as I enter my office.

“Winning is not a sometime thing; it’s an all-the-time thing.  You don’t win once in a while, you don’t do things right once in a while, you do them right all the time.  Winning is a habit.  Unfortunately, so is losing”. 

 And this final thought from Coach Lombardi.

“I believe in God, and I believe in human decency.  But I firmly believe that any man’s finest hour – his greatest fulfillment to all he holds dear – is that moment when he has worked his heart out in a good cause and lies exhausted on the field of battle – victorious”.

You can be victorious; it just takes hard work and constant vigilance.  BizKeys can help!

Jack Hobbs,

Founder and President, BizKeys, LLC

 

Temporary Help – Making It The Best It Can Be

I knew, as do most staffing companies, that there are challenges and statutory requirements unique to the staffing industry that our clients don’t normally deal with that must be communicated, understood, and complied with to provide for the overall protection of both client and staffing provider. It is extremely important that supervisors and managers of client companies clearly understand and adhere to these requirements. I mention this only to make the point that staffing companies, if allowed to do so, can be a source of valuable information and training for the staff of their clients. Take advantage of this. Better than that, insist on it.

I do not consider myself an expert on the Staffing Industry; however, I do bring significant credibility to the subject in that I was the owner of a staffing company for sixteen years and prior to that worked as a Human Resource Director for a manufacturing company that used temporary help. My background as a user and provider gives me a unique prospective from both sides of the desk, allowing me to provide a clear look at how it works and the best way to approach the use of temporary help.

About the Staffing Industry

I will not bore you with the history of the Staffing Industry.  What I will do, however, is bring you up to date as to where the industry has arrived in terms of its ability to meet the varied and often complex employment issues of modern day business.  Today’s staffing companies, for the most part, have evolved into well-managed businesses, specializing in employment issues.  Their staff is well trained in employment law and understands the challenges involved in achieving high standards in meeting the staffing needs of their clients.  They are certified professionals operating within policies and procedures that keep them in compliance with local, state, and federal regulatory requirements.  They are members of state and national associations, such as the American Staffing Association, that provide industry training, standards of conduct and ethics, legislative awareness, and an abundance of helpful resources.  Of course, there are exceptions, and like all other industries, there are those companies who operate in ways that discredit  the industry.  Steer clear of these companies.

Selecting The Right Staffing Company

I can clearly recall many of my early sales calls as a staffing company owner.  I was somewhat frustrated and confused that most of the companies (temporary users) I called on seemed interested only in what rate I charged and often presented me with a list of demands including: disclaimers, hold harmless and indemnification agreements, and requests for being added as an additional insured on my liability and worker’s compensation insurance policy.  Although these were legitimate issues, the companies seemingly failed to realize or understand the concept of co-employment as it relates to the use of temporary employees.  More specifically, some believed they had no responsibility/liability for their actions involving temporary employees.  I often wondered if they realized or understood the connection between a staffing company conducting their business activities in compliance with all regulatory requirements and the results it would have in limiting their overall exposure to risk and liability involving the use of temporary workers.

I knew, as do most staffing companies, that there are challenges and statutory requirements unique to the staffing industry that our clients don’t normally deal with that must be communicated, understood, and complied with to provide for the overall protection of both client and staffing provider.  It is extremely important that supervisors and managers of client companies clearly understand and adhere to these requirements.  I mention this only to make the point that staffing companies, if allowed to do so, can be a source of valuable information and training for the staff of their clients.  Take advantage of this.  Better than that, insist on it.  In a perfect world, staffing companies should be considered as an extension of your Human Resource Department, not just a provider of warm bodies or an adversary.  Embrace them as a partner, help them to succeed, and you will benefit greatly in return.  I encourage you to thoroughly interview and select a staffing company that has a proven record of good service, that is well capitalized, with ample support and resources, a trained/certified staff, and policies and procedures in place to assure a hiring process free of illegal and/or discriminatory practices.  They should have in place modern technology providing for accuracy, consistency, and reliability in the processes they use to properly manage and select qualified employees for placement at client locations.  Their policies and practices should provide for compliance with all Federal and State laws and regulations.

Don’t expect to build a good partnership with a mediocre or bad partner.

This is part (1) of a (4) part article.

 

Defining the Human Resource Function

I recently spoke at a seminar sponsored by BizKeys and hosted by Miller & Martin PLLC, Chattanooga, Tennessee.  The topics spanned a myriad of traditional Human Resource (HR) topics.  During this seminar I had the opportunity to observe the attendees, mostly Human Resource professionals, struggling to keep up with notes and handouts, I found myself […]

I recently spoke at a seminar sponsored by BizKeys and hosted by Miller & Martin PLLC, Chattanooga, Tennessee.  The topics spanned a myriad of traditional Human Resource (HR) topics.  During this seminar I had the opportunity to observe the attendees, mostly Human Resource professionals, struggling to keep up with notes and handouts, I found myself reflecting on how demanding, constantly changing, expanding, and challenging the HR function has become.  I have often discussed and debated the idea that this activity is lacking in definition and clarification due to a proliferation of federal and state employment laws along with a national focus on workplace activities and issues.  From a personal standpoint, during the development of BizKeys, I struggled in my attempt to define this area of activity and settled on “employment and workforce issues”, however, I am not satisfied that this terminology properly defines the scope of activity and issues currently facing the business community.  Neither does the term “human resource”, which in reality, is the management function of these activities and issues.

It is reasonable to conclude that the absence of a clearly defined identity of these employment and workforce related activities and issues leads to ineffective management and control of them.  It causes confusion, and misunderstanding, and failure to grasp the potential harm that can occur with management approaches that fail to incorporate a cohesive, coordinated concept.  These activities and issues are often managed in a segmented fashion with various parts handed out to structured organizational departments. Some examples would be: the Engineering Department over safety, the Accounting Department managing all payroll activities, the Manufacturing Manager writing policies and procedures regarding employment and workforce issues.   The problem with this “segmented” or “unilateral” approach is the difficulty in achieving a cohesive, coordinated result.  It is somewhat like the cliché, “the right hand doesn’t know what the left hand is doing” when it is the right hand that is responsible for maintaining compliance and management of those activities.  In my opinion, the best way to achieve effective management and control of workforce related activities and issues is to vest one entity with full authority and managerial responsibility for all such matters.

 I certainly understand that all organizations cannot afford a HR Department, staffed with HR Directors, Labor Attorneys, Paralegals, Specialists and Generalists.  They can, however, centralize the management function with specific oversight designation.

Now, back to defining these activities.  Again, we are talking about employment, workplace and workforce activities governed by a variety of federal and state laws, regulations and executive orders and enforced by federal and state agencies.  It includes: the hiring process, all activities involved during the employment period and all activities following separation of employment. 

It includes independent contractors, subcontractors, joint employers and their employees when engaged on your company’s premises.  In summary, it includes activities involving every action, inaction, or perceived action involving people with any form of association or contact with your company.  Just as it is difficult to list every possible action involved in these activities, it is equally difficult to find a suitable term that clearly defines the activities.

I have been closely involved with the HR function for approximately 35 years as a HR professional and business owner.  I have witnessed the evolution of terms, titles, responsibilities and organizational management structure of this area of business and concluded it is past due for elevating the status and importance of a function that goes far beyond the stereotyped image of filling job vacancies, benefits management and company orientations.  I believe the HR function is underrated and unappreciated in regard to the challenging issues faced and solve day in and day out.  The constant effort  in the pursuit to maintain compliance and correct problem situations, most often created by others, needs to be recognized.

I am ready to stick my neck out and challenge the status quo with new terminology that I believe more accurately defines the employment activities and issues discussed in this article.  I will share my thoughts and recommendations in my next article.

 
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