Human Resources News & Insights

EFCA a priority for Obama: Steps to take now

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.
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  1. Richard Maresh says:

    As always, thank you for your informaiton on EFCA. Very informative and timely information. I look for ward to your updates each time I receive an email from you.

  2. I would also suggest writing your Congressional representatives. You can easily do that through Unless there is continued and loud opposition to this nasty attempt at law, it will probably pass and make employers answerable those who have no understanding of their business but who are beholden to a political master. It undermines an individual’s right to free choice in that organizers will surely coerce many workers to sign via public pressure. Few people are used to defending themselves in terms of principled arguments about their rights as workers and will simply sign as the easiest way to deal with the situation. It is a terrible idea to take away the right of a secret ballot and it says volumes about the unions that want to do so.

  3. Thank goodness Texas teachers are not unionized!

  4. Will the EFCA also include the opportunity to DE-CERTIFY with 50% signing an authorization without an election? Fat chance!

  5. 1. Educate Supervisors about the dangers of retaliating or discriminating…??? Retaliation and/or discrimination shouldn’t be happening anyway! If the fear of your employees unionizing requires the education of your supervisors, then I suggest the union is needed!
    2. Resolve unsolved employee issues and complaints that could make a union look more appealing…? Shouldn’t this be taking place anyway? If it isn’t, then I suggest the union is needed!
    3. Use new-hire orientation to explain the advantages of your company’s union-free status… Most companies only supply the benefits and working conditions that they do because of the labor movement in the past and because of fear of unionization pressure in the present. If companies were on board with ethical policies toward the folks who make the profits for the companies, unions would not have been necessary in the first place.

  6. Educating your Supervisors and your employees with a custom Orientation/Icebreaker video. This 15-18 minute product is an orientation to Labor 101. It is used as indoctrination for existing employees and then during the onboarding/orientation process for all new hires. A quick company intro and positive messaging followed by the company’s philosophy on remaining union free, card-signing and most have been adding or including information on the EFCA.

  7. Darice Claude-Bordley says:

    Thanks for the informational update. This is great!

  8. I would be surprised if the Obama administration makes this a top priority – they have a lot of issues that are more important than this one.

    EFCA will affect only the small number of organizations whose employees are trying to organize. If your employees are trying to organize, that probably means you haven’t treated them well in the past. I’ve worked in and with unions and most union members resent having a third party represent them but do so because they feel their employers took advantage of them or didn’t listen to them in the past. What we can do now is make sure we are treating our people well, communicating effectively and most of all, listening to them to prevent a unionization effort in the first place. Then EFCA won’t have any affect whether it passes or not.

  9. T. Williams says:

    I can’t believe that with everything that is happening with unions and the American automotive industry that this act is still on the table.

    Unions are one of the main reason’s companies outsource because the union and cooperative, effective workplace are oxymorons.

  10. I have worked with unions and against unions in my history of employment. I haven’t seen anything good about a union in my tenure. Unions are very similar to Congress. People who are voted in totally forget about the working person and try to line their own pockets or make it so they will reap the benefits without doing much labor. If you ever want to take a close look at an organization, then try comparing the Democratic Party and the Union, they operate the same, they act the same and they want everyone to belive they are in support of the people. They preach change but roll on as normal. Take a look at those dues you are paying. The American auto industry is almost bankrupt, but look at Toyota, Honda, Mitubishi, they are running strong and have no unions and still pay workers $20 plus. So ask yourself, what has your union done for you recently?………

  11. Earney hasn’t looked at who has financed Obama’s campaign. Since the unions have worked together to finance his campaign and the campaigns of many of the recently elected Democrats, politicians WILL make this act a priority to receive return on their investment.

    And don’t assume that this act will just impact small organizations. Why would unions stop at organizing small businesses when they can generate more cash going after the big ones? This act is going to impact every business, regardless of size. And don’t ignore any layer of your organization — this could impact whether managers are organized or not too.

    If you can, try bending the ear of a labor lawyer — they can tell you how this will impact HR and it’s not going to make the profession easier.

  12. Jeff Pogue says:

    To Jeanette, the simple and unfortunate answer is, “NO!” Nothing changed regarding the decert process (I hope you are not surprised by that) as the demos/libs pushing this would NEVER do anything to hurt the union’s chances of hanging around.

  13. Jeff Pogue says:

    Earney, I am absolutely positive this will be a top issue…especially if the bailout/loan to the Big 3 is delayed and it’ll be a backdoor “present” to the UAW and other unions to payoff their loyalty in the past elections…count on it. I, unfortunately believe this will pass in some form or another…not enough votes to totally stop it now.

  14. I am appalled at the nastiness and name calling that goes on in this blog. Just because you don’t agree with the opposing viewpoint doesn’t mean you need to be so despicable. After all, there have been accesses by both labor and big business. I feel like I am listening to a bunch of 6th graders. (Oops; 6th graders usually have more manners). I’m outa here.

  15. this is low hanging fruit for the Obama administration. For those who don’t think he’ll get around to it soon i think you are wrong. it sends a message to his labor patrons that he takes them seriously so it’ll happen quickly (at least quickly in government terms). good lord i hope i’m wrong but i’m not counting on that.

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