Jan 21, 2009
This article is part of a series called Opinion.

Bush is out the door and Obama is here — but what does this new administration mean for the workplace? There’s the obvious. Many are looking to Obama for his plan to revive the economy, bring us out of the recession, create new jobs, and in effect get us back to recruiting for more requisitions than we know what to do with — the good ‘ol days.

But what else does an Obama administration mean for the workplace and for the recruiting world?

A significant piece of legislation with great potential to impact the American workplace is the Employee Free Choice Act, which amends the National Labor Relations Act. Maybe you don’t recruit for or work in a unionized organization — and as a result, you’re thinking, so what? Should you even care about this? And will it affect you? Yes and yes. If passed, the EFCA would make it easier for your workplace to become organized. And given the legislation has received near-unanimous support from Democrats in the House and Senate both, and full support from President-Elect Obama who pledged to enact it, the EFCA should be on your radar.

The EFCA Basics

About 8% of the American private sector workforce is currently unionized. If the EFCA passes, it’s estimated that the number would increase to nearly 20%, according to the Campaign for America’s Future, as the bill would make it easier for a workplace to become organized.

Under current labor law, when a third of workers have petitioned to unionize, a federally-authorized secret ballot vote takes place. After a campaign period, individuals have the opportunity to choose whether or not to unionize, and the vote is held in private (much like how you vote in any American election) so that each can make their decision free from any pressure, scrutiny, or intimidation by peers.

Under the EFCA, the right to a confidential vote is eliminated and a union would be certified the moment it collects a majority of signed “authorization cards.” This process, known as card-signing, or card-check, not only eliminates the union organizing campaign period, it denies every worker the right to a private vote on joining a union. These changes are the most widely criticized aspects of the bill, with civil rights activists like Al Sharpton coming out against the EFCA, as individuals are stripped of their voting rights and in effect are being coerced into a decision.

Another damaging aspect of the bill is its binding arbitration clause. All first-time contracts would have to be negotiated within 120 days; if agreement isn’t reached between the union and employer, the contract would be sent to federal arbitration where a binding contract would be handed down — and many pro-business advocates argue that most federal arbitrators come from union backgrounds and are generally not very management-friendly. Having to negotiate a contract with 120 days is also seen as an unrealistic requirement given that a first-time contract usually takes an average of one year to be negotiated. The process of coming to agreement is trying, and current labor laws do not require that an agreement even be reached when a union and company are negotiating a contract. They only require that a union and company bargain in good faith.

Recruiting Impact

If we use simple math and say 10% of the workforce is currently unionized, let’s also say that 10% of our recruiting colleagues recruit in a unionized environment for positions covered by a contract. I’ve been part of that 10% in the past and know firsthand the fun it is to read a collective bargaining agreement to determine how you can or cannot recruit. Most recruiting guidelines for a unionized environment are all rule-driven and often restrict your ability to secure the best talent for your organization. Is there an internal job posting requirement? What are the job posting dates you have to follow? Does the recruitment have to be restricted to just the bargaining unit? What preference do bargaining unit members get over other internal candidates, or over external candidates? Can you even pursue external candidates?

And once you get those rules out of the way, the contract also dictates compensation, and the focus is on tenure rather than performance. Even rarer are any trace of incentives to get high-performing candidates in the door. It’s a difficult recruiting environment to operate in.

Managing and motivating talent in a unionized environment is also difficult. Sure, they may have guaranteed cost of living increases, year after year, but that’s generally it. Workers generally get nothing for going above and beyond; innovation is not rewarded; and A-players, regardless of the industry, have trouble swallowing that pill. Even if you can overcome the recruiting obstacles and attract A-players, the stars will grow stagnant quickly once surrounded by endless mediocrity.

Looking Forward

The EFCA will likely be voted on in the House and/or Senate by the end of the first quarter of 2009. In the meantime, we can expect to see lobbying efforts on both sides of the issue ramp up — and it’s an interesting debate that’s unfolding. The economic climate makes it increasingly ripe for the EFCA to pass, as the American workforce worries about the security and stability of their jobs. The promise of hope from unions could be music to their ears as labor forces like the AFL-CIO use messages in support of the EFCA, saying that it will help America’s working families who are struggling and build a better life, or greedy CEOs are too powerful, but workers in unions can bargain for a better life. But on the flip side, you have strange bedfellows like the pro-business voice of the Chamber of Commerce and civil-rights activists like Al Sharpton both coming out against the bill.

I find myself growing concerned about the EFCA’s passage but perhaps am more concerned with the lack of discussion in the business community about the matter. I continue to encourage my colleagues and communities to educate themselves on the matter — and you can do the same by sharing this article as a starting point. You can also choose to take action by getting in touch with your elected officials and sharing your opinion of the EFCA with them. Or for those involved in the blogging community, you can get in touch with me if you’d like to write on the topic during a week-long blogging action week planned for February.

It’s a historic time as Obama prepares to take office — and change is certainly in the air in Washington as several pieces of employment law have already been voted on by our new Congress. The EFCA will certainly be up to bat soon — but is this the kind of change we were asking for? Or are there other issues affecting the workplace or our industry that you’re concerned about as Obama takes office?

This article is part of a series called Opinion.
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