Get Everything You Need at #SHRM16

Get Everything You Need at #SHRM16  persuader

I was talking with a friend the other night about what a challenge it is for HR professionals to stay up-to-date on all the changing rules and regulations that the Obama administration is throwing at us in their final days.

We still haven’t completely figured out ACA, and now we get to deal with even more hot steaming bowls of ….agency alphabet soup.   DOL and the OT rule….NLRB and PCA…. OLMS and the LMRDA. What?

Fortunately, SHRM has you and about 15,000 other HR pros covered in Washington D.C. starting June 18th.  It’s not to late to register and get the scoop on sessions like these:

And don’t forget the Persuader rule. This rule will impact every employer in the US, whether or not you have a union. I won’t be presenting this year, but here’s some bonus info on the new DOL Persuader Rule.

Latest Persuader Rule News

The information below is an important update on enforcement of the Persuader Rule. The information comes from one of our Labor Lawyer Advisory Committee (LLAC) members via the US Chamber of Commerce.  All of this information is provided for your general information and understanding  and should not be construed as legal advice.

OLMS Update on Persuader Rule

The first resource is a link to a YouTube video in which the Office of Labor-Management Standards (OLMS) presents an overview of the Forms LM-10 and LM-20 persuader reporting requirements, pursuant to the persuader final rule published on March 24, 2016. OLMS held the presentation in the Department’s Frances Perkins Building, Cesar Chavez Auditorium, on Thursday, May 26, 2016 from 2-4 p.m. EDT

Chamber of Commerce Update

The final persuader regulation states, “This final rule is effective on April 25, 2016. The rule will be applicableto arrangements and agreements as well as payments (including reimbursed expenses) made on or afterJuly 1, 2016” (emphasis added).  The “effective” versus “applicable” dates are clearly confusing.  As part of the legal challenge to the rule in the Eastern District of Arkansas, DOL filed the attached status report which clearly states that July 1 is the practical effective date:

While the effective date of the Rule is April 25, 2016, the rule is only applicable to arrangements and agreements made on or after July 1, 2016, and to payments made pursuant to arrangements and agreements entered into on or after July 1, 2016. 81 Fed Reg. 15924. The Rule revises the reporting requirements, and related recordkeeping requirements, for certain agreements and arrangements entered into between employers and labor relations consultants or other independent contractors, and payments made pursuant to those agreements and arrangements. The Department will not apply the Rule to arrangements or agreements entered into prior to July 1, 2016, or payments made pursuant to such arrangements or agreements. Consequently, under the Rule no employer, labor relations consultant, or other independent contractor will have to report or keep records on any activities engaged in prior to July 1 that are not presently subject to reporting, or file the new Forms LM-10 or LM-20 (revised pursuant to the Rule) for any purpose prior to July 1.

What’s the takeaway?

Employers may have a window of about 3 weeks to get agreements in place with labor counsel or consultants that then not be reportable under the new OLMS rule, assuming they are pursuant to an open-ended or multi-year agreements that existed before July 1, 2016.  Again, this should not be interpreted as legal advice, and you should check with competent legal counsel before making any final decisions.

Looking back on some labor predictions from 2010

Looking back

I wrote this blog on May 24, 2010 over on the Human Race Horses blog.  Turns out I’m a pretty decent prognosticator.  Everything I warned about 6 years ago has either happened, or is happening right now.

Management and Labor Unions still at odds

(Still true)

If you work in human resources, there are a lot of things going on right now – very quietly for the most part – that are going to impact the field, especially if you deal with labor relations.   If you work in human resources, and especially if you work in employee relations or labor relations, you really need to paying attention to these trends, even if you work in a company that is not currently unionized.

Leadership changes at SEIU


First up is the changing of the guard in the top leadership of the Service Employees International Union (SEIU), the largest union in the United States.   Andy Stern, one of the most influential and controversial union leaders of this decade  has stepped down and is moving into a speaking career.  Stern is being replaced by Mary Kay Henry, a relative unknown who drew on high levels of support in states like California and New York to move past Anna Burger, Stern’s number 2,  and his personal choice to succeed him as International President.

Under Henry, SEIU is expected to be more focused on organizing.   Henry recently announced a $4 million fund for organizing non-traditional SEIU targets, like banks, grocery stores, biotechnology companies and independent contractors.    The  Labor Union Report blog also recently broke a story detailing an SEIU plan for organizing in the fast food restaurant industry.

Rules changes make union organizing easier


The National Mediation Board, the agency that oversees labor relations issues in the rail and airline industries,  recently changed  the election rules governing  the voting process for deciding union representation  for railway and airline employees.  While narrowly focused, there is speculation that these changes could just be the first of many.   Some experts fear that similar rule changes  impacting elections for union organizing could be forthcoming from the NLRB, the agencies that oversees labor relations in most business sectors.

Under the former NMB rules, a union had to receive votes from over half the eligible voters to become the bargaining representative.  Under the new rules, a union just has to receive votes from over half the people who vote.   While the rule itself now mirrors the counting process of the NLRB, the change is significant because the NMB conducts  elections using mail-in ballots or other means for collecting votes from a widely dispersed electorate.   Current NLRB practice requires a live vote in the workplace.   Many labor experts fear that the NLRB may change this process, and give unions a potential organizing advantage by doing so.  For some, it even prompted fears about the return of the Employee free Choice Act.   Leo Gerard, International President of the United Steel Worker even wrote an article called Hey Union-busters, we’ll give you supermajority, highlighting his thoughts on the matter.  The U.S. Chamber of Commerce also filed a motion on May 24 challenging the NMB changes.

Department of Labor proposes rule changes


The Department of Labor (DOL) conducted a meeting today intended to be a forum for the discussion  of proposed rule changes covering  employer side consultants,  attorney and employer reporting  related to communication activities regarding “persuasion and advice” related to unions.  The changes would require consultants, including law forms to report many of their activities carried out on behalf of employers under section 203(c) of the Labor Management Reporting Disclosure Act of 1959 (LMRDA).   Penalties for violations could include hefty fines and prison terms.    The direct impact of the proposed change would be to try and stifle management communication efforts during union organizing campaigns.

Potential “nationalizing” of private retirement plans

(Still happening

Fox News is reporting that Democratic Senator Bob Casey (D-PA.) is introducing legislation for a bailout of troubled union pension funds.  If passed, the bill could put another $165 billion in liabilities on the shoulders of American taxpayers.   The news could be even worse, according to Fox – although the price tag of this legislation is estimated at $165 billion, it could go much higher, depending upon a number of factors, including life expectancy of the recipients.

NLRB and Social Media


Labor law slowly begins the process of catching up with technology as the NLRB issues an advisory letter on employer social media policies.

The Labor Relations Today blog recently profiled an advisory letter from the NLRB Division of Advice in which they analyzed the issue under the framework set forth by the Bush Board in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), a case that dealt with a rule prohibiting certain types of interactions in the workplace.   This is one of the first instances of a case dealing with labor law and social that I have seen come to the NLRB for review.   It is very interesting just for that reason.  You can view the LRT report here.

Breaking>>Board Issues Decision in Browning-Ferris Industries

This decision will have far-reaching impacts on the fast food industry as well as many others.  More to come soon.

Board Issues Decision in Browning-Ferris Industries

In a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status. The revised standard is designed “to better effectuate the purposes of the Act in the current economic landscape.” With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.

In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors — consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.

In its decision, the Board found that BFI was a joint employer with Leadpoint, the company that supplied employees to BFI to perform various work functions for BFI, including cleaning and sorting of recycled products. In finding that BFI was a joint employer with Leadpoint, the Board relied on indirect and direct control that BFI possessed over essential terms and conditions of employment of the employees supplied by Leadpoint as well as BFI’s reserved authority to control such terms and conditions.

The Board ordered that within 14 days the ballots that were impounded on April 25, 2014 shall be counted and the appropriate certification issued.

Board Chairman Mark Gaston Pearce was joined by Members Kent Y. Hirozawa and Lauren McFerran in the majority opinion; Members Philip A. Miscimarra and Harry I. Johnson III dissented.

You can download the full board decision here.

More links from CUE Inc. available daily on  Twitter | Facebook | LinkedIn

NLRB: A woman voted yes for the union and

you won’t believe what happened next…

First ever NLRB election Twitter #FAIL

An NLRB decision released this week may represent the first time an NLRB union election was set aside by a “selfie” posted by one of the employees voting in the election.

In the case 4-RC-149539 DECISION AND CERTIFICATION OF RESULTS OF ELECTION, the National Labor Relations Board considered an election ballot challenged by Webster University and has ruled that the ballot was invalid because the person casting the ballot violated the requirements of secrecy during the election process.

The ballot in question was cast in a mail-ballot election held between April 24, 2015 and May 8, 2015 in which five adjunct faculty members at Webster University were voting to decide if they would be represented by the Service Employees International Union.  Five ballots were cast with two votes for the union, two votes against the union and one challenged by Webster University.

The challenge arose after a “selfie” of one of the employees actually casting her ballot in the election got posted on Twitter.  Check out the picture which is still posted below.

twitter ballot

As a direct result of this tweet, the NLRB Regional Director recommended that the challenged ballot of Andrea Miller be sustained on the ground that the voter destroyed the secrecy of her ballot, and that  a majority of the necessary valid ballots had not been cast for the union.

The adjunct faculty members at Webster University in St. Louis would have been union members today but for a selfie. This case has no appeal route, meaning the union cannot petition for an election for one year.

This may the first union election ever decided by a selfie, but it certainly won’t be the last.  Employers, unions and the NLRB will need to consider the impact of this development.  At the very least, it brings into question the validity of the mail-in ballot procedure.

Keep an eye on this one! It’s a great example of how social media can cut both ways when secrecy is a requirement in a social society that no longer places a high value on secrecy for many things.



Speed Kills – Live from #SHRM15


This week I’m at the giant 2015 SHRM Conference and Expo in Las Vegas.  When I say huge, I mean gigantic as in over 15,000 HR professionals in town to learn about the latest and greatest in HR.

I did my share of educating yesterday when I helped teach a session called “Labor Relations for the HR Professional”.  We had 38 dedicated attendees who actually paid for the privilege of getting up at 8 AM on a Sunday morning to attend this pre-conference workshop.  It went well, and thanks to everyone who attended and also the many dedicated SHRM volunteers and staff who help create the course.

I’m also part of the #2015SHRMBloggers team and I am doing some writing and tweeting and periscoping over the next few days.  Here’s a few things I’ve thought about so far.

Glassdoor just released some new research that shows that the hiring process is taking longer and longer.

The time required for hiring processes has grown dramatically in recent years, both in the U.S. and internationally. What factors are driving this trend? Which job seekers face the longest delays and why? This study presents a statistical analysis of trends in hiring times based on a unique data source: reviews of job interview experiences from Glassdoor.

Based on a sample of 344,250 interview reviews spanning six countries, we examine a variety of factors affecting the length of interview processes: industry factors, company factors, country factors, differences in job titles, and even the changing mix of job interview “screening” methods used by employers.

You can read a number of the key findings here,  but the one that caught my eye.

The average overall job interview process takes 22.9 days in the U.S.

Why is this important? In my own session on labor relations, I shared some data from the Labor Relations Institute showing that the average time that it take the NLRB to conduct a union election is currently around 24 days.

It strikes me as just wrong that it would a company just as much time to choose one member of their organization as it does for a government agency to conduct an election that potentially determines the outcome of the working relationship between a company and their workforce for the foreseeable future.

If an employer hires the wrong person even after a lengthy selection process of 22 days or more, that error can be corrected. If  a group of workers decides they want to be represented by a labor union, and later regrets that decision (which happens more often than you may think), they will find themselves in a situation where it is nearly impossible to reverse their decision.  It makes sense to me that a longer period of consideration and education is appropriate when confronted by that kind of choice.

It’s often said that speed kills.  In this case, I happen to agree.




NLRB. HR ain’t got time for that!

Human Resources People are Busy

Woke up, fell out of bed,
Dragged a comb across my head
Found my way downstairs and drank a cup,
And looking up I noticed I was late.” – The Beatles

I woke up this morning and felt a disturbance in the Force. It was the NLRB knocking.

I hope I wasn’t the only one who noticed because today is the day when a lot of things change related to that old-fashioned NLRB stuff.


 The NLRB’s new  rules governing union elections take effect today. The Board has done public training for employers in the past week, and NLRB General Counsel Richard Griffin outlined many of the new rules in a memo.  There are a couple of pending lawsuits challenging the implementation of the rules, but they are a go for now.

The new rules are very expansive and will require employers experiencing a union organizing election campaign to give a great deal of new data to the union, including the personal emails of employees if the employer collects that information. The rules are very detailed about how the format an employer must use in providing information to the Board and the Union.

For example, if your company should experience an NLRB election, you have to give a list to the union (known as the Excelsior list) that includes some very specific requirements. The Excelsior list will include employee full names, classification, shifts, work locations as proposed by union in petition. List must be alphabetized in a searchable table format in Microsoft Word compatible document using Times New Roman 10 font.

You’re good to go on this, right? You better be because starting tomorrow, the unions are coming for you!

Fight for $15 hitting businesses on April 15


From the Fight for $15 website:

“On April 15, fast food cashiers and cooks, retail employees, child care workers, adjunct professors, home care providers, college students, airport workers, and all of us who believe they deserve better are showing up in cities across the country to say ENOUGH.”

The group is encouraging protesters to target companies in business sectors such as quick serve restaurants, retail, child care, home care, airport service functions, convenience stores and others. Employers needing assistance with responding to such actions can contact CUE Inc. for assistance.


Breaking: NLRB Issues Guidance for New Election Rules

NLRB General Counsel Issues Guidance for Representation Case Rule Implementation

From the NLRB website:

“I am confident that the guidance provided herein will allow regions to implement the final rule effectively and efficiently,” wrote General Counsel Griffin. “I am also confident that the dedication and professionalism consistently demonstrated by the personnel in the Agency’s field offices will be exhibited in the implementation of the Board’s new representation procedures.”

The Board adopted this rule in December 2014 to streamline and modernize the representation case process and eliminate unnecessary litigation and delay. Specifically, the rule:

  • Provides for electronic filing and transmission of election petitions and other documents;
  • Ensures that employees, employers and unions receive timely information they need to understand and participate in the representation case process;
  • Eliminates or reduces unnecessary litigation, duplication and delay;
  • Adopts best practices and uniform procedures across regions;
  • Requires that additional contact information (personal telephone numbers and email addresses) be included in voter lists, to the extent that information is available to the employer, in order to enhance information sharing by permitting other parties to the election to communicate with voters about the election; and
  • Allows parties to consolidate all election-related appeals to the Board into a single appeals process.

Neither the final rule, nor the General Counsel’s memo, establishes new time frames for conducting elections or issuing decisions. In addition, all cases filed prior to April 14th will be processed under the Board’s existing rules.

Prior to implementation on April 14th, the NLRB’s 26 Regional Offices will host more than 35 training sessions nationwide for practitioners on the new procedures.

Are You Prepared For the NLRB “Union Spring”?

Your Best Laid Plans May Be Screwed

Over the past several weeks, a number of large employers have been announcing that they are raising wages for their hourly workforce, including McDonald’s which just announced a wage increase for the 90,000 employees who work in company owned stores. McDonald’s CEO Steve Easterbrook says he took the action to make McDonald’s a modern, progressive burger company on many fronts, focusing specifically on the consumer perception of our food, and our people.

Our first step will impact the more than 90,000 employees at McDonald’s 1,500 company-owned U.S. restaurants. On July 1, we’re raising starting wages by $1 over the locally mandated minimum wage and adjusting pay for existing restaurant employees. By the end of 2016, we project that the average hourly wage rate for McDonald’s employees at company-owned restaurants will be in excess of $10. In addition, we’re offering paid personal time off for any reason to restaurant crew members who have been with us for at least one year. If they choose not to take the paid leave they’ve earned, they will get a check for the value of that time. We understand that life balance is important and believe that this will make a difference for our people.

Some attribute this decision to the pressure of protesters calling for the fast-food industry to pay $15 an hour. Others call it a clever ploy by McDonald’s to bolster their claims in a joint employer case currently being heard by the NLRB.  Organized labor has called the move a “publicity stunt” that falls short of their demands.  Even The Onion got involved, musing that this large of a wage increase could make McDonald’s workers  “too good”

Call it what you will, everyone has an opinion about the move, but no one is talking about what might be the real issue driving these increases now.  The NLRB is about to issue new rules that will change the way union elections work.  These rules will make it easier for unions to win elections and would require employers to provide a lot of more information to the union, including home addresses, phone numbers and email addresses, if available. Unions have known the change is coming for a while, and they may have asked employees at fast-food companies to sign union elections cards as part of their “fight for $15” organizing campaign.

If this is the case, and a union files a petition for a union election, an employer would automatically be prohibited from granting any kind of unilateral wage increase.

When a union files a petition for a union election, it triggers the responsibility to keep up the status quo including any planned changes.  This is typically referred to as maintaining laboratory conditions. Put simply, it mean an employer cannot institute a planned raise to avoid unionization and it can’t cancel a planned raise either.

The key is to document those planned changes. If an employer does not document and prove their intended change, the concept of laboratory conditions may just cause those plans to blow up in smoke.  It’s possible that during this first week of April, some  astute labor relations professionals are helping place their companies ahead of possible organizing efforts once the new NLRB rules go into effect.

We may remember April 2015 as the time when the NLRB created the circumstances for the emergence of the “Union Spring”.

<h/t to Dr.J for the discussion that led to this post>

Here’s a Bullet Point List of the Changes in the NLRB Election Process (Part 1)

NLRB Representation Case Rule Changes

Here’s some of the playbook for the NLRB “Quickie Election” procedural changes which will impact several areas of the process, including:

Filing the Petition

  • Petition form will include Petitioner’s preference on election details (date, time, place and method)
  • Petitions may be e-Filed
  • When filed, Petition must be accompanied by:
  • Showing of Interest
  • Certificate of Service showing service on all parties named in petition
  • Petitioner must serve the parties named in the petition with a copy of the Petition, Statement of Position form and Description of Procedures in R Cases

Initial Processing

NLRB Region will serve Notice of Hearing which tells you:

  • Hearing date
  • Statement of Position due date –
    generally noon of business day before hearing is set to open
  • Notice of Petition for Election
  • Description of Procedures in R Cases
  • Statement of Position form
  • Copy of the petition
  • Any election bar asserted by Employer
  • Other issues Employer intends to raise at the pre-election hearing
  • Employer’s position on election details, including:
    • Type (Manual, Mail, Mixed Mail/Manual)
    • Date(s)
    • Time(s)
    • Location(s)
    • Payroll Period information (length and last ending date)
    • Eligibility period (e.g. special eligibility formulas)
    • Name, title, and contact information for Employer’s authorized representative for service
    • Alphabetized electronic list(s) of employees:
    • (a) With full names, work locations, shifts and job classifications of all individuals in proposed unit
    • (b) If Employer claims unit is inappropriate, a separate list of the full names, work locations, shifts and job classifications of all individuals Employer claims should be added to the unit
    • If Employer contends unit is not appropriate, it must also separately list the individuals whom it believes should be excluded from the proposed unit to make it an appropriate unit.
    • Failure to provide list:
    • If the Employer failstotimelyfurnish the list of employees,theEmployerwill be precluded:
      • from contesting the appropriateness of the proposed unit at any time and
      • from contesting the eligibility or inclusion of any individuals at the pre-election hearing.
      • Eligibility issues not raised – At the election, a party generally can challenge someone for cause even if their eligibility was not contested at the hearing.
      • Date for Pre-Election Hearing:
      • Except in cases presenting unusually complex issues, the Regional Director will set the hearing fora date 8 days (excluding intervening Federal holidays) from the date of service of the Notice of Hearing or the next business day thereafter if the 8th day falls on a weekend or Federal holiday
      • Postponement of Hearing                                                                                    The Regional Director may postpone the hearing for up to 2 business days upon request of a party showing special circumstances more than 2 business days upon request of a party showing extraordinary circumstances.