November 28 Tip of the Week

“To Join or Not to Join”

Unions and increased union activity have been in the news over the last year or two, particularly since the Biden Administration identified increased support for collective bargaining as one of its platforms.  We have seen the effect of increased union organizing activities at large, national and multi-national employers, including Amazon and Starbucks.  While there is increased federal support for unionization and collective bargaining, state laws still play a large role in the popularity and viability of unions.  In the most recent election this week, two states had ballot proposals related to two separate and opposing issues:  right to work laws and constitutional amendments making it a right to join a union. 

Voters in Tennessee passed a ballot proposal that created a constitutional amendment that prohibited compulsory union membership – otherwise known as the right to work.  Right to work laws allow employees who choose not to join a union to benefit from the terms and conditions that a labor union negotiates for its members in unionized workplaces.  Under these rules, individuals who choose not join the union and who, therefore, do not pay dues or otherwise support the union’s activities on behalf of the workforce, benefit from the union’s efforts.  This “free rider” principle is controversial among union members and leaders, as it is believed to weaken the union’s ability to negotiate better wages and benefits for its members due to decreased funding from non-dues paying employees.  Individuals who do not join the union not only benefit from the wages and benefits negotiated on behalf of the workforce, they also can access the union’s support in disciplinary matters and can file grievances under the collective bargaining agreement.  Twenty-seven states have right to work laws and ten states have amended their constitutions to preserve the prohibition against compulsory union membership. 

Voters in Illinois passed a ballot proposal that contained a constitutional amendment that gave residents of the State of Illinois the right to join a union.  The ballot proposal granted workers in the state the constitutional right to collectively bargain over wages, hours, and working conditions.  To pass, the amendment had to be approved by three-fifths of those voting on the measure or a majority of those voting on the election.  It appears, two days after the election, that this measure will pass and Illinois will join three other states with similar constitutional protections:  New York, Missouri, and Hawaii.  The Illinois ballot proposal is the first of its kind. 

These ballot proposals and election results are further evidence of the controversy surrounding unions.  They also show the complexity of the laws relating to the workplace and the difficulty, at times, of coordinating compliance with both federal and state labor and employment laws.  MyHRcounsel is here to assist you in navigating all aspects of the employment relationship from unionization to termination and all issues in between.  When you are faced with difficult employment situations, call us and we can assist you with practical and legally compliant answers. 

Why is this case important?  It confirms the need to document all efforts taken with respect to employee job performance and discipline.  If this employee had been allowed to engage in her poor job performance and inappropriate interactions with others without documented correction efforts, her claim would have been stronger and it would have been very difficult for the employer to show that the decision to terminate or lay this employee off was due to conduct that occurred prior to her accident.  Also, the employer had a rating system for employees that was based on objective factors, including productivity rates, errors, and meeting deadlines.  This rating system helped to establish the legitimate business reason for terminating the plaintiff. 

Documenting employee job performance, disciplinary issues, and counseling efforts is key to ensuring that an employer’s decision to terminate an employee withstands scrutiny.  At myHRcounsel, we can assist you in ensuring that you are able to effectively address employee performance issues and that decisions to terminate poorly performing employees are upheld by courts and enforcement agencies.