Protecting Your Employees and Company in the Face of Big Labor's Ambitious Legislative Agenda
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Protecting Your Employees and Company in the Face of Big Labor's Ambitious Legislative Agenda
Following the November elections, the business community has been flooded with recommendations about how to respond to anticipated legislative changes under the new Administration and Congress. Many of these recommendations could be drastic and cost prohibitive, especially during current economic conditions. As an alternative, employers should consider a somewhat more balanced approach, one that will pay dividends, regardless of the specific changes adopted during the coming months.
After devoting huge resources to support President-elect Obama and the new Congress, Organized Labor expects support for its agenda. Among those items at the top of Labor’s priority list is the Employee Free Choice Act (EFCA), which could eliminate secret ballot union elections, enabling unions to organize by convincing or coercing a majority of employees to representation cards; changing the rules of bargaining to impose mandatory interest arbitration on parties who do not reach agreement with 130 days; and subjecting employers to increased penalties and remedial relief. No matter what final form they take, all of these proposals will present significant new threats to employers.
Some pundits project that a compromise bill will pass, retaining secret ballot elections, but allow just 10 days before an election instead of the current 42 days. Such a change would severely restrict an employer’s opportunities to respond to a union’s dubious promises and tactics before employees cast their votes. Even if EFCA does not pass in its present form, employers should be thinking now about how to preserve their union-free environment in the face of the coming challenges. To do this, they must develop a plan, re-enforce their pro-employee track record and educate everyone in their organization, from senior leadership to brand new entry-level, about the Company’s position regarding unionization.
We cannot get into detail in this space, but at minimum, these are steps that every employer should be planning or taking now to prepare to the changes that are coming:
1. It is still not too late to oppose EFCA, through industry groups, Chambers of Commerce and contributions to PACs.
2. Educate senior leadership about the serious impact EFCA can have on your Company’s business future. Failure to act can result in an election being certified and an arbitrator dictating your compensation and benefit levels.
3. Reduce your vulnerability to organizing activity by ensuring that you have effective, responsive employee-communication systems in place; update policies to be sure that they are legal and “fair” (this is no small challenge in the fact of new or anticipated changes in many laws, including the ADA, FMLA, Title VII, Equal Pay Act and the Fair Labor Standards Act, among others). Your goal should be to have employees who will come to you, not some outside party, when they have concerns at work.
4. Train supervisors regarding changes in the law and reinforce the critical role they play in maintaining a union-free environment. This training must include reasons why the Company opposes unionization and what supervisors should and should not say in responding to employee questions or signs of union activity.
5. Begin to prepare and deliver communications to your employees about your Company’s position regarding unionization and the reasons behind that position. Employees also need to understand the importance of protecting their signatures and hearing all sides of an issue before making a decision that could affect them and the Company for many years.
The key to success is to be proactive and to make sure that systems are in place to recognize organizing efforts, identify issues that could be exploited along the way, and to effectively address those issues so as to render third party representation unnecessary.
But if employers fail to take preemptive action, they will likely find themselves unionized and possibly presenting information to an arbitrator who will unilaterally shape their work rules, wages, and benefits. The potential traumatic business impact should give Human Resources professionals and General Counsel enough ammunition to persuade all managers and executives to take the threat presented by this proposed legislation agenda seriously.
Kevin Troutman is a former human resources executive and a partner with Fisher & Phillips, LLP, one of the oldest and largest law firms in the nation to devote its practice exclusively to the representation of management in labor and employment matters. If you want to contact Kevin, he can be reached at Ktroutman@laborlawyers.com.
Protecting Your Employees and Company in the Face of Big Labors Ambitious Legislative Agenda - To learn more about this author, visit Jennifer Loftus's Website.
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