Thursday, January 28, 2016

Union Agency Fees for Non-Members in Jeopardy?

SCOTUS will decide this year

At issue in Friedrichs v. California Teachers Association (SCOTUSblog page) is whether public sector employees (in this case, teachers in California) can be forced to pay fees to a union they choose not to join.

 In 1997, the Supreme Court ruled in Abood v. Detroit Board of Education that public employees who don’t want to join a union can still be charged fees to cover the cost the union incurs in collective bargaining activities that would benefit all employees in the bargaining unit. These fees are often referred to as "fair share" or "agency" fees that cover the union’s costs to negotiate a contract that covers all the public employees, even those who are not union members. However, employees who are not members of the union cannot be required to pay fees that a union would use for political activity like union organizing.

The current case was brought by a group of California teachers who chose not be members of the California Teachers Association union (with others), who object to having to pay any fees at all to the teachers’ union. Their argument is that with public employees, everything the union does is inherently political, even contract negotiations. They contend that this is the case because the salaries and benefits that the union negotiates come out of the public budget. As a result, forcing them to support that inherently political activity violates their First Amendment rights because they are forced to identify with a particular political cause and position – whether they agree with that cause and position or not.

Politico sums up the early perception of which way the judges will fall on this issue. And the NYT's Adam Liptak sums it up here.

So, what will a decision for Friedrichs mean? If public employees who chose not be members of the union don’t have to pay the agency fees, it will most likely contribute to the already shaky financial situation of many public sector unions. Currently, the public sector has the highest number of unions in place. Even though these fees already cannot be used for political lobbying, etc., less money overall would probably mean a lesser role on the political stage for these unions. In the 2012 election cycle, it’s been estimated that unions (in total) spent $1.7 billion. That’s a significant investment to get politicians to pimp your cause.

It’s still too early to tell which way this will go, but early indications are that public sector unions will take a beating in this decision. And that, in my opinion is a very good thing.


****Next week, I’ll be summarizing some of the employment-related workplace bills that have been presented at this year’s Maryland General Assembly – so far!****

Friday, January 15, 2016

Workplace Law Outlook for the 2016 Maryland General Assembly Session

What will it bring?

The 2016 session of the Maryland General Assembly began Wednesday, January 13th. What can we expect? For those of us closely watching the Maryland scene, we expect to see repeats of bills presented last year (many of which were repeats of bills presented in several previous years). As of this morning, no workplace/employment bills of note have been posted – yet.

Below I’ve noted several from last year – and the outcome of same. We expect to see many of these bills to again be on the docket this year. It’s generally thought that a bill on paid sick leave will not only come up, but will likely pass this year. The Maryland State Council of the Society for Human Resource Management (MDSHRM) is again at the forefront on this, along with the Maryland Chamber of Commerce. If you want to weigh in and help them shape this important public policy, take their paid leave survey here.

I’ll be posting periodic updates here as the session progresses. I urge all business leaders and HR pros to contact their elected officials to express either their support or opposition as the bills come up. They need to hear how these proposed laws will affect life and business here in Maryland. The only way they’ll hear our voice is if we actually use our voice! For my part, as the President (and acting Government Affairs Director) of the Carroll County Chapter of SHRM (CC SHRM), and a member of the Carroll County Chamber of Commerce’s Legislative Affairs Committee, I’ll (as usual) be closely following the session and communicating to our elected officials on these important issues.

Wage Records, Wages, and Paydays - Requirements
Creates a requirement for a "wage notice" to be given to each new hire, and to all employees yearly, and when any pay change occurs. Washington, DC recently passed a similar law. New York State repealed its requirement for this notice recently – due to the business burden and the fact that such a notice is basically redundant. Unfavorable Report by Economic Matters; Withdrawn

Discrimination Based on Engagement in Lawful Activities – Prohibition
This bill would prohibit an employer from failing or refusing to hire, discharging, or otherwise discriminating against an applicant or employee on the basis of the applicant's or employee's engagement in a lawful activity off the employer's premises during nonworking hours. Currently, 29 states have some type of statutory protection for lifestyle discrimination or legal off-duty conduct. Unfavorable Report by Economic Matters

Fair Employment Preservation Act of 2015
This bill expands the definition of "supervisor" in relation to claims of harassment, discrimination, hostile work environment and retaliation. Also submitted last year, this bill specifically rejects the Supreme Court’s ruling in Vance v. Ball State University, 133 S.Ct. 2434 (2013), holding that a "supervisor" is defined as a person with the authority to take tangible employment actions against their victims. The sponsors of this bill want to include as supervisors those that "direct" the work others, regardless of their lack of authority to effect tangible employment action. This bill appears to not have gotten further than the initial "reading".

Maryland Healthy Working Families Act
Businesses with 9 or more employees must provide paid sick and safe leave. The leave will accrue at the rate of at least 1 hour for every 30 hours worked, up to a maximum of 56 hours per year. In addition to the leave, the bill requires a fair amount of documentation, notices to employees, per pay period accounting of leave balances to the employee, etc. No action. This will be revisited this year, and may very well pass, although with some changes.

Fair Scheduling Act
Requires businesses to provide employees with a work schedule at least 21 days before the first day the employee is scheduled to work; post a notice at least 21 days before the start of each workweek that shows the start of each workweek, and includes all shifts of all employees, including those not scheduled to work or be on call for that week; notify employees of any changes to their schedule, and provide employees with a new work schedule within 24 hours after making a change to the initial schedule. It would also prohibit an employer from requiring an employee to work hours not included in an initial schedule unless the employee consents to it in writing and would prohibit requiring the employee to find another employee to cover hours he/she is unable to work. Also, an employee can request that the schedule be changed and limit his/her hours to any hours the employee chooses- and the business must consider this and respond in writing with reasons if refusing the "request". The employer also cannot change an employee’s work schedule within 24 hours of the first shift of the schedule. If it does, the employer must pay the employee 1 hour of "predictability pay" for each shift that is changed. I can’t imagine the retail, food service, or healthcare industries staying quiet about this! Unfavorable Report by Economic Matters; Withdrawn. This would bedevastating to many businesses if passed.

Overwork Prohibition Act
Changes the requirement for overtime pay to hours worked over 8 in a day, rather than the current requirement of overtime pay for hours worked over 40 in a workweek. It also would require overtime pay on the 7th consecutive day if the employee has agreed to work 7 consecutive days; works less than 11 hours after the end of the immediately preceding shift, or within the 11 hour period immediately following the end of a shift that spanned 2 days. Also, an employee can decline a request to work more than 6 consecutive days, or work more than 55 hours during a workweek or work hours that occur less than 11 hours after the end of the preceding shift or during the 11 hour period immediately following the end of a shift that spanned 2 days. It’s not like the Fair Labor Standards Act isn’t already pretty complicated to properly comply with. Businesses would no longer be able to require overtime regardless of business necessity. - Unfavorable Report by Economic Matters; Withdrawn. 

Wage Disclosure and Discussion Protection
This bill would prohibit an employer from taking any adverse employment action against an employee in regard to an inquiry about or disclosure or discussion of an employee's wages, or another employee’s wages. It would also prohibit action against an employee who inquires about another employee’s wages, discloses his/her own wages to others or discusses another employee’s wages (if those wages have been initially disclosed voluntarily). The National Labor Relations Act already expressly prohibits employers from disciplining employees from discussing wages, hours and other conditions of work. I see no valid reason to create another cause of action on this issue. No action.


Thursday, January 7, 2016

New Year, New Performance Management Issues?

Or is it the same old thing….

Many businesses are gearing up to write annual performance appraisals (assuming you’re still doing that after all the recent hub-bub about trashing the appraisal). This is almost always a painful process and many people rightfully wonder what real value it holds. Are you not seeing the results you want to see? Are your employees seeing any real value or positive outcome of their yearly evaluations? These are all good questions to ask to help determine whether you’ll revamp your current performance management process.

Another question to ask and examine the answer to is are you paying enough attention to the people who are tasked with evaluating your general employee population? Are they effective in their management practices throughout the year as well as at evaluation time?

Let’s look at some areas where managers and supervisors fail to hit the mark, and therefore, why the rest of your employees aren’t and why they might not see any value in your performance management process.

Lack of vision
If you’re below the level of a CEO this usually translates to a lack of goals. A company vision is usually an inspirational definition of what a company wants to become and a guide for getting there. At the management level, many problems are due to a lack of clear expectations and goals. You give an employee a job to do, but do they come to work every day not really knowing if they doing it well or not? If it’s the "same old, same old" every day, it doesn't motivate them to excel.

Poor Communication
Some managers seem to think employees can read their minds. Or they are deliberately vague in the mistaken thought that being vague is giving them room to be "creative" or own their jobs. A strong manager will be explicit and specific about what is expected and what needs to happen. They explain how every project and performance will be measured, and intervene only when those measurements indicate the project isn’t going as expected. Working with no direction or at least some guidelines is not providing autonomy, its setting people adrift.

Further, failing to communicate to employees about activities, initiatives or other organization-wide news doesn’t result in "focusing the team on the task at hand"; it simply keeps them in the dark, makes them less effective and fosters resentment. Sometimes, the old excuse "No one told me!" is actually true.

Being Inconsistent
A good way to turn off even your best employees is to keep moving the goal line, or even change the game frequently. While managers and leaders should be looking at the big picture, bouncing from one "big idea" to the next while never thinking through each idea and how success might be achieved won’t work either. If employees are saying "What off-the-wall idea did he come up with now?" you know you need to refocus that manager.  Jumping on the bandwagon of every new idea, initiative and theory du jour and then abandoning it for the next one leaves employees wondering in what direction they’re supposed to be moving.

Failure to Execute
We all take on projects once in a while that just don’t come together for any number of reasons. A manager needs to be able to ensure that barring any unforeseen or insurmountable obstacles, that a job or project is completed – in a timely fashion. If a manager is not doing what is necessary to assign staff, deploy the necessary resources or manage the time commitment necessary for successful completion, and this happens on more than an occasional basis, that manager is not being effective. Corrective action needs to be applied. Allowing such a manager to blame staff for the failure only contributes to the problem.

Avoiding Conflict
Managers who can't or won’t deal with problems, or problem employees, constructively and quickly lose the respect of their teams as well as contribute to lower productivity and overall outcomes.

If managers don’t take the time to tell people how they are doing, how will they know if they are meeting expectations? If they receive regular timely feedback they will have a greater understanding of what they need to do in order to achieve their objectives, whether that’s continuing on the present course, or a correction in their activity. If the feedback is presented in a constructive, objective and calm manner it can be a great development tool to help people grow and improve.

Global, not local
We’ve all heard the phrase "Think global, act local". We can turn that into a failed management concept. You will always have problem employees and good managers will address the problems directly with the problem employee. However, too many managers (and leaders) will make up new policies and make everyone adhere to yet more standards and practices in order to avoid dealing with the few who aren’t performing or behaving as expected. This tactic often alienates the positive, productive employees who wonder what the heck the problem is and resent being made to jump through new hoops. At the same time, the problem employees will usually ignore the new "global" policy and continue to be a problem. Pinpoint the problem and deal with it. Don’t change the whole game because one or two players are screwing up.

No Coaching or Training
Your product or service may be great, but if nothing else is true, you have to know that the environment changes. If your managers don’t know how to coach and train their employees, it won’t matter how great your product is, in the long run, it will fail. Managers need to manage, not spend their time doing all the work. Properly training and coaching employees on job tasks, company policies and procedures and coaching for employee development will add value to your organization.

Ignoring Poor Performance
It’s rare that a manager actually condones poor performance of any kind. What’s more common is that in an effort to be fair and supportive, or simply to avoid causing problems or conflict, they allow poor performers to persist. You see this in the manager who rates everyone as "exceptional", gives all a raise regardless of merit, or "new" positions are created to protect people who have failed – all in an effort to avoid the unpleasant task of actually firing someone. What results is usually pretty obvious. Other employees have to take on additional work to compensate for the poor performer, and they resent it. Work doesn’t get done, or the results are less than desirable. Strong managers know that when someone isn’t right for a job and it’s clear that no amount of training, coaching or incentive is going to help, that it’s time to part ways.

The bottom line is as leaders, you need to make sure that those who manage – and evaluate – the human resources within your organization are also managed and regularly evaluated to ensure they are effective in supporting your mission.