How Do I Ensure My HR Policies and Procedures Don’t (Unintentionally) Break Any Laws?

Human Resources (HR) policies and procedures are the heart of an organization’s equitable treatment of employees and the basic starting point for employee engagement. They must be legal, fair, thorough and unbiased. It’s an enormous challenge to meet these requirements in a business world where each generation has different expectations. In addition, government laws and regulations regularly change. People are highly connected and share information about their jobs and working conditions with ease. Increasing diversity adds a new context to the workplace and effective leadership. 

Dealing with Reality

The complication is that you can have what you think are ironclad policies and procedures, carefully screened to ensure legality. Then, here comes an employee claiming a supervisor violated their rights, or a particular policy is biased based on social changes driving new expectations not considered before. For example, a technically legal and unbiased HR recruitment process is inclusive, but only people with degrees make it through interviews and hiring. This excludes many qualified diverse job candidates who come from underserved communities. They have the skills or the potential to learn the skills, but couldn’t afford college. The next thing you know, job candidates tell the union the company doesn’t hire minorities, and the union encourages them to protest in front of the business or start a union campaign. It’s the reality of today’s employment environment.

There are cases where the HR policy on promotions is carefully worded to maintain legality and designed to prevent supervisors from playing favoritism. The company discovers after the department workers file a grievance that the supervisor did manage to recommend a person who is not the most qualified by manipulating the performance reviews.

A company may have a solid grievance procedure, carefully constructed to ensure employees know there is an open door policy and that complaints will be reviewed, investigated, and resolved in some manner. In the meantime, the supervisor is threatening his staff by saying, “No one better complain about anything to management, or he won’t recommend the person for a raise.”

The Two Elements of HR Policies and Procedures

Human Resources policies and procedures have two elements. One is the legality of the policy wording and the process of implementing and maintaining procedures. Here is a case in point.

Just recently, the NLRB decided in Motor City Pawn Brokers, Inc versus Terrence Walker and Patricia Tilmon (Cases 07-CA-179458 and 07-CA-179461) that the employer had interfered with employee rights by including rules in the Employee Agreement, Employee Handbook, and Updated Handbook that restricted association with and solicitation of other employees. The employer also interfered with employee rights by creating rules that prohibit unauthorized disclosure of the Employee Handbooks and had unlawfully created a mandatory arbitration agreement that interferes with employees’ rights to file charges with, participate in, and access the NLRB and its processes.

This case not only points out the importance of an employment attorney regularly reviewing HR policies and procedures; it leads to the second element of the HR system. The second element is the day-to-day interpretation, implementation, and enforcement of organizational leaders’ policies and procedures, especially frontline supervisors. Motor City Pawn Brokers violated the Section 8(a)(1) of the NLRA with its written policies and then aggravated the situation by creating procedures that deepened the violation of employee rights and leadership that enforced the restrictions.

Though Motor City Pawn Brokers had broken the law, in many cases, the employer has a solidly legal set of HR policies and procedures reviewed by an employment attorney. The company still ends up involved in an NLRB case. The reason is due to the finer details of implementation. It’s all about leadership and employee engagement. The best policy in the history of Human Resources is only as good as the organization’s leadership. 

What Did He Say?

Your ability to stay union-free is largely dependent on how your supervisors and managers adhere to your legal policies, implement equitable procedures, and understand and protect employee rights. Even perfectly written policies and procedures are only as good as their implementation.

For example, in another recent case of TDY Industries versus United Steelworkers of America, Local 6163 (cases 19-CA-227649 and 19-CA-227650), the NLRB found for the union because the employer failed to “provide information about death benefits paid to beneficiaries under the pension plan in response to the Union’s May 25, 2018 request.” A manager decided to withhold information from the union to which the union was entitled. 

It’s the day-to-day decision-making that has some of the greatest impacts on the ability to stay union-free, minimize union grievances if already unionized or eventually decertify the union. People overhear the supervisor saying, “I really like the job candidate John Doe, and could see myself meeting him for a beer after work.” 

When John Doe is hired, the union files a grievance claiming biased hiring took place, and the job was given to an underqualified person from outside the bargaining unit. The HR policy prohibits any form of discrimination, and the recruitment process uses pre-employment assessments and structured interviews to minimize the chance of bias. Still, the final decision of the hiring manager was biased. 

Hard Work of Staying Current

Following is an action plan to help employers maintain legality in HR policies and procedures while engaging employees:

  • Have all HR policies and procedures reviewed by a labor attorney to ensure they remain legal
  • Each time an HR policy and/or procedure is added or revised, have a labor attorney review it
  • Have a union-free website that employees can access 24/7 because it delivers the company philosophy in legal language 
  • Include a FAQ page on the union-free website because the questions offer valuable insights into employee issues and perspectives
  • Regularly review the NLRB decisions because they provide critical guidance to employers on how the Administrative Judges and the Board members interpret the law and are signposts for what may need changing in-house to avoid NLRB petitions
  • Always provide feedback to employee questions, informal gripes, and formal grievances
  • When employees are confused about how to handle certain situations, such as company social media or leave policy, develop a new policy rather than making the resolution a one-and-done individual response
  • If there appears to be inconsistent and inequitable or biased treatment of employees in any manner, it should be addressed in a policy
  • Train managers and supervisors on issues like playing favorites, thoroughly documenting performance problems, bias, union-free language, etc. 
  • With the help of a labor attorney, consider all potential legal risks in employee-related actions and not just the risks associated with one or two laws, especially in the case of terminations, accommodations per the ADA, and yes, the social climate
  • Train all leaders on employee engagement best practices, including active listening, recognizing potential bias in their statements or actions, and bringing troublesome policies or procedures to senior management’s attention for review and revision
  • Human Resources should have an open-door policy for managers and supervisors, encouraging them to ask questions, discuss employee issues, inquire about the interpretation of laws, learn more about staying union-free or responding to union representatives, etc.
  • Utilize expert advice like labor attorneys and UnionProof professionals because they know the law, have a broader perspective than a single employer, have witnessed the consequences of neglected or inadequate HR policies and procedures, and know how leaders can unintentionally lead to employee interest in unions

This is certainly not a complete list of tactics, and some may seem obvious. Unfortunately, too many organizations ignore the obvious and then panic when the unions come knocking. 

Follow Through

One thing is very clear: publishing HR policies and procedures is only one step in employee engagement, minimizing legal risks, avoiding expensive grievance processes, and preventing unionization. Regularly reviewing and adapting them, plus ongoing (emphasis on “ongoing”) training of leaders, are critical steps. How many companies have let their HR policies and procedures become outdated, exposing them to unions and litigation? 

Projections, Inc. and its partners UnionProof and A Better Leader help companies of all sizes connect with employees through effective training via custom video, web and eLearning solutions, and powerful tools for staying union-free or managing employer-union relationships. No organization needs to go it alone when so much help is available and easily accessible.


About the Author Jennifer Orechwa

In over 25 years of helping companies connect with their employees, Jennifer has gained a unique perspective on what it takes to build a culture of engagement. By blending a deep understanding of labor and employee relations with powerful digital marketing knowledge, Jennifer has helped thousands of companies achieve behavioral change at a cultural level.

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