The Three New Nevada Laws You Need to Know About Right Now

Employers generally hold their breath during the legislature, especially when democrats control both houses and the ranking democrat senator is a prominent plaintiffs’ employment law attorney.

 

Usually the powerful Nevada Resort Association (NRA) uses its considerable clout to protect employers from laws that further regulate them.  However, sometimes the NRA chooses to conserve its political capital for bigger issues or simply get gaming employers an exception to the applicability of a new law. That is why non-gaming employers must still be vigilant during a legislature.  In order to do that you must become active in the Chamber or your industry trade association.  During the last days of the legislature things happen very fast and behind the scenes.  Without an experienced lobbyist on the spot you are dead meat.

 

One point about hiring a lobbyist:  inquire about who his or her other clients are.   Unlike lawyers who can lose their licenses for violating the ethical rules against conflicts of interest, lobbyists have fewer constraints.

 

Employers dodged a major bullet thanks to a veto by Governor Sandoval. The legislature passed a bill changing the state discrimination statute in a way that would make it unnecessary for plaintiffs to sue under the federal law, Title VII of the Civil Rights Act of 1964.  By suing only under state law the plaintiffs’ attorneys would prevent employers from removing these types of cases to federal court.

 

Why do employers prefer federal court? Juries are generally larger and must reach a unanimous verdict instead of a simple majority verdict in state court.  Also the federal judges are usually more familiar with the discrimination laws and the rules of procedure are stricter in federal court.   A hidden benefit of the veto was also to save our state courts from the onslaught of an additional several hundred lawsuits each year.  Don’t rest too easy—you can expect the same bill to be introduced again in future legislatures.

 

There were three important employment law bills that passed and were signed by the governor.

 

Effective October 1, 2013 it will be unlawful to ask an employee or prospective employee to disclose the user name, password or other access information to his or her social media account.  This law should be relatively easy to comply with—as long you educate your HR staff and management team.  Also inform your security department about the prohibition —it could be counter-intuitive to some ex-law enforcement investigator types.  Get more detail on the new law here.

 

The use of credit reports by employers will be significantly limited effective October 1, 2013—except for gaming employers and financial institutions. To comply with this law you will have to pay close attention to your hiring procedures, forms and job descriptions.  Read more detail on the new law here.

 

Also note that all employers, (including gaming companies and financial institutions) will need to continue to comply with the federal Fair Credit Reporting Act (FCRA).   Remember that the FCRA imposes several requirements on employers who use credit or consumer reports. Those employer requirements include a disclosure-and-authorization requirement, a pre-adverse-action notice requirement, and a post-adverse-action notice requirement. The statute provides financial penalties for violations. These requirements don’t apply to those employers who do their own background checks directly, but they do apply when you use a third party – a consumer reporting agency – to compile the information.

 

Finally, the legislature looked at arbitration agreements.  Plaintiffs’ lawyers would of course love to have pre-dispute arbitration agreements declared illegal but that did not happen this year.

 

The new law says that any arbitration agreement entered into or renewed on or after October 1, 2013 will be void and unenforceable unless the employee has specifically authorized and agreed to arbitration. Arbitration agreements in existence before October 1 are not subject to these requirements (unless they are renewed after that date).

 

This will affect language that is commonly found in employment contracts, employment applications, employee handbooks, severance agreements and other documents.  For specifics on how best to comply with the new law read this.

 

If you would like to read the actual bills that were passed let me know.  Don’t be the first embarrassing test case under one of these new laws—if you need help getting ready to comply call your labor and employment lawyer.

 

Posted in aribtration, Employment Law, General, hiring | Leave a comment

Nevada Labor Commissioner Intends to Consider the USDOL Time Clock Rounding Rule Compliant With Nevada Law

 

1889: One of the first commercial time clocks from Willard and Harlow Bundy of the Bundy Manufacturing Co. in Binghamton, NY

1889: One of the first commercial time clocks from Willard and Harlow Bundy of the Bundy Manufacturing Co. in Binghamton, NY

 

The Nevada Labor Commissioner recently issued an Advisory Opinion regarding time clock rounding.   The Commissioner had previously used a very strict interpretation of the wage statute to conclude that any rounding of time entries was unlawful.

 

In the Advisory Opinion the Commissioner concludes that time clock rounding is appropriate so long as the rounding policy is used in a manner that does not result, over a period of time, in a failure to compensate employees properly for all the time actually worked.

 

Prior to the issuance of the attached letter the many Nevada employers who use the USDOL rounding rule were theoretically at risk under the Commissioner’s interpretation of Nevada law.  Although the Advisory Opinion does not bind the courts, I think most courts would find the Commissioner’s rationale to be persuasive.

 

Employers, (especially large ones), are targets for class action suits over time clock rounding.  Therefore you need to be sure that even if you are rounding under the rule approved by the Commissioner you are doing it correctly—read this article by my partner John Thompson to get more information on how to perform rounding properly.

 

Posted in General, Wage-hour | Leave a comment

Nevada Shatters Another Alleged Glass Ceiling

Glass-CeilingNevada and in particular Las Vegas have long been the targets of federal agencies who feel our gaming industry and Wild West lifestyle need to be tamed and brought under control.  Gambling, smoking, drinking, legalized prostitution: they are all roads to hell and the politically correct federal government intends to save us from ourselves.

 

The EEOC has a legal mandate to come after employers who have a “Glass Ceiling”.  That term refers to an artificial barrier to the advancement of women and minorities.

 

Our state has a long history of advancing women to the top positions in the gaming industry.  For example Marilyn Winn and Renee West have both run multiple strip resorts.

 

Our local governments have stepped up to the plate as well.  The top manager in the City of Las Vegas has long been Betsy Fretwell and Pam Webster is at the helm in Nye County.  For a number of years Virginia Valentine was the County Manager in Clark County and now she leads the powerful Nevada Resort Association.

 

Now we have something else to brag about:  women run both of our state’s major airports.  Rosemary Vassiliadis took over the Director’s slot at McCarran International Airport from the legendary Randy Walker last month after sixteen years as his Deputy.  Before that she held high-powered positions in both the City and the County.   Director Vassiliadis will be running one of the busiest airports in the country.  The airport saw 41 million passengers last year and has about 1,500 employees—running it is a tough assignment regardless of gender but Rosemary has already proven herself to be an excellent leader.

 

Krys Bart expertly ran the Reno Tahoe Airport for fourteen years until she retired at the end of June.  Another top-notch female executive, Marily Mora who starts July 1, has succeeded her.  Prior to a recent stint as Assistant Director at Oakland International Airport, Mora was Bart’s second in command for 12 years.  The Reno Tahoe Airport is the 60th busiest commercial airport in the nation; it serves nearly four million passengers a year.  Although smaller than McCarran the Reno airport has its own fire department and police department.  Ms. Mora will have her hands full but I have seen her in action and she is up to the challenge.

 

The next the time the feds, (or anyone else), claim that we have some glass ceilings have them speak to the head of one of our local governments.

 

Posted in Discrimination, Employment Law | Leave a comment

The Culinary Union Contract–a Look Back

With the HERE citywide negotiations underway in Vegas this year it’s a good time to look at the historical structure of the Culinary Union’s contract.

The earliest Culinary contract I could find is  a three year agreement from 1961 which is less than 20 pages long—as opposed to the current version which weighs in at nearly 100 pages.

Surprisingly there were nearly 60 different classifications back in 1961 which is not much less than the nearly 89 found in the current agreements.

The job titles certainly reflected what the employment world was like before the discrimination laws.  Apparently if you wanted to plate the food in the kitchen you needed to be a “Dish-up man”.  However ladies who liked working with vegetables were in in luck because that job was listed as “Vegetable Preparation (Man or Woman)”.  Men who were experts at coffee were out of luck when applying for the “Coffee Girl” job.  There were jobs for those who wanted to be a “Grill Man or Woman” but gender seemed to be important for the “Glass Man” or “Silver Man” job.

If you were a Chef, Pastry Chef, Head Butcher, Head Waiter or Head Hostess you could use your bargaining power to negotiate your wage rate with the company—wage rates were listed as “open” in the contract.

If you worked in other jobs your ticket to wealth was getting the highest paid job as a Sous Chef or Night Chef, which paid a hefty $28.60 per day.  The trick was to avoid working a short shift as a bus boy where you earned a paltry $8.15 per day.

Apparently even in 1961 maids were hard to attract and retain.  After three months of employment a maid would receive a 50-cent raise to $13.65 per day.  No other job classification received an automatic raise based on longevity.

Even 50 years ago tips were the name of the game in Vegas.  No doubt in recognition of how the real money was earned the bellmen received one of the lowest daily wage rates of $8.65.

Health insurance was a bargain.  The company paid only $19.00 per month per employee into the trust fund.  It was really a bargain when you consider that for a maid that contribution was equal to about 10% of the wage rate.  As of the 2007 contract the health insurance contribution of $3.44 per hour constituted over 25% of the maid’s wage rate.

There is no mention of a pension in the agreement.

There is not much discussion of discipline or discharge.  No employee could be “fired” or laid off on his day off or while on vacation.  And spineless employers could not have the union do its dirty work: “The Union shall not be held to notify any member of discharge.  That shall be done by the Employer.”  However in those days the union lent a hand in managing attendance issues:  “Any employee who fails to report to work without just cause or who walks off the job during their shift shall be reported to the Union for trial by the Grievance Committee of the Union.”  The contract is silent on whether the trial could result in the death penalty. Apparently what gets buried in the desert stays in the desert.

The contract seemed to support family values. As long as they gave 30 days notice, employees with school age children were to be granted vacation, if eligible, during the school vacation period.  I’d tell you more but it would just cause you to spend hours longing for the good old days.

 

Oddly the contract does not mention dues deduction.  Nevertheless the union seems to have thrived since then–watch for a future post where we’ll look at the Culinary Union’s financial picture.

Posted in Interest Arbitration, Labor Law, Unions | Leave a comment

Don’t Miss The Fisher & Phillips 2013 Employment Law Seminar

 

It is already time for our annual employment law seminar.  Never have there been more legal developments for employers to keep up with. The Las Vegas presentation takes place on May 2, 2013 at:

Tuscany Suites and Casino
255 E. Flamingo Road
Las Vegas, NV 89169

Click here to register or find about other seminar locations around the country.  This year’s topics and speakers at our Las Vegas presentation will be outstanding.  In addition to the very timely topics described below, don’t miss our lunchtime roundtable discussion on how to deal with wage and hour audits. We are very pleased to announce that Nevada Labor Commissioner Thoran Towler has agreed to be a member of our lunchtime roundtable.

For more information or registration questions, contact
Ilene Hasforth by phone at (702) 252-3131 or by e-mail at
ihasforth@laborlawyers.com

AGENDA

 

May 2, 2013

 

8:00 a.m. – 9:00 a.m.:     Registration and Breakfast

 

9:00 a.m. – 10:00 a.m.:   Session 1

Accommodations & the ADA: Practical Solutions to Real Workplace Challenges   

Mark J. Ricciardi, Esq. & Whitney J. Selert, Esq.

 

10:00 a.m. – 11:00 a.m.: Session 2

In Our Back Yard: Hot Topics on Nevada Specific Labor and Employment Law

David B. Dornak, Esq. & Anthony B. Golden, Esq.

 

11:00 a.m. – 11:15 a.m.: Break

 

11:15 a.m. – 12:15 p.m.: Session 3

Healthcare Reform for the HR Professional: What Do You Need to Know and Do? 

Callan G. Carter, Esq.

 

12:15 p.m. – 1:15 p.m.:  Lunch – Roundtable Discussion.  Wage and Hour Audits.

 

1:15 p.m. – 2:15 p.m.:    Session 4

Four More Years: The Future of Labor and Employment Law 

Whitney J. Selert, Esq. & Matthew T. Cecil, Esq.

 

2:15 p.m. – 3:15 p.m.:    Session 5

Your Action Plan: Ten Things to Do When You Get Back to Your Office

David B. Dornak, Esq. & Anthony B. Golden, Esq.

 

3:15 p.m. – 3:30 p.m.:    Break

 

3:30 p.m. – 4:30 p.m.:    Session 6

Sex, Lies and INVESTIGATE THIS!!

Scott M. Mahoney, Esq.

 

4:30 p.m. – 5:00 p.m.:    Final Questions and Adjourn

Posted in Benefits, Discrimination, Employment Law, General, Minimum wage, Overtime, Wage-hour | Leave a comment

Lessons Learned From the Clark County School District’s Recent Interest Arbitration Victory

Binding interest arbitration is how unions representing teachers, police and firefighters resolve an impasse in collective bargaining in Nevada.  The unions like to repeat the mantra that the binding arbitration procedure in NRS 288 is the quid pro quo for “giving up” the right to strike.  (Of course the right to strike did not exist under common law so the unions merely gave up the right to ask legislators to pass a law giving them the right to strike.)  Furthermore, buying into the concept of interest arbitration was a no-brainer for the unions—there is little risk—usually the arbitrator is simply deciding how big a raise will be or whether to freeze wages.  On rare occasions real givebacks are at issue—like this firefighter decision in favor of Clark County.   That decision will not cause unions to quake in fear unless and until other local governments resolve to bravely press aggressive positions all the way through to decision.  But enough on that soapbox—that is a conversation for another day.

 

Even in light of the recent decisions in favor of Clark County and the Clark County School District, cases where unions and local governments actually go to hearing and get a decision in interest arbitration are still relatively infrequent.   I believe there have been less than a dozen in the last twenty years in Southern Nevada and probably even fewer in the rest of the state.  On February 4, 2013 arbitrator Jay Fogelberg issued this decision in favor of the Clark County School District and against the Clark County Education Association.  Here are two lessons we can glean from the decision.

 

Lesson #1:    Consider the Local Government’s Entire Mission When Arguing Ability to Pay

 

Too often, the arbitrator simply looks at whether the local government has money in its budget to pay the requested wages and benefits.  Cases like that have historically been relatively easy for unions to fight.  The expert accountants hired by the unions seem to be able to find piles of cash in nooks and crannies throughout a budget.  But the real question for the arbitrator should be whether the local government could use the money in its budget to pay the wages and benefits and still accomplish the tasks it is mandated to carry out.

 

Under the school district section of NRS 288 when considering ability to pay an arbitrator must give due regard to:

 

“…[T]he obligation of the school district to provide an education to the children residing within the district.”

 

For all other local governments the arbitrator or fact finder must give due regard to:

 

“…[T]he obligation of the local government employer to provide facilities and services guaranteeing the health, welfare and safety of the people residing within the political subdivision.”

 

Arbitrators usually look at revenue and expenses and in the Clark County School District case Arbitrator Fogelberg did the same. He duly noted that the Great Recession had created serious problems in Nevada and observed “While there is currently some evidence of an upturn in the economy nationwide, there is little effort to support a finding of significant improvement in Nevada at this time.”

 

In his written decision Fogelberg discussed the challenges the School District had on the revenue side.  However he spent nearly half of the analysis section of the written decision discussing the School District’s inability to carry out its obligation to provide an education to the children residing in the district.  He cited test scores, class sizes and even quoted a statement made by the President in the first debate.

 

How can other types of local governments convince arbitrators to consider how granting wage or benefit increases could impair the local government’s ability to provide facilities and services guaranteeing the health, welfare and safety of the residents?  In fire and police cases the focus is many times on the safety of the residents in terms of fires, EMS calls or criminal acts.  Thus the unions usually trot out statistics showing fire call volume or crimes or police officers per 10,000 residents.

 

But what if by granting the money demanded by the fire or police unions the city or county’s ability to provide animal control, or lifeguards, or swimming lessons, or building inspections would be impaired?  Or what if there is no money for parks, which give youth an outlet for energy and recreation—don’t those services impact health and safety?

 

What does mean for a local government to guarantee the “welfare” of the residents?  Webster defines welfare as “the state of doing well, especially in respect to good fortune, happiness, well being, or prosperity.”  Don’t worry—you’ll never hear me argue in favor of a “welfare state”.   I don’t know about libertarians but even fiscal conservatives will agree that it is appropriate for a local government to do more than simply provide for police, fire and trash pickup.

 

There are ways to measure those other services and how their reduction or elimination impairs the ability of the local government to provide for the welfare of the public.  When preparing for arbitration the parties collect wage data and make detailed comparisons to other local governments.  But these data and comparisons  should be collected for the other services provided by local governments.  Just Google “park playgrounds” and you will find lots of interesting data like this.

 

The bottom line is that the current economy requires us to look at ability to pay in a different way.

Lesson #2:    Don’t Assume Any Arbitrator is Heartless

 

In its final offer the School District was careful to make its step freeze proposal retroactive but provided that it would forgive any overpayments of salary that occurred between the beginning of the fiscal year and the imposition of the District’s final offer.  The arbitrator found that aspect of the offer, forgiving the overpayments, made the offer more palatable for him.

 

The union had put on evidence that imposing a retroactive wage freeze would create a hardship for some teachers.  No matter how convincing such evidence is, the arbitrator is human and such evidence would be hard to completely ignore.  Note that arbitrators have in the past ordered retroactive wage reductions that required repayment to the local government—see this decision.  However even if there is a chance that an arbitrator could make such a difficult decision is it best to try and avoid putting him or her in such a tough spot.  (Of course if the “evergreen” doctrine were legislatively abrogated there would be little risk of a retroactive wage reduction.  Something along these lines may occur if the planets align during this legislature.)  Bottom line:  keep the human side in mind.

 

Nothing in the recent Fogelberg award changes my thoughts on preparing for collective bargaining—see this prior blog post.  But now local governments should remember to be ready to explain in detail at the bargaining table how other services will be affected by the union’s demands.

 

 

 

Posted in collective bargaining, Interest Arbitration, Labor Law, Public Sector Unions | Leave a comment

Top Five 2013 Resolutions for Employers

The year 2013 will be another challenging year for employers. Unions and plaintiffs’ attorneys will be emboldened by the government’s aggressive post election energy.  If you don’t know what to do first here are five things to act on promptly.

Resolution #1:  I Will Self Audit Our Company’s Wage-Hour Practices

According to its strategic plan, the Wage and Hour Division of the US Department of Labor will continue to aggressively pursue employers who:

  • Fail to pay overtime where required
  • Improperly consider employees to be exempt from overtime
  • Misclassify employees as independent contractors

Being snagged on wage-hour violations hurts, not just because it ends up costing money but also because a vigilant company can discover these types of problems fairly easily. Trying to root out harassment or embezzlement can be difficult because those activities are frequently done surreptitiously.  On the other hand, HR and company management can easily find out if there are wage hour problems by looking at payroll records, employee duties and hours worked.  There is little excuse for being surprised by the findings of a DOL audit.

The idea of a self audit is to do what the DOL would do if it showed up for an audit—but do it yourself now while you have time to correct mistakes or reconsider the risky things you have been doing on purpose. Self audits can be done by your employment attorneys. They can also be done in house –we’ve taught lots of clients how.

For a refresher on the Fair Labor Standards Act, read this booklet and this booklet.  For up to date wage-hour information and developments follow the Fisher & Phillips Wage and Hour Law Blog.

 

Resolution #2:  I Will Review Our Company’s Social Media Policy

Of course you must first be sure that have a social media policy.   No company can afford to be without one. It does not need to be extensive but it must be carefully written because last year the NLRB issued a number of rulings that create a confusing minefield.  Here is a report issued by the NLRB last year, which summarized the cases decided by the NLRB though the first half of 2012.  Note that at the end of the report there is a social media policy that the General Counsel of the NLRB found to be completely legal!  Resist the urge to simply adopt it verbatim—you should still tailor it to your operation and run it past your labor lawyer.

 

Resolution #3:  I Will Take Steps to Union Proof Our Company

Unless you have been living under a rock you know that the NLRB, packed with union leaning appointees, last year tried to:

  •  Force every employer to post a notice informing its employees of the their right to join a union.
  • Change the rules so that employers can be ambushed with a union election on 14 days notice.
  • Require all employers to publicly thank unions for all they have done for society (OK maybe the NLRB didn’t actually try to do this but you know they really wanted to).

Meanwhile the DOL tried to amend its regulations to require  your labor attorneys to file reports telling the government how much you paid to them for helping keep you union free.

These initiatives did not come to fruition but expect them to be reintroduced this year.

To begin the union proofing process, start by learning the basics about the law of union organizing by reading this booklet on the union organizing aspects of the National Labor Relations Act. Also read this booklet on unfair labor practice liability under the National Labor Relations Act.

Then perform a union vulnerability audit on your own or with the help of your labor attorney. Start by using this tool.   Many of our clients have made changes based on the audit results and those changes have helped insulate companies from union organizing.

 

Resolution #4:  I Will Schedule Management Training

When times are tough training budgets are one of the first things to go.  Times are still tough but the aggressive government enforcement agenda makes training too important to continue to ignore.  What to cover?  At a minimum you must conduct a refresher on harassment and discrimination prevention.  In the early years such training lasted several hours.  It still warrants time but you can really cover the basics in less than two hours.  Use that extra time to cover union awareness.  That means you educate supervisors and managers about unions and how to spot the early warning signs of union organizing.  That training must also cover “Management 101”.  In that segment supervisors and managers will learn good communication skills and how to properly use progressive discipline.  It should be everyone’s goal after the training to make the workplace so comfortable that your employees would never even consider bringing in a union.  Bonus:  those same management techniques learned in the training will reduce employment claims and make it easier to successfully defend employment claims.  Do the training in house, use your labor attorney, or use some combination of the two.

 

Resolution #5:  I Will Eat Less Meat and Dairy and More Fruits and Vegetables

Oops, sorry, this one belongs on a different resolution list.  But while we’re on the topic this resolution has nothing to do with animal rights—just living longer and healthier.  Don’t believe me–check out this documentary.

 

The Real Resolution #5:  I Will Review the Effects of Obamacare on the Company’s Benefit Plans

You will likely need help with this one.  Here is a basic timeline for compliance with the Affordable Care Act.  We’ve walked many clients through the maze.  Using a qualified law firm is best but a consultant can also work well but you must be careful when the consultant you are relying on also sells or brokers insurance products.  The good vendors will remind you, (usually in the fine print) to check with your own benefits attorney.

I hope this list of resolutions is helpful and I would appreciate it if you could post any of your own suggestions in the comments section.

 

Posted in Benefits, Discrimination, Exemptions, General, Harassment, Independent Contractors, Labor Law, NLRB, Overtime, Union avoidance, Unions, Wage-hour | Leave a comment

THE EMPLOYER’S CHECKLIST FOR UPCOMING PUBLIC SECTOR LABOR NEGOTIATIONS

Many local governments will begin labor negotiations soon.  Careful preparation is critical.  Remember, some union negotiators, (like firefighters), have significant down time while at work.  They are not playing Parcheesi endlessly in the dayroom—they are studying their contracts.  Some also go to professional negotiation training classes—on paid time.  You need to try and even the playing field by over preparing.

 

Here is a basic checklist of tasks to accomplish before bargaining begins.  Detailed strategic ideas for use during bargaining will be the subject of other posts.

 

#1.       Map Out Overall Strategy

 

You must start out with a plan. The big strategic objectives can be fleshed out before or during a closed session with the elected officials.  Do you need a major reset of wage and benefit levels?  Or are you simply shooting for a one year freeze.

Are there work rules or staffing rules that shackle management? Read and reread NRS 288. 150 paragraphs 3 and 5–are there things you want to do that can fit into the managment rights statute that don’t need to be negotiated?

Think hard about all of these things and come up with an overall plan.  Even if you need a major reset there are two schools of thought:  go for everything you can right now—this economy presents the best climate for local governments to make headway.  On the other hand some folks prefer to avoid a huge battle and chip away at generous contract terms gradually over time.  Local politics, your budget and staff time constraints all weigh into the equation.

 

How often do you want to meet? Do you expect to end up in fact finding or arbitration and therefore want to get those things scheduled as soon as possible?  Are automatic wage or benefit adjustments looming?  All of these points should be considered.

 

#2.       Carefully Consider Ground Rules

 

Ground rules are a tool more often used in public sector bargaining and not used very much in the private sector.  They can play a helpful role in setting up the mechanics/housekeeping parts of the bargaining process and maybe even include a schedule of meetings.  However, ground rules setting up “confidentiality” of negotiations can really hamper the employer’s ability to keep its own employees and the public informed about what is happening, (or not happening) at the bargaining table.  Moreover, ground rules containing union promises to not speak to public officials about bargaining topics are impossible to enforce and there may even be First Amendment arguments unions can make when they get caught.  Here is a basic set of ground rules that should be helpful most situations—be sure to tailor them to your situation.

 

#3.       Have the Right People at the Table

 

Who will be the chief negotiator?  There may be a need to bring in outside help to tap expertise or where management simply cannot devote the time necessary.  Sometimes there is a complicated relationship between management and the elected officials and using an outsider to do the bargaining works better.  No matter who the chief negotiator is be sure someone from HR is present at the table as a resource and to take detailed notes.  Having finance and folks from operations on the team, even if just behind the scenes, is critical.  Outside financial experts are widely used by unions.  More local government employers should consider using such an expert—to testify or just for behind the scenes input.

 

#4.       Prepare Proposals Containing Actual Contract Language

 

Many employers like to start off by presenting a written list of bullet points at the first meeting.  That is fine to start the discussion of concepts.  But it only works if the union is willing to really talk through the concepts and those talks result in actual draft contract language being prepared, (before impasse)—even if just for further discussion.

 

Sadly, many times the union just rejects or ignores the bullet points.  Sometimes then the employer just stops there and doesn’t propose actual contract language.  Then when impasse happens the union will argue that the employer cannot offer in fact finding or arbitration a proposal that was not made at the table.  There may be ways around that objection but why put yourself in that position—just get the actual proposed contract language on the table before either party has the right to declare impasse.

 

#5.       Collect Data To Back Up the Proposals and Present Them with the Proposals

 

You must proceed into negotiations with the assumption that you will ultimately end up in fact finding or arbitration.  The fact finder or arbitrator will consider three things:  ability to pay, internal equity and external equity.  How much weight will be given to each factor will depend on the circumstances.

 

I suggest that you collect the relevant backup data when preparing the proposals.  (If you prepared your proposals without doing your homework first you may reconsider some of them when you look at the data.)

 

It is optimal to present the data collected to the union at the table with the proposal.  The union may look at it and reconsider its position.  Or it may simply fail to refute it—a fact that the fact finder or arbitrator may find significant.  If the union presents data to counter yours for the first time at the hearing the fact finder or arbitrator may well eye it with suspicion.  Bonus: if you have collected this data early you will keep your legal fees down later when your attorneys are preparing for fact finding and arbitration.

 

Conclusion

 

You can never prepare too much for negotiations.  Until and unless the legislature makes big changes to NRS 288 the employer will always be behind the eight ball.  Please feel free to make comments with any other ideas that may have worked for you.

 

 

Posted in collective bargaining, General, Interest Arbitration, Labor Law, Public Sector Unions, Unions | Leave a comment

Ten Reasons to Find a New Labor/Employment Attorney—Part 4

In Part 1 of this series, we discussed what you should expect of your lawyer in terms of responsiveness and expertise.  Part 2 continued the discussion and explained how you should measure the experience of your attorney.  Part 3 addressed the financial part of the relationship and the importance of your lawyer giving you advice that you can really use—not just a legal “opinion”.  This final installment reminds you about the importance of broad expertise and peer recognition.

 

#9       Your Lawyer’s Firm Lacks Expertise in Benefits and Immigration Law

 

Even the best labor/employment lawyer cannot also be an expert in benefits law.  Lawyers who practice benefits law must be conversant in tax law and operate in a very specialized area. Whether your company is big or small you need a benefits expert at your disposal—especially in the face of the new world according to Obamacare.    Many labor/employment attorneys can advise on routine I-9 issues but for anything involving visas and work permits for your employees, you need a firm that contains immigration experts.  Be sure your lawyer has benefits and immigration experts to back him up.

 

#10     Your Lawyers Expertise has Not Been Confirmed by Peer Reviews

 

Word of mouth and advertisements can be a starting point to learn about qualified labor/employment attorneys—but they are just starting points.  Be sure your lawyer has the highest peer rating available from a reputable organization.  You want to be sure that other lawyers practicing in the field have confirmed that your lawyer is of the highest caliber.  The two biggest peer rating firms are Martindale Hubbell (look for the AV rating), and Best Lawyers in America (no ratings—just look for the inclusion of your lawyer).  For ratings that reflect both peer and client input, look at Chambers and Partners (look for an individual lawyer placement in Band 1).  Use caution when you see lawyer ratings in some local magazines.  Some but not all local publications support the law firms that spend hefty advertising dollars.  None of the three rating services described above operate that way.

 

Use the ten benchmarks set out above to confirm that your lawyer has what it takes to give you the best advice and representation possible.  Feel free to add a comment with other factors you consider important in choosing a labor/employment attorney.

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Ten Reasons to Find a New Labor/Employment Attorney—Part 3

In Part 1 of this series, we discussed what you should expect of your lawyer in terms of responsiveness and expertise.  Part 2 continued the discussion and explained how you should measure the experience of your attorney.  This installment addresses the financial part of the relationship and the importance of your lawyer giving you advice you can really use—not just a legal “opinion”.

 

 

#6       You Usually Get a Long, Complicated, (and Expensive) Legal Memo Instead of Succinct and Practical Advice

 

When you need advice on a particular course of action, there may be significant legal issues to analyze.  In those cases you may expect or even request a written analysis of the law from your lawyer.  But many times you will be considering some seemingly routine action but have that nagging feeling that you should check with your lawyer first.  If your lawyer cannot answer the question in the first phone call, he or she will likely say something like, “Let me look into that” or “Let’s see if there are any cases discussing facts like this.”   That is certainly appropriate, but if the next thing that happens is you receive a multipage memo full of legal citations that makes you dizzy just to read, your lawyer is missing a critical skill.  You should first receive a call or visit from your lawyer explaining the bottom line and discussing the pros and cons of the various courses of action.  The legal memo is an appropriate back up for the bottom line advice and you should receive a copy of it—you’re going to get billed for it, (see #7 below to learn how to avoid fainting when you see what it costs to prepare it).  But be sure that if the memo is longer than two pages it contains an Executive Summary right at the beginning.  That one half page summary gives you the bottom line with clear business oriented advice in language that is easy to understand.  Whether you are the General Counsel, a senior executive, an HR Director of a large company, or the owner of your own business, your time is valuable and your lawyer should respect that.

 

#7       Your Legal Bills Contain Big Surprises

 

Whether you are a big company with a sizable legal budget or a small business that only incurs legal fees occasionally, the last thing anyone wants is a big unexpected bill to pay.  If you are in the middle of a big lawsuit or you have just asked your lawyer for some advice, a review of a handbook or some policies, you should obtain a general idea of the cost in advance of the work being done.  A good labor/employment attorney will proactively give you an idea of what upcoming tasks will cost.  Sometimes, based on the situation, even an experienced attorney will be anxious to jump into a project that is time sensitive or important to you and will fail to give you an idea of the cost.  Then it is your job to affirmatively ask for an estimate or budget.  If he or she balks or acts offended, it’s time to look for a new attorney.   Even during a protracted and complicated lawsuit you can ask for an estimate of the fees that will be incurred on a monthly basis.  Keep in mind that research or drafting projects can become more involved than expected and in litigation there are many unknowns– many times your attorney must do unplanned work in response to an aggressive opponent.  Therefore,  budgets usually end up being more like estimates.  For more certainty you can ask your lawyer for a range of expected fees.  The bottom line:  your lawyer should not surprise you with large bills.  The problem can be easily solved without changing lawyers if you become an educated consumer of legal services and ask for estimates in advance.

 

#8       After an Initial Meeting You Cannot Get to the Supervising Partner

 

You cannot always have the top senior partner personally working on every aspect of your case—nor do you always want to.  A junior partner, of counsel attorney or associate attorney, (at correspondingly lower hourly rates), can competently do many of the necessary tasks on your matter.  However, should you ever feel the need to call the senior partner, your call should be returned promptly.  Many times you will feel comfortable about partner involvement because the attorney working on your case will tell you he has discussed the issue with the partner, or you may see the partner’s time on the bill for document review or direction of the associate.  The bottom line is—don’t feel you should lose touch with the top-notch lawyer you were referred to in the first place.

 

Watch for the last installment of this series where we discuss some final thoughts on the importance of broad expertise and peer recognition.

 

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