Author: Brett Holubeck

How to Respond to Union Organizing

Published by Brett Holubeck on March 27, 2019

Image of a light bulb to show that employers need to have ideas and a plan to respond to union organizing. — Photo by Diego PH on Unsplash

Some employers are caught off guard when they learn that their employees want a union. Many do not know what to do and, as we all know, being ignorant of the law does not mean that you cannot get in trouble. Many employers find themselves in legal hot water because they were not prepared and did not know what they could and could not do in a union organizing drive. Thankfully, there is no reason that you have to be one of those people.

The great news is that there are steps employers can take today to ensure that they are prepared to respond if their employees seek to unionize. By taking some action before a union organizing drive occurs, employers can prevent trouble that may occur later.

What Can Employers do Before Union Organizing Starts or Before They Are Even Aware a Union is Seeking to Organize?

There are some basic policies that every employer should have and follow at their workplace. By being prepared and preemptively ensuring you have these policies, an employer is better prepared in the event of a union organizing campaign. Once an employer becomes aware that a union is organizing at a company, it may become harder to make changes because the employees could allege that you have violated the National Labor Relations Act through some of your actions.

All employers should consider having the following policies and practices before any union organizing occurs:

Have a no solicitation policy that prohibits employees from soliciting other employees during working time and in working areas. This means that employees cannot ask employees to buy girl scout cookies, sign union authorization cards, or buy into the latest multi-level marketing (MLM) scheme (some people call these pyramid schemes) while they are working, but are free to do so on their breaks or at lunch.

Solicit employee complaints and grievances regularly. Every employer should seek feedback from employees on a regular basis through quarterly town halls and other meetings where employees are asked for feedback in groups.

Communicate with employees regularly and quickly respond to any grievances that they have. Employers with unhappy employees are at the greatest risk for unionization, employee turnover, and low productivity. Around 65% of employees say that getting rid of their boss would make them happier than if they got a raise. If your workplace is like this, then it is clearly a major problem.

These simple steps won’t guarantee that a workplace will not become unionized, but they do make a big difference in how employers run their workplaces and cut down on lost productivity.

What Can Union Organizers Do During a Union Organizing Campaign?

One of the most common strategies that unions use when they try to unionize a workplace is to assign a union organizer to a company. This person may either seek to be hired by the company for a position (sometimes called a “salt”) or they may conduct organizing as a non-employee. Many companies have a visceral reaction when a union organizer appears at a company. Companies that do not know what to do will often commit actions that result in unfair labor practices against the company.

One of the most frequent issues is that the employer will seek to exclude the union from public property and will sometimes even call the police to have union organizers removed from areas that they are entitled to be in. Union organizers cannot enter company property to pass out flyers (if they are not employees). However, they can pass out flyers at areas that you do not own. Many organizers will stand in the street or public sidewalk to pass out flyers as workers leave, which is permissible.

So, what can a union organizer do?

They can act as “salts.” Meaning they can be hired by your business with the intention of organizing the facility. If any organizer is also an employee, then they have the rights of employees below (passing out flyers in the parking lot or cafeteria, etc.).

Organizers can contact employees at their homes or elsewhere even if the employee does not want to be bothered and has asked them to leave.

They can ask employees to sign union authorization cards and hand out flyers at public areas near the company property.

Organizers can create a Facebook or other social media page with pictures of employees and invite employees to attend various events.

What Can Employees Do During a Union Organizing Campaign?

Employees have a lot more rights than union organizers and nonunion employees when it comes to organizing in the workplace. In a union organizing campaign employees can:

Talk about the union during their breaks and pass out authorization cards on non-working time (assuming the employer does have a no solicitation policy). If the employer does not have a no solicitation policy, then employers can pass out this literature and talk about the union throughout their working day.
Organize meetings in their homes and elsewhere to discuss having a union.
Pass out flyers and talk about the union at work while they are on a break. Employers may have rules regarding solicitation in working times and working areas, but these rules must be in place and enforced for them to be effective in a union campaign. If employers have no policies, then employees can solicit while they are working.
Wear buttons, t-shirts, and other insignia (unless this must be prevented for business necessity reasons in certain areas such as in the production area of a food processing facility because no one wants to bite into a hard metal union pin while they are eating).

Employees that do not support a union can create their own hand outs, T-shirts, and even demonstrate against having a union at the facility. They have the ability to do everything that the employees that support the union can do, but in reverse.

Responding to a Union Organizing Campaign

There are a number of things that a company can do when it is faced with a union organizing campaign. First, companies can continue to do what they have already been planning to do or had already done in the past when a union campaign begins (such as giving planned pay raises).

Some of the things that employers can do when a union campaign occurs are:

Correct any untrue statements or misstatements from the union. For example, employers can tell employees that a union cannot guarantee that wages will go up.
Employers/Supervisors can discuss their own experience with unions.
Employers can tell employees that the company is opposed to union representation.
Compare the pay and benefits of employees of the company to union facilities.
Tell employees that if they join a union, then they will be required to pay union dues, initiation fees, and that they can be fined for violating union rules.

What Employers Cannot Do in A Union Organizing Campaign

All supervisors, HR, and other members of management must be trained on what they cannot do during a union organizing campaign. These are one of the most frequent sources of charges in an organizing campaign. Employers cannot engage in TIPS:

Threaten
Interrogate
Promise
Spy

As I said in my earlier post on Responding to an NLRB Charge:

Employers cannot threaten employees with any adverse action (discipline, termination, reducing pay) because they support a union or engage in protected activity. Companies cannot interrogate employees on whether they support a union. Employers cannot promise employees benefits or better pay to encourage employees to stop supporting a union. Finally, employers cannot spy on employees that are engaging in union or protected activity (like having a meeting offsite about whether employees should join a union).

Conclusion

There is a lot that employers can do during a union campaign, but there is also a lot that can cause the employer to have an unfair labor practice filed against them. It is important that employers be prepared and preemptive to ensure they are not breaking rules that will result in a charge against them. Every illegal action by members of management (even low-level supervisors) can cause an unfair labor practice. Employers have to be prepared for union organizing because elections take place very quickly after employees sign enough union authorization cards. The average election occurs within 23 days of a petition being filed (these can be filed when 30% of employees sign union authorization cards).

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.

March Madness and Workplace Distractions

Published by Brett Holubeck on March 16, 2019

Picture of a basketball hoop to show that March Madness is coming and employers can expect more workplace distractions — Photo by Markus Spiske on Unsplash

I’m not going to name names here, but two of the men in my family are obsessed with March Madness (I’m looking at you Kent State & UC). I am pretty sure I’m not going to be able to speak with them until April 9th, and maybe even later, so they can process, appreciate, and get over the drama of March Madness. This is like a 2nd Superbowl for sports folks, or for my wife and sister, the equivalent of the season finale of the Bachelor (and yes, Colton, I know you jumped the fence.)

Now what happens when we put these people (like my family members) in their desks at work, when seemingly the most exciting thing of the year is taking place. Chances are your basketball enthusiasts are a) live streaming the games at their desks, b) have ESPN open for the play-by-plays, c) viewing their brackets after every single game, and d) speaking to other co-workers about it.

Why am I writing about this on a Labor and Employment blog? Is it a problem that your employees are paying a lot of attention to something else besides work during the work day? Would it surprise you to know that even outside of March Madness, your employees are oftentimes thinking about something else (e.g. Is my Amazon package yet delivered?) or the usual culprit, updating or perusing their social media accounts?

In short- No. It shouldn’t be a problem that your employees are humans and think about, talk about, and care about something besides work as long as it isn’t a sign of a bigger problem like a lack of workplace engagement and isn’t preventing an employee from doing their work in a significant way. Unfortunately for employers, big events like this result in lost productivity because people are paying attention to these events at work.With March Madness in particular, over the course of the tournament businesses lose a total of around $4.6 billion.

When Workplace Distractions Aren’t Momentary- It Can be a Sign of Disengagement

Workplace distractions can be a big problem. They can result in severe workplace accidents or damage to company property (like this distracted bus driver). While workplace distractions usually don’t result in accidents, they frequently result in lost productivity, and oftentimes the lost productivity can be due to employees that are not engaged at work.

According to Gallup, 34% of US workers are engaged in the workplace (enthusiastic and committed to their work and their employer). This is the highest engagement has ever been since Gallup began measuring it. On the flip side, 13% are actively disengaged (miserable at work) and 53% are not engaged (they show up and do the minimum to keep their jobs but would change jobs for a “slightly better offer”). Disengaged employees do poor and less work. In fact, one survey of office workers in the United Kingdom found that office workers only accomplished about 3 hours of work in a day with the rest of the time spent checking social media, surfing the web, and doing other personal activities.

Everyday Distractions: Social Media Usage at Its Finest

One of the biggest sources of workplace distractions is social media use by employees. Around 77% of employees have used social media during the day. Should you stop this? It depends.

Social media use, provided that it is not affecting the employee’s work, may be permitted. Many employees that use social media at work are doing it to take a mental break from their work. Employers that block social media on the work computers, which may be necessary in some workplaces, simply shift social media use to the employee’s own phone.

The current generation has a different idea of work-life balance than the generations that existed before smartphones, texting, and social media. People want to be connected with their friends, spouse, children, and other individuals throughout the day. The days when an employee could only communicate with their spouse if the spouse called the company’s phone line are gone, and that is a good thing. Social media and texting allow people to stay connected.

Banning social media is probably a wasted effort because employees will work around the rule. The same goes for texting and phone calls with their loved ones throughout the day. There are some work environments where employees cannot have phones and where phone use has to be banned (construction sites, food processing areas, etc.). Employers should ban the use and having a phone in these areas when necessary.

However, most employers should allow their employees to take minor breaks to use their phone and only intervene when an employee is not performing up to your standards. Employees that fail to meet their production targets or finish their work because of their social media use will probably not become great workers simply because you banned social media use in the office. Moreover, banning social media use because of one problem employee is a great way to upset other workers that perform their jobs well.

March Madness: An Opportunity to Engage Employees

Now let’s circle back around to a workplace distraction that we know is coming- March Madness. Your employees are already thinking about March Madness, so why not capitalize on it as a way to engage them (even those who are not into sports)? One of the best ways to do this is to allow everyone in the office to create a bracket and to award a trophy with bragging rights to the winner. In an office setting, employees can post the brackets on their door. You will have more frequent distractions because employees will be talking with each other about their brackets, but many employees that do not frequently interact will have a chance and a reason to which allows them to build relationships.

If you have an office pool, then you need to remember the regulations regarding gambling. Eight states (Nevada, Delaware, New Jersey, Mississippi, West Virginia, New Mexico, Pennsylvania, and Rhode Island) have legalized sports gambling and 2 have passed bills that would allow sports gambling. In the rest of the states, gambling on sports is illegal and companies should avoid a sponsored office pool with any kind of buy-in.

When rolling out an engagement activity, employers can mention that (of course) you still expect employees to work (this can be said in a way that comes naturally when outlining out the event/activity will happen). Employers will still make sure that employees are meeting their weekly production goals and will discipline or counsel employees (when necessary). However, be careful not to punish employees for something you’ve engaged them in unless absolutely necessary:

Don’t be mad that employees talk about the games, when you’ve done this to build camaraderie.
Do tell the person who has taken it too far and created a viewing room in their office where they have done no work in weeks that they have taken it too far.

Nothing lowers employee satisfaction quicker than telling employees they are in trouble for having fun the way you wanted them to.

A Note for Employers- Bathroom Talk: Is your Employee Using the Restroom Too Much? (TL;DR They may be Pregnant, so Don’t Ask)

While we’re on the topic of distractions let’s review a very common one- going to the bathroom? One of the most frequent complaints that employers have is that an employee is using the restroom too much. The immediate question that needs to be answered before the employer seeks to do anything about it is how is the employee performing? Is their performance still adequate with more frequent restroom usage? Is it less adequate? Issues about bathroom frequency can quickly turn into issues that could relate to a disability or knowledge that an employee is pregnant. It is better to never ask about an employee’s bathroom usage or counsel an employee because of it. The key is to focus on the employee’s performance.

For example, an employee may have the habit of using the bathroom right before a store opens. However, it may be a part of his job duties to be at the register when the store opens to ensure that he can assist any customers as they come in. By focusing on the performance issue (the employee is not at their station when they need to be) you can address the problem.

What Really Matters? Productivity.

In short, employers should always focus on productivity and quality of work, regardless of the presence or absence of workplace distractions. Ultimately, employers need to ask whether the employees getting the work done or are they not getting the work done, and is it good?

Here are some things employers can do regarding productivity:

Employers need to measure productivity. In some jobs this is not easy to measure (they may not have a quota or set amount of sales to make, etc.). However, you need to know whether an employee is successfully completing their job or not, and will need to find ways to determine that. Maybe it means talking to clients about their satisfaction with employee work and the quality of their engagements with your employee. You need to have ways to measure productivity for every job and you need to do this on a regular basis
Address problem employees. When you find out employees aren’t performing well, you need to tell them. Counsel and discipline them (as necessary) if they are not performing well (you can review my earlier post on employee discipline here) because they are distracted. Give them next steps that they can take to meet your productivity goals.
Follow-up with employees that you have counseled to see whether they are making progress on being productive or are still not meeting your standards. If the employee is now meeting the required standard, then there is nothing more that needs to be done.
If an employee is still not being successful and productive, then it may be time to engage in further discipline, develop new solutions to make the employee productive, or terminate them.

Every business needs productive employees. It is the job of every employer to work with employees to make them, and ultimately the company, successful.

Conclusion

No workplace will be distraction free and employers should not aim for this. It is important that employees communicate with their fellow employees and enjoy what they do because ultimately, they will be more productive. If this how it looks when your employees come and leave work, then you have a problem that is bigger than some employees watching a few basketball games or taking some time off of work to talk about it. However, if employees are not completing their work, then you need to address the problem by speaking with the employees and addressing the reasons that they are not productive.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Sexual Orientation Discrimination 2019 Update

Published by Brett Holubeck on March 5, 2019

Image of a rainbow flag to discuss the issue of sexual orientation discrimination. — Photo by Sharon McCutcheon on Unsplash

Ever since the 2015 Obergefell v. Hodges Supreme Court decision that legalized same sex marriage, lawsuits based on gender identity and sexual orientation discrimination have proliferated throughout the US. For example, in 2017 the Supreme Court decided not to hear a case on transgender rights, after it had initially granted certiorari and was planning to hear the case, once the Trump Administration rescinded a directive instituted by Obama.

In 2018, the Supreme Court heard Masterpiece Cakeshop v. Colorado Civil Rights Commission, which concerns whether owners of businesses could refuse to provide certain services based on their First Amendment rights of free speech and free exercise of religion. Many commentators expected the court to provide some guidance on same-sex discrimination in the case (because sexual orientation is a protected class in Colorado, which was the state where the case originated), but the Court issued a narrow ruling. The Supreme Court held that Colorado’s Civil Rights Commission’s ruling against the baker, Jack Phillips, had been infected by religious animus (as evidenced by inappropriate comments by the Commission). The Commission did not give neutral and respectful consideration of the factors in the case. Eventually, the Supreme Court will likely take a case on sexual orientation and gender identity discrimination to resolve the issues left by the Masterpiece Cakeshop decision, but they have yet to do so.

You can read the rest of this article in my guest post on the Ascentis Blog.

The information provided is my own and does not reflect the opinion of my firm or anyone else.