Employee & Labor Relations

BASK definition: any interaction between the organization and its employees about the terms and conditions of employment.

BASK key concepts: employment rights and standards under the International Labour Organization (ILO); compliance and ethics programs; alternative dispute resolution (ADR); preventing retaliation; workplace investigations; progressive discipline; grievance and complaint resolution; strikes, lockouts and boycotts.

International Labour Organization (ILO) standards

The ILO is a United Nations agency that sets international labor standards through conventions and recommendations. Its Declaration on Fundamental Principles and Rights at Work (1998, amended in 2022) identifies five fundamental principles:

1. Freedom of association and effective recognition of the right to collective bargaining
2. Elimination of all forms of forced or compulsory labor
3. Effective abolition of child labor
4. Elimination of discrimination in employment and occupation
5. A safe and healthy working environment (added in 2022)

Related concepts (BASK):

• Living wage: pay sufficient for a decent standard of living, covering food, housing, healthcare, education and other necessities. It is often higher than the legal minimum wage.
• Fair wage: pay that is fair given the work, the market and the law.
• Standard workday: the ILO's earliest convention (1919) set the 8-hour day and 48-hour week for industry.
• Unfair labor practices: violations of employee rights under labor-relations law.

Employee relations foundations

Employee relations covers the employer's efforts to manage relationships with employees through policies, communication, fair treatment, conflict resolution and engagement.

• Employee handbook: communicates policies, expectations and benefits. It should include an at-will disclaimer where applicable, and an acknowledgment of receipt signed by each employee. Avoid language that creates implied contracts, such as "permanent employee" or "termination only for cause." Review handbook policies for NLRA compliance, because overly broad rules can chill protected concerted activity.
• Open-door policy: employees can raise concerns with any level of management.

Compliance and ethics programs (BASK)

Their parts are design, implementation, required postings (federal, state and local workplace posters) and performance measures. See the ethics program elements in Ch. 2.

Preventing retaliation

Retaliation is the most frequently alleged basis in EEOC charges, and it is often easier to prove than the underlying discrimination claim. It means taking adverse action against someone because they engaged in protected activity, such as filing a complaint, participating in an investigation, requesting an accommodation, or opposing discrimination.

Prevention approaches (BASK): an open-door policy, open communication, a nonretaliation policy, whistleblower protection and documentation. Train managers: once a complaint is made, don't change the person's terms of employment without careful HR and legal review, and document legitimate business reasons for every action.

Workplace investigations

BASK techniques: consistency, an interview plan and a summary report. The steps:

1. Act promptly after receiving a complaint.
2. Take interim measures if needed to protect the complainant and others. Examples: changing schedules or separating the parties, or paid administrative leave for the accused. Avoid measures that burden the complainant, which could look like retaliation.
3. Choose an impartial, trained investigator. Use an external investigator if HR has a conflict or senior leaders are involved.
4. Plan: define the issues, list the witnesses and documents, and prepare questions.
5. Interview the complainant, the accused and witnesses. Ask open-ended, non-leading questions. Explain the confidentiality limits and that retaliation is prohibited. Ask the accused for their side.
6. Gather evidence: e-mails, records, video.
7. Evaluate credibility and reach a conclusion. The usual standard is preponderance of the evidence ("more likely than not").
8. Document the findings in a summary report.
9. Take appropriate action, proportionate to the findings and consistent with past practice.
10. Follow up with the complainant to check for retaliation and recurrence.

★ Weingarten rights (NLRB v. J. Weingarten, 1975): a unionized employee may request a union representative during an investigatory interview that the employee reasonably believes could lead to discipline. The employee must ask for it; the employer doesn't have to offer. Under current NLRB precedent (IBM Corp., 2004), this right does not extend to non-union employees.

Progressive discipline

Progressive discipline uses increasingly serious steps to correct a performance or conduct problem.

The typical sequence (BASK examples): counseling or verbal warning → written warning → final written warning, suspension or performance improvement plan (PIP) → termination. Other corrective actions include demotion.

• Serious misconduct (violence, theft, harassment) can justify skipping steps or immediate termination. The policy should keep this flexibility, for example with "the company may skip steps at its discretion."
• Performance improvement plan (PIP): a document that sets out the specific deficiencies, measurable expectations, support and resources, a timeline (often 30–90 days), check-ins, and the consequences if expectations aren't met.
• Positive (non-punitive) discipline: focuses on coaching and the employee's commitment, and may include a paid "decision-making leave" day.
• Just cause: the standard in most union contracts, is often tested with the seven tests of just cause (Daugherty): Was there notice of the rule? Was the rule reasonable? Did the employer investigate before disciplining? Was the investigation fair? Was there substantial evidence? Was the rule applied evenhandedly? Was the penalty reasonable?

★ Discipline should be consistent, documented, timely and focused on behavior. Inconsistent discipline is a leading source of discrimination claims.

Grievances and complaints

• Grievance: a formal complaint, usually under a union contract, that a provision of the collective bargaining agreement was violated.
• Typical union grievance procedure: (1) employee and/or steward meets the supervisor → (2) union representative meets the department manager or HR → (3) senior management and the union meet → (4) binding arbitration.
• Non-union complaint procedures: an open door, HR, an ombudsperson, peer review panels, or a hotline.

Alternative dispute resolution (ADR)

ADR is any method of resolving disputes other than litigation.

Pros of ADR: faster, cheaper, private and less adversarial than litigation. Cons: limited appeal (arbitration), possible perceptions of employer bias, and mandatory arbitration agreements may discourage claims.

Types of labor arbitration:

• Grievance (rights) arbitration: interprets an existing contract.
• Interest arbitration: decides the terms of a new contract. Common in the public sector where strikes are prohibited.

★ The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (2022) lets employees choose to take sexual harassment and sexual assault claims to court despite a pre-dispute arbitration agreement. In Epic Systems Corp. v. Lewis (2018), the Supreme Court upheld arbitration agreements that waive class actions.

Labor relations: the union life cycle (U.S.)

The main labor laws (NLRA, LMRA/Taft-Hartley, LMRDA) are summarized in Ch. 22. This section covers how labor relations work in practice.

Who is covered by the NLRA: most private-sector employees, whether or not they are unionized. Excluded: supervisors and managers, independent contractors, agricultural workers, domestic workers employed by a family, government employees (covered by state law or federal sector law), and railway and airline workers (covered by the Railway Labor Act).

Section 7 rights: employees may form, join or assist unions, bargain collectively, and engage in "protected concerted activity" for mutual aid or protection, such as discussing pay or working conditions together, even in non-union workplaces. They also have the right to refrain from these activities.

Organizing and elections:

1. Campaign: the union collects authorization cards. Union tactics include salting (union-paid organizers apply for jobs), leafleting, bannering, and corporate campaigns that pressure the company's customers and investors.
2. Recognition: the employer may voluntarily recognize the union (for example, through a card check), or the union petitions the NLRB, which requires a showing of interest from at least 30% of the bargaining unit.
3. NLRB election: a secret ballot. The union wins with a majority of the valid votes cast, not a majority of the whole unit.
4. Certification: the union becomes the exclusive bargaining representative.

Employer conduct during campaigns: avoid "TIPS." Don't Threaten, Interrogate, Promise or Spy. Employers may share Facts, Opinions and Examples ("FOE").

Election bars (when an election cannot be held):

Collective bargaining:

• Mandatory subjects: wages, hours and other terms and conditions of employment, such as benefits, safety, seniority and discipline. Both sides must bargain in good faith over these.
• Permissive (voluntary) subjects: may be discussed, but neither side may insist to the point of impasse. Examples: internal union affairs, retiree benefits.
• Illegal subjects: cannot be agreed to. Examples: closed shops, hot-cargo clauses, discriminatory provisions.
• Bargaining approaches: positional (distributive) or interest-based (integrative). See Ch. 4.
• Impasse: a genuine deadlock after good-faith bargaining. The employer may then implement its last, best and final offer.

Union security clauses:

Right-to-work states prohibit requiring union membership or fees as a condition of employment. Section 14(b) of Taft-Hartley allows states to pass these laws.

Strikes, lockouts and boycotts:

Strike preparation (BASK): a strike response plan, hiring temporary or replacement workers, protecting non-striking employees (security), and supply chain contingency plans.

• Decertification: employees may petition the NLRB, with 30% support, to remove the union. The employer may not start or assist the effort. The bars above apply.
• Duty of fair representation: the union must represent all members of the bargaining unit fairly, whether or not they are union members.