Many employers manage their workplaces with “rules that are taken for granted.” But are these rules in line with Federal Law? John Sarno of the Employers’ Association of New Jersey believes that in many cases they are not.
“A slew of litigation has been brewing under the federal labor law — known as the National Labor Relations Act,” says Sarno. “Over the last 20 years, there has been a national policy, from both parties, to not enforce many of the labor laws. Under the Obama administration that is changing,” he says. It will continue to change, no matter which candidate is elected president in November, because the members of the National Labor Relations Board are appointed, not elected.
The board is made up of five members and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board members are appointed by the president to five-year terms, with Senate consent. The term of one member expires each year. This means that members elected during one four-year term will continue to make decisions for the board throughout most of the next term, no matter whether a new president is elected.
No Longer in the Driver’s Seat. “In the past four years there have been systematic technical changes in the way the law is applied,” says Sarno. Because these changes have been incremental, they have gone unnoticed by most employers.
“For the past 20 years employers have been in the drivers’ seat. When that happens, you can become complacent,” says Sarno. It is often the case that we prepare for the problems of the past, rather than those of the future.
Discrimination Cases Often Lack Merit. “Most HR managers are focused on discrimination and harassment but Equal Employment Opportunity Commission statistics show that most of these charges lack merit.”
So while HR managers and employers are overly focused on making sure that discrimination laws are followed to the letter, labor laws are often being ignored, and adds Sarno, “suits on most labor charges do succeed.”
Sarno has combined his background in both psychology and the law in his work with the Employers’ Association. He received a bachelor’s degree from Ramapo College of New Jersey in 1977 and a master’s of counseling from Seton Hall in 1980. He worked for several years as a counselor for clients with disabilities, including work with disabled students at Ramapo College, before returning to law school and receiving his J.D. degree from Seton Hall in 1988. He advises employers on labor, employment and health care issues and teaches health care law and ethics at Fairleigh Dickinson University, including a class on the Affordable Care Act.
Sarno credits his parents for his career focus on advocating for others. “We lived in East Paterson. It was a small 1960s community where everyone knew everyone. My mother was always an advocate for people with disabilities and my father was what I’d call a social extrovert.
“He was the person who went to all the town council meetings and asked questions. They were both advocates, in their own way, for others in the community. I think they influenced me to always be helping others — and I hope that I am influencing my own children in the same way.”
The EANJ is the only nonprofit association in the state of New Jersey dedicated to helping employers make sound and responsible employment decisions through education, informed discussion and training. The organization’s original 1916 charter commits it to advancing “the understanding of principles of individual freedom in labor relations” and to “secure property rights and advance freedom of contract.”
Two years ago, with Democratic majorities in both houses of Congress, unions pushed for the Employee Free Choice Act or “card check.” The bill would have allowed employees to organize simply by signing cards agreeing to join a union.
Employers said that the law would increase the possibility of workers being subjected to strong-arm or high pressure tactics to join unions. The current system of secret ballots was more fair. The act stalled because of opposition from Republicans, business groups, and some Democrats.
Poster Requirement. Last year, the National Labor Relations Board issued a rule requiring most employers to post a sign explaining to employees their rights under the federal labor law. A federal appeals court struck down the poster requirement in its entirety as unlawful. Since then, the District of Columbia Court of Appeals postponed its ruling to allow for additional legal arguments to be held.
But the failure of the poster requirement does not mean that employers can breathe a sigh of relief, according to Sarno.
“Just this year, administrative judges have overruled an employer’s ‘employment at will’ contained in an employee handbook; an employer’s right to prevent workers from talking to one another about how much they are paid; an employer’s attempt to keep the contents of an internal investigation secret; and to monitor popular social networking sites such as Facebook. In each case, the court found that the employer had violated workers’ rights to engage in legally protected activity,” Sarno explains.
The long years of lack of enforcement have created “a generation of employers that are pretty well clueless about the federal labor law,” says Sarno. Many managers confuse legal rights with union organizing, but the federal labor law applies to most private-sector employers, regardless of whether there is a labor union involved. Because union organizing is not a concern, most employers are lulled,” says Sarno.
Lawyers who represent employers say they worry the NLRB’s actions will make employers more vulnerable to unfair labor practice penalties, particularly small companies that are ill-equipped to understand the intricacies of the law.
The poster law, if re-instated, will change the dynamic between employers and employees. “The more informed an employee is, the more likely he is to bring a suit,” says Sarno. “If the poster goes up and the board continues to change the legal landscape, there’s going to be a lot of catch-up for management. Many policies and practices would need to be changed.”