I talk about a lot of things on this blog but I rarely touch on legislative issues that will be impacting our trade. I keep myself well informed but most people aren’t coming here to get their employment law update. If you are, I am sorry because you’ve probably been in a state of perpetual dissatisfaction.
One thing I have noticed is that many of the practitioners in Human Resources are thoroughly against most employee friendly legislation. The dominant professional organization in the space (SHRM) has taken stands that nearly mirror the US Chamber of Commerce (a huge pro-business organization). Most of the HR bloggers I’ve talked to and interacted with are willing to speak out for pro-business interests.
Taking The Fight To The EFCA
Kris Dunn (of HR Capitalist) and much of his crew over at Fistful of Talent have taken on the torch most recently on the subject of the Employee Free Choice Act (EFCA). He has an older but still great article about the act on Workforce. Some have been informative, some have been funny and others could probably be classified as tedious. There are only so many articles I can read about the EFCA before my eyes start rolling back in my head and I die in boredom.
Let’s not mistake my feelings on the possible legislation versus the commentary: the EFCA, as written, is a big stinky pile of garbage. It is like the unions wrote out their wish list (and then some) and tried to cash it in like they were Bill Gates at an ATM. It could be severely damaging if passed. I am doing what I should be doing as a citizen: I am writing my representative and senators (no matter how little they actually care about my opposing viewpoint), I am voting appropriately and I am sharing my feelings on the law with all of you.
Missing The Greater Issue
Let’s face it though, I don’t have much influence on national politics (yet!). I have always believed that effective people focus on what they can impact and change. I can speak to people I know in HR about this issue that I know but still, it is going to lack effectiveness.
Let’s imagine that the EFCA passing as written is inevitable. It may very well be given large Democratic majorities at the federal level. So if the law passes, how would your company react? Would employee relations become an even bigger priority? Would you be looking at compensation and benefits more closely?
If we spent some of the intense energy used on trying to prevent EFCA from passing and instead worked on ways within our own companies to make it inconsequential whether or not the act passes, how much further along could we be? Instead of speaking out time and time again about and hammering the same points about the garbage law, articles could focus on how to make your business EFCA proof. And we could enact policies in our own organizations about pay transparency and a smart, progressive employee relations policy that takes all of the wind out of union bosses trying to recruit our employees to sign up.
Pending Pro-Employee Legislation = Pro-Activity Clue
So HR often gets a bad rap as a reactive bunch. It doesn’t have to be that way. One of the first and really easy things you can do as an individual or department is look at the pending employee legislation. If you look past the legislation, you’ll see a list of complaints that some of your employees may have had: my FMLA leave was administered incorrectly, my pay is different than my co-workers and I don’t know why, and why does this person get a new chair and desk while I’ve complained about my back and neck hurting?
You can use pending legislation as a check list. How effective is our FMLA administration? How do we examine whether someone is being paid correctly? And your organization can address these things now, make them right and prevent serious problems down the line.
And that’s not to say that good companies don’t get nailed for trying to make good faith efforts with bad laws. Admittedly though, many of the problems revolve around companies that can’t keep their own house clean and that railing against new legislation is a convenient crutch for fixing bad internal practices. I think with the new administration, a priority should be given to reexamining internal policies and pushing forward in the name of prevention and pro-action.
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HR commentary: UR DOIN IT RIGHT!
Missing the greater issue ? Seriously? Let’s just put our heads in the sand. After almost 20 years in the HR trenches I can tell with some authority that while I agree with the principle that better employment practices will reduce our chance of being approached by Union Organizers, I fear that you are drinking the wrong kool-aid on this. The fact is that Unions are a going business built on the compulsory payment of dues by the employees they sign up, and if the EFCA passes they will lead thousands of employees down a primrose path that will quickly turn into sludge. No matter how wonderfully you treat your staff, a Union Organizer can sell them on a better future with the union and have virtually no repercussions for not delivering on that brighter future. But you can bet that your company will incur pain and expense in the bargain and your employees will be paying dues for the privilege of getting the same good deal you were going to give them anyway.
We owe it to our companies AND the employees we serve to bring this Union campaign contribution fed orgy to a halt!
@Pat – If I’m drinking the kool-aid, the amount of hyperbole you’ve employed here is just a tiny bit ridiculous. Union fed orgy? Come on.
Listen, fight all you like against EFCA. Go for it. There’s no skin off my back if you do that. I couldn’t agree more with people who dislike this legislation.
I just don’t think it is an incredibly effective strategy against protecting your employer if this thing comes down the line. If things are great at your workplace and you let your employees know that you will negotiate aggressively with any incoming union to protect your rights as an employer and to give ultimate flexibility to the future success of the company, that’s about as good as you can do. Inform them of what advantages there are to being union free.
I think any of those things are more important than anything for your company than what you as an individual can do to prevent this law from being passed. That’s it.
@lance
Negotiating aggressively will not be a highly viable tactic for first time CBAs if EFCA passes as currently written. There is much concern about the binding interest arbitration provision for first contracts. No one is sure exactly how the regs will work when promulgated, but this type of “bargaining” concept quite often has a chilling effect on the ability (and sometimes the desire) of the parties to reach agreement, because many times the potential impact of the alternative to not settling is not as bad as a strike or lockout.
@Michael – If you want to go after a tactic that isn’t highly viable, how about going after people that spend their time belly-aching about possible EFCA legislation while doing nothing to prepare their organizations for possible unionization activity?
To me, that is a completely useless activity and is incredibly ineffective at actually protecting the company.
So you can sit here and poke holes in my argument. I don’t mind that. But why don’t you tell me how you would actually respond effectively under an EFCA scenario?
Lance, I don’t have as much experience as Pat. I’ve been working in HR since my first job as an intern in 1995. That’s only 14 years — as opposed to 20. So maybe I’m not an expert or anything…
…but I worked in a union environment in St. Louis, and the plant was closed because of the crappy employee/management relationship. The unions were just a symptom of the larger disease. Failed management practices, poor leadership, and a lack of employee accountability were the real issues.
You’re totally right on this one. Once HR starts focusing on the things that matter in the workforce, the discussions on EFCA and unions will change. I feel sorry for people who hate unions so much. Maybe they ought to work in smarter ways to make unions irrelevant.
All I can say is this seems like “really bad” legislation for businesses. I agree with Laurie about HR focusing on the “right” things where employees are concerned. Umm can you tell me when THAT is going to happen? The “collective” HR has been talking that crap for years and it still hasn’t happened.
Maybe now with people like Lance and Laurie HR will REALLY start to change!
Thanks for keeping the dialogue going.
vzl
It’s too bad that you are giving up and relinquishing your civic duty to become involved and enaged in the political process. Especially against legislation that by your own admission is garbage.
Who wouldn’t want an opporunity that promises better pay, better benefits and increased job security? We all want that. Believe or not, for many of us, market place forces & practices with open & free market competitiveness pretty much enures that. All without creating a sense of entitlementality. Ask Detroit how it’s working for them right now.
The EFCA is as much a threat to civil liberty as the Patriot Act is. The right to privacy is derived from our consitution and should not be surrended to a post card check election.
Union contracts impose organized adversarial relations while restricting flexibility to advocate and positively respond to the one-off situations that improve employee morale.
If that is what you want, let silence lead you to where I don’t want to go.
@RMSJr – You must have missed this part:
“I am doing what I should be doing as a citizen: I am writing my representative and senators (no matter how little they actually care about my opposing viewpoint), I am voting appropriately and I am sharing my feelings on the law with all of you.”
So I don’t know how I am not engaged in the political process. I know it is hard to believe but someone can be engaged in their civic duty while still making plans for the inevitable: more employee friendly legislation. I choose to focus more on the latter and I encourage others to do so because that is better for their companies in the long run.
Lance, I apologize for my oversight.
However, the other points I made stand as presented.
How is the EFCA create a more employee friendly environment? Collective Bargain Agreements are unduly inflexible for both the employees and employers?
I guess I probably should have included the phrase legislation that is perceived to be friendly to employees. I am guessing you go out to the general population and people think that unions can help employees. Just my general assumption that’s how people feel.
People assume that having paid COBRA benefits and expanded FMLA protections are good for employees to but they obviously have some very heavy unintended consequences. I would guess though that the general feel is that these are employee friendly measures to protect the employee’s interests.
@Lance
Essentially, you and I are aligned on the correct approach to EFCA. I was simply pointing out what I consider to be an inevitable impact of EFCA as proposed. One of the reasons unions want binding arbitration is because it allows them to give a 100% guarantee of a first contract post-EFCA, which is not something they can deliver today. Many employers are unionized, bargain hard, use their right to say “no” and never grant an initial agreement. THis is one of several “ills” EFCA purports to correct. I point it out simply because it changes the essential nature of the rules that both parties operate under today in the private sector (if it passed)
I am fortunate that I work for a company that does try very hard to do things the right way. I’m really not interested in working in the other environments that are out there anymore, like @laurie described
Lance, I am going to assume you include me in the tedious bellyaching crowd, since I have been vocal about it. You make an assumption that those of us that beat the drum are not doing anything in our own shops, or our clients shops, to make them good employers and make it difficult for unions to begin with. Bad assumption. I work with my clients to do just that. But I know there are still HR people (and their managment teams) who are still not in the “know” about EFCA. That is why I beat the drum to inform them. This is bad legislation that will cost people their jobs and cost companies their existance, in my opinion. If I can do anything to prevent that I will continue to beat the drum. If you find that tedious, don’t read the blog post. No one is forcing you to, unlike what would happen in a card check environment.
Michael VanDervort is correct in stating the enforced arbitration is the bigger issue. Seldom do first time contracts get negotiated in 120 days. If that does not happen this time a contract gets shoved down your throat. And with a union biased Congress, President and Secretary of Labor and NLRB what kind of fair shake do you think a company is going to get? And anything managment does to prevent that will be declared an Unfair Labor Practice. No penalties for unions in this bill. So it already starts out biased.
You want to read an unbiased analysis on this from an economics standpoint read the Becker-Posner blog for their January 25th analysis.
@Michael Haberman – You’re not even a person I thought of when I wrote this post (you’ll just have to take my word on that). That being said, I think your comment is a perfect example of what is tedious to me about a lot of the posts in the HR community about EFCA.
Even though I spent a major section of the post talking about how the EFCA is a garbage law and how I have written all of my national representatives, you’re still telling me the EFCA really sucks. I get it. I acknowledged that in the post and subsequent comments several times. Because I think that both the readers and I can have a greater impact in our own workplace than a national legislative debate, do you feel I need to be educated more? We agree on the principles of the severity of the law. Tell me why your method of dealing with it is better than mine.
I also assume that most people can work on multiple things at once so I have no doubts you are probably working on some of the things I’ve already mentioned. I have no idea what is happening at your place of business though, I only know what is happening on yours and others blogs. I know a lot more posts are being directed towards EFCA awareness than preventing unionization. So let’s say you’ve written ten pieces on your blog about the EFCA. What if you cut that to five and spent the other five pieces on educating HR people about common reasons why employees choose to organize, how can HR departments prevent unionization activity from taking hold or how pay transparency and grading can help protect yo9ur union free interests?
My post is about shifting some focus, not removing focus. So if (when?) the EFCA gets passed, you could have a bunch of posts about the EFCA that are now ancient history or you can have a better mixture of posts about union prevention (both legislative action and internal action). I just think HR people can get so much more value out of the latter.
The bigger point of this post (and is probably worth a separate one) is that HR people (prodded on by SHRM) often are more prepared for a legislative battle than they are the battle through their front doors. We know how to write letters to congress but once the laws get passed, we have serious issues with proactive measures to ensure success and often times, even basic compliance.
I’ll take an “L” Pat.
Lance:
Point well taken. I will see if I can change some focus and over a bit more constructive advice.
Lance – I agree with your line of thinking. Everyone is so scared of EFCA – bottom line is MOST companies that get unions deserve them. If you are a good employer now you’ve got nothing to worry about in the future. Everyone is afraid that union thugs will come in and force people to sign cards – if that were the case there would be a hell of a lot more elections going on now. The election process now only serves to give management 6 weeks to canvass their employees to find out “what’s wrong”, to get their employment lawyers in to train their supervisors on how to treat employees, and then to beg forgiveness and ask for another chance in their 25th hour speech. Those companies that treat their employees like crap may have more to worry about – those that don’t – won’t.
Lance, you have to admit you have an intelligent (or at least passionate) readership. I completely agree that being a good employer reduces the chance that your workforce will organize, but the risks of coercive organizing tactics, unsupervised campaigns and enforced arbitration are just bad legislation that we all need to oppose. Kudos to you Lance for having voiced your concerns to your elected representatives …. how about the rest of us??? Are you willing to throw the dice that you wont be adversely impacted by the EFCA just because you treat your employees well?
Well, well. Apparently I’m very late to what has amounted to a fantastic post and interesting comment debate. Sorry I was otherwise occupied as I love a good and healthy discussion.
Let me try and summarize what I think everyone is trying to say. (This is for my own benefit since I can be dense at times.)
1) We all agree EFCA is awful.
2) We believe it should not pass and are voicing opinions as to both the seen (and unseen) effects of such legislation.
3) We shouldn’t give up the fight and acquiesce to the inevitability of its passing.
4) We should be doing more as employers to demonstrate value as a countervailing force to the EFCA wind.
5) We’re all on the same team, but that team shouldn’t be named “Apathy” or “Aggression” or “Unpreparedness”.
What’s interesting is that I actually agree with what everyone has said. Instead of picking apart the flaws in one another’s arguments let’s recognize that we each bring a very specific perspective and set of experiences to this issue. If combined, we can continue to help one another deal with EFCA.
Mark summarized the conversation pretty well. Let’s see where we go from here. I hear no action will be taken until at least late spring on this legislation.
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