Supervisors are your front line of defense against any employment claims, low morale, productivity issues, and a number of other workplace problems. Unfortunately, many companies fail to adequately provide supervisor training and select the wrong people for the position. When this happens, disaster can strike with a fury.
What To Do When you
Promote Someone
Many companies promote their highest performing employees to supervisors Many companies promote their highest performing employees to supervisors, which is a bad starting point if the sole reason you are promoting that person. The most crucial step in choosing a supervisor is to select the right person for the job. That does not necessarily mean that the person is completely ready to fulfill all aspects of the job because as we all know, supervisor training is essential. The fact is that the best candidate is someone that is either prepared for the role or can grow into it.
How do you pick the best supervisor? Here is what you should
look for:
Are they independent? Do they make decisions by themselves (that are within the range of what is within their authority)
Do they interact well with their coworkers? Are they relatable? Do people like them?
Do they help others without asking? Are they constantly looking for ways to improve the team?
Do they take responsibility for what they do wrong or do they blame others for their mistakes?
Do they have a growth mindset? Are they looking for ways to improve themselves?
Do they represent the culture of the organization or the direction that the organization wishes to go?
You should also seek references from any and all internal
and external applicants to determine whether they would be successful and how
they actually work with others. Positive remarks from coworker speaks volumes
about whether a person is actually a good leader or just someone that knows how
to advocate for themselves.
Retraining and
Continued Maintenance
People forget. Unless you are training and preparing your supervisor on a regular basis, they will forget what they need to do, especially if it is a task that they are not used to performing. For example, sexual harassment may not be something that supervisors deal with on a regular basis. It may be the case that they have never had to deal with a complaint from a member of their team. However, they need to know how to respond when these issues occur- and they will occur. This is one of the reasons that many states have adopted special supervisor training requirements on the issue of sexual harassment. California, for example, has initiated a requirement for supervisors of one additional hour per year of training on sexual harassment on top of the one hour required for all employees that work for employers with 5 or more employees.
There are a number of topics that supervisors should receive
regular training on. Some of these can be done through morning meetings,
additional work hours for supervisors, or special training days.
Topics that supervisors should receive training on include:
Basic Management skills
How to recognize employee achievement
Motivating your team
How to improve employee performance
Handling employee complaints
Dealing with employee conflict
Sexual Harassment
Safety on the Job
Disability/Light Duty Requests
Union Organizing
Drug Testing, Marijuana, and Opioid usage
Employee Discipline
All procedures and policies in the employee handbook
Supervisors need to know about the various workplace rules at the company- and not just briefly scanning the handbook and signing the page acknowledging they have read it. They need to have a much deeper knowledge than the average employee and how the rules need to be enforced in a variety of situations. This is going to be pivotal from a prevention and preparation perspective for your business.
Supervisors need to know the various steps that they need to take to conduct a workplace investigation (more info available here).
Managers may need to function as the primary investigator and enforce discipline during their shift. Supervisors that work 3rd shift or on the weekends when no HR staff is available especially need to know how to respond to the various problems that may arise in the workplace. They need to know how to gather information for the investigation before it is lost or employees no longer want to talk about it. The quicker that an investigation can begin, which includes taking witness statements and determining whether to suspend an offending employee while the investigation is ongoing, the better the overall investigation will go.
Conclusion
Supervisors are the frontline in a company’s defense. A good
supervisor can minimize the risk of employment claims by being proactive,
applying the appropriate response to a workplace issue, and by improving the
morale and quality of the team. A bad supervisor will ignore employee
complaints, not respond or address complaints, and unfortunately are often the
cause of an employee lawsuit.
Choosing the right supervisors and providing supervisor training is a must for any company. It is an investment that pays dividends to a company in increased productivity, positive workplace morale/performance, and preparedness to respond to employment situations.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
Of course,
there are certain industries and areas where more workers are going to be
foreign workers. For example, the over 300,000 estimated L-1 visa workers only
work for companies that have foreign affiliates, subsidiaries, or parent
companies. Many tech positions are frequently held by H-1B visa holders.
While many
HR representatives and businesses will not have to deal with visa holders,
there are many that will have to do so, so it is an important element for HR to
understand. Each visa has its own unique standards to qualify, and potential to
lead to a green card or residency status. By knowing the in’s and out’s of each
visa, HR reps can figure out the best route for their potential employee.
The Many Different Visas
If any
company is looking to bring a foreign worker to the business, then there are a
number of different options that companies have.
F-1 Opt (Student or Recent Graduate)
This option
is available for students (on an F-1 student visa) to work in the area of their
study for 1 to 3 years before or after they complete their studies.
Pre-completion OPT: You may apply to participate in pre-completion OPT after you have been lawfully enrolled on a full-time basis for one full academic year at a college, university, conservatory, or seminary that has been certified by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to enroll F-1 students. You do not need to have had F-1 status for the one full academic year; you can satisfy the “one full academic year” requirement even if you had another nonimmigrant status during that time.
If you are authorized to participate in pre-completion OPT, you may work part time (20 hours or less per week) while school is in session. You may work full time when school is not in session.
Pre-Completion OPT is a chance for students to work before their degree is complete.
Post-completion OPT: You may apply to participate in post-completion OPT after completing your studies. If you are authorized for post-completion OPT, you may work part time (20 hours or less per week) or full time.
OPT can be extended for an extra 24 months if a student earned a degree in certain science, technology, engineering, or math fields. The student must have received one of the STEM Designated Degrees STEM Designated Degree Program List (PDF), the employer must be enrolled in and using E-Verify, and the student must have received an initial post-completion OPT employment authorization based on the STEM degree.
The school
of the individual is responsible for filing the paperwork and maintaining the
visa. Hiring someone on OPT is a great way to find a qualified candidate, see
if they fit your culture, and eventually hire them under an H-1B visa.
H-1B Visa (Specialized Occupation)
H-1B visas
are unique. There are only 85,000 visas awarded every year through a lottery
system (65,000 for those who have a bachelor’s degree and 20,000 for those that
have a master’s degree or higher. Typically, around a third of first-time
applicants will receive a visa.
The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as science, engineering and information technology, and fields such as teaching and accounting. For more information about the H-1B program, visit the H-1B Specialty Occupations Web page.
H-1B visas
are an option to get specialized workers for a company. The worker can
eventually obtain a green card. These visas are frequently used by companies in
the tech sector and elsewhere to fill jobs with needed skills. Restrictions on
the H-1B program and higher standards have been found to push jobs outside the
US and increase investment in other countries rather than in the US.
L visa (Intra-company Transfer)
May bring
managers/executives or workers with specialized knowledge that work in a
related foreign company (parent, subsidiary, or affiliate) to the US.
To qualify for the L-1A Intracompany Transferee Executive or Manager, you must:
Generally, have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States and
Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.
Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.
The L-1A visa is essentially
a way to bring executives or managers of a foreign affiliate to the US to serve
as an executive officer or manager of the US affiliate.
To qualify for the L-1B Intracompany Transferee Specialized Knowledge classification, you must:
Generally, have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States and
Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.
Specialized knowledgemeans either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).
Workers with specialized knowledge are often individuals that have understand of a system or set of methods that is not common in the US, understand proprietary processes or software that the company has, or has experience in a field with limited availability in the US.
L-1 visas
are great options for companies with a foreign presence to bring workers to the
US. They have a big advantage over the H-1B visa because there is no set quota
on these visas and the visa holders may start at any time after their visa is
approved.
TN Visa (NAFTA/USMCA . Only Canadians and Mexicans in certain jobs are eligible)
For Mexicans
and Canadians this one of the easiest visas to obtain. There are a few
important restrictions that apply.
It is only
available for certain positions such as accountants, medical professionals,
engineers and other positions on the approved list (available here).
The position in the United States requires a NAFTA professional;
You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment – see documentation required below); and
You have the qualifications to practice in the profession in question.
TN visas are good as they can generally be
renewed continuously and almost without limit. However, TN visa holders cannot
be sponsored by their employers for a green card.
The J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.
In carrying out the responsibilities of the Exchange Visitor Program, the Department of State designates public and private entities to act as exchange sponsors. J-1 nonimmigrants are therefore sponsored by an exchange program that is designated as such by the U.S. Department of State. These programs are designed to promote the interchange or persons, knowledge, and skills, in the fields of education, arts, and science.
Examples of exchange visitors include, but are not limited to:
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
The O nonimmigrant classification is commonly referred to as:
O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
There are no
quotas on visas. They are great options for anyone who qualifies to get a green
card as O visa holders may qualify for EB-1 (extraordinary ability categories).
Offer a job that is of a temporary or seasonal nature.
Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. (A limited exception to this requirement exists in certain “emergent circumstances.” See e.g., 8 CFR 214.2(h)(5)(x) for specific details.)
The H-2A
program is available for temporary agriculture workers and is critical for our
nation’s food supply.
The H-2B program allows U.S.
employers or U.S. agents who meet specific regulatory requirements to bring
foreign nationals to the United States to fill temporary nonagricultural
jobs.
One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;
OR
Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
Traditionally tied to a season of the year by an event or pattern; and
Of a recurring nature.
There is an annual cap of visas available
that varies every year. Here are the visa caps by
year. Golf clubs, resorts, crab
pickers, landscapers, seafood processors, and other temporary seasonal jobs
rely on the program every year to fill the need for temporary workers.
Conclusion
There are many different visa options that companies can consider for bringing workers to the US. By understanding the basic options, HR and upper management can better determine how they can fill needs within their workforce.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
In the Friedrichs v. California Teachers Ass’n decision in 2014 (which resulted in a tie at the Supreme Court), Friedrichs, a California teacher, felt that as a member of a union she was forced to pay dues to the union who used that money to advocate for issues that she did not agree with. Specifically, the union used dues to argue against more parental choice regarding where parents send their kids for school, and the union often spent money to support political causes that she did not agree with.
Mark Janus, of the Janus v. AFSCME case that went before the Supreme Court, said that he cannot say “No, I don’t want to pay this. I either pay the union fee or I lose my job.”
Some unionized workers at Kroger have said “I’ve read online about having an initiation fee for the Union but $21 a week for a part-time minimum wage worker seems excessive.”
These are just a few examples of people who feel the union
they are associated with does not represent their actual or best interests.
So, what happens if there is already a union in a workplace
and the employees no longer want one? There are a couple of ways that employees
can get rid of a union if they no longer wish to be represented by the union.
Decertification Election
The most common way that employees choose to no longer be
represented by a union is a decertification election.
The decertification process begins when an employee hands
the employer a decertification petition that is signed by at least 30% of the
employees like this one available
through Union Facts.
As
stated by the NLRB, decertification petitions cannot be filed in a couple
of circumstances:
These petitions cannot be filed within the first year after a union wins an NLRB sponsored election.
Plus, if an employer and union reach a collective-bargaining agreement, an employee cannot request “a decertification election (or an election to bring in another union) during the first three years of that agreement, except during a 30-day ‘window period.’” That period begins 90 days before the agreement expires and ends 60 days before the agreement expires (120 and 90 days if your employer is a healthcare institution).
After a collective-bargaining agreement passes the three-year mark or expires, “employees may request an election to decertify the union or to vote in another union at any time.
Under the National Labor Relations Act, employers cannot provide more than ministerial aid to employees in gathering signatures for a decertification petition. This means that employers cannot give employees aid in circulating the petition or getting employees to sign it. If an employee approaches the employer and asks about getting rid of the union, then the employer can give employees some limited information on how to get rid of the union.
Once a decertification petition is filed, then the employer
can actively campaign to get rid of the union, which can include a number of
things:
An employer may hold
meetings to deliver its message. That message must be truthful and must avoid
promises of what will happen if the union leaves or threats.
There are time limits
on when these meetings can be held and typically there is a limit on meetings
in the last 24 hours before a vote.
Employers will often
discuss the advantages and disadvantages of a union during these meetings and
may compare wages and benefits.
Employers can state
that they want employees to vote against a union.
It can post flyers
with information for employees.
Supervisors can
discuss their experience with the union if they are asked for their opinion.
Companies can enforce
policies about soliciting and distribution of literature during non-working
time and in non-working areas (most unionized workplaces will not have such a
policy. If that is the case, then both sides may be passing out literature and
discussing the union while they are working).
Unfortunately for many employers and employees, most unions
and other employees will file blocking charges to delay a decertification
election or to suspend it entirely. Essentially, an employee or the union may
file an unfair labor practice charge (alleging that the employer violated the
National Labor Relations Act) during a decertification petition and a request
to block an election until the unfair labor practice is resolved. This means
that unions can continue to represent employees while the charge is being
resolved and can sometimes result in an indefinite suspension of the election.
The NLRB has proposed “replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.”
This would be a major step that would allow
employees to freely decide whether they want to have a union or not. It would
also eliminate a common way that unions prevent employees from choosing to
leave a union (unions file many charges that prevent an election from ever
taking place).
Withdrawal of Recognition
The blocking charge issue can also be avoided by withdrawing
recognition from the union. An employer has the option to unilaterally withdraw
recognition from a union that has lost support of a majority of the
employees in the bargaining unit as held
in the Supreme Court’s decision in Allentown
Mack Sales & Service v. NLRB. The evidence is usually in the form of a
petition signed by a majority of employees that asks for the employer to
immediately withdraw recognition from the union. The withdrawal of recognition
usually occurs right before the expiration of a collective bargaining agreement
or after an agreement has expired.
Typically, collective bargaining agreements have an
extension clause whereby the agreement continues unless either party (the union
or employer) notifies the other that it intends to terminate or modify the
agreement within a certain period of days (typically 60 days) before the
agreement expires. It is important that employers send this notice to the union
within the required time frame so that the agreement does not continue after it
expires.
Unlawful conduct by the employer can result in the union
again becoming the bargaining agent for the employees. The typical violations
that would prevent the withdraw of recognition are a refusal to bargain with
the union before the expiration of the contract, any unlawful (i.e. more than ministerial)
assistance in gathering signatures on the petition, or any conduct that
unlawfully undermines the union’s majority status.
Withdrawing recognition is usually best for employees and
the employer when properly done because it avoids a decertification election,
which usually never occurs because unions frequently file unfair labor practice
charges that prevent the election from ever taking place. However, due to the
complicated nature of union issues, employers are well served by seeking
experienced attorneys that can help with this process as an unfair labor
practice is almost always filed by the union after an employer withdraws
recognition.
Right to Work Laws
Right to work laws do not get rid of the union. They allow
individual members to opt out of paying union dues. Essentially, they guarantee
that a person cannot be forced, a condition of employment, to join a union or pay
union dues. The Janus Supreme Court
decision made all government employees in every state subject to this
principle. No government employee can be required to join a union as a
condition of employment or be required to pay union dues. These employees also
cannot be required to pay an agency fee for the union to represent them in the
collective bargaining process.
The Janus decision does not apply to private sector employees. A total of 27 states have passed right to work laws that give private employees the right to refuse to join a union or to pay fees for the union to represent them in collective bargaining (agency fees).
Again, the reason why many employees do not want to pay these fees is because the worker may be required to pay for the union to take positions that they oppose. The clearest example of this is new teachers that may be required to pay fees to the union when the union advocates for increased pay raises that result in layoffs of new teachers. Seethis article and this one this one discussing layoffs that occurred for young teachers as a result of a pay raise and budget shortfall in certain school districts.
Unions still exist in right to work
states. A union in these states is still expected to bargain on behalf of all
employees including those that are not members of the union. Right to work laws
simply allow employees to refuse to pay union dues or agency fees.
Conclusion
Employees that wish to get rid of a union have several options. The best advice for any employee that is looking to leave their union or get rid of a union in their workplace is to look for a petition to get rid of the union (like the one available here) and to speak with their fellow workers that they know would be interested in getting rid of the union. Employees must make sure to do this without violating workplace rules (such as doing it during working time), and they must be careful to avoid speaking with employees that support the union (and the union steward) or having conversations nearby those individuals.
Employees can also approach the company management to let the
company know that they (the employee) are
trying to get other employees to sign a decertification petition. It is
almost always a good idea for the employee to do this so that the employer can
alert or find a labor and employment lawyer to help them prepare to respond to
any unfair labor practice charge that the union files, to examine the signed
petition showing that a majority of employees do not support the union, and to
help in any other lawful way that they can.
It is best to act quickly once an employee circulates a petition to get rid of a union. The longer that an employee spends gathering signatures, the more likely it is that the union or union supporters will seek to file an unfair labor practice to block employees that no longer want the union.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.
