A Career Killer for HR Pros—The Employee Free Choice Act

f you’ve read my blog or this column since their inception in 2007, you know I try to keep things light. I like to mix pop culture with HR practice, link to some interesting content and ask the fun questions—questions like "Does Your HR Job Stink?" and "Why Do Companies Keep Jerks Around?"

    OK, questions that are fun to you, only if you happen to be twisted like me.

    This column is different. Instead of wondering if the PHR/SPHR is worth your time or why your employees post their résumés in broad daylight, this time I’m wondering if you’ll have a job in 2010.

    Did that get your attention? Because today I’m focusing on a piece of legislation that would cripple the competitiveness of American business, limit the rights of employees and eliminate the need for independent-thinking HR pros, all in one easy-to-sign law.

    I’m talking about the Employee Free Choice Act .

    Raise your hand if you’ve heard of the act. America’s lucky if 10 percent of you raised your hands.

    And that’s the point. If signed into law, the Employee Free Choice Act would radically change the American workplace, and your life as an HR professional. Most members of our profession have no clue the change is right around the corner. It’s not your fault, but it’s time to get in the know.

    The act, which passed in the House of Representatives last year but failed in the Senate, deals with how workplaces are organized by unions. To better understand the changes the Employee Free Choice Act would bring, you first need to understand the current law on how unions can attempt to organize the workplace. Then you can contrast it with how the act would open the door to widespread organizing by limiting the rights of your employees. Here’s a quick primer on how unions currently get voted in, and how that would change under the Employee Free Choice Act:

    Current law:

1. The union in question interacts with employees (and vice versa), gauging interest and commitment to an organizing campaign.

2. Once the union establishes there is sufficient interest, union cards (officially known as authorization cards) are introduced into the workplace, usually by having pro-union employees approach other employees and ask them to sign a card to indicate their interest in having a union represent them. A signed union card under the current law simply means the employee is interested in moving the process to a secret ballot, where the employee is free to confidentially vote "yes" or "no" to union representation.

3. Once the union gets enough signed cards, the cards are turned in to the National Labor Relations Board to move the process forward. By law, a union only needs 30 percent of employees to sign the cards, but unions usually don’t turn cards in to the NLRB until they have 50 percent, since that’s what is required in an election to officially certify the union).

4. If enough cards are signed, the NLRB calls for an employee vote, and a 30-day campaign begins. During this campaign period, the employer has an opportunity to hold meetings and discuss the merits of remaining union-free with the employees. Employees use this time to collect information and develop informed decisions regarding whether they want to be represented by the union in question.

5. At the end of the 30-day campaign, an election is held via secret ballot that allows all employees to submit a confidential vote, just as we vote for our elected officials.

6. The votes are tallied, and if the majority of employees submitting a ballot in the employment unit in question vote "yes" to union representation, the union is certified and the company begins the process of negotiating an agreement with the union.

    Proposed law under the Employee Free Choice Act:

1. Steps 1-3 apply, but the process ends with card-check certification of unions. Under the act, if the NLRB finds that a majority of an employment unit’s employees have signed union authorization cards, the NLRB will certify that union as the exclusive bargaining representative without holding an election. No real safeguards exist in the new law to deter unions from misrepresenting what the employees are signing, or from omitting/misrepresenting the true ramifications of a signed card.
2. No informational campaign, no private/confidential election. Period. You should be concerned by now.

    The right to a confidential election/ballot is eliminated under the act. That’s a shocking right to take away from employees. It’s also a very, very big deal for HR pros.

    Most pundits (Republican and Democrat alike) agree that if the Democrats take the White House, the act will pass both the House and the Senate, mainly because it won't face a presidential veto. To be clear, I’m not focusing on the act as a political issue; I’m focused on it as an employee and HR issue.

    Still wondering why the Employee Free Choice Act is a big deal to you as a HR pro? Here’s a primer:

1. You’re responsible for being an advocate for employees AND for being a business agent: If you’re progressive as an HR pro, you like to find ways to contribute to business results. Examples include being an advocate for pay for performance on a daily basis, making tough calls on nonperformers and trying things "on the fly" from a benefit perspective. Kiss that flexibility goodbye under a bargaining agreement. You manage by what the contract says. Period.

2. You’re responsible for creating and maintaining a workplace free of intimidation and harassment: As an advocate for this type of workplace, you should automatically be against the Employee Free Choice Act, because eliminating the confidential election sets up the perfect opportunity for intimidation in your workplace. Sign the card and you’re with us, or don’t sign the card and we know you’re against us. Make your decision now, with no graceful way to back out later if you so desire. Nice.

3. Under the act, you lose the opportunity to tell your story: Under the current system, the company has the ability to tell employees why they believe a union isn’t necessary. Under the Employee Free Choice Act, the union can be voted in before you knew you had a problem.

4. If a union is certified via card check under the Employee Free Choice Act, the employees are going to come to you once they figure out what has happened: Get ready for the question "How could you let this happen?"—even from employees who signed cards. Misinformation will be rampant, and with the elimination of the campaign period and election there will be no effective counter to what employees are told to get them to sign a card, or for intimidation that occurs in the workplace. Employees will still hold you accountable, thinking you could have done something.

5. You’re going to be less than satisfied with your HR career in a union shop: If you’ve spent your career as an HR manager/director/VP in a union-free environment, you’re going to be bored in an employment unit that is represented by a union. Your flexibility to innovate and help employees will be dramatically reduced, as the bargaining agreement is the sole document by which you’ll manage the workforce. Skills like yours aren’t really required in that type of environment.

    So what are you to do about all this? It’s late in the game, so your options are limited. Get in the know about how the Employee Free Choice Act would restrict the rights of your employees. If you are politically active, let your representative and senator know how you feel from the perspective of an HR professional. Most important, understand how this law would change the game and get ready, if it is passed and signed into law, to proactively educate your workforce on what’s at stake if they do sign an authorization card. You won’t have the luxury of a campaign period if the act is signed into law.

    Finally, the worst thing about the Employee Free Choice Act isn’t its effect on us as HR professionals. It's how stunningly anti-employee the act is. Ability for employees to keep their feelings about unionization private? Gone. Ability for employees to listen and carefully contemplate both sides of an argument regarding representation? Gone.