Employers: Don’t Get Run Over By A Fast Track Union Election

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On December 12, 2014, the National Labor Relations Board (“NLRB”) issued its much anticipated rule changes for union elections. The rules become effective on April 14, 2015.  The new rules set forth an “accelerated election” process that gives employers much less time to communicate to their views on union representation to their employees. The NLRB has published a chart comparing the current election rules with the new election rules.  Some of the highlights of the new fast track process include:

  1. Electronic filing and transmission of election petitions and other documents.
  2. Elections will generally  be held within 20 days of the filing of the petition.
  3. The NLRB will schedule pre-election hearings within eight days after a Notice of Hearing is filed.
  4. Pre-election hearings will generally be limited to whether it is appropriate to conduct an election, and not voter eligibility or inclusion issues.
  5. After a petition has been filed, employers will be required to post an initial “NLRB Notice of Election” containing generic information about the petition and the parties’ rights and obligations.
  6. Employers will also have to fill out and submit a “Statement of Position” within seven days of receipt of the election petition that includes a list of prospective voters, their job classifications, shifts and work locations.
  7. If the employer fails to raise a particular election issue in this “Statement of Position,” it may not present evidence on the issue at the representation hearing.
  8. Individual voter eligibility issues will generally not be heard until after the election.
  9. The list of all eligible bargaining unit employees (“Excelsior list”) must be electronically filed within two (2) business days after a Direction of Election has been issued, and must include employees’ home addresses, telephone numbers and e-mail addresses.
  10. Post-election hearings will be set 14 days after the filing of objections.

Bottom line: once an election petition is filed, employers will have no time to develop an effective response strategy.  Given that the new rules do not take effect for another couple months, employers should take the opportunity now to put proactive plans in place before an election petition is filed. A solid plan should include:

  • Identifying the management team responsible for responding to a union organizing attempt
  • Developing an employee communications program to discourage employees from signing union authorization cards
  • Conducting a union organizing vulnerability analysis
  • Auditing labor relations issues, relevant company policies and human resources practices and procedures
  • Training managers and supervisors to identify the signs of potential union organizing activity, and how to lawfully respond to them
  • Developing an employee communications program in the event of an NLRB scheduled election
  • Conducting supervisor training on how to effectively manage a union-free workforce

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
 @wagelaws

#HR Tip – Talk To The Employee, Not His Parents

“What we got here is a failure to communicate” – Cool Hand Luke

I am amazed at how often I hear from human resource managers that an employee has had his/her parent(s) call HR to discuss the child’s employment situation.  And I’m not talking about the parent calling in to report that their adult son or daughter (who undoubtedly has a cell phone) is sick and won’t be in.  No, I have even heard parents who called and acted as an advocate for the employee in disciplinary situations, or pressed for an explanation as to why a medical expense was not covered by the health insurance plan.

Perhaps it is simply another symptom of the “helicopter parent” generation, and the child was never really taught to be self-sufficient. Or maybe it is because the kid only knows how to text, as opposed to engaging in an actual face-to-face conversation.

Regardless of the cause, HR managers should avoid such communications if at all possible.  First, the parent is not your employee.  Assuming the child is not a minor or the legal ward of that parent, you have no legal obligation to talk to that parent.  Second, as what is discussed is often confidential in nature, and you have no idea whether the employee actually authorized the parent’s call, you could face an irate employee who claimed you violated his privacy.  Third, anything you say to that parent could be used against you as evidence in a later lawsuit by the child.

So don’t put yourself in this no-win situation.  Politely tell the parent (or spouse) that you can only talk to the employee, and will await their call. Then hang up.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

HR Tip – Nothing Good Comes from a Personnel File Request

Ever heard of that old saying “nothing good happens after 1 a.m”?  It’s a recognition that a simple act often increases the risk of getting into some kind of trouble.

Human Resource Managers should view an employee’s simple act of requesting a copy of their personnel file the same way – nothing good ever comes from it.  Typically, an employee requests a copy of his personnel file only when there is an actual or potential dispute brewing with his employer.  In fact, it is usually one of the first steps an employee (or ex-employee) takes in filing a claim against the employer.

So treat such requests carefully.  Assume that it is likely a claim will be filed.  Follow any applicable state laws in responding to them, and make sure that any documents that should not be in the file, or are not required by law to be produced, are taken out.  Always remove any emails or other documents evidencing communications between the company and its attorneys.  And then hope you never hear from the employee again.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

Fight Club’s First Rule of HR – You DO NOT Talk About Your Lawyer

Remember the classic scene in the movie Fight Club?  Brad Pitt, founder of the “Club,” is talking to prospective pugilists about its rules.  He boldly declares the First Rule of Fight Club: “you do not talk about Fight Club.”  He then gives the Second Rule: “you DO NOT talk about Fight Club.”  Needless to say, everyone got the point – keep your mouth shut to avoid trouble.

In homage to Fight Club’s simple genius, I offer a modified version of this Rule for Human Resource Managers:

YOU DO NOT TALK ABOUT YOUR LAWYER.

You see, part of my job as a management side employment lawyer is preventative in nature:  I  consult with companies before they make a termination decision.  I do so in order to help them (hopefully) avoid lawsuits, and to put them in the best position to defeat any litigation that ensues.  Among other things, the client and I discuss the rationale(s) for the termination decision, the performance history of the employee, the existence (or lack thereof) of supporting documentation, whether the company is following its own disciplinary policies and/or practices, and the legal risks involved if the employee falls into a “protected” classification under discrimination laws.

These attorney-client discussions are treated under the law as “confidential” – they are protected from involuntary disclosure by the “attorney-client privilege.”  I cannot ethically disclose them.  Likewise, the company representative I am talking with cannot generally be forced to reveal them at deposition, in an interrogatory answer, or at trial.  This protection is critical, as it allows the client and I to engage in candid discussions of sensitive issues, without the fear of later disclosure.

Unfortunately, HR managers often violate my modified Rule. They say things like “we checked with our lawyer and he told us ….,” or “we will talk with our lawyer and get back to you”  in termination or disciplinary meetings with employees, or when discussing “reasonable accommodations” with them. To a degree it is understandable, as part of the normal  “give and take” of a conversation with an employee.

Moreover, on their face such remarks seem harmless.  But in reality, they are subtly dangerous.  Why? First and foremost, the client may have just waived the attorney-client privilege.  Remember, the privilege is for the client’s benefit.  But it can also be waived by the client. Any statement that references the content of a client’s prior conversation with their lawyer will likely be construed (or at least argued) as a “waiver” of the privilege.

If waived, the employee’s lawyer could ask the client probing questions about the details of that conversation, including all statements made before the decision to discipline, discharge or not accommodate.  This could result in the disclosure of comments that, even if not acted upon by the client, will be presented as evidence of a discriminatory or retaliatory intent, and/or at least an awareness of the potential for litigation.  Such statements will be trumpeted as “smoking guns” for the company’s “real” motivation behind its decision.

Second, such comments often “raise a flag” in an employee’s mind.  The employee thinks his situation has become “serious” –  for goodness sake, the company just told him/her that its lawyer has become involved!   With this knowledge, the employee usually does one of a couple of things: (a) he becomes very sensitive and files a “retaliation” claim for any adverse employment action taken against him, believing it was caused by his raising of a “legal” issue; or (b) goes out an immediately retains his own lawyer to advocate on his behalf; or (c) both.

None of these outcomes are positive for the company.  So apply the First Rule of HR:

YOU DO NOT TALK ABOUT YOUR LAWYER

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws