Twin Cities Human Resources Association · 2018-04-14 · This Act prohibits age-based discrimination in hiring, promotion, demotion, compensation, transfer, and other terms and conditions

2013 K. David Hirschey, Minneapolis, MN

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Twin Cities Human Resources Association SHRM Certification Preparation Course – Fall 2013

Employee and Labor Relations Session 1

K. David Hirschey, MAIR, SPHR, GPHR Minneapolis, MN


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Topics for Session 1

20% PHR (35 questions) 14% SPHR (25 questions)

• A Historical Context of U. S. Labor Relations • Legal and Regulatory factors of Employee and Labor

Relations • Employee Relations and an Organization’s Culture • Employee Involvement Strategies • Employee Attitudes, Opinions, and Satisfaction • Employment Policies, Practices and Rules


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A Historical Context of U. S. Labor Relations 1800-1920’s ♦ Trade unionism dates back to founding days of this country. ♦ Early attempts to organize workers, such as Knights of Labor in 1869, were not suitable for an

unskilled work force. ♦ Samuel Gompers established the American Federation of Labor (AFL) in 1886.

◊ Emphasized getting more for workers in terms of pay, benefits, and improvements in safety, etc.

◊ Skilled worker unions dominated the early AFL. ♦ Concerted employee activities in support of unions were treated as illegal restraints of trade

that violated antitrust laws. ♦ Sherman Anti-Trust Act of 1890, which was to prevent monopolistic practices of employers,

was also applied to labor unions. ♦ Clayton Act, 1914, was designed to withdraw power of federal courts to enjoin labor activities

through antitrust laws. ♦ Railway Labor Act, 1926, protected rights of employees of rail and air carriers. ♦ Norris-LaGuardia Act of 1932 barred, in most cases, issuance of federal court injunctions

against labor disputes. ♦ National War Labor Board provided employees freedom to organize and bargain collectively. 1930’s ♦ Unions became more militant due to rise in unemployment rates. ♦ Unions became more powerful in making employment decisions regarding promotions, job

assignments, layoffs, discipline, etc. ♦ Wagner Act, or National Labor Relations Act of 1935 guaranteed employees broader rights to

organize and bargain collectively. ◊ Protected rights of employees who chose to organize. ◊ Prohibited employer conduct defined as Unfair Labor Practices. ◊ Established National Labor Relations Board (NLRB).

1940’s-50’s ♦ Labor Relations legislation placed further regulations on collective bargaining relationship.

◊ Taft-Hartley Act, 1947 prohibited union Unfair Labor Practices. • Amendments to this Act gave employees right to refrain from joining union. • The Act also ensured employers of free speech.

◊ Labor-Management Reporting and Disclosure Act, or Landrum-Griffin Act, of 1959 addressed problems of corruption within union leadership and undemocratic conduct of internal affairs.

1960’s-70’s Labor Relations laws and Employment laws and regulations put into place in 1960’s. ♦ Health and Safety legislation passed in 1970’s. ♦ Legislation also structured governance of workplace and practice of Employee Relations 2010’s and beyond …


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Significant U.S. Labor Relations Acts Railway Labor Act (1926) ♦ Passed to reduce possibility of transportation (railroad and airline) strikes. ♦ Represented complete change to government’s approach to unions.

◊ Provided employees right to organize and bargain collectively through representatives of their own choosing.

◊ Provided unions with base for development of collective bargaining – the right to organize.

Norris-LaGuardia Act (1932) ♦ Intended to clear confusion in the courts regarding labor disputes. Covers employers and

labor organizations. Limits union liability. ♦ Two basic provisions limited power of employers.

◊ Prohibited arbitrary injunctions against nonviolent (strikes, picketing, and boycotts) union activity.

◊ Prohibited ‘Yellow Dog’ contracts - contracts that force employees to agree not to join union or participate in any union activity as condition of employment.

National Industrial Recovery Act (1933 – found unconstitutional by Supreme Court in 1935) ♦ Extended policies of Railway Labor Act to all interstate commerce organizations and set up

election machinery permitting employees to select collective bargaining representatives. ♦ Guaranteed employees right to organize and bargain collectively through representatives of

their own choosing. National Labor Relations Act – NLRA or Wagner Act (1935) ♦ Passed to protect and encourage growth of union movement – covers non-managerial

employees in private industry not already covered by the Railway Labor Act. ♦ Provisions:

◊ Balanced interests of labor and management – requires employers to bargain (hours, wages, and conditions of work) and unions must represent all members equally.

◊ Prohibits employer Unfair Labor Practices.

♦ Established the National Labor Relations Board (NLRB).


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Fair Labor Standards Act (1938) ♦ This Act sets child labor, record-keeping, and minimum wage standards and requires that

all Non-exempt employees be paid overtime at time-and-a-half for all work over 40 hours a week.

Labor-Management Relations Act – LMRA or Taft-Hartley (1947) ♦ Technically, an amendment to National Labor Relations Act (1935) intended to balance the

power between union and management concerns. ♦ Address / correct the abuses of some unions – prohibited Unfair Labor Practices (ULP) of

unions. ♦ Provisions:

◊ Guaranteed employers right to free speech. ◊ Forbade employers to establish ‘Sweetheart Contracts.’ ◊ Enforced concept that union in power is that selected by majority of employees. ◊ Recognized right of employees to refrain from union activity. ◊ Established Federal Mediation and Conciliation Service (FMCS). ◊ Established selected provisions for national emergency strikes. ◊ Permitted states to preempt federal statute by establishing state legislation forbidding

compulsory union membership (Closed Shop). ◊ Requires both parties to bargain in good faith.

♦ In 1974 was amended to specify what activities in unions were illegal. ♦ In 1980 was amended to accommodate employees with Religious Objections to union

membership. Labor-Management Reporting and Disclosure Act – LMRDA or Landrum-Griffin (1959) ♦ Intended to protect employees from corrupt or discriminatory labor unions – outlines

procedures for redressing internal union problems; covers all labor organizations. ♦ Major elements:

◊ Bill of Rights for union members. ◊ Provided for Closed Shop exception for Construction industry. ◊ Established Reporting Requirements.


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Overview of Legal and Regulatory Factors

Davis-Bacon Act of 1931 Federal government contractors involved in the construction or repair of federal buildings and public works with a contract value over $2,000, must pay specified minimum hourly wage rates and employees on a project must the paid prevailing community wage rates for the type of employment used. National Labor Relations Act - NLRA or Wagner Act (1935) Passed to protect and encourage growth of union movement – covers non-managerial employees in private industry not already covered by the Railway Labor Act. Provisions:

• Balanced interests of labor and management – requires employers to bargain (hours, wages, and conditions of work) and unions must represent all members equally.

• Prohibits employer Unfair Labor Practices. • Established the National Labor Relations Board (NLRB).

Walsh-Healy Public Contract Act of 1936 Government contractors (with contracts in excess of $10,000.00) must pay the specified minimum wage, and time-and-a-half for hours worked in excess of 40 hours in a given week. Fair Labor Standards Act of 1938 (as amended) This Act sets child labor, record-keeping, and minimum wage standards and requires that all Non-exempt employees be paid overtime at time-and-a-half for all work over 40 hours a week. Labor-Management Relations Act – Taft-Hartley (1947) Technically, an amendment to National Labor Relations Act (1935) to balance power between unions and management. Addressed the abuses of some unions. Key provisions:

• Guaranteed employers the right to free speech. • Forbade employers establishing “Sweetheart Contracts” (company-sponsored labor

organizations) and closed shop (requiring union membership at hiring) agreements. • Enforced idea that the union in power is selected by the majority of employees and

representation of all employees. • Employers allowed filing Unfair Labor Practice charges. • Recognized right of employees to refrain from union activity. • Established Federal Mediation and Conciliation Service (FMCS). • Established provisions for national emergency strikes. • Permitted states to preempt federal statute by establishing state legislation forbidding

compulsory union membership. States right-to-work legislation. Labor-Management Reporting and Disclosure Act – Landrum-Griffin (1959) Intended to protect employees from corrupt or discriminatory labor unions. Major elements:

• Bill of Rights for union members. • Closed Shop exception for construction trades. • Reporting requirements for union financing/officers.


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Equal Pay Act of 1963 (amendment to FLSA) This Act prohibits employers from paying workers of one sex less than the rate received by those of the opposite sex for jobs substantially similar or identical in skill, effort, and responsibility and performed under similar work conditions. Civil Rights Act of 1964 and Title VII, Amended 1972, 1978, 1991 This principal federal equal employment opportunity law applies to private-sector employers of 15 or more workers (who are employed for 20 or more weeks per year), government agencies, employment agencies, and unions. The law bans discrimination in “compensation, terms, conditions, or privileges of employment” and forbids employers to “limit, segregate, or classify employees” or deprives them of job opportunities or training because of race, religion, color, sex, or national origin. Currently, there are five additional federally protected classes: age (ADEA 1967), disability (Voc. Rehab. 1973 & ADA 1990), veteran (VEVRAA 1974), familial status / pregnancy (Pregnancy Discrimination 1978), and genetic information (GINA 2008). Introduced the legal concepts of Disparate Treatment and Disparate Impact. Four “defensible” (exception) areas of lawful discrimination: 1) work related requirement, 2) Bona Fide Occupational Qualifications (BFOQ), 3) negotiated seniority system, and 4) preferential “quota” system. Title VII also governs a related issue, sexual harassment. It prohibits “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” when (1) submission to such conduct is made a condition of an individual’s employment, (2) submission to or rejection of such conduct is used as a basis for employment decisions affecting an individual, or (3) such conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive working environment. Equal Employment Opportunity Act This amendment to the Civil Rights Act of 1964 broadens the groups covered by Title VII and strengthens the enforcement powers of the Equal Employment Opportunity Commission (EEOC) by providing it with the right to sue. Civil Rights Act of 1991 provides for award of punitive damages for pain and suffering as well as equitable remedies.

Maximum Recovery per Individual for a total of compensatory and punitive damages:

Number of Employees:

$50,000 15–100 $100,000 101–200 $200,000 201–500 $300,000 501 or more

Note: When the EEOC pursues a claim for more than one person, the damage caps are applied to each aggrieved individual.


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Executive Order 11246 (1965) Executive Order 11246 requires that employers with federal contracts exceeding $10,000 a year take positive, results-oriented steps to eliminate employment barriers to women and minorities. Federal contractors or subcontractors with 50 or more employees and contracts for more than $50,000 must develop written Affirmative Action Plans that relate to all major job categories and include goals and timetables to remedy EEO deficiencies and to employ women and minorities at all levels and in all segments of the work force. Immigration and Naturalization Act (1966) This Act covers the hiring of resident aliens and new or prospective immigrants. Prohibits hiring discrimination on the basis of citizenship or immigration status. A more recent law, the Immigration Reform and Control Act of 1986 (IRCA) and amended in 1990, requires every U.S. employer to verify that new hires have documents indicating 1) identity and 2) those candidates are authorized to be employed in the United States. An I-9 form must be correctly completed for compliance. Age Discrimination in Employment Act (ADEA) of 1967 This Act prohibits age-based discrimination in hiring, promotion, demotion, compensation, transfer, and other terms and conditions of employment for persons over 40 years of age or older. It applies to employers of 20 or more workers; unions with 25 or more members, employment agencies serving covered employees, and state and local governments. The 1986 amendment forbids mandatory retirement and requires pension benefit accruals without regard to an employee’s age. There are exceptions for high-level managers and employers with a Bona Fide Occupational Qualifications (BFOQ). Occupational Safety and Health Act (OSHA) (1970) This Act, originally passed in 1970, sets mandatory standards for safety and health. The 1980 amendment extends the Act’s provisions from the private sector to federal agencies by Executive Order 12196. Fair Credit Reporting Act of 1970 This Act requires employers to inform applicants in writing that an inquiry into the applicant’s financial status will be conducted. Employers must respond in writing to questions applicants may have about the nature and scope of the inquiry. Applicants must be informed if they are denied employment because of information obtained during the inquiry and must be given the name and address of the third party who investigated them. Vocational Rehabilitation Act of 1973 This Act prohibits employers with federal contracts totaling $2,500 or more from discrimination against handicapped individuals. Employers with contracts over $50,000 and over 50 employees must write an Affirmative Action Plan to comply with this Act. Covers discrimination against 1) individuals who have physical and/or mental disabilities, 2) history of such impairment, or 3) perceived as having such impairment.


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Privacy Act of 1974 This Act prohibits federal agencies from revealing certain information without permission from the employee. Employees are given the right to know type of information collected, review files about themselves held by the federal government and to make corrections / remove incorrect information and restrict distribution of information. Employee Retirement Income Security Act (ERISA) of 1974 This Act requires that employees be informed about their pension and certain other employee benefit plans “in a manner calculated to be understood by the average employee.” It provides controls and vesting standards for pension plans and sets a minimum standard of funding that ensures the financial soundness of the plans. These plans include: partially or self-funded insurance arrangements, Multiple Employer Welfare Associations, qualified retirement plans, and non-subscriber workers’ compensation alternatives. Vietnam-Era Veterans Readjustment Act of 1974 This Act stipulates that federal contractors or subcontractors with contracts of $10,000 or more must take affirmative action to hire and promote disabled and Vietnam-era veterans. Employers covered by the Act must list all job vacancies that pay up to $25,000 with a local employment service that will give priority referrals to veterans. Employers with 50 or more workers and federal contracts of at least $50,000 are required to develop written Affirmative Action Plans to improve the hiring and advancement of veterans. Vietnam Era Veteran's Readjustment Assistance (VEVRAA) Act of 1974 Protects Vietnam-era and special disabled veteran from discrimination in employment and imposes an affirmative action obligation on covered employers. Employers with federal contracts or subcontracts of $10,000 or more are covered by VEVRAA and must comply with the mandatory job-listing requirement. Under the statute, Federal contractors and subcontractors are required to immediately list all employment openings except for: executive and top management jobs, jobs to be filled from within the contractor's organization, and jobs lasting three days or less. The salary cap for the mandatory job listing has been eliminated. Uniform Guidelines on Employee Selection Practices of 1978 These guidelines for implementing Title VII of the Civil Rights Act state that selection policies or practices that have an adverse impact on the employment opportunities of any race, sex, or ethnic group are considered discriminatory—and, therefore, illegal—unless they can be justified by business necessity. The guidelines provide a rule of thumb known as the four-fifths or 80% rule to determine whether a selection procedure has adverse impact. If the selection rate for a protected group (defined by race, sex, or ethnic origin) is less than four-fifths of that for the group with the highest selection rate, the procedure is considered discriminatory unless it is justified by a business necessity.


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Pregnancy Discrimination Act of 1978 This Act requires that employers provide pregnant employees with the same benefits as individuals with any other temporary disability. Employees cannot be forced to resign or take a leave of absence because of pregnancy. Consolidated Omnibus Budge Reconciliation Act (COBRA) of 1985 Requires employees with 20 or more employees who have health insurance plans to offer coverage to employees upon termination of employment. Coverage must be extended for 18 months at the employee's expense. However, continuation coverage is extended to a disabled employee for an additional 11 months (for a total of 29 months). Coverage may be extended for 36 months for a "qualifying event": death of the employee, divorce or separation for the employee or spouse, an employee becoming eligible for Medicare, or a dependent child ceasing to qualify as a covered dependent under the plan provisions. Continuation coverage may be terminated earlier if: the employer no longer offers group health coverage to any of its employees; the employee or beneficiary fails to make a timely premium payment; a qualified beneficiary becomes covered under another employer's group health plan, and that plan covers a pre-existing condition currently provided under the prior plan; or a qualified beneficiary becomes eligible for Medicare. Employee Polygraph Protection Act of 1988 This Act prohibits employers from requiring or requesting pre-employment polygraph exams. This Act prohibits the use of all mechanical and electrical devices, not just polygraphs. Employers can, however, administer such tests during an ongoing investigation of financial loss or injury through theft, embezzlement, or misappropriation, assuming reasonable suspicion of the employee’s guilt. Four types of employers are exempted from the law:

• Private security services protecting targeted industries. • Employers authorized to manufacture, distribute, or dispense controlled substances. • Employers and private contractors engaged in intelligence and counterintelligence

functions. • Federal, state, and local governments and their political subdivisions.

Specifies conditions, which must be followed with testing. Worker Adjustment and Retraining Notification (WARN) Act of 1988 This Act, often referred to as the WARN Act, requires employers with 100 or more full-time employees or full-time and part-time employees who work at least 4000 hours or more per week at all employment sites. Must give 60-day advance notice of a plant closing or a mass layoff affecting 50 or more employees or one-third of the work force at one site within 30 days.


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Drug-Free Workplace Act of 1988 Federal contractors with contracts of $100,000 or more must certify to the federal contracting agency that they maintain a drug-free workplace by following certain requirements, such as:

• Written policies prohibiting the unlawful manufacture, distribution, possession, or use of controlled substances in the workplace.

• Specifying the actions to be taken against those who violate the policy. • Providing a copy of the policy to all employees.

American with Disability Act (ADA) of 1990 This Act prohibits discrimination against qualified people with disabilities in employment, public services and transportation, public accommodations, and telecommunications. The Act defines a disability to include mental or physical conditions that substantially limit major life functions. Disabled employees must be provided with reasonable accommodation unless doing so would place undue hardship on the employer. To have a claim under the Act a disabled employee must be able to perform the essential functions of the job with reasonable proficiency. The Act’s provisions include the following:

* Employers are prohibited from discriminating against qualified individuals with disabilities and are required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.

* Federal contractors and subcontractors with contracts of more than $2,500 must take Affirmative Action to hire qualified disabled people.

* Buildings financed with public funds must be accessible to the disabled. * New public transportation facilities must be readily accessible to and usable by

individuals with disabilities, including those in wheelchairs. * Includes individuals with AIDS. * New public facilities (restaurants, retail stores, banks, and medical offices) must be

readily accessible to and usable by people with disabilities. * It is discriminatory to fail to take out any structural or communication barriers that

can be readily removed in existing public facilities. * The Act requires telephone companies to provide telecommunication relay services which

allow hearing-impaired and speech-impaired individuals to communicate with hearing individuals.

* Pre-employment medical examinations are prohibited except after an employment offer has been extended. The offer may be conditional upon passing the physical examination.

* Does not cover current users of illegal drugs and alcohol; but does protect those who are participating in or have successfully completed rehabilitation and are no longer using illegal substances.

Family Medical Leave Act (FMLA) of 1993 This Act applies to all private, state, and federal employers with 50 or more employees within 75 miles of a given workplace. To qualify for eligibility, an employee must have worked at least 12 months for the employer and 1,250 hours in the past year. Eligible employees are entitled to a total of 12 weeks of leave during any 12-month period for one or more of the following:

* Birth of a child. * Placement of a child for adoption or foster care.


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* Caring for a spouse, child, or parent with a serious health condition. * Serious health condition of the employee.

The employer must continue the employee’s health benefits during the leave period. Following the leave, the employee must be able to return to the same job or a job with equivalent status and pay. Limited exceptions may apply to certain highly compensated employees (10%). Employees may be asked or required to apply vacation, personal leave, and sick days before using unpaid leave. An employer who violates the Act will be liable for wages and benefits the employee has lost and any monetary losses plus interest. An employer who has not acted in good faith will be liable for double damages. The courts can also order reinstatement or the promotion of an employee. Uniformed Services Employment & Re-employment Rights Act of 1994 The Uniformed Services Employment and Reemployment Rights Act (USERRA), which replaces the Veterans' Reemployment Rights Act, very broadly prohibits employers from discriminating against individuals because of past, present, or future membership in a uniformed service (including periods of voluntary training and service). The Act: (1) prohibits discrimination in employment, job retention and advancement; (2) requires employers to provide retraining opportunities; (3) requires health care and pension benefits to continue during leave; (4) allows an employee to take military leave up to five years; (5) provides additional protection for disabled veterans; (6) requires employees to provide notice of their need for leave; and (7) requires service members to notify their employers of their intention to return to work. Individuals reemployed after a period of military service are generally required to be allowed to return to work to all the benefits and seniority they would have had if they had remained continuously employed. Congressional Accountability Act (1995) Requires that federal employee relations legislation enacted by Congress apply to the employees of Congress – 11 items, including Fair Labor Standards Act of 1938, Title VII of the Civil Rights Act of 1964 as well as the Family and Medical Leave Act of 1993. Health Insurance Portability and Accountability Act of 1996 (HIPAA) On April 14, 2003, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), privacy regulations went into effect. The HIPAA privacy regulations require covered entities to implement safeguards and procedures to protect individually identifiable health information, also known as Protected Health Information (PHI). In addition to the procedures required by the regulations, covered entities will have to issue a privacy notice and provide individuals with rights to access, amend and obtain accounting of disclosures of their PHI. Individual Review Individuals have the right to access, amend, and obtain an accounting of disclosures of their PHI. This requirement is really directed more toward healthcare providers and insurers. However, to the extent that an employer is a covered entity, participants enrolled in their medical plans have this right. Privacy Notice Employers, who are covered entities, are required to provide a notice to employees regarding their privacy practices for PHI. The notice must describe the following:

* PHI uses and disclosures by the employer; * Individual rights regarding their PHI, as indicated above; and * The employer's legal duties with regard to PHI and the HIPAA privacy

regulations.


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A single notice to the covered employee will be effective for any dependents covered under the group medical plan. Establish Administrative Safeguards Employers who qualify, as covered entities must implement a number of administrative safeguards. Many of the safeguards are directed more toward healthcare providers and insurers. Nonetheless, to the extent that they would apply, employers must do the following:

* Designate a Privacy Officer * Training * Administrative Safeguards

Business Associates Employers with Self-insured medical plans often will use outside entities, such as TPAs, to administer the group medical plan. A TPA, or other like entity, is defined as a "Business Associate" under the HIPAA privacy regulations. A business associate will have access to and must use PHI. Employers, who are covered entities, will need to require their business associates to comply with many of HIPAA’s privacy regulations. Penalties for Noncompliance The penalties for noncompliance with the privacy regulations are significant. There are both civil and criminal penalties that can be imposed. Civil penalties can be assessed against employers and individuals of up to $100 per violation, subject to an annual maximum of $25,000. The maximum only applies to a separate violation. Numerous violations could cause penalties to far exceed $25,000. Criminal penalties can be imposed if a person knowingly misuses or improperly obtains or discloses individually identifiable health information. The criminal penalties include fines from $50,000 to $250,000 and imprisonment from one to ten years, depending on the offense. The Department of Health and Human Services Office of Civil Rights has a jurisdiction to accept and investigate complaints of HIPAA Privacy Regulation violations. Genetic Information Nondiscrimination Act of 2008 Prohibits discrimination against an individual in hiring, firing, compensation, or terms or privileges of employment on the basis of genetic information about the individual or a family member. Lilly Ledbetter Fair Pay Act of 2009 Creates a rolling or open time frame for filing wage discrimination claims.

• Retains the 180-/300-day time frame outlined in Title VII. • Restarts the statute of limitations each time an employee receives a paycheck based on the

decision. • Expands the plaintiff arena.


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Industry-Specific Requirements Agriculture: The Migrant and Seasonal Agricultural Worker Protection Act regulates the hiring and employment activities of agricultural employers, contractors and associations using migrant and seasonal workers. The Fair Labor Standards Act has special child-labor regulations that apply to agricultural employment, except for family farms that do not hire outside workers. Construction: Several agencies administer programs related solely to the construction industry. OSHA has special occupational safety and health standards for construction; ESA's Wage and Hour Division, under Davis-Bacon and related acts, requires payment of prevailing wages and benefits; ESA's Office of Federal Contract Compliance Programs has special regulations on non-discrimination and affirmative action hiring; the anti-kickback section of the Copeland Act precludes a federal contractor from inducing any employee to sacrifice any part of the compensation to which entitled. Mining: The Federal Mine Safety and Health Act of 1977 covers all miners and those who work on mine property. Administration is by the Mine Safety and Health Administration (MSHA). The act ensures employer responsibility for the health and safety of miners; mandates regular inspections of underground and surface mines; establishes miners' training requirements; enables dangerous mines to be closed and prescribes penalties for health and safety violations. MSHA enforces laws and regulations at more than 4,600 underground and surface coalmines and 11,000 non-coal mines. Health and safety regulations cover numerous hazards, including respirable dust, airborne contaminants and noise; design and maintenance requirements for equipment; roof falls; flammable and explosive gases, dust and smoke; electrical equipment; fires; storage, transport and use of explosives and access to mine entrances and exits. Transportation: Most laws with labor provisions regulating the transportation industry are administered by agencies outside the Department of Labor. Longshoring and maritime industry safety and health standards are issued and enforced by OSHA. Thought for the day … The U.S. Department of Labor was created by Congress in 1913 "to foster, promote and develop the welfare of working people, to improve their working conditions, and to enhance their opportunities for profitable employment." The U.S. Department of Labor now administers and enforces more than 188 federal laws. These mandates and the regulations that implement them cover many workplace activities for about ten million employers and 166 million workers.


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Key Federal Labor Laws Applicable to All Employers

♦ Federal Income Tax Withholding

♦ Federal Insurance Contribution Act (FICA)

♦ Federal Unemployment Tax Act (FUTA)

♦ Immigration Reform and Control Act (IRCA) of 1986

♦ Equal Pay Act of 1963

♦ Employee Right-to-Know Laws (Hazardous Chemicals in Workplace)

♦ Employee Polygraph Protection Act of 1988

♦ National Labor Relations Act (NLRA) or Wagner Act of 1935 Key Laws Based on Number of Employees and/or Amount of Contracts Law Employees/Contract Amount

♦ Americans with Disabilities Act of 1990 (ADA) 15

♦ Age Discrimination in Employment Act of 1967 (ADEA) 20

♦ Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) 20

♦ Drug-Free Workplace Act of 1988 25 / $25,000

♦ Executive Order 11246 (Affirmative Action) 50 / $10,000 / $50,000 (Plan)

♦ Fair Labor Standards Act of 1938 (FLSA) (as amended) 2, Gross Sales ≥ $550,000

♦ Family and Medical Leave Act of 1993 (FMLA) 50 employees w/75 miles

♦ Occupational Safety and Health Act 1970 (OSHA) 10 (except for basic recordkeeping requirements)

♦ Title VII of the Civil Rights Act of 1964, Amended 1972, 1978, 1991 15

♦ Vietnam Era Veterans Readjustment Assistance Act of 1974 $25,000 prior to and $100,000 after12/1/03

♦ Vocational Rehabilitation Act of 1973 50 / $2,500 / $50,000 (Plan) ♦ Health Insurance Portability and Accountability Act of 1996 (HIPAA) All Self-insured or Health FSA

(Flexible Spending Account) health plans with 50 or more participants. As well as Self-insured or Health FSA, Third Party Administered (TPA) health plans with fewer than 50 participants. .


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Key Employment Case Law Overview

Case Decision

Griggs v. Duke Power Company (1971)

The Court recognized Adverse Impact discrimination and established two critical points: 1) Employment discrimination need not be overt or intentional – it is not necessary to establish the intent to discriminate, and 2) The burden of proof lies with the employer to show that any employment requirement is directly job-related.

McDonnell Douglas Corp. v. Green (1973)

Employer's test device constitutes Prima Facie case of racial discrimination (Disparate Treatment) in a hiring situation if claimant can demonstrate that they: 1) Belong to a minority group, 2) Applied for a position for which the employer was seeking applicants, 3) Were rejected despite being qualified, and 4) Were rejected and yet the employer kept looking for candidates with their qualifications.

Albemarle Paper v. Moody (1975)

Organization has need to establish evidence that a test is related to content of the job; could use Job Analysis to do so but not evidence from global performance ratings made by supervisors. This ruling ‘strengthened’ the principals in Griggs and placed greater importance on the Uniform Guidelines of the EEOC.

Washington v. Davis (1976)

The Court ruled that even though a test has an Adverse Impact against a protected group, the test is legal if it is job-related. When a test procedure is challenged under constitutional law, intent to discriminate must be established; no need to establish intent if filed under Title VII, just show the effects.

Regents of University of California v. Bakke (1978)

Reverse discrimination is not allowed; however, Race can be used in admission/selection process; Affirmative Action programs permissible when prior discrimination has been established.

United Steelworkers v. Weber (1979)

Supreme Court ruled that the Affirmative Action plan did not violate Title VII since it included voluntary quotas agreed to by both the Company and the Union. Title VII allows for voluntary, private, race-conscious programs aimed at eliminating racial imbalance in traditionally segregated job categories.

Meritor Savings Bank v. Vinson (1986)

Supreme Court first held that sexual harassment that alters an individual's terms and conditions of employment violate Title VII of the Civil Rights Act. The Court also ruled that common-law principles should be applied to guide lower courts in determining employer liability. How these principles are to be applied was later defined in Faragher and Ellerth (1998).

Johnson v. Santa Clara County Transportation Agency (1987)

Supreme Court ruled that the County was justified in giving a job to a woman who scored two points less on an exam than a man; county had an Affirmative Action plan that was flexible, temporary, and designed to correct under-representation and if the Affirmative Action plan is voluntary.

School Board of Nassau v. Arline (1987)

Supreme Court ruled that persons with contagious diseases could be covered by the Rehabilitation Act.


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Martin v. Wilks (1988)

Supreme Court agreed that Caucasian firefighters were entitled to sue the city for reverse discrimination after city of Birmingham had adopted an Affirmative Action program to promote African-American firefighters as the result of a lawsuit for historically discriminatory promotion practices.

City of Richmond v. J. A. Croson Company (1989)

Supreme Court ruled that the rigid numerical quota system of Richmond was unconstitutional; city had not laid proper groundwork and had not identified or documented discrimination.

Johnson Controls (1990)

Supreme Court held that decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them; rather than to the employers who hire their parents.

Electromation, Inc., v. NLRB (1992)

Employees of Electromation were not represented by a union. In response to declining profits, management unilaterally made changes in compensation and the attendance bonus plan. When employees became dissatisfied, the organization’s president formed several ‘Action Committees’. These were convened to solicit employees’ views about working conditions, the attendance bonus plan, and employee dissatisfaction with management policies. The NLRB held that ‘Action Committees’ at Electromation were illegal ‘labor organizations’ because management created and controlled the groups and used them to deal with employees on working conditions in violation of the NLRA.

Harris v. Forklift Systems, Inc. (1993)

Established the ‘reasonable person’ standard in a sexual harassment case.

St. Mary's Honor Center v. Hicks (1993)

Supreme Court ruled in this disparate treatment case that the suing employee has to produce evidence that the employer's true motive was not a discriminatory one; increases the burden of proof on the employee to demonstrate that the employer intentionally discriminated.

E. I. Dupont & Company v. NLRB (1993)

Board concluded that Dupont's six safety committees and fitness committee were employer-dominated labor organizations and that Dupont dominated the formation and administration of one of them in violation of the NLRA.

Taxman v. Board of Education of Piscataway (1993)

District Court held that a school board could not use racial diversity as an ‘educational objective’ of maintaining a ‘culturally diverse’ workforce or as a justification for an Affirmative Action plan granting racial preferences in layoffs where there was no evidence of past bias against racial minorities.

Adarand Constructors, Inc. v. Pena (1995)

Supreme Court applied a ‘strict scrutiny’ test to an Affirmative Action program and reinstated reverse discrimination charges filed by a Colorado company that had lost a construction contract to a minority-owned contractor despite being the lowest bidder.

McKennon v. Nashville Banner Publishing Co. (1995)

Supreme Court held that evidence of misconduct acquired after the decision to terminate cannot free an employer from liability, even if the misconduct would have justified terminating the employee.

Oncale v. Sundowner Offshore Service, Inc. (1998)

Court ruled that same-gender harassment is actionable under Title VII.


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Faragher v. City of Boca Raton (1998) and Ellerth v. Burlington Northern Industries (1998)

Court rulings that distinguished between supervisor harassment that results in tangible employment action and that which does not. When harassment results in tangible employment action, the employer is liable.

NLRB v. Weingarten, Inc. (1975, 2000, 2004)

The Board amended the 1975 ruling that allowed unionized employees the right to have a coworker present at an investigatory interview (but not during the administration of discipline) by extending the same rights to nonunion workers. In 2004, the NLRB again decided that non-union employees are not entitled to ‘Weingarten Rights’ under the National Labor Relations Act, reversing what had been the NLRB’s position on the issue since 2000. For now, however, an employer is free to deny the request of a non-union employee for the presence of a co-worker during an investigatory interview.

M. B. Sturgis, Inc. (2000)

NLRB ruled that temporary workers may be included in the same Bargaining Unit with an employer's regular employees, even if the temporary agency and the employer do not consent to bargain as joint employers.

Circuit City Stores v. Adams (2000)

Ruled that a pre-hire employment application requiring that all employment disputes be settled by arbitration was enforceable under the Federal Arbitration Act.

Class-action v. Coca-Cola (2000)

Case involved 2,000 current and former salaried African-American employees. District Court approved $192.5 million agreement to settle class-action racial discrimination lawsuit and provided for policies and procedures to improve diversity efforts at Coca-Cola.

Grutter v. Bollinger and Gratz v. Bollinger (2003)

Cases involved challenges by non-minority applicants to the University of Michigan’s Law School and undergraduate admission standards where Race was considered an admission aspect to attain a diverse student body. The Supreme Court held that a diverse student body is a compelling State interest and Race can be used in an admission policy. In Gratz – the Undergraduate case, the University did not establish the criteria for achieving the diversity goal; however, in Grutter – the Law School case, the University did establish the criteria for achieving the diversity goal.

General Dynamics Land Systems, Inc. v. Cline (2004)

Supreme Court held that the Age Discrimination in Employment Act (ADEA) does not protect younger workers – even those over 40, from employer practices that support older workers.

Ricci v. DeStefano (2009)

Case involved what steps employers may take in avoidance of discrimination against one group may mean discrimination against another group. Supreme Court ruled in a lawsuit brought against the city of New Haven, CT by twenty city firefighters, nineteen of who are white and one of who is Hispanic, and had all passed a ‘content-validated’ test for promotions to captain and lieutenant positions. City officials ‘disregarded’ the test results because none of the black firefighters who passed the exam had scored high enough to be considered for the positions. They stated that they feared a lawsuit over the test's Adverse Impact on a protected minority. The complainants claimed they were denied the promotions because of their race – Adverse Treatment.


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Individual Employment Rights Defamation Ø Charged when slanderous or libelous statements harm reputation or professional credibility of

another person. Ø To prove, person must show evidence of:

v False or malicious statement. v Harm caused by statement. v Statement made with no legitimate associated business reason.

Invasion of Privacy Ø Unnecessary intrusion into employee’s personal life. Ø Employers risk liability when they disclose medical information. Ø Privacy Act of 1974 was established to protect privacy rights. Negligence Ø Individual is victim of criminal, violent, or negligent acts by employee who should not have

been hired or retained in their position. Ø Employer may be liable for wrongful acts committed by employee. Intentional Infliction of Emotion Distress Ø Emotional stress caused by outrageous action by employer. Ø Employee must suffer severe distress that can be causally linked to actions of employer. Fraudulent Misrepresentation Intentional deception resulting in injury to another person. Duty of Good Faith and Fair Dealing Ø Employment relationship contains implied convanant of good faith and fair dealing that

prohibits arbitrary, unreasonable, or capricious termination.


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Employment-At-Will (EAW) Ø Employers have right to hire, fire, demote, and promote whomever they choose for any reason

unless there is law or contract to the contrary. Ø EAW (Employment-At-Will ) may be challenged for:

v Public policy exception v Actual or Implied employment contract, including Union agreements v Violation State or Federal statute (e.g. Civil Rights Act, etc.)

Equal Employment Opportunity Commission (EEOC) Has established guidelines to help employers adhere to and comply with laws that relate to workplace discrimination. Specific Regulatory Acts Ø Title VII of Civil Rights Act Ø Age Discrimination in Employment Act Ø Rehabilitation Act Ø Americans with Disabilities Act Ø Vietnam Era Veterans Readjustment Act Discrimination Suits In typical suit: Ø A person alleges discrimination. Ø EEOC investigates and may issue a “Right To Sue” determination or proceed with the case

themselves. Ø If case is not resolved by the EEOC, a plaintiff may file suit of either Disparate Treatment or

Disparate Impact. Disparate Treatment Deliberate illegal discrimination against individual in protected category who is treated differently than similar employees not in protected category. Disparate Impact Employment practice has discriminatory impact on members of protected group.


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Prohibition of Harassment and Offensive Behavior Sexual Harassment Categories

Quid Pro Quo: Latin – “This-for-That”: 1. Submission to such conduct is made either explicitly or implicitly as a term or condition of employment, or 2. Submission to or rejection is used as a basis for employment decisions (e.g. promotion, transfer), or 3. Hostile Work Environment: Sexual content of workplace is so severe and pervasive that it affects an employees working conditions, but only when a "pattern" exists.

"Unwelcomed" vs. not meaning involuntary: consent and participation, even if offensive and objectionable.

• Statements, non-verbal, pushing away, facial expressions, reporting. • Not every act or statement having sexual connotations is harassment —

flirtation, teasing, inappropriate behavior. To minimize exposure and maximize workplace productivity, the employer (e.g. Employee Handbook, etc.) should have: Ø Written policy-forbidding harassment. Ø Definitions of harassment, including sexual. Ø Training of supervisors and employees. Ø Specific complaint procedure and process. Ø Consequences of policy violation – up to and including termination.


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Remedies Ø Employers must specify and follow set of steps for (progressive) discipline. Ø Civil Rights Act of 1991 provides for award of punitive damages for pain and

suffering as well as equitable remedies. Note: When the EEOC pursues a claim for more than one person, the damage caps are applied to each aggrieved individual.

Other Forms of Discrimination Laws regarding discrimination have common theme: Ø People should not be treated adversely because of their gender, race, age,

disability, national origin, or religion – or any other characteristic protected by statute.

Ø Employees must be treated on basis of job-related skills (essential) and work

performance.

Employee Records Management Ø System of keeping records left to discretion of employer. Ø “Guide to Record Retention Requirements” lists federal laws and regulations pertaining to

record keeping. Ø According to Privacy Act of 1974, federal sector employees have right to:

v Know type of information collected. v Review information in their files. v Correct or remove erroneous information. v Restrict distribution of information.

Ø Above guidelines have been adopted by some state legislatures and private employers. Ø Preventative measures. Ø Develop job descriptions. Ø Develop written policies, work rules, and procedures. Ø Establish and support two-way communication.


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Employee Relations and an Organization’s Culture As the current trend continues in the direction of using more generalists and fewer specialists in the Human Resource function, there is a good possibility that organizations will de-emphasize, or devalue the importance of employee relations. If organizations ignore the role of employee advocacy, there will be a spiraling escalation of negative employee relations that will be costly to the organization, and create unnecessary job dissatisfaction and stress for the employee. What Is Employee Relations? Some managers believe that employee appreciation initiatives are the foundation of their employee relations program. While these programs are effective to a degree, they are not the essence of employee relations. The essence of employee relations is an ongoing relationship building process. It takes time, talent, and effort to build. Employee Relations involves employee and supervisor/manager relationships. We all know what employees are, but relationships in employment are vague, with different meanings for different people. Some ingredients that are involved in employee relations are communication, trust, ethics, morals, fairness, feelings, beliefs, expectations, conflict resolution, career counseling, career development, leadership, and many other intangibles. With our changing society becoming more focused on tangibles, keeping organizations focused on the intangibles that make up employee relations may be harder. Relationships and especially employment relationships are in a constant state of evolution, partially due to changing business needs, and laws and regulations that impact this relationship. The current trend is that managers are becoming more focused on the "bottom line." The bottom line is very tangible, and a lot easier to manage than employee relationships. Management vs. Employees Unfortunately, in many organizations employees do not believe that they have an advocate in management. Current thinking of most Human Resource professionals is that Human Resources should be an advocate for employees, and a partner to business. Obviously, this is a difficult role at best, but a necessary role. Human Resources must be involved in assisting operations to achieve its goals. Human Resources must also serve as a legitimate employee advocate. But, what is a legitimate employee advocate? Following is a listing of some behaviors that employees expect from an advocate.

• Someone who is interested in and works for fair treatment of employees. • Someone who is interested in employee problems and attempts to resolve them. • Someone who is interested in employee morale and tries to improve it. • Someone who believes that employees should be treated with respect and dignity and

works toward that end. Are Humans Just Another Resource? We consider the tools and materials we work with as resources. To label a person as a "human resource" seems to categorize people with other resources needed to achieve organizational goals. If the management mind-set is to think of employees as "resources" rather than as persons or individuals, they will likely become desensitized to employee feelings and thereby compromise positive employee relationships.


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Factors Involved in Employee Relations Communication—Ongoing two-way communication is the most important component in employee relations. A positive relationship is the desired outcome. Trust—The old saying, "If someone does not trust, they cannot be trusted" is something that should be taken seriously. If employees do not trust a manager, the flow of upward communication will be compromised. If managers do not trust employees, the downward flow of communication will be affected. Ethics—If employees do not support, or do not understand the ethics of a manager, they will indirectly question the manager's motives. This may be stressful for the employees and may hinder performance. Fairness—Fairness simply means that all employees are treated the same, under the same circumstances. No favoritism should be shown. No one likes to be second best. This does not mean that superior performance should not be rewarded. To employees, fairness also means comparable (fair) wages and benefits. Feelings—Managers need to be sensitive to employee feelings. Acknowledgment and concern about employee feelings about work issues are an important part of establishing a relationship. Perceptions/Beliefs—In employee relations’ perceptions are more important than reality. Employees will act on what they perceive or believe. It is important that employees be well informed and told the truth, even when it may be uncomfortable for management or employees. Employee beliefs, whether true or not, and their uncertainties will affect performance. Good communication will insure that employee's beliefs are related to reality in the organization. Expectations—Employees need to know what to expect from managers. No one likes surprises unless they are good surprises. Knowing the expectations of managers will greatly reduce employee stress. Conflict Resolution—Conflicts arise in all organizations. It is imperative that conflicts are managed so that undue stress does not affect employees, or performance. Career Counseling and Development—Career counseling and career development will communicate to employees that the organization cares about their career and future. Consequences for Management that Pays No Attention to Employee Relations

• Unionization—Unionization of an organization hinders management’s ability to manage and drive up the cost of doing business. Unionization can be avoided if employers exercise good management, and good employee relations.

• Employee Absenteeism—Employee absenteeism drives up the cost of doing business

through employee benefits, replacement workers, training, and a loss of performance.

• Employee Turnover—Employee turnover drives up the cost of doing business through recruiting, training, and loss of performance.


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• Litigation—Defending against litigation for allegations of wrongful employment actions

drives up the cost of doing business, and could result in criminal, civil, and financial penalties. Managers should take this seriously. In many situations, individual managers can be found individually responsible and held accountable in a criminal or civil action.

What is the cost of an effective employee relations program, and is it more or less than the cost of not having one? The answer is, having an effective employee relations program is less costly in time and financial assets. Too many managers maintain that they have an employee relations program, but these programs fall short of being effective. Perhaps this is due to the trend of cost-savings in business that attempts to do more with less. Organizational Culture Values Values describe what is important to an organization and often dictate how employees act. Sometimes values are formalized, and management takes pains to ensure that all employees understand and share the values of the organization. But values can also be informal and “unwritten.” Because values are less visible than behaviors, they can be difficult to change. Behaviors Behaviors are the actions of employees in the organization. Groups of behaviors may categorize certain cultures as friendly, hard working, conservative, committed to customers, etc. Because behaviors can be witnessed, they are easier to change than values. Performance management deals in large part with models for changing behaviors.

Culture can help or hurt an organization’s performance. In strong cultures, most employees share the same values and strive toward the same goals. Strong cultures are characterized by continuity of leadership, geographic concentration, small group size, and considerable success. New employees may be explicitly trained in corporate values and behaviors by experience mentors. For the most part, this is positive. But strong cultures can also stifle individual expression and reduce intelligent people to follow orders without questioning the reason. Weaker cultures often don’t share the same sense of mission that strong cultures have. They may be scattered rather than focused when it comes to problem solving and strategy planning. Weaker cultures also have a tendency to maintain the status quo. Since its virtually impossible to stand still in business, organizations with a weaker culture are more likely to collapse. Culture isn’t always uniform throughout an organization. One organization may have a multitude of cultures in different functional groups. For instance, a creative department in an advertising business may be flexible about late starts and long lunches as long as the deadlines are met. In the production department, however, employees may be carefully monitored and reprimanded when they’re late.


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John P. Kotter and James L. Heskett reported the findings of their corporate culture research in their book Corporate Culture and Performance. The following summarizes their findings. • Corporate culture can have a significant impact on a firm’s long-term

economic performance. Firms with cultures that emphasized customer, stockholders, and employees and expected leadership from managers at all levels outperformed firms that did not have those cultural traits by a huge margin. Over an 11-year period, the companies with strong corporate culture: ∗ Increased revenues by an average of 682% versus 166% for companies lacking

strong cultural traits. ∗ Expanded their work forces by 282% versus 36%. ∗ Grew their stock prices by 901% versus 74%.

• Corporate culture will probably be an even more important factor in

determining the success or failure of organizations in the next decade. Performance-degrading cultures have a negative financial impact for a number of reasons, the most significant being their tendency to inhibit the adoption of needed strategic or tactical changes. In a world that is changing at an increasing rate, it’s predictable that unadaptive cultures will have an even larger negative financial impact in the future.

• Corporate cultures that inhibit long-term financial performance are not rare;

they develop easily, even in firms that are full of reasonable and intelligent people. Cultures that encourage inappropriate behavior and inhibit change to more appropriate strategies tend to emerge slowly and quietly over a period of years, usually when companies are performing well. Once these cultures exist, they can be enormously difficult to change, because they are often invisible to the people involved and they help support the existing power structure.

Although tough to change, corporate cultures can be made more performance enhancing. Such change is complex. It takes time and requires leadership that is guided by a realistic vision of what kinds of cultures enhance performance.


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Employee Involvement Strategies Why Employee Involvement? Employee involvement is a planned and orderly attempt to link the shared interests of the employee and the organization for their mutual benefit. Participative Management This type of management requests and values employee input on important organizational issues. Employees may also be granted discretion to act on their decisions. Management should provide the leading element and should be responsible for organizing changes.

Job Characteristics Hackman and Oldham developed a model that identifies five important design characteristics of jobs. 1. Skill variety, which is the extent to which the job requires a variety of activities

and involves employees in meaningful work. 2. Task identity, which is the extent to which the employee can complete a job

from start to finish with a visible outcome. 3. Task significance, which refers to the impact a job has on others. 4. Autonomy, which is the amount of individual freedom and discretion allowed in

the work and it’s scheduling. 5. Feedback, which refers to the amount of clear information provided on good or

poor job performance.


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Job Enlargement This refers to broadening the scope of a job by expanding the number of different tasks to be performed. This approach relieves excessive boredom and low morale associated with oversimplification. Job Rotation Job rotation is a variation of job enlargement, which breaks the monotony of a routine job by shifting employees to comparable but different jobs.

Job Enrichment This involves increasing the depth of a job by adding responsibilities for planning, organizing, controlling, and evaluating (also known as vertical integration). This approach may result in improved morale, but may not lead to increased productivity.

Alternative Work Schedules

• Flextime: Requires employees to work an established number of hours per week but allows starting and ending times to vary.

• Compressed workweek: Compresses a full week’s work and/or schedule into

less than traditional five day schedule. • Regular part-time: Any hours worked per week that are less than full-time

status. • Job sharing: Results when two part-time employees share one full-time position. • Phased Retirement: As a Flextime or Alternative Work Schedules option,

provides employee the opportunity to gradually reduce the number of hours worked before they are fully retired.

• Telework or telecommuting: The process of working ‘off-site’ via electronic

computing and / or various communications equipment and processes.


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Employee Involvement Strategies Introduction: The words ‘empower or empowerment’ are often overused. Many employers talk about empowering their employees but often the employees feel ‘disempowered’. Some potential ‘strategies’ to address or increase Employee Involvement, may include: 1. Allow employees to actively participate in the design or development of programs.

Look for every opportunity to include employees at every level of the organization, in being active participants. Employees often report getting one-way directives instead.

2. Allow employees to suggest better ways of getting the programs improved.

Ask for employee suggestions for other ways of getting the task or project accomplished. Listen and be willing to really hear the employees' comments. Employees often report that they have no input and are told exactly how to perform most of their job activities, leaving little or no creativity.

3. Provide positive reinforcement.

Always listen and acknowledge your employee’s contributions. Employees often report that their decisions and actions are second-guessed and that most, if not all, feedback given is negative.

4. Clearly delegate responsibility and give the employees authority along with the

responsibility. Do you give inconsistent messages? Do you ask the employee to handle a project and then give them negative feedback or give them an assignment and then say “never-mind?” Employees often report that they are given tasks and then told they did it wrong.

5. Be clear in your communication.

When you express goals or explain a project, be sure the employees really understand what you are asking for. Employees often report that the goals are unclear and that they are not sure what they are being asked to do.

6. Show you have trust in your employees.

Allow them to make mistakes as a form of learning. Show that it is really OK to make mistakes. Let them know you really support their decisions. Employees often report that someone is always looking over their shoulder to make sure they do things right.

7. Listen. Listen. Listen.

In your organization, does management do most of the talking? Employees often report that programs are generally ‘one way’, comprised mostly of forms being completed. They don't feel that their issues are heard.

8. Be interested in the employees' career development.

Meet with employees and discover their goals and their wants. Employees often report that their goals are not viewed as important in the organization.


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9. Let the employees help the organization achieve success. Are you doing it all yourself? Employees often report that their managers (claim!) do all the tasks and that they have no way to make contributions outside their specific job descriptions.

10. Be a coach.

The best way to empower employees is not to manage them. Coach them to success. This is a process of developing their skills and providing them specific feedback to meet high standards. Employees often report feeling like children rather than being on the same team with their bosses. Be their coach and lead the team to success.

“Typical” Attributes of Union-Free Environments 1. High Job / Position / Organization Security. 2. Job Posting System. 3. Job Bidding Procedure. 4. Effective Performance Management program. 5. Sound Compensation programs and practices. 6. Sufficient management training. 7. Dispute resolution and/or Grievance procedure. 8. Strong and effective communication programs. 9. Ongoing communications for/on organizational issues/effectiveness. 10. Ability versus Seniority is more prevalent in promotion decisions.


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Employee Attitudes, Opinions, and Satisfaction Process 1. Feedback 2. Intervention 3. Follow-up and Evaluation Employee Attitude (Climate / Engagement) Surveys Ø Used to measure important specific organizational criteria. Ø Employees should be:

v Aware of the purpose of any / all surveys. v Guaranteed anonymity. v Provided feedback on the survey results.

Exit Interviews Ø Information gathered from departing employees used to improve organizational practices,

heighten moral, and reduce turnover from job dissatisfaction. Ø Generally conducted by a Human Resource professional. Ø Anonymous. Focus Groups and Suggestion Systems Ø Allow employees to be involved in planning and improving workplace. Ø Groups of employees discuss issues and arrive at solutions. Ø Suggestion system allows employees to submit suggestions and receive awards for ideas. Confidentiality and Anonymity Ø Methods, which encourage employees to share their views, must be anonymous and

confidential.


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Employment Policies, Practices and Rules Employee Handbook An employee handbook should present the philosophy of the organization, strategic plan, employee information, and the working environment. Use a writing style, which is positive and reflects the environment of the organization. Be sure that the statements and the tone of the message, word usage, type of policies and procedures, and practices coincide, and are not hypocritical! The goals of the organization and its philosophy should be stated in the beginning of the Handbook, along with any specific strong beliefs held by the organization. Specific statements regarding important policy issues may be stated at the outset with further expansion in the appropriate section of the Handbook. Net: Keep it simple and current. Why … potential enforceable contract! Historical Perspective of Maintaining a Nonunion Status Ø Freedom and independence of organized labor has been major contributor to free and

democratic society. Ø At present, however, percentage of non-farm work force represented by unions is at all-time

low. Ø Significant factor in this trend was changing of United States labor policy through the 1947

(Taft-Harley) amendments to National Labor Relations Act. v Attempted to balance interests of labor and management. v Changed sentiment of nation and affected growth of unions.

Ø Focus on employees’ needs by many newer companies tended to preempt employees’ need for

and interest in joining unions. Why People Initially Joined Unions Can be related to Maslow’s ‘Hierarchy of Needs’ Theory: Ø First level need is to obtain what is necessary for Basic Survival—employment and paycheck. Ø Second level is need for Safety—safe working conditions. Ø Next level is need for Security—freedom from arbitrary discharge, layoffs, etc. Ø The final need is for Self-esteem.

v Identification with fellow union members. v Right to exercise leadership and self-determination.


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Doing Voluntarily What Others are Forced into Doing Ø Organizations began to voluntarily implement health and safety programs, maintain good

working conditions, provide competitive compensation and benefits, etc. Ø Management realized individuals must be treated with respect, dignity, and fairness. Ø Good interpersonal skills are best contributors to maintaining effective work force and union-

free status. Union Membership as a Percentage of the Work Force Ø Hit high at close of WWII—33% of non-farm work force. Ø Ever since, union membership has been decreasing. Ø Presently at all-time low of 12.2%. Ø The net result is that if organization believes that employees and organization would be better

served in union-free setting, there is good opportunity to do so. Current Management Emphasis Ø General shift in management philosophy is to give employees more responsibility for and

involvement in operation of organization. Ø Many employers rely on Human Resource professionals to help organization maintain

nonunion status. Establish a Policy Toward Unions Ø Written policies ensure those primary reasons employees form unions have been addressed. Ø Policies are based on overall business objectives that management believes will be

circumvented if union is installed. Ø Management must be committed to remaining nonunion and develop policy strategy to do so. Current Management Emphasis Ø Establish policy toward unions. Ø Convey organizational expectations and develop policy to handle complaints.

v Open-door policy v Committee review v Formal steps v Arbitration


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Ø Appraise employee performance. Ø Communicate organizational effectiveness. Ø Provide management training. Disciplinary Action Ø Disciplinary process should be similar in both union and nonunion environments. Ø Formal disciplinary action must follow prescribed, understood method. Reasons for Action Ø Ineffective performance. Ø Drug or alcohol abuse. Ø Breaking company rules or engaging in unacceptable conduct. Preventive Measures Ø Develop job descriptions. Ø Develop written policies, work rules, and procedures. Ø Establish and support two-way communication. Sequence of Action Generally three to five ‘progressive’ steps 1. Warning 2. 3. Suspension 4. 5. Discharge or termination Progressive Discipline System Ø System of increasingly severe penalties each time employee is disciplined. Ø Generally old disciplinary actions are removed from employee file after specific time period. Ø As four rules of progressive discipline, indicate that the employee: (1) know what the

problem is; (2) what he or she must do to fix the problem; (3) have a reasonable period of time to fix the problem; and (4) understand the consequences of inaction.


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Administrative Justice Ø Disciplinary procedures should ensure due process for all employees. Ø Most collective bargaining agreements acknowledge employer’s right to discipline or

terminate employees under standard of just cause. Human Resources Review of Disciplinary Actions Before implementing disciplinary actions, Human Resources must: Ø Log disciplinary actions for consistency monitoring. Ø Review the case for Equal Employment Opportunity issues. Ø Review the case for Employment-at-Will and other tort actions. Ø Review the case for compliance with union contract. Common Law Based on court decisions rather than statutory law. Employment-at-will (EAW) is one of the most important common-law doctrines. Common-Law Tort Claims Tort law protects a person’s:

Ø Physical safety and well-being. Ø Enjoyment of their property. Ø Financial resources. Ø Reputation.

Terminations Fall into two categories:

Ø Voluntary Ø Involuntary

If employee thinks discharge is wrongful, he/she may bring suit against the organization.

Legal Orientation Ø Just Cause: Both the reason(s) for discharge AND process must be proper. Ø Layoffs: In addition to the WARN Act considerations, alternatives should be considered. Ø Voluntary Retirements: In addition to ADEA and OWBPA factors, the plans should be

voluntary.


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Illegal Factors Ø Constructive Discharge - Employer makes working conditions intolerable to force employee

to resign. Intent may be inferred through circumstantial evidence. Ø Retaliatory Discharge - Result of employer “punishing” employee for engaging in protected

activity. Employees must prove they were engaged in protected activity and/or they were subsequently discharged.

Ø Involuntary Retirement - Employer offers employee choice of early retirement, demotion, or

dismissal. Employees must prove they were coerced into early retirement because of unlawful considerations. v Management must communicate to employees that plan is voluntary. v Under Age Discrimination in Employment Act (ADEA), recipients of early retirement

incentives may claim they were discharged because of age through coercion to accept early retirement.

v Older Worker’s Benefit Protection Act (OWBPA) requires that voluntary waiver of rights or claims under ADEA are only valid where such waivers are knowingly and voluntarily made.

v Voluntary retirement usually limited to areas of company where necessary reductions in staff are required.

Absence Formula Absentee method used by Bureau of National Affairs:

Worker days lost in a month through absence Average number of employees x number of workdays per month

Generally Does Not Include Absences for: Ø Jury Duty Ø Scheduled disciplinary time-off Ø Long-term Disabilities Ø Excused absences, scheduled in advance (vacations, holidays, etc.) Absenteeism and Tardiness Ø Absenteeism and tardiness often result in discipline and dismissal. Ø Absenteeism refers to time lost when employees do not come to work. Ø Tardiness refers to time lost when employees report to work late. Ø The organization should clearly establish distinction between Excused and Unexcused

absences.

Documents

Twin Cities Human Resources Association · 2018-04-14 · This Act prohibits age-based discrimination in hiring, promotion, demotion, compensation, transfer, and other terms and conditions