USA can learn from Canadian experience: Expedited union elections in USA starting April 30, 2012

Posted by Doug Gilbert on April 20, 2012

On April 30, 2012, changes to the National Labor Relations Board's union election case procedure will come into effect, barring congressional action or legal challenges.  Pre-election hearings will be limited to determining whether there is a question concerning representation.  Any disputes related to voter eligibility, supervisory exclusions or the appropriateness of the proposed bargaining unit, and any appeal of the regional director's decision to order the election, will be determined after the election.

In 2010 under the current procedure, the median time between the filing of the petition and the election was 38 days.  That year, 95% of all representation elections were conducted within 56 days of the filing of the petition.  The new rule does not set a minimum or maximum period for when elections must be held. 

Timing will likely depend on how aggressively officials administer the new role.  Prediction suggests that most elections will likely occur within 15 to 20 days from the filing of the petition, roughly half of the current median period of 38 days.

The new rule will advantage unions in the certification procedure, will put greater pressure on employers and may result in a less-informed employee electorate.  The lessons from Canada's experience with expedited votes are instructive for US employers preparing for the accelerated election procedure.

Doug Gilbert has written an article entitled "Expedited Union Elections" which was published in the April 2012 edition of HR Magazine covering this subject in more depth.  (Copyright 2012, Society for Human Resource Management, Alexandria, VA. Used with permission. All rights reserved.)

Employers to Become Equal Partners in Immigration as Quiet Revolution Continues

Posted by Sharaf Sultan on March 05, 2012

The Federal Government late last week signalled in no uncertain terms its determination to forge ahead with fundamental reforms to the immigration system.

The government has over the last few years been on something of a mission to reform a system that has traditionally focused primarily on permanent residency, including the “family class”, into one increasingly designed to facilitate the entry of workers to meet specific labour market shortages.  The changes have been aimed at addressing what both statistics and employers have been saying for some time: Canada is not producing enough skilled workers to service rapidly expanding industries, such as the oil and gas sectors.

As I have discussed in previous postings, last April fundamental changes to the Temporary Foreign Worker Program (the “TFWP”) came into effect.  These changes spelled out strict rules for employers to ensure their compliance with immigration rules.  Employers that stray from the rules through, for example, not adhering to pre-approved wages or working conditions, can find themselves subject to various sanctions, such as heavy fines or, worse, a ban against hiring foreign workers. 

The resulting modifications to immigration laws, such as these most recent changes to the TFWP, seem to be having their intended effect as the number of temporary foreign workers has in recent years climbed to the point where they now exceed the number of permanent residents accepted each year.

With great power comes great responsibility

The Federal Government’s announcement of last week appears to signal a continuing determination that employers will play an increasingly central role in deciding who can immigrate to Canada. 

The changes are nothing less than revolutionary.  All indications are that at least some of the notoriously creaky wheels of the immigration process will be deliberately lubricated to facilitate an expedited entry of workers to satisfy employer needs for skilled workers.  Specifically, the government will ensure that employers get their choice of workers quicker, a kind of “just in time” system designed to speed up the entry of workers to support commercial operations. 

Assuming the proposed changes come to fruition, it is clear that, while employers will play a greater role in the immigration system to secure desired employees, employers will have equally enhanced responsibilities to adhere to the increasingly complex regulatory environment surrounding immigration.  This means that employers would be wise to increasingly integrate immigration into overall Human Resources decision making, policy design, as well as overall execution.  Immigration will eventually cease to be a “one-off” issue but rather be part of comprehensive operational planning and ongoing compliance.  Revolutionary? Perhaps not, but a significant change nonetheless.

Attacking Client Confidentiality: Proposed U.S. Regs May Require Disclosure of Lawyers Used by Employers in Union Drives

Posted by Tim Lawson on October 25, 2011

In the United States, the Labour-Management Reporting and Disclosure Act (LMRDA) requires employers and labour relations consultants to report the details of “persuader activities” to the U.S. Department of Labour (DOL).  A consultant engages in “persuader activities” if it is contracted to counter a union organizing drive or collective bargaining effort.  The reporting requirements are intended to bring transparency to the activities of those U.S. consultants who discourage employee organizing drives and engage in so-called “union-busting” activities.

The Current Reporting Requirements and the Exemption for Legal Advice

Currently, U.S. attorneys have very limited reporting requirements under the LMRDA because it contains a broad exemption for legal advice. 

Attorneys are only required to report “persuader activities” if they have direct contact with employees.  For example, attorneys who prepare and actually deliver persuasive material to employees have reporting requirements under the LMRDA.

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Airline's Retirement Policy Grounded by European Court Ruling

Posted by Brian Burkett on September 20, 2011

Richard Lister of Lewis Silkin LLP (the UK member of Ius Laboris of which Heenan Blaikie is the Canadian member firm) has posted this article at Global Employment Law:

How old should airline pilots be before they're made to retire? That was the central question in a case brought by German pilots against the airline Lufthansa which has just been considered by the European Court of Justice (ECJ).

A collective agreement to which Lufthansa had signed up included a blanket prohibition on pilots working after they had reached the age of 60. Three pilots, whose employment contracts automatically terminated on their 60th birthday, didn't feel ready to hang up their captain's hats. They claimed the rule amounted to unlawful age discrimination.

The German court decided to ask the ECJ what it thought. A key point was that both German and international law allows pilots aged between 60 and 65 to carry on working, so long as the other members of the air crew are younger than 60.

In light of that, the ECJ concluded that a complete ban on pilots working beyond the age of 60 was a disproportionate requirement. It went beyond what was really needed to ensure air traffic safety and protect public health and security.

The ECJ did accept that possessing particular physical capabilities is a genuine requirement for acting as a pilot and such capabilities diminish with age. But the judgment makes clear that any difference in treatment on grounds of age must be justified as being necessary and proportionate.

Flying Lessons

This case has obvious implications for the aviation sector. But more generally, it highlights the developing obligation under age discrimination laws for organisations to justify compulsory retirement ages. They need be in a position to provide cogent, objective reasons for adopting particular ages for particular jobs. Conducting a comprehensive audit of retirement policies and procedures is strongly advisable.

Employers who try to wing it could be heading for a crash landing... in court

Ius Laboris is a global alliance of over 40 leading management labour and employment law firms, of which Heenan Blaikie is the Canadian member.