Category Archives: legislative

Employers Worry About Pay-Ratio Perceptions

Results of a recent poll by New York-based Towers Watson show it’s not the mechanics of complying with the new CEO pay-ratio-101366398 -- money on scaledisclosure rule — such as data gathering, getting the right sampling, identifying the median employee and the like — that worries employers the most.

It’s how they’re going to explain the pay-setting process to their employees and how their pay ratio will look compared to other companies’ ratios. This according to the almost 600 corporate compensation professionals who weighed in on the Towers Watson Webcast Poll on CEO Pay Ratio Disclosure Rule.

The communication issues loom especially large. Half the respondents cite that issue among their top concerns. Also, how employees will react when they start comparing their compensation to their CEO’s and to the median employees’ is keeping many a top business leader up at night.

For a refresher, this New York Times piece offers some pretty complete details, history and analysis of the 3-to-2 vote on Aug. 5 by the Securities and Exchange Commission that will require most public companies, starting in 2017, to regularly reveal the ratio of their chief executive’s pay to that of employees.

Some of the controversy is also spelled out in the piece:

“Representatives of corporations were quick to assail the new rule … saying that it was misleading, costly to put into practice and intended to shame companies into paying executives less.

“But the ratio, cropping up every year in audited financial statements, could stoke and perhaps even inform a debate over income inequality that has intensified in recent years as the wages of top earners have grown far more quickly than anyone else’s.”

What’s disconcerting at this point isn’t just how this ratio will be perceived, but how few employers really know what they need to do to comply. In the poll mentioned above, only 17 percent of employers agree they understand all of the costs, effort and data that will be needed while almost two-thirds (65 percent) disagree.

In an earlier Towers Watson survey of 170 U.S. compensation professionals, Towers Watson Talent Management and Rewards Pulse Survey, only 48 percent agree that their companies had identified the data they’ll need and know how they will capture it to calculate the pay ratio, while even fewer (41 percent) say they’re prepared for how the disclosure will affect employee perceptions of their pay.

And if you think time is on your side and you’ll get it right with many months to spare, think again, says Steve Seelig, senior regulatory adviser for executive compensation at Towers Watson.

It’s “not too early for HR to begin thinking about how well its company communicates with employees, and to then set a strategy for improving its message,” he says, adding to:

“Keep in mind that, when the disclosure comes out, workers below the median will [immediately start to] wonder what it takes to get them to that level, and why their company is not paying them more. Those employees at or above the median will naturally wonder whether their pay levels are determined fairly, or how the level of CEO pay might be hindering their pay increases. Workers also will be looking at companies across the street and pondering if their median pay is higher, and whether it might be a good idea to look around.

“Human resource executives should [be proactive and] view the pay ratio disclosure as a chance to make sure their employees understand [their company’s] pay-value proposition. Companies that get this communication effort right will find they actually have strengthened their relationship with the workforce, with better productivity and reduced turnover as likely outcomes.”

Those that don’t get it right shouldn’t be surprised when the opposite occurs.

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Saying Goodbye to Same-Sex Benefits?

ThinkstockPhotos-533697873In the wake of the United States Supreme Court’s recent Obergefell v. Hodges decision—which guaranteed same-sex couples throughout the U.S. the right to marry—HRE’s Maura Ciccarelli pondered what this landmark decision would mean for employers and HR leaders.

The International Foundation of Employee Benefit Plans was apparently wondering the same when it recently surveyed 258 companies in an effort to gauge how the ruling would influence employers’ approach to offering benefits.

Overall, 53 percent of responding employers said they believe the ruling will have an effect on their organizations. (In total, 57 percent of the companies surveyed reported offering benefits to same-sex domestic partners at the time of the Obergefell v. Hodges decision.)

Take a closer look, however, and the impact figures to be negligible.

For example, just 4 percent of those surveyed by the IFEBP said they anticipate the Supreme Court’s same-sex ruling would be “extremely” impactful, while 6 percent said the ruling would be “very” impactful, and 43 percent indicated the ruling would have “somewhat” of an effect.

Among the companies currently providing same-sex benefits, more than 70 percent said they are likely to continue offering them. Of the remaining respondents who said their organizations are unlikely to continue making benefits available to same-sex domestic partners, nearly all (93 percent) said they only provided such benefits in the past because same-sex couples couldn’t legally marry; which is no longer the case. Forty-four percent of these companies pointed to administrative complexities—documentation, tax and payroll issues, for instance—as the main reason why they plan to discontinue same-sex domestic partner benefits, with 19 percent citing cost as the biggest factor in their decision.

Likewise, the Brookfield, Wisc.-based provider of employee benefits education, research and information asked those who said they plan to continue providing same-sex domestic partner benefits why they have chosen to do so. Fifty-three percent of these employers said they “provide benefits to opposite-sex domestic partners, and want to be equitable,” and 53 percent reported a desire to attract and retain quality employees as the No. 1 driver. Forty-two percent indicated their organizations “recognize all kinds of families,” with another 36 percent saying they feel offering benefits to employees in same-sex domestic partnerships is simply “the right thing to do.”

It seems the majority of employers are in agreement with this group, at least according to this IFEBP poll. Julie Stich, the organization’s director of research, noted as much in a recent statement.

“Despite the Supreme Court’s decision to make same-sex marriage legal, many employers are deciding to continue offering benefits to unmarried domestic partners,” said Stich.

“They see providing benefits—to both same- and opposite-sex domestic partners—as a way to ensure employees and their loved ones are happy and healthy.”


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Know When the ADA Trumps Your Policy

101390464 -- gavel and law booksBeware your urge to discipline.

That seems the best mantra for HR leaders in this new ADA day.

Two reminders of the mounting murkiness when it comes to drawing the line between your work policies and the amended Americans with Disabilities Act floated my way recently in this piece from the Society for Human Resource Management (registration required) and this from The Growth Co., headed up by Lynne Curry.

The SHRM piece highlights a $180,000 settlement Walgreens agreed to pay a cashier who the company fired after she took and ate a $1.39 bag of potato chips without paying for it. Turns out the cashier, Josefina Hernandez, was a diabetic who needed the chips during a hypoglycemic attack to stabilize her blood sugar.

Also turns out, in this age of heightened disability sensitivity and the need for employers to be sure they’re engaging in reasonable-accommodation discussions and the interactive process, Walgreens apparently did everything wrong. (Requests for comments from Walgreens have not been returned.)

According to the piece, when a loss-control supervisor asked for an explanation after finding the empty potato-chip bag under the counter at her cash register, Hernandez wrote in a statement, “My sugar low, not have time.” The supervisor didn’t know what she meant, so she was fired for violating Walgreens’ anti-grazing policy. On the contrary, the courts found, it was Walgreens that was in violation, of the ADA.

Had HR been involved throughout the investigation and pre-termination process, Walgreens would probably have been $180,000 richer. As Robin Shea, an attorney with Constangy, Brooks & Smith, says in the piece, “HR people are generally in the best position” to determine whether workplace discipline and/or termination is an overreaction.

“If it appears that the employer is using a nuclear weapon to kill a gnat, then maybe termination is not the answer,” she tells SHRM.

The other piece concerns alcohol. In it, Curry reminds us that, as much as an employee’s alcohol dependence brings everyone down — employee, co-workers and employer — and although you can establish policies prohibiting alcohol consumption at work or prior to work events, an alcoholic does have rights.

For the record, here’s Curry on that:

“According to the federal Equal Employment Opportunity Commission, an alcoholic who can perform the essential functions of his [or her] job may have a disability requiring employer accommodation under the Americans with Disabilities Act. The courts are fairly unanimous in ruling that an employer needs to grant at least one leave of absence so an alcohol-dependent employee can participate in a treatment program if the employee hasn’t misused alcohol on the job or engaged in misconduct.

“For example, in the landmark Schmidt v. Safeway Inc. case, the court ruled that the ADA may require an employer to provide a leave of absence to an employee with an alcohol problem if it is likely that the employee would be able safely to perform his duties following treatment. With an alcohol-dependent manager, a leave of absence for outpatient or inpatient treatment may be the logical accommodation.”

At the same time, she writes:

” … alcoholism doesn’t immunize managers or employees from the consequences of their actions. Employers can hold alcohol-dependent managers and employees to the same performance and behavior standards as non-alcoholics and discipline or discharge an alcoholic whose alcohol use adversely affects his job performance. As an example, if an alcoholic employee often arrives late to work or makes frequent errors, the employer can take disciplinary action based on the poor job performance and conduct. Furthermore, the 2nd U.S. Circuit Court of Appeals ruled that the ADA does not protect an employee from termination for alcohol-related absenteeism when reliable attendance at scheduled shifts is an essential job function.”

Where does this leave us? I guess with a simple “Be Careful.” And in today’s increasingly employee-supportive legal landscape, “Consult Counsel,” too.

As clear-cut as it may seem that certain activities — such as stealing company property and alcohol abuse — have no legitimate place in your organization, except as forbidden zones in your employee handbook, just remember to beware the law, where black-and-white mandates are far outweighed by shades of gray.

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Drug Use, Addiction at Work Continues to Rise

The use and abuse of drugs in the workplace isn’t slowing down at all. Latest reports indicate the percentage of American workers 73267092 -- drugs at worktesting positive for illicit drugs such as marijuana, cocaine and methamphetamines has increased for the second consecutive year in the general U.S. workforce — putting an end to the decades-long decline.

Indeed, this article references a government report that finds nearly one in 10 full-time workers now has a substance-abuse problem. And the latest Quest Diagnostics Drug Testing Index shows an upsurge in the positivity rate of drug tests by 9.3 percent — from 4.3 percent in 2013 to 4.7 percent in 2014. (Here is an additional link to the actual tables/stats within the index.)

“American workers are increasingly testing positive for workforce drug use across almost all workforce categories and drug-test-specimen types,” says Dr. Barry Sample, director of science and technology for Quest Diagnostics Employer Solutions. “In the past, we have noted increases in prescription-drug-positivity rates, but now, it seems, illicit drug use may be on the rise, according to our data.

“These findings,” says Sample, “are especially concerning because they suggest that the recent focus on illicit marijuana use may be too narrow, and that other dangerous drugs are potentially making a comeback.”

Dr. Robert DuPont, former director of the National Institute on Drug Abuse, says this latest analysis by Quest not only “suggests that illicit drug use among workers is increasing broadly for the first time in years in the United States [but that] public and private employers might want to consider revisiting existing substance-abuse policies to ensure that they are taking the necessary precautions to protect their workplace, employees and businesses.”

Equally concerning is the fact that abuse of legal drugs is also going up, as this news analysis by Andrew McIlvaine addresses. Drugs taken for attention-deficit-hyperactivity disorder — such as Ritalin, Adderall and Focalin — are now being abused by employees looking to add some sparks to concentration and alertness.

Will Wesch, Novus Medical Detox Center director of admissions, says many organizations are now updating their language in drug-free workplace policies to include potential impairment from a prescription drug. He urges HR practitioners to coach managers in how to engage employees suspected of such abuse and offer reasonable accommodations, up to or including modifying job responsibilities should an employee inform him or her that the medication he or she is on may impair job performance.

As for specific policies, concerns and approaches HR leaders should be considering right now when it comes to all workplace drug use, DuPont has this to offer:

“First, look at the big picture in workplace drug testing. There is much more to workplace drug testing than just testing for marijuana. An effective drug-free program includes testing for many widely used drugs [including prescription]. Second, consider the legal complications of workplace marijuana testing.  For example, several states allowing medical use of marijuana are now requiring an employer to show impairment before taking action against an applicant or employee who tests positive for marijuana. These provisions pose a significant limitation to workplace drug-testing programs for marijuana.

“I also recommend you provide clarity in your drug-free policies. … Every employee must be informed of the company’s substance-use policy and the reasons for the policy. Drug testing needs to be described in a written statement of the employer’s substance-use policy. This policy statement must clearly lay out the elements of the drug-testing program, including who is subject to testing, how testing is administered, how positive results are confirmed and what the consequences are for positive drug-test results. Supervisors and human resource staff should be trained in the employers’ substance-use policies and procedures, and be able to explain them to all employees and job applicants.”

And, again, when it comes to marijuana, DuPont says, “pay close attention to the specifics of state and local law,” obviously and especially in those states where it’s medically or recreationally legal. And make sure your drug-testing policies are being reviewed by attorneys “who are familiar with federal, state and local laws … particularly related to marijuana.”

Yes, folks, it’s a whole new world when it comes to drugs at work. DuPont says it’s time to consider “going beyond the urine cup and … the typical five-drug tests” and embrace the bigger picture now upon us.

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With Union Petitions Up, Get Your Message Out … NOW!

Since sharing this blog post the day before the National Labor Relations Board’s “quickie-election rules” went into effect on April Union14, I’ve been waiting to see if the predictions shared therein would come to pass.

More specifically, would there be — as predicted by various employment attorneys I talked to — a surge in the number of representation petitions filed with the NLRB by unions just waiting for those rules to help them hurry up their process?

Well, I just got confirmation from NLRB spokesperson Jessica Kahanek that there’s been a 32-percent spike in union petitions lodged with her agency in one month since the rule’s enactment. Broken down, that’s 212 petitions from March 13 to April 13 and 280 from April 14 to May 14. An impressive and additional 104 petitions were filed between May 14 and May 27, she tells me. Spike indeed!

Kahanek also notes that elections are now taking place — on average — 23 days from the date of the petition. This duration is a dramatic shift from the 38-day average that existed under the previous rule.

What’s also interesting to note is that the petitions didn’t come flooding in starting on April 14. On the contrary, says Steve Bernstein, a Tampa, Fla.-based labor attorney with Fisher & Phillips, “in the first two weeks after the rule, the numbers of petitions filed were flat, maybe even down some; only in the last two to three weeks have we been seeing them really climbing.”

So what does that mean? It means even the unions needed some time to figure out all the new procedures contained in the new rules. “It’s been a learning curve for everyone,” Bernstein says.

What it all really means — to employers — is now’s the time to talk up your company and make no bones about stressing with employees that it’s a better place to work communicating directly with management than through third-party representation.

Bernstein calls this “front-loading the message.”

Employers, he says, “have the opportunity to use this [albeit shorter] period of time to take the initiative away from the union.”

Some companies, in fact, are getting ready for the NLRB before the NLRB even comes knocking. They’re getting all the new data being asked for — employee emails, phone numbers, work histories, job classifications, etc. — collected and collated now “so they’re positioned to be standing on ‘Go’ when the petition arrives and can use all their time getting their message out,” says Bernstein. He recommends that you:

“start from the standpoint that, with the new rules, comes a new petition form giving unions the opportunity to request the earliest election dates possible, usually two weeks out. So you, the employer, can posit the question, ‘Why is this union trying to move so fast on something so important to your lives and the lives of your families as this?’ “

In terms of the new administrative and disclosure requirements contained in the rules, he says, rather than focusing only on scrambling around trying to meet them all, think about taking this approach:

“In many circles, the kind of employee data they’re now demanding from employers would look like an invasion of privacy. So you can put out the immediate message, ‘They’re not even here yet and look at the personal information they already want on you. Why do they want all this from us?’ “

In other words, the NLRB has changed the rules, so you can too. (FYI, my earlier post, linked above, contains the NLRB’s position and purpose in the rule changes.)

You don’t even have to wait for a petition to start the conversation. In addition to getting all your data ducks lined up, you can join with the many companies Bernstein is already seeing “embracing the notion that it’s OK to talk about this, now, with employees,” sooner than later, he says.

Nothing wrong with telling your employees, “Let’s have this union dialogue now,” he says, especially in businesses and industries where unions are dominant. Some companies are even fashioning tailored, customized videos along these lines to go with their orientation processes, i.e., why no union is better than representation.

“You’re really trying to establish this line of communication, getting them used to hearing about this, so it doesn’t just sound like a defensive move after the petition has arrived,” Bernstein says.

So, to recap, your message to them: “Hey, it’s OK to talk about this now, folks!”

And my message to you: Ditto.

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Disney World’s H-1B Controversy

Additional  and corrected information below:

A front-page story in the New York Times focuses on what critics say is flagrant abuse of the H-1B visa program by Walt Disney World Inc. It’s only the latest example of the controversies swirling around the temporary visa program.

The Times is actually a bit late to the story: In April, Computerworld profiled several of the approximately 250 Disney IT employees who were required to train their replacements, prior to being laid off at the beginning of this year, in order to receive severance pay. The replacement workers were immigrants who had been brought in to the country by an India-based outsourcing firm via the H-1B program, according to Computerworld and the Times.

The H-1B program is, of course, intended for the use of highly skilled immigrant workers to fill jobs for which companies cannot find qualified candidates in this country. Disney CEO Bob Iger is a big proponent of the program: He is one of eight co-chairs of Partnership for a New American Economy, which lobbies for an increase in the number of H-1B visas allowed each year, reports Computerworld.

Disney has said the restructuring was necessary for increased innovation and has led to more IT jobs at the company: Kim Prunty, a Disney spokeswoman, provided the following statement: “Disney has created almost 30,000 new jobs in the U.S. over the past decade, and the recent changes to our parks’ IT team resulted in a larger organization with 70 additional in-house positions in the U.S. External support firms are responsible for complying with all applicable employment laws for their employees.”

A source at Disney tells me that the Disney Parks IT department underwent a shift from focusing on systems maintenance to developing new capabilities, with much of the support function shifted to outside vendors. The source says she can’t comment on the allegations that the employees were forced to train their replacements, but stressed that Disney expects its vendors to comply with “all applicable employment laws.” Of the 250 Disney employees laid off, 120 found new jobs within Disney, 40 took early retirement or found new jobs outside the company and 90 did not find new jobs at Disney, she says.

Earlier this spring, a group of former employees filed suit against Southern California Edison charging the utility with abusing the H-1B program. The plaintiffs say they, too,  were laid off and forced to train their replacements.

And just a few days ago, the Wall Street Journal reported what appears to be abuse of the H-1B program: Immigration lawyers involved in the process say they have helped firms file multiple H-1B skilled-worker visa applications for the same person in the hopes of prevailing in the lottery under which the visas are allotted. Some workers, meanwhile, are accepting offers from multiple employers, each of whom files a petition on their behalf, lawyers told the WSJ.

Given that this is an election year, and that the H-1B program has been a sensitive topic for years now, I’d say the chances are very good that Congress will soon be  holding more hearings about the program. As for increasing the visa cap, currently limited to 85,000 per year? I’d say not very likely this year, for sure.

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Mixed Interpretations of Mach Mining Decision

Reactions to last week’s U.S. Supreme Court ruling in Mach Mining v. EEOC are plentiful, and mixed. The decision essentially came down 78805354 -- Supreme Court for left sidein favor of employers and against the U.S. Equal Employment Opportunity Commission, but just who the real winner is — and by how much — is subject to interpretation.

In the case, Mach Mining was accused by the EEOC of discriminating against women who applied for jobs at its Johnson City, Ill., coal mine. The EEOC filed suit in 2008 after an unsuccessful job applicant complained to the agency that the company never hired a female miner.

In response, Mach argued for an intensive federal-court review of conciliation efforts the EEOC should have engaged in, but Mach argued were not carried out — as required under Title VII of the Civil Rights Act — prior to the company being sued.

“In language that is sure to be repeated back to the EEOC for years to come, the Supreme Court held that ‘[a]bsent such review, the commission’s compliance with the law would rest in the commission’s hands alone,’ ” say Seyfarth Shaw attorneys Gerald L. Maatman Jr., Christopher Cascino and Matthew Gagnon in this blog post. “This, the Supreme Court said, would be contrary to ‘the court’s strong presumption in favor of judicial review of administrative action.’ ” They go on:

“While the Supreme Court did not rule that the intensive review that Mach Mining argued for was required, the case nevertheless represents a significant win for employers and resounding defeat for the EEOC. The EEOC will no longer be able to file suit against employers after paying mere lip-service to its conciliation efforts, and to give them the back of the hand in response to requests for fulsome information about liability and exposure in a threatened lawsuit. And employers will, as a result, be in a better position to settle meritorious claims  on reasonable terms before the EEOC files suit, thus saving employers from unnecessary litigation expense.”

But not so fast. According to points raised by Jon Nadler, a Philadelphia-based employment attorney with Eckert Seamans Cherin & Mellott, the ruling is actually a win for the EEOC, despite the prevailing commentary and headlines. Though the court ruled the EEOC’s conciliation efforts are subject to some judicial review, “that review is extremely limited (‘relatively barebones,’ in the court’s words,” his notification says.

On the contrary, it goes on, the “EEOC will merely need to show it provided the employer with notice of the allegations — the specific alleged unlawful practices, and identification of those allegedly harmed — and to engage in some bilateral communication with the employer in an attempt to resolve the matter.”

Nevertheless, Nadler points out, though employers have complained in some instances that the EEOC “failed even to provide this basic information, now [it’s] clearly required.”

Further, in points raised by Don Lewis, shareholder with Nilan Johnson Lewis, the Supreme Court also chose not to adopt a “good faith” standard of review previously adopted by the Fourth, Sixth and Tenth Circuits. “Employers,” his notice reads, “will be pleased that the high court has recognized that the EEOC’s obligation to conciliate is enforceable in court, and that its obligation includes a requirement to disclose and discuss the essential elements of its claims and identify the parties for which it seeks relief.”

Meanwhile, in this posting, the EEOC calls the decision a “step forward for victims of discrimination” in its rejection of the “intrusive review proposed by the company and its supporters.”

The agency goes on to say that the “court recognized … the scope of review is narrow and a sworn affidavit is generally sufficient to meet the statutory requirements. If the employer has concrete evidence that such efforts were not made and the court finds in favor of the employer,” it says, “the remedy is [simply] further conciliation.”

This story on the Inside Counsel site, written in January after oral arguments were presented in the case, offers great background on the history, arguments and questions surrounding all this.

So what does it mean? Obviously, it depends on who you talk to … on whose glass is half full or otherwise. Yes, the scope of judicial review articulated in the decision “is a narrow one,” Maatman and company write, but bottom line, the court “vigorously upheld the fundamental principle that judicial review of administrative action [however slight] is [still] the norm in our legal system.”

Further, they state, “the EEOC now has to present its position in a federal court, and its litigation strategies are apt to be very different when it must justify and show the basis for its conciliation positions before a neutral fact-finder.” In their words,

“Suffice it to say, employers’ defense of ‘failure-to-conciliate’ is still alive and well, and the EEOC’s litigation strategies are now likely to be in need of rebooting.”

Or not …

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Get Set for the NLRB’s ‘Quickie-Election’ Rule!

If you thought April 15 was a date to keep you awake at night, the day before — April 14; that’s tomorrow, folks! — could be worse. 116040122 -- labor unionTomorrow is the day the National Labor Relations Board’s “ambush-election rules,” aka “quickie-election rules,” governing how union representation is voted on by employees, takes effect.

Late last month, I was made aware of this post at, pointing out (in pretty cryptic terms) that “as President Obama’s union attorneys controlling the National Labor Relations Board push through their so-called ‘ambush-election rules’ … the NLRB is conducting ‘practitioner’ training at NLRB offices and other locations (including a union office) across the country.”

The post says little else, but does include the PowerPoint presentation being used for the practitioners’ education. I found it somewhat interesting. You might too.

Meanwhile, NLRB General Counsel Richard F. Griffin Jr. did release early last week a guidance memo on modifications to organized-labor-representation procedures effective April 14 — specifically, how new cases will be processed from petition filing through certification. In his words,

“I am confident that the guidance provided herein will allow regions to implement the final rule effectively and efficiently.”

What effect these new rules will have remains to be seen, though Joel Barras, employment attorney at Reed Smith, says he’s pretty  confident they’ll “dramatically limit the time employers have to run pro-company campaigns.” As he puts it:

“I believe unions will now wait to file their union representation petitions until the new rules take effect. If I am right, and we see a high number of petitions filed in mid to late April, that would serve as an excellent indication that unions agree with employers that the new rules will dramatically improve the likelihood that employees will vote to join unions.”

In a webinar Friday by several Littler attorneys, addressing what more than one called this “new reality,” Tanja Thompson, Memphis, Tenn.-based office managing shareholder for Littler, confirmed that her office has seen a recent “slowdown” in the number of union petitions filed, indicating many are, indeed, probably waiting to file under the new rules, as Barras predicts.

“Make no mistake; this rule change is designed to see increases in union win rates,” she said. ” … We do anticipate accelerated activity starting April 14.”

She and the others shared cautionary tips for making sure nothing is missed in the new system, such as adhering to deadlines for supplying lists of personal contact and job information of all likely and eligible union members … and remembering that union notices will now be coming via email, not fax, and “unions don’t always get it right in who they email, yet that’s who’s being served,” said Thompson.

They also laid out all kinds of strategies for being proactive and not waiting to take action until a petition is filed under the new system, which is expected to change the current six-week election process to something closer to two-to-three weeks.

Action plans should include putting your employer statement out now on unions and how you view them, ensure supervisors and managers are comfortable talking with employees about that view, and ensuring all workers understand the value of their wages and benefits.

“My fear for employers,” said Jeff Harrison, a Minneapolis-based Littler shareholder, “is they’ll be busy meeting the many requirements [of responding to a petition] at the expense of focusing on their [anti-union] campaign communication strategies.”

For a further frame of reference on what’s coming, here is our most recent post by Michael J. O’Brien on the “current ‘quickie’ kerfuffle,” as he calls it — namely, the vote on March 19 by the U.S. House of Representatives, passing a GOP-led resolution to overturn the rule. With Obama almost certain to veto it, the vote appears to have created hardly a wrinkle in the NLRB’s preparations, as I indicated above.

Here, too, is some good discussion of the GOP’s effect on the NLRB that Tom Starner raised in a January news analysis. Specifically, he writes, “while the NLRB has characterized its actions as ‘modernizing its processes,’ legal experts representing employers say the real impact will deny employers an adequate chance to stage an anti-union campaign prior to employee voting.”

So … “gather your bragging points now,” as Harrison said in the webinar. “Conduct vulnerability assessments,” with special focus on employees being treated fairly, with dignity and respect, and with robust employee-appreciation programs … those catch phrases “you often find in union petitions,” he said.

Bottom line, look closely at your people issues, said Harrison. “Are your people treating your people right?” Because it’s those types of complaints — treatment ones — that “are almost always behind” employees being driven to unionize.

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Hitting the Road to Promote Paid Leave

X-7Last week, Secretary of Labor Thomas Perez told the Washington Post that “so much of what becomes law in Washington starts out as an experiment in different states.”

For the next month or so, Perez will be conducting his own state-to-state experiment of sorts; one that he hopes will result in workers nationwide being afforded greater flexibility in their jobs, including the right to paid leave.

As part of the Lead on Leave—Empowering Working Families Across America tour, Perez will meet with workers, state officials and employers in a handful of cities in an effort to “promote best practices and discuss how paid leave and other flexible workplace policies can help support working families and businesses,” according to a Department of Labor statement.

Perez will have company on the coast-to-coast jaunt, which kicks off today with a stop in Seattle. Valerie Jarrett, a senior advisor to the White House, and Tina Tchsen, assistant to President Barack Obama, will join him on the tour, which also includes scheduled visits to Minnesota, California, Oregon, Georgia, Colorado and Pennsylvania.

Currently, just three states—California, New Jersey and Rhode Island—offer paid family and medical leave, while only California and Massachusetts require private employers to provide paid sick leave. Meanwhile, Illinois, Ohio and Virginia provide paid parental leave to state employees, while cities such as Chicago, Austin, Texas and San Francisco do the same for municipal workers.

We may be a ways off, however, from federal legislation that obliges employers to provide paid sick leave. As a recent New York Times article points out, President Obama has urged Congress to pass a bill giving U.S. workers seven days of paid sick leave. But, garnering the necessary support in that same Congress to approve such a bill would be “a tough obstacle” to surmount, the Times article notes.

Some organizations, however, aren’t waiting on government action.

The aforementioned Times piece details Microsoft’s “unusual” method of overcoming the absence of a federal policy, noting the company’s March 26 announcement that it would require many of its 2,000 contractors and vendors to offer their employees who perform work for Microsoft 15 paid days off for sick days and vacation time.

“In some ways, it’s a uniquely American solution,” the article continues. “ … The biggest and wealthiest companies are performing the role of setting workplace policy for other businesses.”

While applauding Microsoft’s approach to providing paid leave, Ruth Milkman told the Times she doesn’t foresee other corporate heavyweights following its lead.

“It’s a moral model, but I don’t think there’s a high probability it’s going to become universal through business initiatives,” said Milkman, a professor and sociologist of labor at the City University of New York Graduate Center. “The public wants this. The resistance is all from employers. The only way is through public policy.”

We’ll see if the Lead on Leave tour takes us any closer to such policy becoming reality.

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Krawcheck Calls for Greater Diversity

Sallie Krawcheck

Sallie Krawcheck

The second day of SHRM’s Employment Law & Legislative Conference featured a morning talk by Sallie Krawcheck, a former high-profile Wall Street executive who’s now the chair of Ellevate, a New York-based mentoring network for women (formerly known as 85 Broads).

In describing her experiences as one of the few female leaders in an industry that continues to be dominated by white males, Krawcheck paid tribute to HR. “The first young man I had to fire threatened to kill me,” she said. “He said he would hunt me down in a dark alley. The second young man I had to fire insisted that I was doing so because I was actually in love with him. He suggested that I put him up in a love nest. So, I have a great deal of respect for what you in HR have to deal with.”

She also offered her own take on what led to the financial meltdown of 2008: “I don’t think it was greed so much as groupthink,” she said. “And what breaks groupthink? Diversity of thought.”

Krawcheck called on HR to “keep us honest, give us training on this, encourage us to have those courageous conversations where we say, ‘Dave, you interrupted Susie five times during her presentation, but you didn’t interrupt Bill once during his.’ ”

Companies today suffer from a surplus of mentoring opportunities for women but a deficit of sponsoring programs, she said, in which executives actively advocate for women in their careers. “Some companies are actually replacing their mentoring programs with sponsoring programs.”

Companies can demonstrate their commitment to diversity by making it a key developmental milestone, said Krawcheck. “Here’s a thought: Give responsibility for diversity to a high-potential white guy.”

Later on that day, a breakout session featured two board members from the National Labor Relations Board, who sought to explain the Board’s reasoning on controversial matters such as so-called “ambush elections” rule regarding union-certification elections.

“I’m told the best part of the new rule starts on page 500, where [Harry] Johnson and I write our dissent,” said Philip Miscimarra, who is — along with Johnson — one of the two Republican appointees to the five-member Board.

He and Johnson disagreed with the new elections rule on a number of different issues, particularly its dramatic compression of the time allowed between when a union files a certification petition and the election. “The [National Labor Relations Act] is silent with respect to timing,” said Miscimarra. “How fast is too fast, or how slow is too slow — it is silent on those issues.” He noted that both houses of Congress have passed a “resolution of disapproval” of the new rule — a resolution that could potentially nullify the rule should a Republican win the next presidential election and sign the resolution into law.

One of the most contentious issues the Board continues to wrestle with, said Miscimarra, is the extent to which companies have the right to restrict concerted activities by employees that could be considered as “disrespectful, discourteous or insubordinate.”

“Employers have been surprised to learn that rules they have in place for a good reason — rules that require employees to show courtesy and respect — are unlawful under our statute,” he said.  “I do hope the Board can do a better job of devising a standard in this area that people will find helpful.”


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