Monday, October 26, 2009

NLRB Nominees: Loading the Dice in Favor of Labor Unions

How would you like to play a game where everytime you threw the dice you were unlikely to win because you had been given a pair of "loaded" dice? (click for the meaning of this idiom.) You probably would not want to play anymore. But what if you had no chance? What if it was the only game in town? And what if your previous wins with the non-loaded dice were going to be set aside because you were not playing under the new rules?

Well that is the scenario that is being set up with the new nominees for the National Labor Relations Board. The NLRB is made up of 5 members. Three of them generally are generally appointees of the party controlling the White House. So in this case that would be three Democratic nominees and two Republican nominees. Currently there are only two appointed members serving. One was a Bush nominee and one was a Clinton nominee. The Clinton nominee, Wilma Liebman was Obama's  for the position of Chair of the NLRB. The Bush appointee is Peter Schaumber. The remaining two Democrat nominees are Mark Pearce and Craig Becker. Craig Becker in particular has become a lighting rod for controversy. A Republican nominees has yet to be named.

To help understand why this controversy exists let us compare the backgrounds of the current members and nominees.
  • Peter Schaumber: Prior to his appointment as a member of the Board, Mr. Schaumber practiced as a labor arbitrator serving on a number of industry panels and through national arbitration rosters. Mr. Schaumber began his legal career as an Assistant Corporation Counsel for the District of Columbia. Subsequently, he was appointed Assistant United States Attorney for the District of Columbia and served in that office's Criminal and Civil Divisions. Upon leaving the United States Attorney's Office, he became Senior Trial Attorney and Associate Director of a Law Department Division in the Office of the Comptroller of the Currency. Upon leaving government service, Mr. Schaumber entered private law practice in Washington, D.C. and was director of his firm's Litigation Department. His practice included a wide range of trial and appellate civil litigation
  • Wilma Liebman: Prior to joining the NLRB, Ms. Liebman served for two years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS). She acted as the chief operations officer of this federal agency, overseeing arbitration, alternative dispute resolution, international affairs and labor-management cooperation grants programs. In addition, Ms. Liebman advised the FMCS Director on issues involving major labor disputes and participated in significant negotiations as needed.
    From 1994-1996, Ms. Liebman served as Special Assistant to the Director of FMCS. In this role, she was a key member of the Mediator Task Force on the Future of FMCS, an 18-member employee group charged with articulating a vision and recommendations to lead the Agency into the 21st century. Prior to joining FMCS in January 1994, Ms. Liebman was Labor Counsel for the Bricklayers and Allied Craftsmen from 1990 through 1993. She served as Legal Counsel to the International Brotherhood of Teamsters for nine years and as staff attorney with the NLRB from 1974 to 1980.
  • Mark Pearce: Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. In 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law.
  • Craig Becker: Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.
The emphases in each bio are mine. The one current Republican nominee was an arbitrator. Arbitrators are known for carefully guarding their reputations for being unbiased so they can decide cases without bias. Pearce has practiced UNION side law his entire career. Liebman, did work for the Federal Mediation and Concilliation Service, which is a plus, but was an attorney for TWO different unions. And Becker is CURRENTLY on the payroll of arguably the most powerful union in the country, the SEIU, as well as acting as council for the AFL-CIO. Becker is well known for writing many papers indicating that UNION will always win if he has anything to do with it. (Follow these links to Shopfloor and the National Right To Work committee to see business' view of Becker.)
Republican Senators are adamently opposed to Becker's appointment, and Senator John McCain in particular has moved to oppose his appointment. Political wrangling may end up seeing Becker's nomination being used as a bargaining chip in the final determination of various labor friendly bills currently pending in Congress. The appointment of this board as it stands will potentially have as much an effect on the labor picture in the U.S. as the passage of any bill such as EFCA or RESPECT. The opportunity for this potential board to over turn 8 years of NLRB decisions will significantly alter the labor picture for companies of all shapes and sizes both union and non-union alike.
So stay tuned Bunky! The road may get rough.

Friday, October 23, 2009

What Companies Are Getting Sued Over!

Thanks to Jon Hyman over at the Ohio Employer's Law Blog who wrote the other day on Do you know? Employment Litigation Expected to increase in 2010. It was an eye opener. I clicked through from his blog to the Fulbright & Jaworski Fifth Annual Litigation Trends Survey and Highlights and read through the employment law section. Here is some of the information I gleaned from that report, but I would recommend you look at Hyman's analysis and also the actual report itself.

The report deals with multi-plantiff cases (aka class-action suits?) and here are some of the results (Note: I am only report results from the U.S., but there are results from the U.K. as well):
  • In the U.S. largest increase in multi-plantiff cases where in FLSA wage & hour (19%), discrimination (14%), and Americans With Disabilities Act (10%).
  • Increases in FLSA wage & hour cases were highest in California, the South and the Midwest.
  • Education and retail had the highest increase in wage & hour cases.
  • Discrimination increases where highest in education, financial services and retail.
  • ERISA cases were highest in the Midwest and retail and engineering/construction sectors.
  • Age discrimination cases rose the highest in education, financial services, retail, and technology/communication.
  • Privacy cases were most common in California, but were generally a smaller percent of the overall cases.
  • For small companies discrimination was the biggest issue followed by wage & hour. For big companies the reverse was true.
The costs associated with dealing with these cases, excluding settlements often exceed $50,000 per case and almost a quarter of the time exceed $100,000. For a small company that can be devestating. The areas that cost the most to deal with are race, sex and wage & hour cases.

What are we to conclude from these facts and figures? Well the overall conclusion of the report is that companies are going to be spending more on litigation in 2010. Other conclusions that I reached are:
  • Education is having some difficulty. That arena made it on just about every list. Anyone have a reason for this? Suggest some.
  • Small businesses probably need to do alot more training and education to both supervisors and employees, with race and sex discrimination still being the big expensive issues.
  • There is still alot of misunderstanding of the Fair Labor Standards Act, which has only been around since 1938. My experience has been that many companies unknowingly and knowingly violated the FLSA.
  • The recession is probably driving alot of this litigation. As people are let go and then have difficulty finding work they start grasping at straws to provide income. One way to do that is to sue your former employer. All the TV ad lawyers will tell you that.
How can you avoid some of this litigation increase? Three things pop to my mind.
  1. Understand the laws, train supervisors on the laws, train HR on the laws and abide by the laws. (I can hear all the bitching and moaning about compliance now.)
  2. Document that training, document your decisions, especially your compensation decisions (Ledbetter requires it) and document your actions with employees.
  3. Treat people with respect and dignity, even when you are firing them for gross misconduct. People are more likely to sue you when they feel like they have been mistreated.
So there you go. As Jon concluded in his blog post about this topic "What does all this data mean for your business? Your legal budgets will likely increase next year. The question you need to answer is whether you want those funds to pay to defend lawsuits, or to proactively audit your internal personnel and employment practices to limit your litigation costs?" I vote that you be proactive! And of course I know a good consultant that would be more than happy to help you. LOL. 

Wednesday, October 21, 2009

Getting the Most Value from a Conference: The Marketplace is Where It Is AT!

I have returned to the office from having attended the SHRM-Atlanta Fall Conference in Atlanta, Georgia. The conference was pretty well done. As in all conferences there were a number of topic tracks you could choose from. I spent the majority of my seesion times on compliance issues ( I know that is so out of character for me, LOL). I knew most of it, but it doesn't hurt to hear what might be new. So there was some value there.

But the real value for me was derived by the time I spent in the marketplace. The value is found in three places in the marketplace. First was reconnecting with people I had not seen in awhile, both attendees and vendors. As much as you would like to stay in touch with people it is hard to do so in the course of the day-to-day routine. So meeting an old friend or acquaintence wandering around or staffing a booth is always a pleasant event. In doing so I catch up on what they are doing and where they are in the world. If I happen to see two at one time I try to be a "connector" for them and introduce them to someone they have not yet met. This follows along with the keynote address on Netweaving, presented by Bob Littel.

The second value derived is connecting with someone I had not previously met. I made several new aquaintences at this conference, either through an introduction or by walking up to a vendor and sticking my hand out and introducing myself. You never know where that introduction may lead.

The third value is learning what vendors are offering these days. As a consultant I try to be a resource for my clients, and not in just things that I can offer. So hearing what is being offered, what is cutting edge, what is new and exciting is invaluable to me. If you aspire to be strategic in your organization you have to have some foresight. Foresight is gained by doing research and the best way to do that research in the most convienent way possible is to walk around a conference marketplace. Yes you may have to listen to a sales pitch, that is ok. Knowledge comes at a price. It will not kill you. Plus, you have an opportunity to get some great "swag". Pens, cups, and other gizmos that always make a conference fun.

So the next time you attend a conference make an effort to spend time in the marketplace. Make an effort to meet the vendors and learn more about what is going on and available outside of your office. If nothing else reward these vendors who pay big bucks to be there, it helps keep your cost of attendance down.

Thursday, October 15, 2009

Stealth EFCA: New Warning On Union Friendly Legislation

A post I did back on June 23, 2009 on Why Unions are Bad for Companies, Employees and Customers has raised some hackles (click here for the meaning of this idiom) with some readers. So before I talk about stealth EFCA I wanted to respond to their comments. First, my complaint is with unions as an institution, not union workers. Yeah some are lazy jerks who game the system, but I can find those kind of people in most non-union firms too. But unions as an organization I don't like. Secondly, I have worked in a union environment. Not as a union worker but as the HR guy that had to deal with them and helped eventually decertify them. So I do know what it is like to have a union around. Thirdly, I am entitled to my opinion it is MY BLOG. It is not a newspaper. I express my opinion in addition to informing my readers. You also stated your opinion(s), not necessarily fact. One of you did it rather rudely. So we are in the same boat. Fouth, what the hell does a bad CEO in China have anything to do with anything? I didn't get that one.

Ok, enough of my response onto STEALTH EFCA, also known as the Patriot Corporations of America Act of 2009. Attorney Randy Coffey, writing for, in a commentary entitled Proposal Puts Too Much Power in Union's Hands  states that "...the Patriot Corporations of America Act of 2009, deserves particular focus because it would greatly increase the success of union-organizing drives. Further, if the legislation includes a card-check feature rather than allowing employees to vote for or against a union by secret ballot, it would achieve the Employee Free Choice Act’s key provision through the regulatory process."

This act has a number of provisions for companies to show their "loyalty to the United States", such as:
  • Produce at least 90 percent of its goods and services in the United States.
  • Pay its highest-paid manager no more than 10,000 percent more than lowest-paid full-time employee.
  • Conduct at least 50 percent of its research and development within the United States.
  • Contribute at least 5 percent of its payroll to a portable pension fund for employees.
  • Pay at least 70 percent of its employees’ health insurance costs.
  • Provide full differential salary and insurance benefits for all National Guard and Reserve employees who are called to active duty.
  • Violate no federal workplace regulations, including those relating to the environment, workplace safety, labor relations and consumer protection.
Some of these may sound reasonable, though not all, but the one BIG GOT YA is the provision that requires that a company Maintain a policy of neutrality in employee organizing drives. As Mr. Coffey points out "If management’s voice is silenced before and during a unionization attempt, unions will be able to campaign openly and employees will lose a vital information source that might have provided them with good reasons not to unionize. Without organized opposition, the union win rate approaches 90 percent, as compared with about 65 percent when management is able to present its views." Coffey goes on to warn "Patriot Corporation status may appear to be a compelling tool for growth-oriented corporations looking to gain a marketing advantage. But touting the designation also will make these companies easy targets for union organizers, who will be watching for those that have exchanged their freedom to oppose union organization for Patriot Corporation status. Even if companies are quiet about the designation, unions may be able to secure target lists directly from the Department of Labor if the certification process is public record."

So do not be wooed by the tax savings. What you may save in taxes may cost you in other areas, such as healthcare for employees (Stealth healthcare reform) and in the costs associated with dealing with unions. If you have any doubt what those costs are read the post I referenced above. You may opt to sign on, but at least make an informed decision. For one thing, signing on for this will broadcast to unions that you are an easy target.


Wednesday, October 14, 2009

The Carnival of HR: Unbelievable Learning Opportunity

This months version of the Carnival of HR is hosted at Jon Ingham's Social Advantage in his post The HR in the Social Business Carnival. The learning opportunities are unprecedented. We are talking use of social media, strategic HR, recruitment, networking, bad HR, good HR, snooping on employees, answering job seeker questions, and an  the intrguing title of  What keeps American HR Managers awake at night: the thought of bare legs. (The picture is an attention-getter.)

So, make some time and plan on alot of click-throughs. You will feel like you just completed your Master's degree in HR when you get done.

Monday, October 12, 2009

Good Advice: Dealing With H1N1 in the Workplace

The folks over at Benefit Buzz published some good advice and raised alot of questions on dealing with the Swine Flu in your employee population. So I direct you to Flu Prevention: Mostly Common Sense but do your benefit policies support it. Make sure you read the comments as well. Some very good information in there. I raised the issue that this will most likely be a FMLA event for many of you. Are you handling paperwork on a timely basis? Busy time.

Another issue may be your "continuity" plan. Who is in place to do the work? Are people crosstrained? If not how are you going to fill the gaps? All very good things to prepare for.

Stay healthy!

Friday, October 09, 2009

EEOC Is Making a List and Checking It Twice and It Isn't Even Christmas Time Yet

Here we are in the middle of October. The end of the year is rushing toward us, probably faster than we want it to. The Halloween decorations will be down in the retail stores and they will be putting the "ThanksChristmasGivingDay" decorations up and Santa will appear in the malls. The song that features the words "..he's making a list and checking it twice" will be blaring on the radio and over the store speakers. (Did that reminder of how close Christmas is make you wince?)

Well there is already one group that is making a list and checking it twice and it is NOT Santa. It is the EEOC. A One Minute Memo from the law firm SeyfarthShaw, LLP arrived in my email this morning entitled EEOC Takes Aim at Companies Policies Limiting The Duration of Medical Leaves. (click on the title to see the pdf) The opening line for this document is "Recent actions by the U.S. Equal Employment Opportunity Commission (EEOC) have signaled its intent take a more aggressive approach in enforcing the Americans with Disabilities Act (ADA). One employment practice that the EEOC is specifically targeting involves company medical leave of absence policies that place limits on the amount of medical leave."

When the ADAAA (The Americans with Disabilties Act Amendments Act of 2008) became effective on January 1, 2009 it was evident that, with the broadened definitions of disability and the requirement for an active accommodation discussion, more lawsuits would be filed against employers. And this is becoming true. The SeyfarthShaw memo goes on to say "Over the past two months, the EEOC has also filed a number of pattern and practice lawsuits on behalf of employees of large employers alleging that the employers violated the ADA by rejecting extensions of medical leave as a reasonable accommodation for employees with disabilities. The EEOC asserts that any employer that maintains an inflexible maximum leave policy, which it will not extend or otherwise modify in order to accommodate individuals with disabilities, is unlawful." And along with this statement a warning from the EEOC was issued "Acting Chairman of the EEOC, Stuart J. Ishimaru, highlighted the administration’s increased focus on ADA enforcement, noting that these cases 'should send a wake-up call to corporate America that violating the American with Disabilities Act will result in vigorous enforcement by the EEOC.' EEOC Regional Attorney John Hendrickson confirmed the EEOC’s position that policies that 'set arbitrary deadlines for returning to work after medical treatment unfairly keep disabled employees from working.'"

So what does this mean for HR? It means you need to review your policy and make sure it it up to date. You need to make sure that if someone asks for an accommodation you engage in a vigourous interactive process that is documented. And you need to realize that an extension of a medical leave will probably be seen as a reasonable accommodation.

The big question yet unanswered is: When will an extension be considered unreasonable? This will probably only be decided by a court case. Which one of you out there wants to be the test case?

Monday, October 05, 2009

ISM Number Seven: Ugly-ISM

Discrimination against the physcially unattractive has a long history. It has been written about for ages, as far back as Aristophanes’ play, The Assemblywoman, a Greek play about Athens being taken over by women and their attempts to even society out by making ugly people mate with beautiful people. The carnivals that roamed the country used to have sideshows that featured the bearded lady, or Siamese (conjoined) Twins, or some other "freak of nature" that was sure to facsinate and repulse people at the same time. The Elephant Man, Joseph Merrick, was one of the more famous ones, even having a movie of his life made starring John Hurt.

More recently we have had the popular movie Revenge of the Nerds and the series of knockoffs it spawned. And currently running on prime time TV we have Ugly Betty. All of these shows have as there theme the disadvantages of being physically unattractive. Real research has shown that less attractive people make less money and have fewer job opportunities than attractive people. The research was unsure if this was discrimination or if the fact that the more attractive people developed better social skills and more confidence that less attractive people. Body image, as mentioned in my FATISM post, plays a big role in how people feel about themselves.

The movies and TV shows people overcoming these difficulties. But I am not sure to what extent that actually happens. If you start off in life with less opportunity due to your physical appearance do you ever really have a chance to overcome that disadvantage? We would like to think so.

From an HR standpoint there is no law that forbids discrimination based upon ugly. At least none of which I am aware. There may at sometime be such an attempt, but Kurt Vonnegut's Harrison Bergeron, first published in 1961 showed the darkside of trying to be too politically correct. As the plot summary states "In the story, social equality has been achieved by handicapping the more intelligent, athletic or beautiful members of society. For example, strength is handicapped by the requirement to carry weight, beauty by the requirement to wear a mask, etc. This is due to the 211th, 212th, and 213th amendments to the United States Constitution. This process is central to the society, designed so that no one will feel inferior to anyone else. Handicapping is overseen by the United States Handicapper General, Diana Moon Glampers."

The best HR solution is to have a culture of civility and to focus on job performance. Forget about artficially trying to make things "equal".