While the Paula Jones ruling has well faded from the spotlight, the issue of sexual harassment continues to plague businesses. To avoid a lawsuit and bad publicity that accompany public actions, companies must create a work environment free of sexual harassment.

The two categories of sexual harassment recognized under the law are quid pro quo and hostile environment. The commonly recognized quid pro quo involves trading sexual favors for job security or advancement. The hostile environment concept is more difficult to define because it lends itself to more arbitrary arguments. Language or physical conduct that one group or individual considers normal may be offensive to another group or individual. Furthermore, conduct may become unacceptable as the group dynamics change.

Instead of trying to micromanage employee conduct, establishing a zero-tolerance policy eliminates the gray areas altogether. If a situation occurs that offends someone, it must stop. Period.

Where Do You Start?

Top management must initiate any successful change in culture. This support will ensure the acceptance and adherence to the policy. Creating a zero-tolerance culture involves establishing a sexual harassment policy, training management to identify and react to sexual harassment complaints, and educating employees about the company policy.

Your sexual harassment policy must clearly state that no type of sexual harassment will be tolerated and that failure to comply can lead to termination. Retaliation directed toward anyone who makes a complaint is not allowed. Many employers also fail to understand their liability for sexual harassment situations when a vendor or sales representative is acting inappropriately.

Training Management

Start by explaining the company’s position on sexual harassment. Managers must have a clear understanding of what is and what is not acceptable behavior. Law can hold managers liable for failing to notice or deal with a sexual harassment situation.

Educating managers is not always an easy task. Often, senior managers entered the workforce more than 30 years ago, when women routinely suffered in a male-dominated work culture. Today’s work environment no longer condones such practices. Managers must recognize and promote the new standards, especially since they will be in charge of enforcing them.

You need to establish a reporting process. A list of people who are trained and qualified to handle complaints should be provided to employees. This is difficult to discuss and by offering choices, you increase the possibility that someone with a problem will choose to come forward, rather than go to a lawyer.

Educating Employees

It is not enough to just include the policy in the employee handbook. Further education and training for employees is a must in order to create a zero-tolerance company culture. It is very effective to host a Q & A seminar, allowing employees to voice questions and concerns, as well as equipping them with examples of unacceptable conduct. Remind them of the policy at least once a year. Expect complaints — don’t be surprised if complaints are reported after a seminar or training session. This is what you want. It is proof that the education and training are working. Better to deal with the crisis in-house than in court.

React Quickly

Treat all reports objectively. The investigator must be trained and capable of conducting an unbiased inquiry of the situation. Some companies rely on a consultant to keep the process objective. Try to keep the information confidential. This will limit retaliation and help keep employees focused on their jobs rather than the scandal. If the allegations prove to be true, immediately inform the offender that his or her behavior is intolerable and could lead to termination.

Top officials should be informed and kept abreast of all complaints and any ensuing investigations.At no time can managers look the other way. Some employers may believe that domestic disputes between romantically involved employees are not their problem. This is not always true. Any activity that creates a hostile environment in your company is yours to rectify. For example, at a small manufacturing company, two complaints were filed against an employee who was in management training. The manufacturing company did not have a human resources department and had no idea where to start its investigation. The employee had been demanding sexual favors in exchange for job security. Even though he had been in a relationship with one of the complainants, it was still a strong case and required a response from the company. After an investigation, the harasser resigned and the company avoided a lawsuit.

Be Strong

Don’t be afraid to establish a zero-tolerance policy. Your employees want firm guidelines. By instituting a clear policy and reporting guidelines, you will create a safe environment for your employees and help reduce the risk of expensive and time-consuming litigation.

Making human resources a strategic part of your business is smart. Too often when companies finally realize the need exists to functionally address the employee piece of their business, a hasty decision is made by management to move a current employee into the human resources role. The individuals are chosen because they are able to manage confidential information, exhibit a willingness to work with other employees, and/or they excelled in another “like” position. Thus, this decision seems logical. Unfortunately, these skills alone do not prove successful for the individual or the business. Whereas, soon the newly “elected” human resources professional for the organization begins, almost immediately, to manage significant employment decisions (employee selection, evaluation processes, benefits, coaching) and becomes responsible for developing company policies, to include employment law interpretation for a variety of employment-based issues. Instead of taking this path when human resources talent is needed, employ the same tenacity and vigor you use to recruit other key employees for your organization. Starting with a solid foundation in human resources will prove to be the right choice.

Consider this…

Human resources influences a wide range of internal disciplines to include: manufacturing, engineering, distribution, quality, production, accounting, logistics, etc. In order for human resources to positively influence any organization, it is imperative that the human resources effort is led by someone with a comprehensive understanding of company products, focus, and goals and mastery of gaining constructive knowledge from all levels and teams to affect organizational change, productivity gains, and improved employee commitment.

A seasoned human resources professional will provide beneficial and cost-effective measures in order to assist your business in strategic ways to:

- Improve employee retention rates, which reduce the cost of turnover (recruiting and re-training).

- Reduce unemployment and workers compensation claims.

- Develop compensation plans, ensuring true pay for performance principles that are utilized to promote creativity and process improvement.

- Improve productivity with better aligned inter-departmental teams.

- Negotiate competitive benefits that fit the needs of the company.

- Promote a more committed workforce, which fosters long-term employment, greatly reduces absenteeism, and identifies a philosophy of “promotion from within.”

With personal credibility, solid business knowledge, proficiency in employment law, and solid interpersonal talents, human resources can strategically influence employees, peers, and senior management by maintaining a controlled balance between management expectations and employee requirements. Keeping the pulse of the workplace at all times will facilitate proactive change and further identify areas for improvement.

Be aware, too, that someone in your business should stay informed of the precarious national economic environment, with relation to employment trends, and stay abreast of employment law changes proposed by the new President. So, choose wisely who leads your human resources effort; and if you must recruit for this position from within, ensure proper training is provided for a more successful transition.

Have you been looking around? Over the past few years, I have noticed a decrease in employee commitment, performance, and enthusiasm. What happened? There are two key factors. These include an employee commitment shift, whereby, employees are leaving when the bell rings (or before) to go to a ballgame or an anniversary dinner; and, we now have 24-hour access to a wealth of information via Internet browsing, email, and online shopping – all of which can be easily accessed during work hours. Okay, so what?

A 2008 Salary.com survey reported, “Sixty-four percent of respondents said they waste one hour each day, 22 percent waste approximately two hours daily, and 14 percent waste three or more hours each workday.” Conservatively speaking, using this data, 64 of every 100 employees each generate up to 2.64 hours per day or 13.20 hours per week of unproductive time. This time is paid – do the math. This is costly when times are good, and can be devastating when times are tough.

Add to this scenario that “Over 60 percent of employees” stated they “do not have enough work to do each day.” And further, that socializing with co-workers, searching the web, making personal phone calls, and taking longer breaks is acceptable or justified. After all, what else are they to do when they have no work to do?

As a business owner or manager, perhaps you have been focused on establishing or building the business and you haven’t been looking around. Start today. Develop a workable plan for aggressively assessing all functions of the business to determine who and how many employees should be completing each task. Determine sooner than later if you have too many employees.

Implement methods of consistently measuring employee performance and the improvement of processes. Working smarter and being more productive in all areas will be instrumental for a positive balance sheet. You must employ only those employees who genuinely want to do a good job, who are dependable, and who bring value to the company. Manage employee focus and opportunities to foster measurable employee commitment, improved performance, and added enthusiasm.

Simultaneously, implement written policies that clearly identify and communicate employee responsibility regarding the use of company-provided communication tools. It is helpful to communicate how much wasting time costs the company and individuals with regard to possible decrease in benefits offered, reduced merit increases, and limited career opportunities.

The obvious goal is to effectively increase the total number of productive hours each employee works. Know who is doing what, have a good understanding of the amount of work to be accomplished, and normal time allotment for the particular function of any given position. Getting this detail is required for a good assessment. Too often, companies become much too relaxed with regard to expectations. And far too many times, bring on new staff when it is not required.

It is hoped that you can communicate the value of a “good day’s work” and can illustrate to all employees that improved productivity results in rewards, while downtime costs everyone.

Being that it is December, I am confident your company has already formalized budgets for 2009 and short and long-term strategic business goals have been identified. So, the time is right to go one step further and ensure human resources policy is implemented and communicated in order to facilitate achievement of these goals. In essence, policy must perform for your company, especially during these tight economic times when cutting costs and improving efficiencies are critical.

To understand what I mean by making policy perform, honestly answer the following questions: (1) Is your team recruiting the best or just filling positions with a warm body? (2) Once you hire, are the company’s on-boarding activities successful? (3) Are you requiring on-going training for all employees? (4) Are you correctly developing job responsibilities to meet business goals? (5) Are employees consistently evaluated to facilitate appropriate employee recognition or proactive management of performance deficiencies? If you answered “No” to most of these questions, it can be assumed that your current policy or lack thereof, is not performing to promote continued process improvements and most likely is not supporting your efforts to recruit or retain top talent.

Moreover, if you could greatly reduce the time spent each week reviewing expectations or addressing general questions, would you? The fact is, dealing with employee questions as they arise, on the fly, or as you run out to a business meeting across town, facilitates inconsistencies, may foster perceived favoritism or discrimination, and will create the need for increased documentation in order to “remember” the random decisions which were made.

Bottom line, make it a priority in 2009 to get the most out of your policies and make policy perform for your company. With one quarter of your policy needing to be a restatement and explanation of common employment practices and laws to include equal employment opportunity declaration; identification of federal, state, and local taxes to be deducted from paychecks; definition of employee classification (exempt or non-exempt); requirements for Family Medical Leave eligibility; and deadly weapons, diversity, and sexual harassment policies, the remainder should be customized to meet your specific business needs.

Conversely, before formal implementation, institute manager and supervisory training in the administration of policies and further their understanding of the importance of employee commitment and adherence to company policy. Also, make measurement of any newly designed policy a requirement. Just as on-boarding is vital to the success of a new employee, assessment of the effectiveness and administration of any new policy should be conducted within six months of implementation and thereafter at least once annually. Whereas, if a policy was implemented that does not address business objectives or is not conducive to the work environment; it should be revised or possibly even eliminated. Of course, federal and state laws need to be upheld.

Smart HR is Smart Business. Therefore, elucidate that streamlined expectations, standardized methods, and working toward common goals will greatly enhance the organization’s ability to remain competitive and continue to offer a positive work environment for all employees.

On January 1, 2009, new amendments to the Americans with Disabilities Act (“ADA”) will become effective.[1] If your business has 15 or more employees, these amendments could change the way you currently handle leave requests and other requests for accommodation.

The ADA basically requires employers to reasonably accommodate disabled employees. A “disability” under the ADA is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.”[2] Over the years, the United States Supreme Court has narrowed that definition in two important ways. First, in Sutton v. United Airlines, the Court held that determination of whether an employer is “disabled” under the ADA must take “mitigating measures” into account.[3] For example, if an employee can hear perfectly with a hearing aid, then his hearing was not considered “substantially impaired.” Or, if an employee’s condition is controlled by medication, the condition was not a “disability.” Second, in Toyota Manufacturing of Kentucky, Inc. v. Williams, the Court stated that the definition of “disability” must be strictly construed and a person “must have an impairment that prevents or severely restricts him or her from doing activities that are of central importance to most people’s daily lives.”[4]

The new ADA amendments are the Congressional response to the Sutton and Williams decisions. While the amendments leave the ADA’s definition of “disability” in tact, they adopt rules of construction” that broaden the definition beyond its former application. Specifically, the amendments state that the definition “shall be construed in favor of broad coverage” and that “substantially limits” shall be interpreted consistent with “findings and purpose” of amendments, that is, to reject Sutton and Williams and “reinstate a broad scope of protection under the ADA.” Therefore: 1) an impairment that limits one activity is a “disability”; 2) an impairment that is episodic or in remission is a disability if it is substantially limiting when active (this specifically applies to those with cancer); 3) an impairment is to be considered without reference to mitigating measures (but there is an exception for glasses and contact lenses, therefore nearsighted persons who wear corrective lenses are not “disabled”); and 4) “major bodily functions” are “major life activities,” including immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, respiratory, and reproductive functions. However, the ADA as amended does not protect those with “transitory” (actual or expected duration of 6 months or less) or “minor” conditions.

So, what does it all mean? Clearly persons who were not “disabled” under the former ADA may now fall under the amended definition. Employers should therefore review how they evaluate requests for accommodation from employees. For example, employers may now need to accommodate reasonable leave requests for fertility treatments, being as “reproductive functions” are now a “major life activity.” And it is now more important than ever to document any discussions regarding accommodation, as courts look to whether there was an open and ongoing conversation about accommodation in reviewing how requests for accommodations were handled. Employers should also consider revising medical certification forms to request that a physician specify whether an employee’s condition is “transitory” or “minor.” The Equal Opportunity Commission is expected to issue new regulations for applying these amendments in 2009, which will provide additional guidance on how to modify practices and procedures.

In discussing the growing problem and harms associated with pornography, I hear everyday of the devastation it brings to marriages, families and children. There is no doubt that the sex industry is a scourge upon our homes and communities. But an area that is too often overlooked is the negative effect on business success.

Internet tracking services report that 70 percent of all Internet porn traffic occurs during the 9 a.m. to 5 p.m. workday. While you think your business is humming along providing the goods and services your customers demand, other non-productive activities may actually be taking place. The work environment provides individuals the perfect way out from being caught by a spouse or child at home while viewing porn. In a disturbing trend, 20 percent of men and 13 percent of women admit to accessing pornography at work. Many employees state they have accidentally been exposed to pornography with a recent survey showing 75% of employees stating they have had pornographic sites appear on their company computer. Every employee engaged in such activity, or accidentally exposed to it, impacts the productivity of every other employee by slowing down overall production. Business owners in our region report to me that hours of their own time have been wasted in dealing with this growing problem at work. Just recently, one owner relayed a story of how distracted and unproductive an employee became after becoming addicted to pornography, ultimately ending his marriage in divorce, while also making the work environment very uncomfortable for both employer and worker once the boss was made aware of the situation. Like the Grinch who stole Christmas, pornography can sneak in and steal from you as well as your employees’ lives and livelihood.

One of the most devastating losses to an employer is human capital (terminated employees) due to disciplinary actions that require termination. Your investment of education and training is lost, thereby causing more resources and capital to be used to train and educate new employees. Since smaller and medium-sized businesses often become like families to one another, personal relationships become painful and strained for everyone. No size operation is immune from the negative impact of pornography in the workplace. Over the past 12 months, 50 percent of the Fortune 500 companies report having dealt with at least one incident related to computer porn in the workplace. Offenders were fired in 44 percent of the cases. Fallout from these instances included the effects already mentioned as well as overall computer slow-down when work was performed to clean the company system.

To say the least, all of this causes a disruptive work environment at a minimum, but the damage can be far more reaching, such as harm caused to the brand and company reputation you have worked so hard to build and maintain. Then there is the issue of legal liability. As a former corporate attorney, I can tell you this repercussion is among the most serious. Employers can be held liable for possession of child pornography discovered on company-owned workplace computers, and in some states, for not reporting to proper law enforcement agencies that employees are engaging in activity related to child pornography.

Another area of vicarious liability stems from sexual harassment. It is also a paramount concern born out of unrestrained and inappropriate Internet activity. In 2007 the Dial Corporation paid $10 million to settle class action sexual harassment allegations brought by the Equal Employment Opportunity Commission. The EEOC’s lawsuit claimed widespread lewd remarks, physical assaults, displays of pornography and other acts of harassment and intimidation of female employees. This case demonstrates the high financial impact and other consequences upon a corporation because of management tolerance of inappropriate activities at just one company facility.

Fortunately, I can tell you that there are some very simple ways to protect your company and your employees:

• Discuss the serious nature and impact that pornography can have in both a personal and professional setting.
• Create an “acceptable use policy” for Internet usage.
• Create a disclaimer about the dangers of the Internet.
• Create a summary of appropriate and inappropriate uses of the Internet.
• Create a statement about avoiding frivolous/inappropriate use.
• Create a ‘no expectation of privacy’ statement that waives privacy rights over any materials sent or created using the company’s computer network.

In addition to these steps, ROCK offers employee education on the harmful effects of adult and child pornography, recommendations of resources for pornography addictions and suggestions for effective Internet filters. We stand ready to assist you in creating a great work environment. By being proactive and working with the right tools and resources at your disposal, you, your company image and your employees will be protected and more productive. This translates into higher morale and increased business success, plus sends the message that anything unhealthy for the company is unhealthy for the worker. Protecting your business is not only the smart thing to do, it is the caring thing to do and expresses to your workforce and the business community as a whole your commitment to excellence at every level. This Christmas give yourself and your employees a great gift of a wholesome work environment!

If you have ever been to a sales conference you heard, “Sell, Sell, Sell.” On the other hand, if you visit a human resources conference you would hear, “Document, Document, Document.” The fact is, the first time you have any employee issue, you will be asked either by human resources or legal counsel to provide all supporting documentation. If your documentation is inadequate, defending your employment actions may prove problematic. So even though you may not currently document or feel it is not necessary, remember that in many cases your employees do have documentation and their account of certain incidents may be very different from those you remember.

It is paramount to document employee performance when it is excellent, meeting expectations, or substandard. I know what you are saying, “Documentation takes too much time, and I am too busy.” Yet, if you commit to the method outlined here, not only will you have a tracking system for employee performance, you will greatly decrease the time required to complete six month and annual evaluations.

I recommend that managers and supervisors create a file for each direct report and add entries to the file throughout the year to record performance and areas for improvement. Each entry should be dated, signed by the manager or supervisor, clearly define the reason for the entry, note whether any discussion concerning the performance (positive or otherwise) occurred, and if there was a witness present during any of the discussions. Make sure to keep all entries specific and fact-based. Review your entries at least every three months, or more frequently if performance issues are present. When done correctly, this systematic and uncomplicated approach will provide ample data to support a variety of employment actions such as employee promotion, disciplinary action, demotion, separation, or documentation as required for a necessary reduction of staff.

This documentation also serves as a chronological assessment of each employee, which is excellent for use when completing six month and annual evaluations; whereas, the facts surrounding performance are gained upon retrieval of each employee’s file. Given the company’s evaluation form itself accurately measures the essential functions relative to each position, you will not fall into the trap of incorrectly evaluating employees based on the most recent activities or simply what you can remember. During the evaluation process, managers and supervisors should allow employees to ask questions regarding any performance criticism, provide candid dialogue to elucidate job expectations, determine clear objectives for the upcoming period and/or outline deadlines for improvement, recognize exceptional performance, and present an environment conducive to coaching and mentoring. Moreover, using actual documented data will illustrate your commitment to uniform measurement of performance when salary increases are being considered, employee opportunities are present, or when progressive discipline is warranted.

The ultimate goal is to institute this uncomplicated method of performance documentation in order to reduce company exposure by training managers and supervisors to evaluate employees fairly and consistently and to foster awareness among all employees that performance does matter, that it is being recorded, and that your company’s evaluation process is creditable.

Everyone knows that improving eating behaviors, modifying sleep habits, and exercising more consistently can extend life expectancy. Moreover, simple lifestyle changes can decrease health costs. So knowing this, why are companies still resistant to promoting wellness programs?

At The Human ReSource, LLC, we have found that many companies view wellness programs as difficult to administer and present too much challenge with regard to monitoring use and success. Yes, some Louisville and Southern Indiana companies are offering wellness programs. However, according to a SHRM (Society of Human Resource Management) survey, only 58 percent of companies (employing in excess of 250 employees) nationwide offer wellness programs, and the percentage of smaller companies supporting wellness programs is significantly lower.

But consider this; on average, Americans are spending an additional 10 hours working each week. This offers employers a unique opportunity to positively affect healthier habits. Of course, not all employers can afford to invest in a 30,000 square foot employee fitness center; yet there are simple ways and inexpensive methods to influence healthier choices to improve employee wellness and employee retention. The goals for any wellness program, large or small, is ultimately to educate employees to live healthier; thereby, healthcare costs are reduced, a supportive work environment is established, and employers experience less absenteeism and higher retention rates.

So, no matter your company size or budget, you too, can develop a wellness program for your employees. First things first, decide who will champion this effort. It will be important that communication is centralized and consistent throughout. Someone who has functioned in human resources or someone who is well-respected by your employees would be best. The second step is to determine general guidelines with regard to how information will be communicated (i.e. company website, newsletter, etc.) and the amount of time allotted to the program. Generally, even after a simple program is developed, it should be expected that this effort will require approximately 10 hours each month from your chosen “Wellness Champion.” Lastly, work with other companies in your area that are promoting wellness programs and seek out local agencies or businesses that cater to employers offering wellness-at-work programs (i.e., YMCA, local hospitals, etc.)

The suggestions below can be used to jump-start your own wellness plan on a budget.

ü Illustrate management commitment to the program during a healthy employee luncheon – introduce the plan, program administrator, and newly created “wellness” newsletter.

ü Get employees involved in writing wellness and fitness articles and submitting their own favorite heart- friendly meals.

ü Ask employees to actively share information about community or neighborhood sponsored activities, walking, biking, health screening, etc.

ü Team with a local fitness instructor to reduce fitness class enrollment fees for your employees.

ü Work with a local healthcare facility or hospital to provide wellness literature to employees.

ü Make smart vending machine and luncheon choices – reduce fatty foods and add wholesome health bars, fresh fruit, and healthier drink choices.

ü Provide employees with pedometers and have a contest for the most steps in one month – celebrate all successes!

ü Offer information on how families can work together to improve overall health by exercising together.

Keep your efforts modest, if you choose, but keep your commitment to your employees constant. With minimal time and investment, you can promote a healthier workplace that results in improved morale and enhanced employee loyalty.

Across the nation, one out of four employees will quit their jobs this year – and the average company will spend three times their annual salary to replace them. Particularly in small business this “turnover treadmill” can be the difference between a profitable company and one that’s on the verge of closing.

There are literally dozens of programs on hiring, but how often does anyone work on the other side – keeping the employee that’s been hired?

Let’s assume you’ve done a great job hiring the new employee – after all, you wouldn’t hire someone you didn’t feel was right. Yet, often, within six months to a year, either they’ve left or they haven’t worked out the way you expected. In either case, you’re right back where you started, except for the loss of time, salary paid, benefits paid, unemployment, and, most importantly, lost opportunity.

The problem can occur in several areas, but the one which tends to be most devastating is when we never get the employee truly “on board.” If we’ve hired the wrong person, the quicker we find out, the better. But it is most often the case that we just threw the new hire into the work without adequate preparation – even if we think we’ve explained everything.

Large corporations have entire Human Resources departments to handle these issues. What can you as a small business person do?

1) Make the process of bringing the new employee on-board a planned activity even before the hire is made. Much of this is pretty straightforward:

a. What documents do you need from the employee?

b. What needs to be filled out for payroll, benefits, etc.?

2) Create a simple “employee reference” for incoming employees. What goes into it? Everything you believe the employee will need, early in their time with you:

a. Hours of operation and/or work.

b. Who to call list for information on a variety of issues.

c. Lunch and break times.

d. Sick and vacation policies.

e. Benefits summary and eligibility.

3) Create a job description for this employee. Don’t rely on the last occupant of the position to do this or to “just fill them in” on things. The likelihood is that something will be lost in the translation. Experienced employees sometimes know things so well they fail to think about passing them on.

In addition, it is vital the employee have the basic duties and expectations in writing so they can refer back to them.

4) Think through the “technical knowledge” this person will need to know about your company and develop a written plan for them to attain it.

Many times, small business owners have described to me how they “put the new hire out in the operation” for some time to “learn the ropes.” The problem with this is neither the new hire, nor the people they are working with, have a solid idea of what it is they need to learn. They will learn something, certainly, but will it be what they need in their planned role?

A little time planning this “introduction” can make it 100% more effective. Both the new hire and the people they are working with will understand what they need to come away with and what the objectives of their experience are.

5) Finally, plan to do frequent reviews during the first six months. At first these might be a weekly conversation about what they are learning and what questions they have. After the first conversation, these would be the responsibility of their immediate manager, but if the owner made the hire, the first one should be with him/her.

After a few weeks, go to monthly reviews including feedback on their performance and the expectations ahead. By the end of six months, not only will you have a better grounded employee, but one who is comfortable talking about expectations that might be difficult for them.

While simplified for the purposes of this article, the process described includes the elements of the most successful on-boarding programs available. As always, the devil is in the details; so you might want to consider some further study of the topic to maximize its effectiveness.

Since 1935, unions have gained representation rights of employees via a secret ballot vote conducted by the National Labor Relations Board (“NLRB”). Today, such representation elections are held on average about 40 days after the union files its petition. However, potential changes in Washington during this election cycle may fundamentally alter that process. A bill supported by a number of local and national candidates, including Senator Barack Obama (see http://www.barackobama.com/issues/economy/#labor), would allow unions to bypass the ballot box and achieve NLRB certification by collecting signature cards from a simple majority of an employer’s workforce in an appropriate bargaining unit. The bill provides that once a sufficient number of cards supporting a union are obtained and presented to the NLRB and the certification is issued, negotiations for a first contract are to begin within 10 days of a written request by the union to the employer.

Introduced most recently in February of last year as H.B. 800, the Employee Free Choice Act of 2007 (“EFCA”) would make a number of significant amendments to the National Labor Relations Act, including allowing unions to bypass the standard election process, as outlined above, and require the union and employer, if unable to reach agreement for a collective bargaining agreement after four months of bargaining, to submit the dispute to binding arbitration. That arbitration panel, supplied by the Federal Mediation & Conciliation Service, would set the terms and conditions, including wage increases and benefit plan terms, of the new contract for up to two years in duration (the full text of the bill is available at http://www.uschamber.com/NR/rdonlyres/e2ufsctu42dod4lnoebm7ohcwxkstagnpc52f

2kw53t4hlh4wsxlwgcryn2sbitw27b2igc6gyd4fl4av5bieqgnzsd/H.R.800.pdf).

The EFCA has already passed the U.S. House of Representatives and is supported by virtually all Democratic candidates running for both House and Senate seats. Even if Senator Obama is not elected and Senator John McCain, who has voted against the measure, vetoes the EFCA, there may well be sufficient votes in the Senate to override that veto in the next Congress.

Supporters of EFCA argue that it is necessary to level the playing field because employers have the advantage of better access to employees during a union organizing campaign and often harass, intimidate, or even fire employees who engage in union organizing activity (see http://www.aflcio.org/joinaunion/voiceatwork/efca/). Opponents stress that nothing should invade the sanctity of the ballot box and that doing away with union representation elections ultimately limits workers’ rights and potentially exposes workers to intimidation and coercion by union organizers and their supporters (see http://capwiz.com/chamber/issues/alert/?alertid=11197041&type=CO).

It is clear EFCA would be a radical departure from the present procedure for union organizational activities. Secret balloting conducted under the watchful eye of an NLRB official would become a thing of the past, as would the typical campaign leading up to a union vote. At present, employers and union representatives are able, subject to certain rules and restrictions to protect the integrity of the process, to discuss the pros and cons of unions with employees in the weeks leading up to an NLRB election. However, if EFCA becomes law, unions could achieve NLRB certification by obtaining signature cards for one over half of an employer’s workforce, without any notice to the employer and presumably without notice to a significant portion of the workforce itself. The future progress of the EFCA legislation and the debate over its passage will be one for business owners to watch very closely in 2009.