Filed under: Human Resources, Notes from Jim | Tags: employee rights, employees, Human Resources, National Labor Relations Act, National Labor Review Board, NLRB, NLRN Poster
National Labor Relations Board (NLRB) Posting Requirement
by Jim Guttmann, SPHR
Wouldn’t you agree that certain topics often generate strong feelings and differences of opinion when mentioned? For instance, I’m sure most of you realize that public expressions of beliefs on politics or religion can sometimes create discord. Another topic that some might put in that same category is any discussion of unions. As a result, many of us often avoid discussing these topics when in the workplace or at family re-unions, etc.
On the subject of unions, the National Labor Relations Board (NLRB) recently issued a final rule that will require most private-sector employers to notify workers of their rights guaranteed under the National Labor Relations Act (NLRA). Under this new rule now scheduled to go into effect on January 31, 2012, most private-sector employers will be required to post a “notice of employee rights” where workplace notices are normally displayed (including company internet or intranet sites, as applicable). The notice applies to all businesses subject to NLRA but excludes agricultural, railroad and airline employers and the U.S. Postal Service. The notification requirement also does not apply to small employers that conduct less than $50,000 worth of business across state lines.
The notice explains that under the NLRA employees have the right to:
1. Organize a union to negotiate with the company concerning wages, hours, and other terms and conditions of employment.
2. Form, join or assist a union.
3. Bargain collectively through representatives of employees’ own choosing for a contract with the company setting wages, benefits, hours, and other working conditions.
4. Discuss wages and benefits and other terms and conditions of employment or union organizing with co-workers or a union.
5. Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the company or with a government agency, and seeking help from a union.
6. Strike and picket, depending on the purpose or means of the strike or the picketing.
7. Choose not to do any of these activities, including joining or remaining a member of a union.
Those employers subject to this law risk an unfair labor practice charge and could face legal action from the NLRB if they fail to comply with the notification rule. For more information, please refer to: https://www.nlrb.gov/poster.
Having broached this highly sensitive matter, I would like to offer my perspective from experiences on both sides of this issue; 1) as a former employee in a labor union’s administrative department, 2) as a former company representative during union avoidance campaigns, union negotiations and during union grievance processes, and 3) as a private sector non-union employee. My experiences have ranged from instances in which the company and union worked in a very collaborative manner to situations in which matters were very contentious and difficult between the company and union.
Here’s what I believe experts on both sides of the issue would likely agree represents a work environment in which unions often become very appealing to employees:
1. A work environment in which employees are not treated in a fair and consistent manner by their boss and the company offers no true avenue whereby issues and concerns can be properly addressed. The lines of communication between employees and their management are poor. Employees perceive that having a union will offer that voice that they don’t now have.
2. A work environment in which employees do not receive competitive wages and benefits and/or the company does not comply with federal regulations concerning wage and hour laws, safety, non-discrimination and harassment avoidance etc. Employees perceive that having a union will hold the company accountable in offering suitable pay, benefits and working conditions.
As the new NLRB rule regarding posting notices goes into effect next year, many employers should assess how they are doing with respect to their work environments and whether the new posting requirement will draw significant interest from their employees. Here’s what is suggested that you review as part of your self-assessment:
1. Benefits ( meeting industry standards for your area)
2. Wages (that are fair and competitive)
3. HR Policies (that comply with employment laws)
4. Culture (whereby all employees are treated fairly and consistently)
5. Trained supervisors (who know how to create/maintain a healthy work environment)
6. Safe work environment (in which employee safety is a top priority)
Since compliance with the new law cannot be avoided for most employers, it would be prudent for companies to start a self-assessment process now (if they have not already done so) rather than putting off thought/discussion of a topic that they may find uncomfortable.
____________________________________________________________________________________
Jim Guttmann, SPHR
As a Landrum Professional Human Resources Manager, Jim is certified as a Senior Professional in Human Resources (SPHR) and has over 20 years of HR generalist experience for a large government contractor and Fortune 500 Company. He holds a Masters in Business Administration from Florida State University and is an active member of the Greater Pensacola Chapter of the Society for Human Resources Management (GPCSHRM), previously serving as their Vice President of Information Services and Chairman of the Workplace Diversity Committee. Jim is also certified as a County Mediator and in the administration of the Myers Briggs Type Indicator (MBTI).
Filed under: Human Resources, Notes from Holly | Tags: "human resources consulting", conflict resolution, Constructive Discharge, employees, Harassment, Hostile Work Environment, Human Resources, PEO, quid pro quo, Wrongful Discharge
November 1, 2011
Avoiding Hostile Work Environment Claims
by Holly McLeod, PHR
To harass someone, as defined by Merriam-Webster, is to “(1) annoy persistently, or (2) create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.” Harassment in any form has no legitimate place in the employment world; however, it does unfortunately exist. Any conduct or behavior that causes a person to be uncomfortable in the workplace is harassment. The impact of the conduct is what is important, not the intent.
For employment purposes, there are two kinds of harassment:
1. Quid pro quo: Literally means “this for that”. In this type of harassment, a
supervisor would threaten to fire or otherwise punish an employee if he or she doesn’t comply
with the supervisor’s demands (or promise rewards if there is compliance).
2. Hostile Work Environment: When physical or verbal behavior is so severe or pervasive
that is creates a hostile or abusive work environment.
While quid pro quo harassment is generally regarded as the most blatant example of sexual harassment, a hostile work environment can be created based on many contributing factors. To achieve the legal parameters and definition of harassment, the unwanted hostile/abusive behavior must be conducted toward someone because of one or more of the traditional “protected categories” covered under Title VII of the Civil Rights Act, including race, color, religion, sex, national origin, age, disability or veteran status. It is important to note that some state laws or union collective bargaining agreements might also add marital status and/or sexual orientation to this list.
Categories of Hostile Work Environment Claims
• Discriminatory Hostile Environment
• Wrongful Discharge
• Constructive Discharge
Discriminatory Hostile Environment
To discriminate means to treat differently. In the realm of a hostile work environment, an employee of a recognized protected class is treated differently than those that are not part of the pertinent protected class. For instance, if a supervisor places more stringent rules on an older employee than those placed on a 25-year-old, that could be considered a discriminatory action by the supervisor.
Wrongful Discharge
To wrongfully discharge is to terminate employment because of one of the protected groups. Open communication with the employee to explain the performance- or behavior-related reason for dismissal is important, so that the employee will not assume the termination is because of a discriminatory reason.
Constructive Discharge
Instead of firing an employee outright, some supervisors choose to treat an employee in such a way that will make the employee want to quit. This is referred to as constructive discharge — when an employee’s treatment is so severe or pervasive that in order to escape the treatment, the employee has no alternative other than to quit his/her job. This is a gray area of harassment, and oftentimes left to the discernment of judges and jurors.
CONCLUSION
Some employees can be challenging. It may be a lack of work ethic, an attendance issue, a safety concern or insubordinate behavior. Whatever the challenge, there are important steps an employer should take in order to help avoid a claim of hostile work environment from an employee:
1. Document all corrective efforts made with an employee. There is an old saying among lawyers and human resources professionals: If it’s not documented, it didn’t happen. Assuming, therefore, that before someone is terminated there will have been progressive disciplinary action taken, it’s important to put the information on paper with the employee’s signature. It is also recommended to have someone in a supervisory role sit in on the meetings with you, to serve as a witness in the event the employee refuses to sign the counseling form. Thorough documentation can prove to be your greatest weapon when fighting a claim of discrimination or harassment.
2. Avoid any action or behavior that an employee might interpret as retaliation. Retaliation claims have become the “popular” charge in the past few years, with retaliation claims increasing 50% since 2005. In 2010, retaliation claims accounted for 36% of all claims filed with the Equal Employment Opportunity Commission (EEOC). If an employee has made a complaint about his/her treatment in the workplace, ensure that the employee is treated no differently than before the complaint was made, and no differently than other employees are treated in general.
3. Be consistent. If all employees are held to the same standards and are treated the same way when those standards are not met, then your company will be in a much better position to defend a charge of a hostile work environment or any other type of discrimination or harassment.
Holly McLeod is a Human Resources Manager for Landrum Professional Employer Services and Landrum Consulting. She is a certified professional in human resources (PHR) and has more than 15 years of human resources consulting in the corporate world, healthcare and manufacturing environments.
