Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

This post was contributed by Kelly Horein, a Summer Associate with McNees Wallace and Nurick LLC. Ms. Horein will begin her third year of law school at Boston University School of Law in the fall, and she expects to earn her J.D. in May 2012.

Two weeks ago we discussed the importance of providing discrimination and harassment training to supervisors and managers. To follow up on that post, we thought it would be a good idea to provide a brief overview of the key aspects of an effective supervisor training program.

As we previously mentioned, the Equal Employment Opportunity Commission (EEOC) has clearly stated that it is important to train all supervisors and managers, and not just those charged with receiving and investigating complaints. In addition, we suggest that employers provide training to all new supervisors, provide annual training sessions, and provide additional training sessions when changes are made to harassment policies. It is also important to document when training sessions are conducted, who attends those sessions, and the content of each session.

An effective training session should cover key topics, designed to help supervisors prevent harassment and remedy harassment that does occur, and these key points include:

• educating supervisors regarding what conduct is inappropriate;
• ensuring supervisors understand that they are required to report complaints of harassment or incidents they observe;
• ensuring supervisors understand that employees are permitted to make both informal and formal complaints of harassment, and that all such complaints must be investigated;
• describing the multiple channels through which employees can make complaints;
• detailing the complaint investigation and resolution process; and
• ensuring supervisors understand that retaliation is strictly prohibited.

A quality training session will be designed to educate supervisors and managers on appropriate workplace behavior and to help them avoid engaging in discriminatory conduct. Supervisors must be trained to appropriately respond to complaints and to report incidents of harassment. Supervisors should also be aware of the consequences for failing to do so. As you can see, merely reiterating the content of a policy during a training session does not constitute effective supervisory training. Some states, such as California, even have specific requirements for supervisor training, including the minimum duration and frequency of such training.

Employers can also benefit from regularly training supervisors in a broader range of human resources issues, including hiring and interviewing techniques, discipline and performance management, employee privacy, Family and Medical Leave Act requirements, wage and hour issues, and maintaining a safe workplace.

McNees Wallace & Nurick's Labor and Employment Group can help employers develop effective training programs.  McNees can also provide a list of suggested supervisory training topics, suggested re-training time lines and course materials. You can contact a McNees attorney by clicking here.

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This post was developed with the assistance of Kelly Horein, a Summer Associate with McNees Wallace and Nurick LLC. Ms. Horein will begin her third year of law school at Boston University School of Law in the fall, and she expects to earn her J.D. in May 2012.

According to the Equal Employment Opportunity Commission (EEOC), employees filed a record number of workplace discrimination charges last year. As a result, it is now more important than ever for employers to take steps to prevent unlawful discrimination and harassment in the workplace.

Most savvy human resource professionals know that they must maintain antidiscrimination policies with adequate reporting procedures to help avoid liability. However, it is just as important to train supervisors and managers regarding the implementation of those policies. Unfortunately, when times get tough, employers are often forced to cut costs and training is usually one of the first items on the chopping block. If your organization scaled back training during the economic downturn, it may again be time to rally support for supervisor training.

Effective training for supervisors and managers actually helps reduce costs in the long run, because it helps supervisors prevent claims before they are filed. The United States Supreme Court and the EEOC have emphasized the importance of supervisor training in the context of discrimination and harassment claims. Indeed, training is recognized under the law as an essential part of an "affirmative defense" to claims that supervisors engaged in harassment. If an employee alleges that harassment by a supervisor created a hostile work environment, then the employer may raise a two-part defense. An employer is not subject to strict liability for a supervisor's conduct where the employer can show that (1) the employer took reasonable measures to prevent harassment and promptly correct it when it occurred and (2) the employee failed to take advantage of established mechanisms for filing complaints.

Human resources professionals can be instrumental in helping their employers take "reasonable measures to prevent harassment." However, the Third Circuit Court of Appeals, which covers Pennsylvania, has stated that in order to show that an employer took such reasonable measures, the employer must do more than simply adopt an antidiscrimination policy.

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This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Group, and Adam L. Santucci, Esq., an Associate in the Group.

On June 22, 2011, the National Labor Relations Board (Board) published a Notice of Proposed Rulemaking that, if finalized, would significantly change the union representation election process. According to a Board "Fact Sheet," the changes are designed to "reduce unnecessary litigation, streamline pre- and post-election procedures and facilitate the use of electronic communication and document filing." But the lone Republican Board Member, Brian E. Hayes, in a stinging dissent, seems to have more accurately characterized the proposed rule change as an "administrative fiat" which will "impose organized labor's much sought-after 'quickie election' option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition." Hayes further described the proposal as an effort "to eviscerate an employer's legitimate opportunity to express its views about collective bargaining."

The time between the date the petition is filed and the date of the election is critical for employers, because it is often the only time the employer will have to express its views regarding unionization. Often an organizing effort may have been ongoing for weeks or months without the employer's knowledge, and the employer only learns of the campaign when the election petition is filed with the Board. This means that the employees are only getting one side of the story, the union's side, prior to the filing of the petition. A shorter time between the filing of the petition and the election date will deprive employers of the time necessary to fairly present both sides of the representation question to employees.

Currently, the Board's operational goal is 42 days between the filing of the petition and the election, with the median time actually being only 38 days. Under the proposed rules, this time would be shortened significantly. The changes would require a pre-election hearing within seven (7) days of the filing of the petition and would defer rulings on any election issues until after the election, unless the issues would impact at least 20 percent of eligible voters. After an election has been directed, the employer would have only two (2) days to produce a list of eligible voters (not the current seven (7) days), which must include the names, home addresses, phone numbers, and if available, email addresses of these individuals. Currently, only names and addresses are required. In addition, the Board would have discretion to decline to review Regional Director rulings on post-election challenges.

These proposed rule changes, which also include the implementation of electronic filing of petitions, may not be quite as drastic as the changes that would have been wrought by the failed Employee Free Choice Act (EFCA). Nonetheless, the proposed changes have been highly applauded by unions (which are already winning NLRB elections - 69% of elections held in 2009 and 68% of elections held in 2010). EFCA would have eliminated secret ballot elections, required arbitration over the terms of a first collective bargaining agreement if the parties were unable to reach agreement, and increased penalties for employers that engaged in unfair labor practices. EFCA has stalled since the November 2008 elections, and it seems that the Board's real motivation in proposing the election changes is to enable organized labor to increase its representation in the private sector workforce, where only 7% of employees are currently unionized.

In other recent developments, the activist Obama Board has also filed a lawsuit against Boeing Co., over Boeing's decision to perform manufacturing work at a non-union facility in South Carolina. The Board has also been highly active in protecting and advocating the use of social media for employees and unions. And, in December 2010, the Board announced a Notice of Proposed Rulemaking that would require virtually all private sector employers to post a notice to employees regarding their rights to organize under the National Labor Relations Act. In addition, the Department of Labor has announced a Notice of Proposed Rulemaking that would require further disclosure of employer use of consultants during union organizing campaigns, in an obvious effort to discourage the use of such consultants.

These developments send a loud and clear message that the current administration emphatically supports union organizing efforts. Employers must be aware that if the Board's proposed rules become final, employers will be significantly restricted in their ability to respond to union organizing campaigns. Therefore, employers must become more proactive than ever in addressing employee relations issues now and conducting union avoidance training for their supervisors and managers.

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This post was contributed by Brett E. Younkin, Esq., an Associate and a member of McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio. On May 17, 2011, Brett reported that the United States Supreme Court was considering an important decision regarding class action suits.

UPDATE:

You may have heard the cheers emanating from Bentonville, Arkansas (the location of Wal-Mart's corporate headquarters), and the corporate headquarters of other large employers following the United States Supreme Court’s announcement of its decision in Wal-Mart, Inc. v. Dukes, __U.S. ___ (2011) (PDF). On June 20, 2011, the Court decertified the class-action status of the 1.6 million current and former female employees in their decade-old suit against the world’s largest private employer. Betty Dukes and her two co-plaintiffs had alleged a nationwide pattern of discriminatory pay and promotion practices by the company, despite its published policy of non-discrimination. However, the Court unanimously disagreed and overruled the Ninth Circuit Court of Appeals, which had allowed the case to proceed as a class action. The decision created what may be viewed as a higher burden of proof for establishing class action status.

While the Court was unanimous in deciding that this particular class should be decertified, only five of the justices joined in the entire ruling. In the majority opinion authored by Justice Scalia, the Court found that commonality was the key to certifying a class under Federal Rule of Civil Procedure 23 – “claims must depend on a common contention . . . which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” To attempt to resolve “literally millions of employment decisions at once” would not result in a unified answer for why a particular employee was disfavored. “Without some glue holding together the alleged reason for those [discriminatory] decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question.” The Court noted that the dissent from the lower court was correct in that the plaintiffs had “little in common but their sex and this lawsuit.”

Additionally, the opinion strongly rejected the plaintiffs' expert witness testimony because, among other things, a litany of the expert’s peers had denounced his approach, analysis, and conclusions. The Court also concluded that while anecdotal evidence may be relevant, a hundred stories out of millions of employment decisions throughout 3,400 stores did not prove a pattern of discrimination.

What does this decision mean for employers? It certainly will have an impact in the litigation context if an employer finds itself in the unfortunate position of facing a class action lawsuit. In addition, the Court's decision affirmed the use of anecdotes as evidence of discrimination and, therefore, inappropriate comments made by corporate leaders may be used as evidence of a corporate-wide discriminatory practice. As a result, employers are well advised to include corporate executives in refresher training regarding discrimination and harassment.
 

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The Employee Free Choice Act stands to shortcut the process for certifying a union depriving an employer of its chance to conduct a campaign to educate its workforce on the downside of unionization, squelch union promises, and redress employee perceptions. The employer’s campaign occurs between the filing of a union petition and the schedule NLRB-supervised secret ballot election - a period of 30 to 45 days.

Elimination of the secret ballot and allowing union certification upon a card showing of greater that 50% will force employers to conduct employee education and assess vulnerabilities in advance of union organizing actions. Some businesses mistakenly believe that employee interest in unions revolves around promises of higher pay and better benefits. Quite to the contrary, most studies on employee motivation for union membership conclude that non-economic concerns are the chief motivators for union membership. Most workers think that unions can get them "a greater say in the workplace." The attitude translates to issues like job security, effectiveness of supervisors, and involvement in workplace decisions. Unionization is not all about the money; it is about workers being "engaged." Disengagement can mean unionization.

Employee Surveys are one of the better ways to conduct systematic and regular assessment of employee attitudes about a whole host of important workplace matters.   Business may be skeptical about the benefits of Employee Surveys and what they can find out about a workplace. Today's Employee Survey are customized to the employer. They can assess an employee's attitudes on various subjects and correlate data by department. business location, etc. Often the survey can identify an issue or supervisory relationship that needs management attention. Survey results can also be benchmarked with comparable businesses.

Designing an effective survey requires collaboration with an expert to tailor the survey to the business and assistance in interpreting the survey data. Success Performance Solutions designs, conducts and evaluates employee surveys for companies in a wide variety of industries. I asked Dr. Ira S. Wolfe, for his thoughts on the EFCA and employee surveys. His comments are as follows:

At this point it is important to differentiate between employee satisfaction surveys and engagement surveys. The terms “employee engagement” and “employee satisfaction” means different things to different people. In its simplest form, satisfaction means employers are not doing anything to anger employees. That’s good information to know but not nearly enough to retain employees, no less head off any attempt to unionize employees.

Employee engagement, on the other hand, is a complex equation that reflects each individual’s unique, personal relationship with work. BlessingWhite, in its 2008 State of Employee Engagement study, describes the engaged employee as not just committed, not just passionate or proud, but having a line-of-sight on their own future AND on the organization’s mission and goals. “They are ‘enthused’ and ‘in gear’ using their talents and discretionary effort to make a difference in their employer’s quest for sustainable business success (The State of Employee Engagement 2008, p.1).

Unfortunately for North American employees, fewer than 1 in 3 employees (29%) are fully engaged. Nineteen percent are actually disengaged. Many managers think “yea, yea, yea. What’s the big deal?”

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Webinar Registration

Congress recently passed legislation amending the Americans with Disabilities Act, which will greatly expand the coverage of the Act.  On Thursday December 4, 2008, McNees Wallace & Nurick will host a 45 minute webinar to discuss these new changes to the ADA and what employers should know before the amendments take effect on January 1, 2009.  Please join Samuel N. Lillard and Michael A. Moore, attorneys with McNees Wallace & Nurick’s Labor & Employment Law Practice Group, as they tell you exactly what the new legislation means for employers and what your business should do to comply with the new amendments and avoid costly litigation.

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