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August 4, 2016

Sustainable Employment Practices in an Era of Government Micro-Management

By Michael Saqui of The Saqui Law Firm

The Obama Administration, through its alphabet soup of government agencies, has been dramatically overreaching into all areas of employers’ businesses. This markedly anti-employer trend has largely withstood legal challenge, despite vehement opposition. Many employers are reeling from the National Labor Relations Board’s (NLRB) new aggressive stance on arbitration agreements and workplace policies, micro-unit recognition, and the Agricultural Labor Relation Board’s (ALRB) proposed access rule. The new rules are forcing businesses to completely reevaluate their operations in order to avoid violations and reinvigorated unions. While the immediate instinct is to knee-jerk a quick compliance response, many employers are successfully weathering this storm through sustainable human resources practices.

For example, on the labor front, NLRB is looking to expand its definition of what constitutes a joint employer. Under the Browning-Ferris decision, a company that has merely the capacity to indirectly control one or more terms or conditions of employment could be considered a joint employer for the purposes of union recognition and collective bargaining. This strikes at the heart of labor contractor arrangements and franchises. The NLRB is also trying to stack the deck in favor of unions by recognizing micro-units. This essentially gives unions free reign to custom-design a bargaining unit of employees that they know be union supporters. An employer can only overwrite the union’s proposed unit by showing that there is an overwhelming community of interest between the union’s proposed unit and the employees whom the employer contends should be included.

Additional deck-stacking by the NLRB comes in the form of the ambush election rules which dramatically shorten the timeline between when employees request representation and the election. This limits the time the employer has to mount an effective campaign to get its message out. The rules also set a number of technical traps which give big election advantages to the union if an employer fails to supply certain information to the union in a timely and technically correct manner. Elections are now happening in an average of 24 days, down from the previous average of 38.

The NLRB is also going after any and every workplace policy that could possibly be read as prohibiting concerted activity or prohibiting discourse about the employer’s practices. Many facially neutral policies like “No fighting in the workplace” or “Don’t disparage the employer in social media” are being subjected to challenge. Arbitration agreements containing class action waivers are also being thrown out as violating employee’s rights to organize. The Seventh Circuit recently endorsed this position despite other circuit courts rejecting such reasoning.

The ALRB is also moving forward with its proposed rule allowing staff from the agency to take access to employer’s property for the purpose of educating workers about their rights to organize. Not to be left out, the Equal Employment Opportunity Commission (EEOC) is also chiming in by implementing new rules on employee wellness plans to ensure that the plans do not create certain kinds of discrimination based on employee health.

With all of this micro-management by government agencies and path-clearing for unions, employers are spending large sums of money attempting to catch up to compliance. But this is not the only area where employers should be concentrating resources in order to regain control of their own operations. Employees turn to unions in the first place because the unions are successfully selling themselves as the solution to employees’ grievances with their employer. Employees would not do so if their employer was successfully addressing their concerns. A second and connected front to employers’ battle to maintain control lies in sustainable human resources practices.

By implementing best practices, a company can opt to become an “employer of choice” and stay ahead of regulation. The first step in this process is to step away from the business and look at the company’s true stakeholders. This analysis should use the framework of the “Triple Bottom Line”: that is, employers should be looking for their social, environmental, and financial stakeholders. In the agricultural world, these stakeholders can consist of retailers, food service operators, franchises, consumers, farmworkers, community groups, neighboring people and businesses. By engaging all of these stakeholders, remarkable synergies can be harnessed.

By focusing on the social stakeholders—employees—and by implementing human resources best practices, employers can meet these codes of conduct and commitments and achieve marked growths in productivity. A 2014 Gallup survey found that up to 70 percent of U.S. employees were not engaged in the workplace, costing employers between $450 to $550 billion each year in lost productivity. Worker engagement means employees will turn to unions less often, stay with the company longer, be more productive, and tell others about the positive policies and practices of the company. By offering bounties on methods for improving efficiency and using employee recognition programs, employees buy into improving the business. In order to actively engage with farm workers and their needs, employers need to know and provide solutions to issues most prominently affecting their lives. These HR Practices can include providing day care solutions, leadership development programs, implementing a social services liaison who can connect employees with health and wellness services, housing, domestic violence counseling, nutrition assistance (to help curb a massive diabetes trend in the farmworker community), and English as a second language education.

Many companies are also organizing and engaging with quality committees dedicated toward improving the company’s practices in health, safety, wages, benefits, working conditions, and dispute resolution. While there are some special legal concerns over the makeup and powers of such committees, if implemented correctly, they can be an additional tool in creating value.  By incorporating these practices into the company’s brand, the company can set itself apart as a socially conscious business and a responsible employer whose products consumers are willing to put a premium on.

Engaging environmental stakeholders means staying abreast of the interests of the community and environment as a whole. This includes tracking and being responsive to the needs of farmworker organizations, ministries, public interest groups, action networks, environmental organizations. Whether the communities concerns are about food safety, pesticides, land use, soil use, small business growth, water use, non-GMO seeds, neighboring animals, or other environmental concerns, knowing and incorporating these interests into the company’s brand can be a key tool for setting the company apart in a positive way that appeals to end-consumers. Campbell’s Healthy Community Programs, for example, provide in-classroom nutrition education, cooking classes for youth, and works to expand availability at corner stores rather than supermarkets. Similarly, TOMS Roasting Co. provides 140 liters of clean water for a person in need in the same region where their coffee beans are sourced for every bag of coffee purchased.

These investments in stakeholders, when taken together with sustainable employment practices, create and maintain the feedback loop of sustainability. Making good investments in HR improves efficiency, reduces cost, which allows for reduction of price, which drives demand, which drives profit and ultimately allows the business to continue taking care of its employees and community. By staying attuned to the company’s stakeholders via the Triple Bottom Line, companies can avoid union entanglements and stay ahead of the wave of regulation. Making smart investments in human resources and staying attuned to employee needs can help employers stay in control of their business.