Our Blog Archive for June 2009

2009 is a sexual harassment prevention “re-train” year for most California employers. The state’s strict sexual harassment training law, AB 1825, requires any organization that does business in California, and that has more than 50 employees, to provide 2 hours of sexual harassment training to all California supervisors, every 2 years.

Beyond California, for more than a decade, the U.S. Supreme Court and the EEOC have strongly encouraged sexual harassment training for all employees, punishing employers who fail to educate their employees. Adding fuel to the fire, a new Obama administration has vowed stricter enforcement of discrimination laws, and just released EEOC stats show claims at a record high, increasing 15.2% in 2008.

Now is the time to take a close look at your sexual harassment training programs. Far too many training programs are non-compliant and actually create legal risk.

ELT’s all-new cutting edge online Workplace Harassment course meets or exceeds sexual harassment training standards under all state and federal laws, including California’s AB 1825. Workplace Harassment delivers all-new legal content from Littler, and exciting new story lines and characters - for a high-impact experience that educates learners and maximizes your legal defenses, while adhering to tight training budgets.

Click Here to view a free demo of ELT’s sexual harassment training course.

During last year’s Presidential campaign, Obama made repeated promises to “step-up” enforcement efforts to help protect American workers. Just check out the scathing letter he sent last July to then Secretary of Labor Elaine Chao, chastising the US Department of Labor (DOL) for what he perceived to be lax enforcement efforts:

It is important that the Department [of Labor] put procedures in place that will lead to improvements in the enforcement of workers’ rights. This is the core mission of the Department and failing to adequately enforce the Fair labor Standards Act (FLSA) is unacceptable. (July 25, 2008).

Now Obama is really delivering on his Campaign promises. And the proof is in the numbers.

Which brings me to the 2010 budget proposals put forward by a number of key federal agencies.

Let’s start with perhaps the hottest area right now - wage and hour law enforcement, which is overseen by the DOL. To quote the DOL’s budget request: “The FY 2010 budget includes a program increase of $30,862,000 to finance 288 [new full time staff members]. The additional staff will enable the program to conduct more targeted investigations, provide additional compliance assistance, and ensure that cases effectively maximize compliance on behalf of the greatest number of workers.” (http://www.dol.gov/dol/budget/2010/PDF/bib.pdf, page 36.)

Needless to say, with this significant increase in resources and funding, we can expect to see the tidal wave of wage and hour claims continue to swell.

Not to be outdone, the US Equal Employment Opportunity Commission (EEOC) is also requesting a healthy budget increase for 2010. Specifically, the EEOC is requesting an increase of $23.378 million from its 2009 budget. With that money, the EEOC hopes to hire 224 new staff members, “[p]rovide funding to address a growing charge inventory and to implement the ADA Amendments Act of 2008, the Lilly Ledbetter Fair pay Act of 2009, and Genetic Information Non-Discrimination Act (GINA) of 2008.” http://www.eeoc.gov/abouteeoc/plan/2010budget/index.html#IA.

Considering that we already saw double digit growth in EEO claims in 2008 (15.2% according to the EEOC’s FY08 statistics), and considering that the unemployment rate is the single largest predictor of the pace of discrimination litigation, beefed up enforcement efforts by the EEOC will likely drive astronomical claim numbers in 2009 and beyond.

With the Employee Free Choice Act (EFCA) pending in Congress, another agency to keep an eye on this year is the National Labor Relations Board (NLRB). Like the DOL and the EEOC, the NLRB also is seeking substantially increased funding. The NLRB has requested an additional $20.8 million over its 2009 budget to, among other things, increase its enforcement staff. http://www.nlrb.gov/nlrb/shared_files/reports/NLRB_JUST_2010/JUST2010SectionXI.pdf.

My prediction is that EFCA will pass in late 2009 or early 2010, and US employers will be quickly hurtled into a new era of unprecedented unionization efforts. Do front line managers understand the basics of union organizing or labor law compliance? The short answer is no, considering that the private sector is currently only about 7% unionized. Will employers be facing much greater risk exposure in terms of new violating labor laws? The short answer is yes, and increased funding for the NLRB means even stricter and more thorough enforcement.

Simply put, all of these pending budget increases mean that tougher government enforcement of US employment laws is inevitable. Employers should take proactive measures now to help prevent issues arising in their workplaces.

And as you can probably guess, my recommended prescription involves a healthy dose of training:

• For supervisors and employees, education on compliance with state and federal wage and hour laws.
• For supervisors and employees, education on how to comply with key EEO laws, including those covering workplace harassment across all of the protected categories.
• For supervisors, education on basic union awareness topics as well as the good management practices that tend to make union representation unnecessary.

ELT can help you prepare your workforce, with online training solutions covering the gamut of your key risk areas (harassment, discrimination, wage and hour, union awareness, good management practices) as well as other timely topics; check out our solutions at http://www.elt-inc.com/our-solutions/course-topics.

We may be in the depth of a recession, but these federal agencies are going to spend more money, and hire more employees. I guess with even with the most severe economic contraction, there is always some kind of concurrent expansion. And when it comes to the world of workplace compliance, that expansion means dramatically increased risk exposure for your organization.

As most people who read this blog already know, the Employee Free Choice Act (EFCA) is pending in Congress. It’s designed to make it easier for unions to organize employees, and to get quick pro-labor contracts. While it‘s unlikely that EFCA will pass in its current form, the momentum and support is in place to get a compromise version passed in the coming months - and Obama has already said he’d sign it if it comes to his desk.

Obama’s support of EFCA, his selection of outspoken union advocates to key government positions, his pro-labor nominations to the NLRB, and his recent issuance of three pro-labor Executive Orders, signal the new administration’s strong support of organized labor. Meanwhile, unions are waging anti-corporate campaigns designed to force employers to recognize unions without a secret ballot election, regardless of whether EFCA is signed into law.

It all adds up to increased liability and significant management challenges, with or without EFCA passing.

Many employers are completely unprepared for the already increased activity by unions. And most managers today have absolutely no experience answering basic employee questions about unions, dealing with a union organizing campaign or working in a unionized environment.

It’s a large and risk laden training gap.

If you’d like to learn more, check out ELT’s June podcast on why EFCA is driving a heavy wave of critical union awareness training for managers.

Listen to the Podcast.