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The Retail Employer

The Retail EmployerSeptember 2008

Change is Coming for Employer

by David E. Nagle

Both presidential candidates have assured us that change is coming.  While such assurances have long been a staple of political campaigns, and we as voters have become legitimately skeptical of such assurances, some significant changes in the legal relationship between employers and employees are already in the works, and more are likely in the near future.  I say this not as an advocate of either candidate, but as a counselor to employers.  Regardless of the election results, change is coming.

Last week the Senate unanimously passed the Americans with Disabilities Act Amendment Act of 2008, and yesterday the House followed, approving the Senate version on a voice vote.  President Bush has indicated it will be signed. The language of the ADAAA benefitted from some input by the U.S. Chamber and Society for Human Resource Management, and thus is not as onerous as the original House of Representatives’ effort to amend the ADA.  Nonetheless, it modifies the statute so as to make it more difficult for employers to prevail in disability discrimination cases.  More employees will be able to claim that they are “disabled” for purposes of this statute, as Congress rejects the interpretation of the term in two significant Supreme Court decisions.  With more people protected under the statute, employers will likely receive more requests for accommodation of disability, and more claims of discrimination.  In light of the overlapping obligations imposed under the ADA, the Family and Medical Leave Act (FMLA) and workers’ compensation laws, an already complex situation will become even more complex.  When we get the final language of the statute, we’ll address it in a seminar, but the bottom line is employers will need to be even more vigilant on the front end.  We need to avoid litigation.

A workplace issue on which the election results will have a very significant impact is with legislation proposed last year, misleadingly entitled the Employee Free Choice Act.  EFCA passed the House in 2007 but lacked the 60 votes to overcome an expected filibuster in the Senate.  If enacted, this would drastically alter the way in which unions are established as the collective bargaining representative of employees.  It would essentially abandon the time-honored tradition of allowing employees a secret-ballot election, and replace it with a card-check recognition system.  Many see such a change in the law—where pressure from union organizers to sign a card may be substantial, and the absence of a secret vote—as certain to bring about an immediate and substantial increase in unionization of workplaces.  EFCA also would impose mandatory mediation and arbitration if  nego­tiations fail to quickly produce a contract, which diminishes any incentive for a union to be reasonable in its bargaining demands.  And, while EFCA makes the prospect of unionization more likely and more ominous for employers, it also substantially increases penalties on employers for efforts to avoid unionization that are found to be in violation of labor laws.  The Democrats in Congress have made it clear that passage of such legislation will be a priority next year, and Obama has promised to put an EFCA bill front and center on the Congressional agenda if he is elected president.  If McCain is elected, he will still have a Democratic Congress to deal with, and they are certain to press for passage of some version.  Who knows what compromises will be made?  Change is in the air.

For those in management, and  specifically those with human resources responsibilities, EFCA is not just another bill in Washington -- it must be seen as legislation that will change the nature of the profession.  With EFCA, talking about a union is not going to be an event—it’s going to be a way of life. Because the majority of employees could sign authorization cards before a company even gets wind of a union drive, management will have to be proactive.   The company is going to have to communicate its value proposition, and why a union is irrelevant, in its everyday communications with its workforce. Management will have to make clear to employees the value of their benefits, including such intangibles as complaint resolution and promotional opportunities.  The company will need to train supervisors to communicate to employees why unions aren't needed, and make sure supervisors properly handle employees' questions about unions.  A lot of managers, even a lot of HR professionals, have very little experience in dealing with unions.  If this passes, a lot will change, very quickly.

There are a lot of issues out there, and should these elections lead to Democrats in control of both the executive and legislative branches of government, there is a lot of pent-up demand for legislative and regulatory actions which will have a significant impact in the workplace.  For example, the Healthy Families Act would require that employers provide seven paid sick days per year.  The Lilly Ledbetter Fair Pay Act was drafted to override a Supreme Court decision requiring timely filing of suits by employees seeking to challenge alleged pay discrimination (so that the filing deadline to challenge a pay decision made years ago starts running all over again with issuance of each subsequent paycheck).  It passed the House, but failed in the Senate this year.  The Civil Rights Act of 2008 proposed elimination of caps on punitive and compensatory damages (for pain, suffering, humiliation, embarrassment) in discrimination cases, and would eliminate programs to resolve workplace claims through arbitration.

The list goes on.  After the election, we are likely to see efforts to expand employee rights under the Family and Medical Leave Act, changes in immigration requirements for employers and employees, and in many other areas of workplace law.  Just before the Clinton administration left office, OSHA proposed a massive set of ergonomics standards which were blocked by the Bush administration.  While McCain’s position is unknown, Obama supports reinstatement of the standards. 

We know that we will continue to have a Democratic Congress after the election.  It has been limited in its ability to make significant changes in workplace law by the threat of a Bush veto.  We know that there will be changes after the upcoming election, but we should anticipate a lot more change if Obama is in the White House, and/or Democrats secure a veto-proof majority in the Senate.  While citizens will cast their vote on the basis of a multitude of factors, we—as  employers—need to anticipate and prepare for significant changes in the law of the workplace.   

David E. Nagle has been retained by the Association to assist retail members through the Employment Law Information Program.  He has represented employers with respect to legal issues in the workplace for 27 years.  David is a partner in the Richmond office of Jackson Lewis, a law firm devoted to the representation of employers in workplace issues, with 500+ attorneys in 41 cities across the country.  David may be reached at (804) 648-4077, or by email at nagled@jacksonlewis.com.

Calls requesting information on the Employment Law Information Program should be directed to Preston Perrin with the Retail Merchants Association at 804-662-5500.

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Survey Links Wellness Participation to Job Satisfaction

A recent study showed that not only do wellness programs improve employees' health, but participants are also more engaged at work. The Maritz firm, a customer satisfaction and loyalty research company, recently surveyed 2,379 full-time workers and found that employees who participated in a wellness program at least once per week took off less for sick time than those who had not participated in a program. Experts suggest that the reason behind the results is that employees involved in wellness programs perceive that their employers care about their well-being, which causes employees attitudes to reflect more positively on their work environment. The survey also found that to keep employees engaged and motivated in wellness programs, communication, education, leadership, and incentives to participate are critical. When a reward or incentive was offered to achieve certain health goals, 23% of employees participated in the program at least once a week, compared to when no incentive was offered, and participation dropped to 16%, the survey showed. SHRM—Aug. 21, 2008

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Ms. Lorraine Alexander at 804-550-0200 or lorraine.alexander@expresspersonnel.com if you would like to be added to their distribution list. Express Personnel now offers RMA members a Retail Staffing Program. More information is available online through www.retailmerchants.com.

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Secrets to a Happier Workforce—Making Work More Meaningful

Have you ever wondered why some people who seem to have it all – money, fame, power – are miserable, yet some people of simple means seem to have all the happiness in the world? The same is true of work. People whose jobs are glamorous—rock stars, athletes, high-powered business execs—can be miserable at work, while those whose jobs may appear more mundane—receptionists, sales people, medical workers—often love what they do.

According to Patrick Lencioni, author of The Three Signs of a Miserable Job, one of the main reasons for this is that people who find meaning in their work—regardless of what tasks they’re actually performing—tend to be the happiest in their jobs.

It all boils down to the fact that people need to be needed. They want to know they’re making a difference. “Everyone ultimately wants and needs to help others, and when they cannot, misery ensues,” he writes. The interesting thing is that most jobs do make a difference—it may just be that no one has ever helped employees see that their work makes a real impact.

And even though we think of happiness as a personal pursuit, it’s not actually the job of each employee to figure out how their work is meaningful. In fact, it’s one of the most critical things managers are paid to do. The good news is that doing so is not a difficult process. Lencioni says it’s as simple as answering two fundamental questions.

1) Who am I helping? To identify relevance, employers must help each worker see who their job impacts. For many people, this includes customers and clients. But in other jobs, the answer is not so clear-cut. For many jobs, the answer might include internal customers, such as co-workers or people in other departments. The answer to this question can have more than one component, and it’s not always easy to define at first glance.

In fact, the answer might even include you, the manager. “This is a hard concept to swallow,” Lencioni writes, “because it conjures up images of self-serving supervisors…so managers often downplay the very real impact that the work their employees do has on their own satisfaction and career development.” This scenario happens frequently, which is unfortunate, because the end result is often that employees feel they are taken for granted.

To keep your employees from this feeling of irrelevance, go through the process of answering this question for everyone who reports to you, because the answers will probably differ. The process may take some time at first, but it can help you more easily answer the next question.

2) How am I helping? To really help employees understand why their work is meaningful, it’s important to help them see exactly what they do that makes a difference. Again, this process is not always straightforward, and the answers will differ for each employee.

The real answer to this question goes beyond a simple list of job descriptors. It’s looking at why those functions matter to the people employees are helping. For example, car maintenance workers can do more than repair bad parts, they offer safety and peace of mind.

Some managers may reject these ideas, but taking the time to help employees understand the meaning in their work is a critical difference that sets really great places to work apart from the rest. “The difference is not the job itself. It is the managers,” Lencioni says. “Even if it sounds touchy-feely to some, it is a fundamental part of human nature.”

Take the opportunity to ask yourself if you’re answering these questions for your workforce. After all, as a manager, business owner, or company leader, whom you are meant to help is each of your employees. You have the opportunity to increase the happiness of the lives of everyone who works for you by helping them understand the relevance of their work. That’s how you can make a lasting difference, starting today.

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Ms. Lorraine Alexander at 804-550-0200 or lorraine.alexander@expresspersonnel.com if you would like to be added to their distribution list. Express Personnel now offers RMA members a Retail Staffing Program. More information is available online through www.retailmerchants.com.

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Section 125 Plans

A recent analysis was presented to the Joint Commission on Health Care regarding Section 125 Plans.  The complete report is available online here.

Several points were noted:

  • “Affordability is the primary barrier to obtaining health insurance.”
  • Employers have been a primary source of working non-elderly obtaining health insurance.
  • 50% of the working uninsured work for smaller employers.
  • Joint Commission on Health Care recommends increasing adoption of Section 125 plans enabling employees to purchase health insurance policies with pre-tax dollars.  Employee savings can be 25%-40% per dollar contributed towards health insurance. 
  • Refer to Section 125 of the U. S. Internal Revenue Code for specifics.
  • Businesses have not adopted Section 125 plans because of employer lack of knowledge or the perception of increased administrative burden.
  • Methods to increase the adoption of Section 125 plans may include:
    • Amending the Code of Virginia to mandate that employers offer a Section 125 if certain provisions are met.
    • Providing Section 125 Plan benefits on a State of Va. Website
    • Working with Associations to increase awareness with employers and employees.

Contact Gene Bergh or Jimmy Shelton with Merchants’ Services, LLC (an affiliate of the Retail Merchants Association) for more information on Section 125 Plans along with health and other insurance offerings.  They can be reached at 804-288-2913.

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Underage Tobacco Sales Collateral

The Coalition for Responsible Tobacco Retailing, Inc. is making available 2009 “We Card, State Law Prohibits the Sale of Tobacco to Minors” collateral for businesses who sell tobacco products.  Businesses may order signs and supplies online at www.wecard.org or call 1-800-934-3968.

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