Our Blog Archive for November 2008

Obama’s headed for the Oval Office in 2009, which has a lot of employers wondering how his administration will impact the employment laws that regulate American businesses. And even though the Democrats were not able to capture enough new seats in Senate to prevent a filibuster on key labor and employment initiatives, get ready to see some big changes.

In fact, some changes are already set in stone. We know that come January 1, 2009, the Americans With Disabilities Act is getting a major face lift. More employees will be considered disabled, and more employees will be entitled to a reasonable accommodation.

We also know that some changes are highly likely - for example, expanding Title VII to include sexual orientation as a protected category. Employers will not only need to update policies, practices, and benefit programs, they will need to train on harassment and discrimination too.

Easy Unionizing? A Change That Makes Employers Hold Their Breath.

But the big question mark for employers, and the one that makes them the most nervous, is the status of the Employee Free Choice Act (EFCA). President Elect Obama minces no words when it comes to the EFCA. He supports it, and promised to sign it if he was elected President.

So what’s the big deal? (See: The Employee Free Choice Act: It’s More than Just A Misleading Name). Here’s the lowdown. The EFCA (in its current form) would amend the National Labor Relations Act to:

• Make it much easier for unions to organize employees;
• Require binding arbitration of first contracts after 120 days; and
• Stiffen penalties for some unfair labor violations.

The organizing component of the EFCA deserves your close attention.

The new language would fundamentally change the way that unions are recognized in this country. Gone are the secret ballet elections and gone are the employer campaigns that we’ve all become so familiar with.

So here’s what it boils down to. (Hold your breath folks …) If the union gets 50% plus 1 of the employees to sign authorization cards, the deal is sealed. Game over. The employees have a union.

EFCA and Positive Employee Relations Training is Vital

So let’s say EFCA makes its way to Obama’s desk and he signs it. What’s an employer to do? And what should you be doing to prepare for this day?

Develop a very strong offense.

And part of that offense must include regular manager and employee training—sort of a perpetual union avoidance campaign. It’s something all employers need to seriously consider, not just those that have been the traditional targets of union organizing. With the simplified authorization process, almost any employer is fair game.

Employees can benefit from training about the practical implications of a union - what it means if they sign an authorization card, and how the rules have changed. A signature in a post-EFCA world is a lot more powerful and decisive. Your employees won’t know that unless you tell them.

And managers? They need much more education. To start, managers need to learn:

• How a union impacts the business
• Why it’s important that the organization remain union free
• How to recognize the warning signs of union organizing
• What managers can and cannot say and do
• How to foster a positive work environment
• How to communicate effectively
• How to manage conflicts and resolve problems
• How to treat employees with respect
• How to make fair and consistent decisions (such as discipline, pay, promotion, etc)
• How to deal with employee complaints

ELT’s Integrity Suite: A Vital Part of a Strong Offense

Sound daunting to train your employees and managers on all these topics? Don’t know how you’ll find the time to add this in to your already packed (and budget constrained) training agenda?

Don’t worry. We’ve done the thinking and the prep work for you so you can manage this new risk. It’s called the Integrity Suite. With more than 40 concise and powerful vignettes, including dedicated EFCA content and many manager effectiveness topics, this course will help you create the strong offense your organization needs.

And your employees will stay engaged. We use an interactive news program format, complete with news anchors, breaking stories and viewer call-in segments. Learners are presented with customizable “newscasts” that fit their company’s values and culture. You can train employees in one sitting, or do it in bursts over time. You choose the solution that helps your organization achieve its ultimate goal.

The bottom line? In just 15 minutes, you can address the nuts and bolts of union organizing with your workforce head on.

Don’t wait until the union comes knocking on your door to start training. If you do, it may be too late. Start planning your offense today.

Those of you who read this blog on a regular basis know that I’m not one to ramble on about specific cases … case law can be interesting if you’re a lawyer, but the rest of the world just wants to know: “What’s the bottom line and what do we need to do to keep out of trouble?”

But from time to time, I do see cases where preventative compliance training plays an important role. Here are two very recent decisions worth taking a look at:

• 11/7/08: Kendra Lynn v. TNT Logistics North America: a harassment case brought under state law (Missouri Human Rights Act). The jury originally awarded the plaintiff $50,000 in compensatory damages and $6.75 million in punitive damages. Of course there were arguments that the number was too high and it was reduced … to $3.75 million! The hefty damage award was justified by the fact that no one knew how to handle the employee’s complaint properly, as well as the employer’s failure to provide harassment training to employees and managers.
• 11/10/08: EEOC enters a consent decree with the University of Phoenix to resolve a religious discrimination class action alleging that the University discriminated against non-Mormons. Settlement terms include a payment of $1,875,000 (that’s not a typo!) to 52 plaintiffs and mandatory training for both managers and non-managers.

Compared to numbers like these, your compliance training budget probably looks like a bargain.

But let’s also face economic reality.

A Recession Tightens Your Budget but Dramatically Fuels Your Risk

I’ve been talking a lot lately about compliance training during turbulent times. (ELT WEBINAR: Compliance Training During Turbulent Times) The economy is in the dumps, people are stressed, and employers are forced to make tough decisions about how to weather the storm. Senior leaders want you to tighten your belt, trim the fat, and cut programs and initiatives that just aren’t critical. They may even ask you to cut that “harassment or EEO training program.” Which gets you thinking …

• Should I cut it or not?
• Do we really need it?
• Can we just put it off until a later date?

The short answer is: no, you shouldn’t cut it, yes, you really do need it and no, it’s definitely not smart to put it off until a later date.

Why can I say that with such conviction? And how can you convince senior leadership to preserve your compliance training efforts? Just consider the following:

• Employment law claims are guaranteed to go UP during tough economic times. An increase of 1.5% in the unemployment rate translates to as much as 21% increase in harassment and discrimination claims. (Source: The Changing Nature of Employment Discrimination Litigation, 43 Stan. Law. Rev. 983 (1991)).
• The unemployment rate was 4.7% a year ago. Today it’s 6.5% and expected to hit 8% before it gets better – an astronomical increase. (http://www.bls.gov) So even if that means one new piece of litigation for your organization this year or next, you could be looking at defense costs in the range of $200K, along with the potential verdict (currently averaging about $1M) and plaintiff’s attorney’s fees if you lose.
• Jurors are employees too (and in some cases bitter former employees). During bad times they are even more generous with corporate dollars—which translates to larger verdicts.

Take these numbers to the folks controlling the purse strings, and they’ll be more easily convinced to continue investing in harassment and discrimination training — especially when you explain that training can help establish affirmative defenses in the event of litigation.

Aside from all the other positive reasons to invest in preventative education, the numbers just add up. There’s a clear cut ROI justification for the expense. And that’s what your organization is really paying attention to during an economic downturn.

Keeping Up with Your Peers

Need even more ammunition to justify your training costs? You can also point to training trends among US employers, and argue that your organization should at minimum keep up.

According to a November 2008 HR.BLR.com poll, 42% of HR professionals say that their organization provides supervisors with sexual harassment training every year. 21% of respondents provide training every two years, and only 16% of respondents say that their organizations do not provide regular harassment training. These statistics align with several polls that ELT has conducted, showing that the majority of US employers now embrace some kind of mandatory harassment training.

Stay Focused – Buy Less, Train Less & Gain More

A final piece of advice as you tackle your training plan in these tough economic times? Stay focused. Invest time and money in areas which represent your greatest areas of risk, and where you can establish actual legal defenses through proof of training. At ELT, we believe your compliance training efforts should focus on four key areas: Workplace Harassment, Wage and Hour, Ethics & Code of Conduct and broad based employment law basics – what we call the “Integrity Suite.”

Nothing like buying what you need, and actually using what you buy, to save a whack of time and expense.