Category Archives: unions

‘Persuader’ Ruling Helps Employers

Barack Obama hasn’t yet turned the Oval Office over to Donald Trump, but already one of his administration’s signature pro-labor rules has been scrapped. Not by the new president, but by a federal court.

Gavel banging
Gavel banging

U.S. District Judge Sam Cummings  in Lubbock, Texas, on Nov. 16 made permanent an earlier temporary injunction halting the Department of  Labor’s controversial “persuader rule.” That rule, announced in April, expanded an existing requirement for employers  to disclose in government filings when they hire legal counsel to combat unionization drives. Under the new rule, disclosure was necessary even if those lawyers only provided advice on how companies should persuade workers to oppose representation. It was one of several pro-labor rules or standards set recently by Obama-administration agencies, including the DOL, EEOC and NLRB.

“It’s a good result,” says Jeff Londa, a Houston-based labor and employment attorney with Ogletree Deakins who led the legal effort to set aside the rule.  As a result, “We’re back where we were.”

Business groups that joined several states in seeking the order included the National Federation of Independent Business, whose members are generally small employers.

But larger companies also will benefit from Wednesday’s ruling, Londa says. Though more likely than small firms to  have their own attorneys on staff,  larger employers still “typically go to outside counsel” for training and advice on company policies  “when there’s a lot on the line” in a major union organizing campaign, Londa says.

The “persuader”rule had  stirred widespread objections not only from employers, but also from lawyers, who said it breached the attorney- client privilege.

The Labor Department had filed an appeal with the Fifth Circuit after Cummings issued a preliminary injunction on June 27. That appeal is now mooted b this week’s permanent injunction, Londa says. That means “it would clearly be on the shoulders of a new administration” to appeal again  — unlikely, given Trump’s position on the Obama administration’s labor regulations. And given the GOP’s strong showing in Senate and House races on Election Day, Congress is not likely to intervene to revive the “persuader” rule, he notes.

“The inclination of the new Congress would probably be against the new rule,” Londa says. “I’m not sure they would get involved.”

 

 

 

GOP Platform: An HR Cheat Sheet

ThinkstockPhotos-504283950The Republican Party platform approved on Monday hasn’t exactly drawn much attention, what with all the other interesting things happening at the GOP convention in Cleveland. But a look at HR-related provisions in the document gives us a window into how the party is evolving.

Some provisions are largely the same as in the party’s 2012 document. Both platforms, for example, call for portability in health plans and pensions.

But others have changed. Some reflect changing economic conditions. Others reflect changing politics — in particular, the rise of nominee Donald Trump, whose positions don’t always align with the party’s traditional views.

Here’s a quick rundown of policy positions of interest to HR leaders.

International trade: The 2016 platform repeats a 2012 pledge to pursue “a worldwide multilateral agreement among nations committed to the principles of open markets.”

“We need better negotiated trade agreements that put America first. When trade agreements have been carefully negotiated with friendly democracies, they have resulted in millions of new jobs here at home supported by our exports. “

Trans-Pacific Partnership: Reflecting nominee Donald Trump’s opposition, however, the platform does not explicitly mention the proposed trade deal, which the party supported in 2012. It only hints at a go-slow approach.

“[The] American people demand transparency, full disclosure, protection of our national sovereignty, and tough negotiation on the part of those who are supposed to advance the interests of U.S. workers. Significant trade agreements should not be rushed or undertaken in a Lame Duck Congress. “

Workforce development:  With unemployment rates down from four years ago, the 2016 platform drops a proposal backed by 2012 nominee Mitt Romney to replace dozens of retraining programs with state block grants. It does keep language suggesting a greater role for private worker training, however.

“We need new systems of learning to compete with traditional four-year schools: Technical institutions, online universities, life-long learning, and work-based learning in the private sector … a four-year degree from a brick-and-mortar institution is not the only path toward a prosperous and fulfilling career. “

Regulatory activism: The 2016 platform adds language criticizing the Obama administration’s activist approach to labor issues on the regulatory front.

“They are wielding provisions of the Fair Labor Standards Act from the 1930s, designed to fit a manufacturing workplace, to deny flexibility to both employers and employees.”

Targeting NLRB: In particular, the 2016 platform steps up criticism of the National Labor Relations Board. Among policies targeted is the board’s support  of project labor agreements, which guarantee union wages. The platform also calls for repealing the Davis-Bacon Act, which has a similar effect on federal projects.

“Their patronizing and controlling approach leaves workers in a form of peonage to the NLRB. We intend to restore fairness and common sense to that agency. “

Labor unions: This year’s platform reiterates language from 2012 that supports laws allowing workers to opt out of union membership or dues requirements, even if they are covered by a collective-bargaining agreement.

“We support the right of states to enact Right-to-Work laws and call for a national law to protect the economic liberty of the modern workforce.”

Minimum wage: Reflecting new potency of the issue, the 2016 platform add language — albeit briefly — opposing any change in the federal minimum wage.

“Minimum wage is an issue that should be handled at the state and local level.”

All Eyes on Volkswagen’s Amnesty for Answers

465782341 -- volkswagen2It’ll be interesting to see what comes of Volkswagen’s move to offer amnesty to all its bargaining-unit employees in hopes of uncovering just who was/is behind its emissions-cheating scandal.

According to a letter that went out Thursday from Herbert Diess, chief executive of the division that produces Volkswagen brand cars, employees have until Nov. 30 to come forward with information about who was responsible for installing software in 11 million diesel vehicles that disguised nitrogen-oxide output.

The letter, reviewed and reported on by the New York Times, says “people who provided information would not be fired or face damage claims [but] the company could not shield employees from criminal charges.”

In other words, the amnesty isn’t really designed for the really bad guys, “but rather, for the midlevel people who may have, without even knowing it, some relevant information,” Mike Koehler, a law professor at Southern Illinois University, told the Times.

It’s also, according to another legal source for that story — Alexandra Wrange, president of Trace International in Annapolis, Md. — “a tacit admission … that the usual reporting channels have been ineffective.”

You might call it a kind of pulling-out-all-the-stops kind of move, above and beyond the more commonplace no-retaliation policies contained in most whistleblowing programs, says Allan Weitzman, a Boca Raton, Fla.-based partner with Proskauer, whose list of specialties includes whistleblowing.

(At Volkswagen, it was an internal whistleblower who uncovered the false carbon-dioxide claims that the company made public last week. “German news media reports have said that internal investigators looking into the emissions-cheating software, which came to light in September, have been hampered by a reluctance among employees to come forward,” the Times story states.)

Weitzman joins in the general chorus of employment attorneys who consider Diess’ move new and different, to say the least.

“I know I’ve never heard of [this kind of corporate amnesty],” he says. “But these are unusual circumstances, and [as pointed out in the Times article as well], Volkswagen wants to show to governmental agencies that it has done everything it can to solve this problem; well, amnesty is pretty broad … I’d say ‘Yes, they have gone about as far as possible’ ” in this endeavor.

Is it the right move? Weitzman thinks so.

“I think it’ll work, too, if it has the support of the union, meaning [very simply] that the people who look to unions as their source of job security will participate in the amnesty program if their union supports it,” he says.

“And the union should support this,” he adds, “because the future of the union is tied to the future of Volkswagen, and if Volkswagen cannot solve this problem, it’s going to result in the unemployment of many, many union members.”

The Mindfulness-Retaliation Connection

Two researchers from the University of North Carolina Kenan-Flagler Business School came up with an interesting connection 166198718 -- meditation2between mindfulness and employee retaliation that has me drawing a further connection of my own.

The Kenan-Flagler study by Ph.D. student Erin Cooke Long and Professor Michael S. Christian suggests practicing mindfulness at work, which can incorporate workplace meditation, can actually reduce retaliatory behavior in employees who feel treated unfairly. (Here’s the study’s abstract.)

I suppose this can be seen as intuitive, but it’s apparently the first time mindfulness and retaliation have been connected in any study. As Cooke Long describes it:

“When employees think they have an unfair boss or colleague or the organization is unfair, they might be tempted to seek retribution or act in ways to ‘even the score.’ Mindfulness helps them short-circuit emotions and negative thoughts so that they can respond more constructively.”

Which gets me to my additional connection: How bout keep them mindful and meditating, and perhaps you can keep the unions from knocking at your door? Perhaps we can add “incorporating mindfulness into your workforce” to the many suggestions experts and attorneys offered in a recent webinar I blogged about the day before the National Labor Relations Board’s “quickie-election” rule went into effect.

Everyone speaking in that webinar agreed the rule — which became effective April 14 — would increase union activity and win rates within the business community.

And as Jeff Harrison, a Minneapolis-based Littler shareholder, said then, employers should be looking more closely at their people issues than ever before, because unhappy employees make for likely union members.

“Are your people treating your people right?” he said, because it’s those types of complaints — treatment ones — that “are almost always behind” employees being driven to unionize.

At the risk of making another bold connection, my sources for this blog post on the importance and difficulty of bringing mindfulness into the workplace — including our benefits columnist, Carol Harnett — would concur that offering such a stress-reducer certainly sends the message that employees are being treated well.

And if the UNC study is to be believed, which I don’t see any reason why it shouldn’t be, perhaps mindfulness can also keep their minds off “getting back” at you through protected concerted activities.