Employment & Labor Law

The April tax filing season is not only a good time to take steps to avoid needless future tax costs by educating yourself about tax law requirements and opportunities; it is also a good time to avoid needless employment law claims and costs by educating your supervisors and managers. This is particularly true this year given the changes that have already occurred in several laws (e.g., the Americans with Disabilities Act, the Family and Medical Leave Act, and COBRA) and the increased ease of unionization that will occur if the Employee Free Choice Act, supported by the Obama administration, becomes law. Too many employers are either ignoring these issues or taking too narrow a view of how to deal with them. We propose some basic steps helpful to all employers regardless of which variation of this Act passes and regardless of whether you ever become a union organizing target.

The Employee Free Choice Act would significantly change federal labor law by taking away an employer’s present right to insist on an employee secret ballot election, conducted by the National Labor Relations Board, before a union could represent its employees. The proposed law would require employers to recognize and bargain with a union if a majority of the employees involved have signed a union card, with employers no longer able to require a secret ballot election. Without an election where employees can individually vote their conscience, employees are subject to unsupervised pressure from co-workers and union organizers to sign a union card. Other changes in the Act would also strengthen unions, such as requiring an outside arbitrator to decide the outcome of initial labor contract negotiations rather than the present system that permits employers to implement their final proposal if the negotiations reach an impasse.

While employers want to prepare for the passage of this Act, many do not want to give too much attention to unions, thereby causing their employees to think and talk about unions. There is, however, an effective way to deal with and prevent these and many other problems without highlighting unionization.

Regardless of your sentiments toward unions, employees seek out and join unions because of management actions, particularly individual supervisors who act arbitrarily, play favorites, or just do not act thoughtfully when making decisions on things like promotions, discipline, and work assignments. While there are some managers who act for improper reasons, most supervisors and managers who get into employment law trouble do so because they just lack basic helpful training and do not understand this area. Many problems and large employer costs can be avoided by effective, simple training.

A fancy, slick employee presentation on the evils of unionization is often not the best approach. It has too great a risk of backfiring. Instead, the best way to avoid the increased costs and risks of unionization is to focus on broader education of supervisors on how to avoid unionization but also how to avoid employee claims of wrongful discharge, discrimination and/or retaliation. The means for preventing all these problems are the same; and the benefit is that you can focus on all these issues by equipping managers with tools for avoid legal claims of many types rather than doing anti-union presentations to employees which risk giving more lip service to unions than is warranted. Effective, brief training/education sessions for supervisors and managers can prevent a whole host of problems. It covers, for example, employment discrimination, including the key changes regarding disability and other discrimination law changes.

This training on avoiding most employment law problems need not be done in the usual confusing and contradictory information over-load manner. Instead, the confusion can be removed through some common sense, over-all explanations and guidelines that allow managers to understand how to avoid being perceived as discriminatory or arbitrary by employees, as well as government agencies and courts. This type of training, taking one to two hours, provides a life-long guide to managers in avoiding discrimination claims and employee disrespect. It does not focus on unionization. Instead, it merely includes unionization as one of various areas of employment law that are explained through common themes. It also doesn’t provide lots of rules to memorize, but rather gives some guidelines that allow flexibility to run your business as you see fit, without allowing employees to get away with poor performance or unacceptable conduct.

Another great advantage of this supervisory training is that in addition to giving information to supervisors you can also get back from them even more valuable information about the problems that need to be addressed in your organization. We include anonymous polling of supervisors to find out what the problems are in the organization. While supervisors are often reluctant to volunteer this information to you (such as the troublesome things being done by one of their fellow supervisors) they will often reveal it in an anonymous listing for an outsider (such as an attorney trainer). This avoids the more expensive and troublesome attitude surveys of employees which get them talking without focusing on a solution. Supervisor polling does not involve the employees but usually gets to the heart of the issues because most supervisors are aware of the problems even if they haven’t been willing to tell you.

We shouldn’t expect managers to know how to avoid or effectively deal with problems when they have never been given an understanding or allowed to get their questions answered in a non-threatening atmosphere. The myth that needs to be broken is that employment law is too confusing or complicated to be translated into understandable guidelines for managers. The other myth that this training breaks is that employers’ hands are tied when it comes to dealing with some employees. Employers have many options when they understand some general guidelines about how to avoid employment law problems and claims.

Our firm specializes in this training and supervisory polling and we strongly recommend it as a cost-effective solution. Managers and employers who have gone through this training have stated that it provided them with an understanding of how to effectively deal with most problems without tying their hands or generating large costs. Please contact us for more information on what is involved.