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

 

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.

 

THIS IS AN ADVERTISEMENT

 

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

 

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

 

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.

 

Employment Law in Staffing Arrangements

by Edward A. Lenz, Sr. VP, Public Affairs, and General Counsel, American Staffing Association

Employers have myriad legal obligations to their employees. Paying wages and benefits, paying and withholding employment taxes, providing workers’ compensation insurance, complying with civil rights and labor laws, and maintaining a safe work environment are just a few of them.

Overview

In most staffing arrangements, a staffing firm and its client share employer obligations in what is often referred to as a “coemployment” relationship.

Staffing firms:

  1. Verify employee work status under immigration laws
  2. Are the employer of record for wages and benefits
  3. Withhold and remit all payroll taxes (e.g., Social Security and Medicare)
  4. Provide workers’ compensation insurance coverage
  5. Have the right to hire and fire
  6. Hear and act on complaints from employees on working conditions and other work-related matters

Clients:

  1. Generally supervise and direct employees’ day-to-day work
  2. Control working conditions at the work siteIn most staffing arrangements, a staffing firm and its client share employer obligations in what is often referred to as a “coemployment” relationship.Staffing firms:
    1. Verify employee work status under immigration laws
    2. Are the employer of record for wages and benefits
    3. Withhold and remit all payroll taxes (e.g., Social Security and Medicare)
    4. Provide workers’ compensation insurance coverage
    5. Have the right to hire and fire
  3. Determine the length of employees’ assignments

How it works

Following is a brief review of staffing firm and client co-employment obligations—and how clients can minimize their potential liability.

Employee Benefits

To receive favorable tax treatment under IRS rules, employer retirement plans must satisfy “nondiscrimination” tests. In applying the tests, employers generally must include in their head count workers who are not their employees—including workers supplied by staffing firms—who perform more than 1,500 hours of service in a year for the client. Such workers only have to be counted—they are not entitled to participate in the client’s plan. However, if a client’s contacts with the workers are extensive and long term, they may be viewed as the client’s common-law employees and may have a right to participate in the client’s benefit plans unless they are expressly excluded from the plan.

Clients can mitigate their exposure by structuring their staffing relationships to avoid contacts with assigned employees that could result in a common-law employment relationship. Although day-to-day supervision may be unavoidable in most cases, functions such as recruitment, training, determination of wages and benefits, and the right to assign workers to other projects should, to the extent possible, be left exclusively to the staffing firm.

Even if a client has sufficient contacts with workers to be considered their common-law employer, the client can still protect itself by excluding from its benefit plans temporary, contract, leased, and other employees. This can be done without jeopardizing its plans’ tax status, provided the plans continue to satisfy applicable discrimination tests when such employees are excluded.

Clients should review their plans with experienced benefits advisors to ensure that their plans contain appropriate exclusionary language and meet the discrimination tests.

Equal Employment Opportunity

Staffing arrangements do not shield clients from liability under the civil rights laws. If a staffing firm and its client both have the right to control the worker under a multifactor test spelled out in Equal Employment Opportunity Commission guidelines, and each has the statutory minimum number of employees, both can be held liable for unlawfully discriminating against a staffing firm’s employees under Title VII of the Civil Rights Act of 1964.

The EEOC also has issued guidelines confirming that staffing firm clients generally have joint employer obligations under the Americans With Disabilities Act. This may include sharing the cost of providing reasonable accommodations to temporary workers with disabilities. The guidance encourages staffing firms and their clients to engage in an “informal, interactive process” with workers to determine their needs. Experience shows that such accommodations do not involve significant expense in most cases.

Collective Bargaining

In 2004, the National Labor Relations Board ruled that temporary workers cannot be forced into a collective bargaining unit with a client’s regular employees without the consent of the staffing firm and the client. The National Labor Relations Act and prior board precedent allow multiemployer bargaining units only if all the employers consent. Allowing such units to be formed without consent, the majority said, results in a bifurcation of bargaining that hampers negotiations between a union and an employer, and forces the employers to negotiate with one another as well as with the union.

Although temporary employees cannot be forced into client bargaining on a nonconsensual basis, they still have a right to engage in lawful union activity at a client’s work site, may seek to form their own bargaining unit, and may even be compelled under union security clauses to pay union dues even though they are not covered by the collective bargaining agreement.

Workplace Safety

The federal Occupational Safety and Health Act and state workplace safety laws require all employers to maintain a safe and healthy workplace. OSHA rules provide that clients are primarily responsible for ensuring the safety of staffing firm employees because the client controls the work site and generally also controls the work performed by the employees.

Clients also are required to maintain records of illnesses and injuries of the temporary employees they supervise and notify them of any hazardous substances in the workplace. Staffing firms have a duty to take reasonable steps to determine conditions at the work site, provide employees with generic safety information, and advise them how to obtain more specific information at the work site to protect themselves from hazards they are likely to face on the job.

Workers’ Compensation

State workers’ compensation laws provide benefits, on a no-fault basis, to employees accidentally injured on the job. In such cases, workers’ compensation is the exclusive remedy and employees generally are barred from suing their employers for damages.

Courts in every state except Massachusetts and Wyoming have expressly extended this immunity to staffing firm clients who qualify as “special employers.” (Massachusetts courts have granted similar protection in cases where employees have specifically agreed to release the client of liability beyond workers’ compensation.) Hence, clients that insulate themselves completely from an employer relationship with the workers assigned to them may relinquish whatever protection such status may confer under state law.

More detailed information on these and other co-employment issues can be found in Co-Employment: Employer Liability Issues in

Third-Party Staffing Arrangements, by Edward A. Lenz (sixth ed., 2007, 279 pages, ISBN 978-0-9714306-1-7), Copyright 2007,

 

BizKeys Wage and Hour Expert: Morris Jennings

The BizKeys FLSA Self Audit Guide was developed by Morris, based on his experiences in the enforcement of this statute and on insight gained during more than ten years of consultation with employers and other clients. BizKeys is proud to have Morris as a contributer to the site. His in-depth involvement with Wage and Hour regulatory requirements brings valuable credibility to his work. Be sure to read the Wage and Hour Self Audit Guide located in the Self Audit section.

b) Reasons to Conduct a Self Audit

Self Audit Guide  Part 2

  •  It is generally less expensive to find and correct deficiencies than to wait for DOL to do it for you.
  • The self-audit procedure enables you to prepare for an eventual DOL investigation by becoming more knowledgeable of the FLSA and of your compliance practices.
  • Applying the FLSA to real-world employment scenarios is far from an exact science; mistakes happen, and there are probable violations to be found.
  • Preparing for the self audit encourages you to research the current application of FLSA standards and to discover subtle changes that have occurred in the statute or regulations.
  • In the event of future litigation to recover unpaid wages, your self audit might be treated by the court as a good faith effort to comply with the FLSA, thus possibly avoiding a finding of “willful” violations.
  • A self audit will be helpful in determining the types of FLSA training needed by your managers.
  • Self audits often uncover unnecessary practices that are costly (e.g., paying for activities that need not be treated as hours worked or computing overtime wages incorrectly – paying a higher overtime premium than required by the FLSA).

Morris can be contacted at Morris@FLSA-SCA.com or (toll-free) 866-895-FLSA (3572).

BizKeys.com does not imply, assert or warrant in any way regarding the accuracy, completeness, or adequacy of the information contained in or linked to this web site. In that legal advice must be geared to the specifics of each situation or case, and realizing that laws are constantly changing, you must understand that information contained within this web site is not intended as legal advice or to replace the need for reputable legal counsel.

 

“What If”, A Series of Crises Situations, Do You Know What to Do?

What if an employee comes to me and tells me she is being harassed by her male co-workers, but doesn’t want to stir up any trouble – she “just wants to let me know”.

This is a common occurrence in many shops.   An employee feels that he or she is being harassed for a reason protected under law, but doesn’t want to get anyone in trouble or cause anyone to lose a job.  Can you just listen and do nothing?   Only if you want to get in serious trouble later.   Once an employee puts you on notice that he or she feels there is illegal harassment or discrimination going on, you are required to investigate and take appropriate, effective action to make sure the conduct ceases and is not repeated.

Sometimes merely investigating the conduct causes the other employees to know who is complaining.  This may put that employee in a tough spot with the other employees, but sometimes it cannot be helped.  Taking prompt, effective remedial action does not necessarily mean that heads have to roll, but it does mean that you cannot ignore the problem and simply hope it goes away.  Depending on the severity of the conduct, it may suffice to address the work force as a whole and remind everyone that they have to play nice.   A session on the anti-harassment policy and reminding everyone that you will not tolerate illegal harassment in violation of the policy may be sufficient without having to name names or confront individuals.  If it is more serious, you may have to actually confront the perpetrators and tell them to knock it off or face the consequences.  Make sure that the accuser and the alleged harassers know that ANY form of retaliation for making a complaint is illegal, could subject the company and the individual to liability, and will NOT be tolerated.

It is important to accurately document what you have done to investigate and remedy the situation, that you have warned against retaliation, and that the results have been communicated to the complaining employee.  The complaining employee does not have to approve the remedy, but it is important to let him or her know that you have, in your opinion, effectively addressed the situation, and make sure that he or she knows to immediately report any retaliation or backlash from the other employees.

Sign up and have access to many such “What If” scenarios.  Written by Bill Trumpeter, Labor and Employment Attorney, Miller & Martin PLLC, Chattanooga, TN

 

Staying Union Free

“Staying Union Free” by Bill Trumpeter, Labor and Employment Attorney, Miller & Martin PLLC, Chattanooga, TN. For more informative information on Staying Union Free become a subscriber to BizKeys.

Staying Union Free must begin with a critical self analysis of your company, its people, and its policies.  Why do employees choose to organize?  Reason number 1 is because management fails to listen to what employees are telling it and respond appropriately.  Employee complaints that fall on deaf ears or are not addressed in a prompt fashion show employees that management does not care about them.  So what do they do?  They become receptive to the pitch of the union organizer that the union will make the boss listen and will fight their cause.  Employers frequently cite wages and benefits as the motivating reasons for union organizing by employees, but, generally speaking, most employees do not start out seeking union representation because of wages.  To be sure, once the campaign starts, wages and benefits move to the top of the list and a union’s wild-eyed promises that all the employees have to do is vote them in and they will get a raise may gather steam.

To stay union free, management needs to think like a union organizer in analyzing its business and its people.  Take a good hard look at your working environment.  Is it a place that people like to work?  Do you have little or a lot of turnover?  What types of complaints are you getting?  How do people feel about their immediate supervision?  How does management communicate with employees?  Do employees have a vehicle to bring their concerns to management?  Does the company respond to employee questions and concerns?  Is the response prompt, or does the employee have to push to get an answer?  Is your work force splintered along racial, ethnic, or gender lines?  How do employees get along among themselves?  Is there opportunity for advancement?  Does management express appreciation for a job well done?  Is discipline fair and fairly administered?  Do employees have a meaningful ability to protest a supervisor’s discipline when they feel it is unwarranted or simply wrong?  How do such complaints get resolved?  Are your wages and benefits competitive for your area and industry?  Do you conduct periodic reviews of wages and benefits?  Is your facility safe?  Is your facility clean?  These and many other types of issues are what a union organizer will focus on to find issues he or she can talk about with your employees.  If any particular employee has a problem about their work environment, that will become the union organizer’s primary focus with that employee, and if that organizer can get the employee to talk to him or her, the biggest barrier is broken down.  Good union organizers are salesmen, and a good salesman has to get an audience before he or she can sell the “goods.”

Once this critical self-analysis is completed, take steps to correct the problem areas before the union organizer shows up.  If you have identified these weaknesses and do nothing about them, then shame on you.  Once the organizer shows up, you will be talking about them in a much more hostile environment.

Staying union free is made easier when your company is proactive rather than reactive.  Start thinking about remaining union free from the very beginning of the employment relationship.  Carefully screen applicants to make sure they are a good fit for your organization.  Thoroughly check out their background, and don’t hire someone else’s problem.  Use your probationary or introductory period to evaluate performance; if you discover concerns, cut the employee loose then.  You are running a business, not a social services agency.  A bad hire will inevitably come back to haunt you somewhere down the road.  Make sure your new hires and your current employees know that you are union-free and proud of it.  You don’t have to be afraid to talk about it.  Include a statement in your new hire materials such as:

“This Company is union free and is proud of the fact that its employees do not have to pay an outside organization to receive fair treatment.  While we respect the rights of our employees to organize, we want you to know that we will do everything, within the bounds of the law, to fight any attempt to unionize this company.  If you ever want to discuss this, please feel free to contact your supervisor or human resources.”

In addition, you should adopt policies that will make it more difficult for a union to gain access to your employees.  Every company desiring to remain non-union should have in place the following, lawfully drafted, policies or work rules:

  1. No solicitation/No distribution
  2. No posting on company bulletin boards or property
  3. Rules prohibiting the use of company communications equipment for non-business use
  4. Rules restricting access to property by non-employees
  5. Rules restricting off-duty employees from being inside company buildings prior to or after their shift
  6. Lawful policy protecting employees from illegal harassment, threats, or violence

Having these rules and policies (and a practice of enforcing them) in place before the union organizer shows up makes it much easier to defend when the union shows up and begins campaigning (see design shop for sample rules). They also make it harder for the union to gain access to your property.  Realize, however, that you have to be diligent in the enforcement of the rules, and they cannot be applied only to union or other concerted activity.

Another key to remaining union free is to continually train your supervisors.  Don’t assume your supervisors are good supervisors simply because they were, at one time, good employees.  Provide your supervisors with human resources training to effectively deal with and manage people.  A good-intentioned, but abrasive supervisor can absolutely kill you in an attempt to remain non-union.  He or she might be absolutely fantastic in getting the work out, but if that supervisor’s demeanor is abusive or degrading to the subordinates, a mutiny is but a phone call from a union organizer away.  Make sure your supervisors receive training in how to deal with people, including such issues as managing a diverse work force, motivating subordinates, following the various employment laws, recognizing how to spot and address personal problems that might be interfering with a person’s job performance, detecting potentially violent behavior, avoiding unfairly playing favorites, and any other training that makes for a good supervisor.  Sometimes your best employees fail when promoted to supervisor because they do not have the training to succeed.

Your front line supervisors are your eyes and ears on the work floor.  They are your representative to the employees.  In maintaining union free status, supervisors need to be trained to spot the early warning signs of union activity.  What are the early warning signs?  Basically anything that differs from employees’ normal activity.  Examples include employees who do not usually associate with one another suddenly talking together or eating together.  What has caused that change in behavior?  When an employee who is normally quiet becomes assertive or asks a lot of questions trying to find out about policies or work rules, why is he doing so?  Is it because he is gathering information for the union?  Look out for groups of employees who suddenly go silent or abruptly scatter when a supervisor approaches.  What were they discussing that they did not want the supervisor to know?  Another sign is when an employee who is normally gregarious and outgoing suddenly clams up and won’t talk to you or avoids you.  Ask why.  Is it because she is being coerced by others who are trying to get a union?  Is it because she is the one who is talking to an organizer and is ashamed or worried about what she is doing?  In the later stages, supervisors might spot authorization cards or union literature.  They need to know that such signals of activity need to be reported.  Basically, supervisors need to be schooled on human behavior.  When an employee or employees suddenly change their normal patterns or behavior, what is the reason?  A usually mild-mannered employee suddenly becoming demanding might mean that the union petition is about to be filed and the union has filled his head with propaganda that once the union comes in, he can do whatever he pleases and then union will protect his job.

Spotting the early warning signals is imperative.  If there are problems that need to be addressed and can be addressed rapidly, an employer can act before the union’s presence becomes known.  Unfair labor practices alleging that the unilateral changes were to dissuade employees from supporting a union become more difficult to prove.  If a company has no knowledge that union activity is going on, changes made to improve the work place are more likely to be viewed as good business judgment rather than as a means of killing a union drive.

A dedicated union-free employer that intends to remain that way would be well advised to establish regular employee meetings so that employees can be not only made aware of important business information, but also have a forum to ask questions.  Typically, when an employer gets hit with a union petition, the reaction is to call an employee meeting and find out what the reasons are for the union activity.  Done improperly, that is an unfair labor practice because it is a form of interrogation.  However, if you have a regular practice of conducting union meetings and asking about issues your employees have, it is busines as usual.  In addition, conducting periodic employee meetings makes it seem less dramatic than calling a meeting only when a union shows up at your door.  Employees are not stupid.  They will quickly see that if all they have to do is get a union organizer to come to your gate and hand out leaflets in order to get your attention, maybe the union can deliver on its promises.

Maintaining union free status is something that an employer has to continually work at and incorporate in its business plans.  Staying non-union should be a priority of every manager and supervisor and should be discussed and reviewed regularly.  An ounce of prevention is worth its weight in gold.

 
Page 2 of 212