27

Employee and Labor Relations

Two prime ministers are sitting in a room discussing affairs of state when a man bursts in, shouting and banging his fist on the desk. The resident prime minister admonishes him: “Peter, kindly remember Rule Number 6,” whereupon Peter is instantly restored to complete calm, apologizes, and withdraws. After the scene is repeated, the visiting prime minister asks his host if he would share the secret of Rule Number 6. The host replies: “Very simple. Don’t take yourself seriously.” “And what are the other rules?” asks the visitor. “There aren’t any,” replies the host.¹

The cornerstone of employee relations is not about rules. It is about an organizational culture that treats people fairly, professionally, and respectfully. A positive and respectful culture balances the needs of the organization and the employees. It drives recruitment, retention, morale, and productivity. It builds an atmosphere of trust.

The characteristics of a positive culture include:

    Opportunities for growth and advancement.

    Promotional opportunities.

    Rewards and recognition.

    Feedback and communication.

    Problem-solving and counseling.

    Fair and consistent treatment of employees.

    A safe and secure work environment.

Positive Culture and Policies

Through its employment and human resources policies and practices, organizations can set a framework for treating people with respect and fairness. Policies:

    Reflect the culture and values of the company.

    Set and communicate management expectations.

    Assure consistency in the way all people are treated.

    How would you treat another employee in a similar situation?

    Recognize uniqueness and provide flexibility.

    Would you treat an employee who has been with the company 12 weeks the same as someone who has been there 12 years?

In developing human resources policies, organizations should keep in mind that:

    Policies are management guidelines and not necessarily mandates.

    Policies are standards developed to assure a consistent approach to people management issues.

    A consistent approach should not ignore judgment and the particulars of each situation.

    Policies should be flexible and allow for management decisions to meet each unique situation.

    For policies to be effective, they must be communicated to managers and employees alike.

    For managers to make effective decisions, they have to be trained to understand the intent of the policies and how to apply the policies. It is important that managers receive guidance on assessing situations and applying policies in a fair and consistent manner.

    Policies are unique to each organization. Do research and understand what other organizations in your industry and geographic area are doing. Consider your organization’s size. Resist the urge to cut and paste policies, even from trusted sources.

    Individual policies do not stand alone, but work together with others. For example, a violation of a drug abuse policy would be subject to disciplinary action under a conduct policy.

Policies also represent the organization’s response to the external environment and can offer a degree of legal protection in areas such as harassment or discrimination. However, recognize that practices and precedents outside the boundaries of established written policies, or practices in lieu of written policies, can erode any legal protections and become de facto policies. In challenges to employment decisions, employers are often asked about the historical treatment of individuals in similar situations.

Employee Handbooks

Organizations often use employee handbooks as a way to communicate policies to employees and managers. They can also be used to communicate information about benefits. In addition to policies and benefits, handbooks may contain introductory information about the organization, an employee acknowledgment form, and information about other work rules.

Best practices regarding employee handbooks include:

    Tailoring it to your needs and don’t adopt a “form” handbook, which often includes information that is not relevant to your organization.

    Avoiding including too much detail on procedures. It is best to consider a separate manual for managers.

    Providing an at-will disclaimer and make sure that there are no other statements that contradict it.

    Advising employees that the employer can modify or change policies, and will provide notification when it does.

    Reviewing it for inconsistency.

    Gaining advice, legal and technical, to assure that the policies and practices are sound and enforceable.

    Having employees sign for the handbook acknowledging that they have read it.

Update your policies and handbooks as conditions change, and have your employees sign acknowledgments of the changes. If you distribute the employee handbook electronically or via an intranet, you should obtain a written acknowledgment of any critical changes, such as the introduction of a dispute resolution or social media policy.

Employee Communications

Regular, open communication with employees is essential for demonstrating respect and fostering trust. Routine communication provides updates about the organization’s strategy and policies, and how it is measuring up against its goals and plans. It is important to be honest and open about both positive and negative issues.

Employers should have a formal communication plan, which should incorporate a number of vehicles:

    Open-door policies foster a free interchange between employees and management, and provide a flexible and informal approach for communication.

    Department staff meetings, all-hands staff meetings/town-hall meetings, and brown-bag lunches are excellent opportunities for in-person communication.

    Newsletters can be traditional paper editions or distributed electronically.

    Leverage technology through the use of email, blogs, Intranet, webcasts, and pod-casts. This is a robust way to keep younger workers engaged.

    Story-telling can convey information in an engaging manner and stimulate conversation.

    Employee surveys can provide excellent information to an organization, provided it is committed to acting on the feedback it receives. If employee comments and feedback are ignored, it sends a negative message.

    See Chapter 14 (Employee Engagement).

A Sampling of Sound People-Management Policies

There are certain policies that an organization should consider implementing. The following provides guidelines on how those policies should be crafted.

Employment at Will

You can establish this policy with a simple statement that the organization maintains an “at will” relationship with its employees. At any time, with or without notice, employees are free to join or leave and the organization is free to establish or terminate the employment relationship.

Be certain that you do not make statements in an employee handbook or other policies that would violate this policy, such as having a probationary period for new employees or placing conditions on voluntary terminations.

EEO Policy

The policy should, at a minimum, prohibit discrimination based on all of the protections in federal nondiscrimination laws, as well as any additional protections under state or local law.

    See Chapter 3 (The Legal Landscape of Employee Rights).

It should:

    Apply to all employees and applicants.

    Ensure that all management and employment practices are administered without unlawful discrimination on any protected basis, as described Chapter 3.

    Define the covered practices, such as recruitment, selection, job assignment, transfer, promotion, demotion, layoff, discipline, termination, training, education, tuition, social and recreational programs, compensation, and benefits.

    Require all employment decisions be based on qualifications, such as skill, knowledge, and/or ability to perform the position being filled, and be clearly related to job effectiveness.

    Assign direct responsibility for this policy to supervisors and managers.

    Provide management staff with appropriate training and briefings on equal employment opportunity policies and procedures to assist in their implementation.

Though federal and state discrimination laws protect specific and varied characteristics, and although the EEOC and the Courts issue guidance and interpretations of these laws, employers should strive to be inclusive in their workplace practices. Implement positive practices and do not tolerate behavior that targets any employee because of a specific characteristic—for example, size, manner of dress, sexual orientation, or gender identity, to name a few.

Performance Management Policy

The policy should:

    Provide a process for managers to communicate job expectations and to formally evaluate performance against those expectations.

    Describe clear expectations that must be related to job performance—skills, behaviors, and tasks important for job success—and should be:

    Specific, measurable, and observable.

    Within the employee’s control.

    Achievable with time and resources.

    Encourage informal evaluation and communication on a continual basis.

    Develop a culture of continued improvement.

    Require communication of performance expectations.

    Provide a process for performance improvement to correct performance below expectations.

    Provide a process for continued performance success for all employees.

    See Chapter 25 (Performance Management).

Employee Conduct Policy

The policy should:

    Establish and define standards of conduct that are not acceptable, while stressing that the list is not all-inclusive and that there can be other infractions.

    Provide assistance to employees to change inappropriate behavior.

    Provide management a means to address issues.

    Provide management responses if behavior does not change.

    Provide a flexible approach (progressive or corrective discipline) process to address conduct.

    Provide a communication mechanism for employees and managers.

A corrective discipline process can include the following steps:

    Open dialogue/verbal counseling.

    Written counseling/letter of caution.

    Final written notice.

    Suspension.

    Termination.

A fair and defensible corrective discipline process allows management flexibility in determining whether all steps should be used in dealing with a specific problem and in deciding when immediate or severe action must be taken. Don’t be too specific in your process and tie management’s hands. Disciplinary action can and should start at any stage, depending on the severity of the behavior. Don’t factor judgment out of the process.

Written disciplinary notices should include the date, the employee’s name, the nature of the action being taken (for example, letter of caution), specific behaviors observed and the dates they occurred, and a statement that if the employee fails to correct his or her behavior, further disciplinary action may be taken, up to and including termination.

    Appendix: Sample Categories of Unacceptable Conduct.

    Appendix: Sample Disciplinary Notice.

Drug Abuse Policy

The policy should prohibit employees from possessing, using, manufacturing, purchasing, dispensing, or selling illegal drugs on the premises, as well as consequences for violation. The policy should also provide for referrals to an Employee Assistance Program for drug, alcohol, and related mental health problems affecting job performance.

Harassment Policy

The harassment policy must be communicated to all employees, and it is advisable to do this in writing. It should cover:

    All forms of harassment, not just sexual harassment.

    All employment decisions (see “EEO Policy”) or actions.

    Behavior that occurs wherever the company is conducting business (for example, work locations, a client site, a training facility, during travel on company business, during a company-sponsored event).

The policy should provide:

    A definition of harassment with clear explanations of prohibited conduct.

    A definition of the responsibilities of all employees, the responsibilities of management employees, and the responsibilities of human resources.

    Assurance against retaliation.

    A clear complaint process.

    Assurance of confidentiality to the extent possible.

    A clear investigation process.

    Assurance of corrective action when harassment has occurred.

Workplace Bullying Policy

Closely aligned to the harassment policy, a policy on workplace bullying should include:

    A definition of workplace bullying.

    A description of who is covered.

    Examples of behaviors that will not be tolerated and consequences of not adhering to the policy.

    A clear complaint and investigation processes.

Electronic Media Policy

Technology today comes in many forms and it keeps evolving. A policy on electronic media should define media broadly, including, devices such as laptops, tablets, cell phones and smart-phones, cameras, recording devices, and any other emerging tools to access information.

The policy should address and set expectations for the responsible use of technology, including the systems that support the technology used in the workplace. This would include, but not be limited to, email, Internet access, and the use of any of the organization’s networks. It should stress that:

    Any equipment and systems provided by the organization that support the media are the property of the organization and dedicated for business purposes.

    The organization has the right to monitor, retrieve, and read any information sent or received using the equipment and systems.

    The employees should not have any expectation of privacy while using the organization’s equipment or networks, and that the organization has the right to review any electronic communications on its systems.

    Violation of the policy could result in disciplinary action.

Define what is considered an unacceptable use of technology, such as:

    Sending or receiving offensive or disruptive messages that could be violations of the harassment or non-discrimination policies.

    Using technology for soliciting, collecting, or selling for any non-business purpose.

    Sending, receiving, or disclosing confidential or proprietary information, copyrighted materials, or trade secrets without authorization, including downloading data or programs for personal or commercial use.

Finally, provide guidance on protecting the integrity and security of the systems and the information transmitted. Have provisions for password protection, downloading unauthorized software, intentionally introducing viruses, and alerting the appropriate management representatives about viruses and other security breaches or related issues.

Technology is widely used today and organizations should not overreach in what they try to achieve with their policies. Set reasonable expectations, such as responsible personal use, but be open with your expectations so that employees and managers are clear about the rules. Seek appropriate legal and technical guidance, because the issues are constantly changing.

    Appendix: Guidelines for Documenting Workplace Issues.

Social Media Policy

Social media is brave new world for employers, especially as the demographics of the workforce change. Younger employees are savvier with technology and the use of public, social platforms such as Twitter, Facebook, and LinkedIn, to name just a few. These platforms are changing constantly and it is impossible for employers to address all the things that employees can and can’t do on them. Reasonable guidelines can be communicated in a policy, and should include a broad definition of social media and explain the employer’s position on its responsible use as it pertains to the organization. In developing a social media policy, consider the following:

    No organization can be in the business of policing everything their employees do during and after working hours. An over-restrictive policy would be difficult to enforce.

    How far do you want to reach? Two concerns for employers are how employees are spending their time at work, and how employees are portraying your company online when they are not at work. The policy must address both types of online use.

    Do you want to permit social networking at work, at all? If you prohibit it, how will you monitor it? Allowing limited personal social networking during business hours assures employees that you are treating them respectfully and professionally. However, your policy must cover circumstances when employees abuse the privilege through excessive use or inappropriate postings.

    Do you want employees to identify with your business when networking online? Employees should be made aware that if they post as an employee of your organization, they will be responsible for any negative portrayals. Positive postings, however, can have powerful networking and marketing results. Conversely, if an employee posts something negative and his or her profile indicates the employer’s name, it could have negative consequences for the employer, even if no reference is made to the organization.

    How do you define “appropriate business behavior”? Everything posted online is public, and employees have no privacy rights. Anything in cyberspace can be used as grounds to discipline an employee, no matter whether the employee wrote it from work or outside of work. There should be consequences for any information that negatively reflects on your business. Social networking policies should work in tandem with your conduct, confidentiality, harassment, non-discrimination, and electronic media policies.

Other issues to consider are:

    Who within the organization can be Facebook “friends”?

    No restrictions.

    Supervisors cannot friend direct reports, but employees can friend their supervisor.

    Supervisors and their reports cannot be friends.

    Only peers can be Facebook friends.

    Employees are prohibited from being Facebook friends with any coworker, regardless of position. The option you choose has more to do with your corporate culture, but there can be legal implications such as harassment liability. You should address this in your social media policy.

    Can a manager provide a recommendation for an employee on LinkedIn? Consider that if a manager provides a good recommendation for an employee, and the employee is later terminated for cause, the recommendation could be used as evidence if there is a subsequent lawsuit. Managers need to be aware that anything that they write about an employee in any public forum, whether positive or negative, could be used against the employer.

    See Chapter 8 (Recruiting From Outside the Organization), which also discusses considerations for a social media policy.

Workplace Violence Policy

The policy should:

    Provide a statement that violence (or threats of violence, including bullying) will not be tolerated. This could be included in a conduct policy.

    Define the prohibited conduct and give examples of violent conduct. The policy should strictly prohibit threats of violence, intimidation, physical altercations, and vandalism.

    Provide for disciplinary procedures for employees who engage in violence, up to and including termination. This should tie to the conduct policies. Employers should not hesitate to terminate employees in appropriate cases. Discipline may include mandatory counseling. Organizations may also want to reserve the right to remove the employee from the workplace until a fitness for duty certification can be obtained from a healthcare provider.

    Encourage reporting and implement investigation procedures. Employees should be encouraged to raise concerns about violent coworkers, and organizations should establish an effective method for investigating and resolving such complaints. Early intervention can be beneficial to all parties. Through an effective communication program, encourage employees to come forward when the first indications of violence are observed.

Leave Policy or Policies

Policies regarding leaves of absence must include mandatory leave for issues such as FMLA and military leave, and leave for jury and witness duty. Other types of leave that employers may want to provide include bereavement leave, emergency leave that can cover issues such as inclement weather or other unforeseen circumstances, education leaves, or sabbaticals. The policies should specify the conditions under which the leaves are paid and provisions for continued benefits as may be required by law.

Layoff and Termination Policies

Layoff policies should establish:

    The circumstances under which an employee can be laid off—generally a reduction in force.

    Any severance, notice, or pay in lieu of notice practices.

    Selection criteria for layoff.

    Provisions to conduct an adverse-impact analysis under attorney-client privilege.

In making selections of individuals for layoff, employers should consider:

    The organization’s needs including those positions necessary to perform the work, what the workforce looks like today, and what you will need in the future—those knowledge, skills, abilities (KSAs) required to perform the work.

    Employees’ KSAs, performance, reliability, and service.

Termination policies should provide for management review and awareness by establishing:

    An internal review and approval process, including notifications to senior managers for involuntary terminations; and

    An exit interview process for voluntary terminations to assist with future retention.

Labor Relations

I went to the miners’ camp in Holly Grove where all through the winter...men and women and little children had shuddered in canvas tents that America might be a better country to live in. I listened to their stories. I talked with Mrs. Sevilla whose unborn child had been kicked dead by a gunman while her husband was out looking for work. I talked with widows, whose husbands had been shot by the gunman; with children whose frightened faces talked more effectively than their baby tongues.

“I think the strike is lost, Mother,” said an old miner whose son had been killed.

“Lost! Not until your souls are lost!” said I.

—Mary Harris Jones in 1914²

The history of the American Labor Union is an important part of American History. It is also an important part of human resources history. Before organizations had HR professionals to ensure that employees were treated with fairness and respect, it was the unions that fought for workers’ rights. Mother Jones was drawn to the miners, although it was child labor that aroused her most spectacular activities.

Today, organizations with an effective employee relations program and a culture of respect are likely to remain union-free. Throughout this book we have discussed these characteristics, and chapters are dedicated to rewards and recognition, workplace flexibility, performance management, effective conversations and feedback, coaching and counseling, compensation, benefits, and safe and secure work environments. Creating such a culture is the first proactive step. Maintaining the culture is the ongoing challenge.

Evidence of Union Activity

Early detection of and rapid response to union activity has long been key to union avoidance. Counsel should be sought at the first signs of union activity, direct or indirect, even if they seem isolated. Why is this so important?

    A bundle of isolated, minor occurrences may amount to evidence of a serious union campaign. Considering all such reports, HR and legal can assess the extent of a union campaign.

    If 30 percent of eligible employees in an appropriate bargaining unit sign union authorization cards, the company may be on its way to a unionized workforce. The next step is a secret ballot election.

Activities that may indicate early union organizing include:

    An employee handing out a union flier in the parking lot or wearing a pro-union T-shirt.

    Unusual off-site gatherings of employees—at barbecues, bowling alleys, and bars.

    Employees who have not had previous relationships suddenly become very involved with each other.

    Phone, photocopier, or fax machine use for personal business increases.

    Complaints or grievances increase in number (may be used as a union rallying point).

If union activity is suspected, supervisors should immediately report the activity to HR and/or senior management, and expert advice should be sought from legal counsel or consultants specializing in labor relations.

Activities that unions have traditionally used for organizing campaigns include:

    Telephone solicitation.

    Off-site meetings.

    Distribution of leaflets.

    Indirect influence.

    Picketing.

    Salting (placing union organizers as employees into companies).

More recently, technology has allowed unions to launch Internet and email campaigns. Social media is a powerful tool for member outreach and organizing, especially as unions shift their focus to younger workers. Although unions may be setting up Facebook pages to attract younger workers, companies can assure that their non-solicitation rules limit access to any company systems. Stress that company systems are owned by the company, are for company business, and may not be used for solicitation of any type.

A common acronym that helps to remember behaviors that could result in an unfair labor practice is TIPS. Managers and supervisors should avoid:

    Threats: threatening any adverse action such as significant changes in benefits, demotions or firing because employees are engaging in a protected activity.

    Interrogation: asking employees about union activities.

    Promise: suggesting or promising employment benefits, such as promotions or salary increases, if the employee will refrain from union activities.

    Spy: spying on union-related activities during work time and non-work time, whether on or off company premises.

    See also Chapter 3 (The Legal Landscape of Employee Rights).

Supervisors must understand that if a union representative contacts them directly, they should not look at any:

    List of employees that a union representative attempts to give them.

    Cards or letters with names on them.

    Papers that employees attempt to hand them.

    Appendix: Guidelines to Address Union Activity.

Discussion Questions

1.    Describe how an organization can create a culture of respect. What effect does the external environment, such as the economy, have on its efforts? What has your organization done to foster a fair and respectful climate?

2.    Discuss the ways that organizations communicate with their employees. What has your organization done that has been innovative and effective?

3.    Employee handbooks can be distributed in hard or soft copy, or posted on an intranet. Discuss how your organization distributes its handbook and obtains employee acknowledgments. How does your organization handle updates and revisions? What steps do you take when a new policy is introduced?

4.    What are the benefits of providing a separate policy and procedures manual for managers?

5.    In today’s environment, do you think that unions have outlived their usefulness? Why or why not? Discuss if there are circumstances or industries in which unions could still have an impact.