The Employee Free Choice Act is one of the President-elect’s top legislative priorities for the upcoming term — and an increased Democratic Congressional majority could make its passage likely. What does it mean for employers, and what should HR do now to prepare?
The EFCA was passed in March by the House of Representatives but blocked by a Republican-led filibuster in the Senate. With Barack Obama’s presidency and more Democrats in the Senate, the bill (or at least a version of it) could be pushed through early next year.
The main provisions in the bill’s current language:
1. Card check authorization
For unions to be authorized now, they need signed cards from at least 30% of the employees they’re looking to organize. Then, the National Labor Relations Board holds a secret ballot election to see if a majority of employees want to be unionized.
But under the EFCA, unions can be approved as long as more than 50% of employees sign authorization cards. In other words, no more secret ballots — which could open employees up to more pressure from union representatives.
2. Mandatory arbitration
If a union is certified through a card check, employers will have 10 days to start bargaining with the union. If an agreement isn’t reached in 120 days, the negotiation will be referred to a federal arbitrator who’ll decide any contract issues that still aren’t agreed on — such as pay, benefits, hours, etc.
As many unionized employers can attest to, these things often take more than 120 days to negotiate. Therefore, arbitrators will likely have greater influence under the EFCA than they currently do.
3. Increased penalties
Currently, employers are only held liable for back pay if they’re found to have unlawfully fired pro-union employees. The EFCA would add liquidated damages up to two times an employee’s back pay, as well as a $20,000 penalty if a court finds a violation was willful or repetitive.
What should HR do now?
Here are some steps employers can take to prevent potential problems if the EFCA becomes law:
- Educate supervisors about the dangers of retaliating or discriminating against pro-union employees.
- Resolve any unsolved employee issues and complaints that could make a union look more appealing to your workers.
- Use new-hire orientation to explain the advantages of your company’s union-free status. Talking about the drawbacks of unionization with current employees before organization attempts are made can be helpful, too, and
- Make sure non-solicitation policies are in order, so you can prevent third parties from coming on-site to drum up support for a union.
