Showing posts with label human resources. Show all posts
Showing posts with label human resources. Show all posts

Employee handbook rulings expand NLRB's reach into non-union workplaces

As an HR professional, I write professional blog in addition to the Blogland. Occasionally, I cross-post articles, such as this one, which discuss issues relative to the upcoming election, such as labor law, where the current administration and Mitt Romney hold very different views.

Employers who think that having a union-free workplace will protect them from National Labor Relations Board (NLRB) actions should think again. The federal labor agency has been broadening its reach into examining employer practices in non-union workplaces with no union activity taking place.

One area which is drawing increased scrutiny from the NLRB is the content of employee handbooks, as indicated by recent rulings issued by the board (Banner Estrella Medical Center, 358 NLRB No. 93, Hyundai America Shipping Agency Inc. 357 NLRB No. 80 and Karl Knauz Motors, 358 NLRB No. 164).

Unless the November elections result in a shake-up of the Board, employers and HR staff responsible for writing and maintaining the content of employee handbooks may want to scrutinize these documents for potential troublespots.

Questions about effectiveness of state OSH programs may lead to changes

Federal OSHA officials efforts to come up with effective measures for state-run Occupational Safety &  Health (OSH) programs keep coming up short, according to several reports which have examined how state-run programs are assessed. These measures are needed to ensure that state-run programs meet, if not exceed, standards and performance levels of the federally-run OSHA program which is applied in states without self-run programs.

Concerns about OSH programs in a number of states now include a report from the Office of the Inspector General (OIG) of the U.S. Department of Labor which has criticized the federal agency's ability to develop effective state OSH program measures. More bad news came in an August report from the Federal Annual Monitoring Evaluation (FAME), which criticized a number of states for the poor quality of whistle-blower programs.

These criticisms present major concerns for the quality and effectiveness of workplace safety and enforcement as the federal agency delegates the enforcement of workplace safety in many states, thus relying upon those states to develop effective safety programs that balance promoting safety with proper and effective enforcement.

E-verify mandate underway in North Carolina


Following the lead of South Carolina, which was one of the first states to pass workforce immigration compliance legislation following the Chamber of Commerce of the United States v. Whiting ruling, North Carolina is now mandating the use of E-Verify for screening all new applicants.

North Carolina will phase in compliance, based upon the size of a company's workforce, as follows:
  • Effective Oct. 1, 2012—employers with 500 or more employees will be required to use E-Verify to check work authorization for all new hires.
  • Effective Jan. 1, 2013—employers with 100 or more employees will be required to use E-Verify to check work authorization for all new hires.
  • Effective July 1, 2013—employers with 25 or more employees will be required to use E-Verify to check work authorization for all new hires.
For companies with multi-state workforces, the agency will consider just in-state employees towards the determination of the first date of enforcement.

At this time, the North Carolina legislation exempts employers with less than 25 employees as well as seasonal workers (but keep reading because federal requirements may still apply).

Social Media increasingly being used as evidence


As if we haven't seen enough written about the need to exercise caution about what is being said in social media, another word of warning comes from Allen Smith, who recently interviewed David Osterman, a New Jersey attorney specializing in labor and human resources issues for a recent story in the Society for Human Resource Management website

While this news that social media is impacting what takes place in courtrooms probably isn't surprising to many, the details of the story bear attention in the article, Smith warns readers that:

"Social media has filtered into courtrooms, transforming jury selection; questioning of witnesses; interactions between jurors, lawyers and judges; and evidence. And employment litigation has been affected ..."

In the story, Osterman details how social media is being used to do advance research for jurors and witnesses, as well as how social media commentary is qualified as evidence in the courtroom. For those who want to protect their company from legal exposure or prepare a strong defense for cases that may go to trial, this story makes for good reading.

Immigration enforcement focusing on employers


Federal immigration officials in Kansas are applying severe measures to punish those who employ undocumented workers:

After an Overland Park couple were indicted, accused of knowingly hiring illegal immigrants and paying them less than other employees, federal authorities said Tuesday that they would seek to seize the couple’s two hotels.

This followed a raid earlier this year which found that roughly half the employees at the two hotels were undocumented workers. The feds allege the couple paid the workers with cash and paid them less than the minimum wage, including to an undercover agent who told the couple he was an illegal alien.

According to Kansas U.S. Attorney Barry Grissom, the agency would continue to go after employers for illegal hires, warning "We are going to enforce immigration laws, and we are going to enforce them equally ... we’re not going to enforce them merely on the backs of (undocumented workers).

This is part of a new approach to dealing with the illegal immigration issue by going after employers. Two years ago, the New York Times reported on the agency's new focus:

The wrong way to handle an immigration audit

There are right ways to handle an immigration compliance audit and there are wrong ways.

In Los Angeles, Yoel A. Wazana, 38, owner and production manager of Wazana Brothers International, Inc., doing business as Micro Solutions Enterprises (MSE), decided to try one of the wrong ways and will now have to plead guilty plead to one felony count of false representation of a Social Security number. This comes after a 2008 raid resulted in the arrest of eight company workers on criminal charges and another 130 for  administrative immigration violations. 

Considering the extent to which he attempted to cover up potential problems, he's lucky to get off so lightly:

New federal EEO expectations for criminal background checks

Criminal background checks can be an effective way to avoid problems in the workplace, but if not done properly, background check processes can create more headaches than they avoid, thus employers should use them with caution. 

A recent 4-to-1 vote by the U.S. Equal Employment Opportunity Commission (EEOC) to approve new guidance for employers conducting criminal background checks is certainly going to raise the bar even higher for employers.While the guidance from the EEOC is not a regulation, it is a warning of growing concern by the Commission and will help inform its field staff when conducting investigations and considering enforcement actions. 

One of the key motivators for this decision was driven by concerns about employers who inappropriately used criminal background checks. The most egregious example was employers who screened out applicants based upon arrest histories, not taking the time to determine if the arrests led to convictions. In too many cases, arrests resulted in dropped charges, meaning people who were found not guilty in the eyes of the law were found guilty in the eyes of an irresponsible employer.

Feds considering hiring quotas for disabled


Keep in mind that many local and state programs receive federal funding, thus could fall under the scope of this proposed rule.

Claiming a thirteen percent unemployment rate for those with disabilities, Patricia Shiu, director of the Office of Federal Contract Compliance Programs, said "specific goals" and "real accountability" were needed to ensure increased hiring of disabled individuals.

That means mandates upon employers are in the works.

More states mandating E-verify for employment screening


While this week's Supreme Court decision on Arizona's immigration enforcement legislation may have tied the hands of the state to enforce immigration laws, this ruling did not touch the state's E-verify mandate, which was affirmed by the Supreme Court in last year's ruling in the matter of Chamber of Commerce of the United States v. Whiting. This and other signs point to a growing willingness to mandate E-verify and allow states to implement laws restricting the ability of employers to employ those who don't establish their legal right to work in the United States.

Following Chamber ruling, nine other states joined Arizona in requiring businesses in those states to use E-verify to screen new hires - Florida, Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee, Utah and Virginia. While the dates for the implementation of the laws vary from state-to-state, all ten states require employers to be using this system by the end of this year. But a report from the National Conference of State Legislatures indicates the E-verify mandates are just the tip of the iceberg on issues related to employment and immigration.

Foreign automakers keeping UAW out of plants

While labor unions have done well at organizing work forces at United States-based automakers, they've struggled to get into foreign automaker facilities in the United States. According to a recent MSNBC story:

While the UAW continues to represent Detroit’s Big Three manufacturers, it has all but completely failed to gain representation rights for the so-called transplant lines now run by virtually all the major foreign-owned automakers, from BMW to Toyota to Volkswagen.

UAW president Bob King sees these efforts as crucial to the survival of the labor union, warning "If we don't organize these transnationals, I don't think there's a long-term future for the UAW, I really don't". Last year, it was reported the UAW was considering going after Volkswagen and Daimler plants and now is reportedly looking at attempting to organize a Nissan plant in Mississippi. But the track record of organizing these companies plants isn't good.

US Dep't of Labor Wage/Hour crackdown looming?

My company recently had a site visit from an investigator from the Wage and Hour enforcement by the U.S. Department of Labor. The investigator was cordial, professional and efficient in his visit. But changes in the agency’s approach to handling investigation and penalties should serve as a warning that those friendly visits may become quite costly for an unprepared employer.

Writing in the June 2012 edition of HR magazine, attorney Allen Smith reports that Wage and Hour enforcement by the US DOL is becoming more aggressive, meaning employers will need to exercise additional caution on these issues.

Reporting on a May presentation at the Jackson Lewis Corporate Counsel Conference in Washington, D.C., Smith reported that investigators are now assessing civil penalties on first visits. This is a change from years past, when a first visit would result in a warning and useful guidance on how to improve compliance so as to avoid penalties.

This is just one of a number of reports of ramped-up enforcement.

Labor union vote fails in Columbia

In one of the largest efforts in recent years by labor unions to organize a South Carolina workplace, workers handily rejected an effort by union organizers to organize workers at the Intertape Polymer Group plant in Columbia

The union lost the vote with 142 employees voting against the union, 97 voting for the union and 3 challenged votes. This rejection is another moment in what has been a long and contentious relationship between the company and the United Steelworkers Union

In watching labor union activity in South Carolina in recent years, union organizers have typically sought to score easy wins by focusing on small employers, usually with less than fifty workers, and overwhelm them. While some of these efforts succeeded, larger efforts, such as this one and the effort to organize the first Charleston Boeing plant, have gone badly for labor unions in recent years.

Federal court strikes down NLRB poster rule

In a setback to NLRB efforts, a federal court overturned the labor agency's notice posting rule.  Ruling in the case Chamber of Commerce of the United States v. NLRB, the court found the agency "exceeded its authority in violation of the Administrative Procedures Act", blocking the agency from requiring employers to posters which would have served as advertising for labor unions in the workplace.

According to Gray Geddie, Ogletree Deakins’ former chairman and the attorney who argued the case, "the court preserved the role of the NLRB as a quasi-judicial arbiter of employee rights, rather than an advocate for unions and unionization".

It still remains to be seen if the federal agency will now delay implementation of the notice posting rule until appeals are resolved, or whether the plaintiffs will be forced to apply to the court for a permanent injunction to prohibit enforcement of the rule on a nationwide basis.

Blogland in Front Page Magazine: "South Carolina Fight Against the NLRB Continues"

This article was originally written for the Front Page Magazine, which published it earlier this week.

While the recent decision by the National Labor Relations Board (NLRB) to drop its lawsuit against Boeing’s new South Carolina plant may have signaled the end of its battle with Boeing, there are numerous signs that South Carolina’s battles with the agency will continue. Instead of resting on their laurels, many in South Carolina are continuing to battle the agency on a number of fronts, as well as continuing to work protect workers’ rights from labor union interference.

House Republicans continue battle against NLRB

Already the subject of inquiries by House Republicans, the Obama-staffed National Labor Relations Board (NLRB) , which has been putting South Carolina under increasing pressure, will find its abilities to harrass South Carolina (or any other state) even more limited due to new legislative tactics.

Of the five members of the Board, two seats have been vacated when the terms of the seat holders expired. Once a third member's term expires before the end of the year, the Board will be unable to conduct business, such as the ongoing efforts to punish South Carolina for holding a referendum to protect workers' rights and allowing Boeing to open a production facility in Charleston.

To fill these seats, the Obama administration can either offer NLRB appointees capable of winning Senate approval or make recess appointments while Congress adjourns, seating those who might have trouble getting past Senate vetting without a vote. Such recess appointees would hold their seats through the end of next year without receiving Senate approval. To prevent the Obama administration from pulling such an undemocratic move, House Republicans have launched a new legislative tactic. The use of pro forma sessions in the House (Article 1, Section Five of the Constitution) which keeps Congress from officially adjourning when either the House or Senate remains in session, will keep the Obama administration from being able to make such recess appointments.

Tim Scott bill to give employees more choices on unions

One major complaint about labor unions in the workplace is that once they're in, they become difficult for employees to disband. Pressure upon employees to not sign petitions for a de-certification vote or go against other wishes of the union leadership, which profits off union dues, can be intense.

Lowcountry GOP Congressman Tim Scott has sponsored, along with Utah Senator Orrin Hatch, legislation that would give workers who work in union workplaces more rights and protections. The Employee Rights Act ("ERA") would require that all union members have the right to vote with a secret ballot on recertifying a union every three years, require a majority vote by secret ballot before a strike could be called and would also require unions to obtain the written consent of every member before spending dues money on anything other than collective bargaining activities.

Research has shown considerable public support for the goals of Scott's legislation.

NLRB employer mandate postponed

The 11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.

This implementation of this NLRB mandate, which was intended to take effect on November 14, will now be delayed until January 31 of next year. Reportedly, the NLRB's reason for the delay was that it needs to “provide enhanced education and outreach” to small and mid-sized companies.

Recently, the S.C. Chamber of Commerce joined the U.S. Chamber of Commerce in filing suit against the National Labor Relations Board (Chamber of Commerce, et al. v. National Labor Relations Board, et al.,) to challenge NLRB-issued regulations which will require nearly all employers to post a large notice to employees informing them of rights under the National Labor Relations Act, including their right to unionize. Many in the HR profession see this pending rule as little more than free advertising for labor unions and has been accused of being part of an ongoing pattern of the Obama administration giving free assistance to help labor unions reverse a long trend of declining membership, such as the current NLRB action against Boeing's new North Charleston manufacturing facility.

E-verify use mandatory in 5 states

Following the Supreme Court ruling (Chamber of Commerce of the United States v. Whiting) in which justices ruled 5-3 that the state of Arizona could mandate the use of the federal E-verify system as a means of screening new hires, other states are following Arizona’s lead to mandate it’s use.

Legislation sponsored by Berkeley County Senator Larry Grooms will require South Carolina employers to use E-verify next year. In addition, three other states will also mandate E-verify usage next year: Alabama, Georgia, South Carolina and Tennessee.

For a first occurrence by a private employer, after July 1, 2012, of failure to verify a new hire through the E-Verify federal work authorization program within three business days, the Department of LLR must place the employer on probation for a period of one year, during which time the private employer must submit quarterly reports to the agency demonstrating compliance with the law. A subsequent violation within three years of the law’s verification requirements must result in the suspension of the private employer’s licenses for at least 10 days but not more than 30 days.

A private employer who knowingly or intentionally employs an unauthorized alien must have his licenses suspended by the Department of LLR on a first occurrence for at least 10 days but not more than 30 days.

More trouble for organized labor in South Carolina

This week hasn't been a good week for labor unions in South Carolina. In addition to ongoing efforts to resist the NLRB, two events presented additional challenges for organized labor.

On Monday, a decertification petition (11-RD-064845) was filed regarding the Johnson Controls facility in Florence S.C., which presently has a United Auto Workers presence. In August 2010, the UAW barely won the union vote at the plant with 76 votes for the union and 71 against.

In Charleston, the S.C. Chamber of Commerce joined the U.S. Chamber of Commerce in filing suit against the National Labor Relations Board to challenge NLRB-issued regulations on August 25 which will require nearly all employers to post a large notice to employees informing them of rights under the National Labor Relations Act, including their right to unionize.

E-verify mandatory in SC on January 1


As someone in the HR field in the construction industry, immigration issues are nothing new. To try to keep ahead of the curve, as well as help refute the notion that we provided jobs to illegal immigrants, my company embraced the use of E-verify two years back and tasked me with verifying the company's new hires.

We've obviously done a good job of this as we passed a random compliance audit by SC LLR last year.

Not only that, but I've seen the system flag people. In all but one case, they chose not to contest being flagged by the system.

Thus far, the use of this system, which verifies employment eligibility against several federal government databases was voluntary. Employers could continue obtaining documents which 1) established identity and 2) eligibility to work in the United States and completing the I-9 form. Without E-verify, employers were required to accept documents at face value, even if they suspected those documents were fake.

Come January 1, that will change as all South Carolina employers will be required to use E-verify for new hires. According to the SC LLR website: