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.
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.