Guest Article, New HR Competencies
LEGISLATIVE KNOWLEDGE AND ADVOCACY: THE NEW HR COMPETENCY
Larry Bourgerie, MA-IR, SPHR
The need to understand the business and build business acumen is clear to most human resource professionals. I have had a number of discussions with senior managers, and the one constant that I frequently hear is that HR professionals do not “think like a business person” and don’t think strategically. The perception is that HR knows people but not business, specifically the business drivers that are important to senior management.
In the last decade, HR professionals have made great strides toward the goal of becoming strategic business partners in their organizations. However, I believe most HR professionals fall short of their potential to have maximum impact on their organizations. One new crucial competency that would give HR more impact and credibility is a thorough understanding of, and involvement in, the legislative process.
Many HR professionals understand and effectively implement current laws. We are also known to complain about the cumbersomeness of these laws; “FMLA is poorly written,” “FLSA is outdated,” we say. And what is our response to these poorly written laws? More grumbling, and continuing efforts to comply with the law. We are reacting to legislation, not shaping it. This is operational thinking, not strategic thinking.
For HR professionals to be effective in the current HR world, we must move past the reactive mindset and become proactive. We must stay on top of current legislative initiatives, and use our collective voices to work for legislation that benefits the employees and employers with whom we partner. If we don’t, we will continue down the path as reactive implementers of the law, not proactive players in the legislative process.
Let’s take the FMLA – Family Medical Leave Act – as an example of what happens when HR professionals are not involved in crafting legislation. The consensus of many people who have worked on implementation or administration of the FMLA is that it is a poorly constructed piece of legislation. The intent of having legislation to insure families can protect their jobs in case of a personal or family emergency is something that almost everyone would agree is well intentioned. Therein lies the conundrum. It is not the intent but the legislation specifics that go south.
Three frequent HR concerns with the FMLA involve the Act’s regulations: the definitions of “serious health condition”, “intermittent leave” and the basic one year qualification for eligibility.
With regard to the definition of serious health condition, several years after passage of the FMLA, the DOL issued a statement stating that conditions such as the common cold, the flu, and non-migraine headaches are not considered as serious health conditions. The following year, the DOL reversed itself, issuing a statement that each of these conditions could be considered a “serious health condition.” This ruling did not reflect the original intent of the law. In February 2008, when the DOL issued updated regulations, there were no changes to the existing rules regarding serious health condition despite the concerns of the HR community. The DOL regulations retained the list of conditions that generally do not qualify as serious health conditions. These vague and nebulous definitions have long been a concern for HR professionals and stray from the original intent of the legislation.
HR professionals also have numerous challenges in administering intermittent leave. It is frequently difficult to track an employee’s intermittent leave, especially in situations when an employee takes FMLA leave in small increments. In addition, unscheduled, intermittent leave causes staffing problems for employers. In a 2007 SHRM survey, 88 percent of HR professionals responding to the survey indicated that during an employee’s FMLA leave, the employee’s workload is assigned to other employees because it is not cost-effective to use temporary staff due to the fact that the training period for a temporary employee is sometimes longer than the leave itself. In addition, employers often do not receive enough advance notice from employees to obtain temporary help on short notice.
“Intermittent leave” (as defined in the FMLA regulations) has resulted in problems related to the management of absenteeism in the workplace. FMLA certification in effect grants an employee open-ended leave, allowing leave to be taken in unpredictable, unscheduled, small increments of time. The ability of employees to take unscheduled intermittent leave in the smallest time units that the employer uses, often one-tenth of an hour or six minutes, means that employees can rely on this provision to cover habitual tardiness. While serious health conditions may well require leave to be taken on an intermittent basis, limited tools are available to employers to determine when the leave is in fact legitimate. Thirty-nine percent of HR professionals responding to the 2007 SHRM FMLA survey indicated that they granted FMLA leave for requests that they perceived to be illegitimate.
Finally, one seemingly simple qualification for the FMLA leave is that the employee have one year service with the company. However, one often overlooked fact is that this provision includes those employees with a break in service. Employees that have left and returned, may qualify for a FMLA leave, much to the surprise of the HR professional, who may mistakenly overlook this provision and deny a qualified employee, thus finding themselves out of compliance. This is another example of how difficult this piece of legislation is to administer.
Numerous people have wonderful ideas for improving the workplace, but HR professionals are in a unique postion to help with the specifics. It is said is that “The Devil is in the details.” I would say that the Devil has developed the details, but that would be mean spirited!
Most legislative intent is positive. I would venture to say that the vast majority of business people want to maintain a positive working environment for their employees. It is the disconnect of the legislative community from mainstreet that is part of the problem. Let’s review two other examples of poorly crafted legislative initiatives that are currently on the table.
Two current examples of where the involvement and insight of HR professionals and managers will be needed are the Employee Free Choice Act and the Family Flexibility Act.
The first one I would like to highlight is the Employee Free Choice Act (EFCA), which is anything but Free Choice. Most would agree that supervised private ballot elections are the best method to protect the privacy rights of individual employees in choosing whether to join a union. By effectively eliminating the private ballot, EFCA would actually take away an employee’s private and “free choice,” expose employees to coercion, and encourage a threatening workplace for employees. The goal of good legislation should be to protect the individual rights of workers. Mandatory binding arbitration would impose unwanted employment conditions on both employees and employers. Under EFCA, employees would simultaneously lose their rights to vote on union representation and to approve workplace contracts. This type of legislation makes no sense and benefits no one. So I must ask the question, why would Congress want to pass legislation that benefits neither the employees nor the employers, the two key stakeholders in the employment process?
Let’s also look at the proposed Workplace Flexibility Act. The basic components of this act are as follows:
Applies to employers with 15 or more employees working 20 or more calendar workweeks in the current or preceding year. (Will this mandate be a burden for small business?)
Provides up to seven days of paid sick leave for full-time employees working more than 30 hours per week; part-time employees working more than 20 hours per week receive pro rata share of paid leave. (Why 30 hours? Anyone in HR would be confused by why this number is chosen when 30 hours is considered full time.)
Leave may be used on an hour-by-hour basis or in the smallest increment that the employer’s payroll system uses to account for absences or use of leave. (Like FMLA this will be a wonderful exercise in lost productivity through increased paperwork for 15-minute leaves.)
Prohibits employers from eliminating existing leave coverage. (In their infinite wisdom, not only will there be a government mandate, but it will penalize those employers who already offer a competitive or first class plan by preventing them from modifying their leave plan even if necessitated by adverse economic circumstances.)
These examples should illustrate the point that we, as HR professionals, are uniquely qualified to shape legislation based on our unique perspective that includes multiple constituencies – management, employees, families, and society. Currently, legislation is shaped by Capitol Hill staffers and legislators who are far removed from the impact on everyday individuals and the unintended consequences of the laws they are creating. The legislative process has become much too complex to be left in the hands of amateurs and rookies who are poorly informed. We are at a unique time in American business, with many critical issues facing our country, economy, employers and employees. In these times, more than ever, we need to get informed, get involved and help shape future legislation. It is said there are three types of people: those who make things happen, those who watch things happen, and those who say, “What happened?”
To be effectively engaged HR professionals today, we must be in the first category and make it happen!
Arbitration Agreements for Non-English-Speaking Employees, Quirky Question # 110
Quirky Question # 110:
Our company utilizes a mandatory arbitration policy for our employees. In essence, our employees are required to arbitrate any claims relating to their employment relationship. As is true for many other companies, our workforce has become increasingly diverse, and now includes many employees for whom English is a second language. If we sought to enforce our arbitration agreement against someone with limited English language skills, would we encounter any problems?
Roy’s Analysis:
I apologize for offering an equivocal answer to your question about whether an arbitration agreement, written in English, could be enforced against someone with limited English-language skills, but, it depends. Let’s start with two basic principles. First, the Federal Arbitration Act (FAA), and the decisions interpreting that statute and parallel state statutes, make clear that courts favor the enforcement of arbitration agreements mutually agreed upon by the parties. See, e.g., Moses H. Cone Mem’l. Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24 (1983) (noting the “liberal federal policy favoring arbitration agreements”).
Second, arbitration agreements are contracts. As such, they must meet the requirements of any other valid contract – offer, acceptance and consideration. For contracts to be enforceable, there must a “meeting of the minds”; in other words, an agreement as to the nature and content of the contract. If one party’s English-language skills are so limited that he/she cannot understand the offer being made, it is difficult to understand how he/she could agree to, or “accept” the contract terms.
As the last paragraph suggests, the key question, therefore, is just how “limited” are the language skills for your employees with “limited English language skills”? Can they understand any English? If not, how do you communicate with them regarding other important workplace policies? Are your employees predominantly of one minority group who speak the same language (e.g., Hmong, Hispanic, etc.) or is your workforce a melting pot of various ethnicities, races, cultures, and languages? If the former, do you have translators available to communicate with those whose English-language skills may be less well developed than their peers? Or, can one or more of your employees who language skills are better translate policies or work directions for those whose language skills are poor?
The underlying theme of these observations is that your policies (including, but not limited to, your arbitration policies) need to be understandable to your workforce. Early in this Blog’s existence, I wrote about the analogous context of whether sexual harassment policies needed to be understandable to a teenage workforce (check out Quirky Question # 12, accessible by using the “View by Topic” tab on the upper left hand corner of this page and scrolling down to the subject of ‘Sexual Harassment.’) In that analysis, I pointed out that important workplace policies needed to be understandable by those in the workforce if an employer hoped to enforce the policies successfully. Moreover, within reason, the policies needed to be tailored to the nature of the workforce, e.g., a workforce composed largely of teenagers. The same general principles apply here.
Here are six practical suggestions for your consideration that should enhance the enforceability of your company’s arbitration policy.
First, consider producing your company’s most important policies, including your arbitration policies, in multiple languages. If you suspect that a number of your employees do not understand your company’s policies due to their limited English-language skills, you should consider producing at least your most important policies in other languages. The practicality of this approach will be influenced by the diversity of your workforce, the number of native languages spoken, the associated costs, etc.
Second, if you do not want to incur the costs associated with reproducing your policies in multiple languages, consider including a brief statement at the start of your policies (whether in an employee handbook or in other documents) that is written in multiple languages. The statement could state simply something along the lines of: “The following Employee Handbook is written in English. If, for any reason, you are unable to read the Handbook, please inform your HR representative as soon as possible. If you inform an HR representative that you are unable to read the policies or do not understand them, we will assist you to read and understand the policies. If you do not inform an HR representative that you need assistance, we will assume that you can read and understand the policies.” Of course, you then need to follow through appropriately if one of your employees apprises you that he/she cannot read or understand your policies.
Third, as an alternative to publishing your policies in more than one language, consider using a translator to help certain members of your workforce understand your policies. In connection with this effort, ensure that your employees execute an acknowledgement form, in their native languages, stating that they have had the policies translated and explained to them. (An interesting question, beyond the scope of this analysis, is whether an employee who signed an arbitration agreement and who was hired based on his/her execution of that document, would need to be provided any additional consideration if you later determined that he/she did not originally understand what he/she was signing.)
Fourth, consider training all of your employees periodically with regard to your company’s policies. As you conduct this training, ensure sufficient interaction with your employees to ascertain whether they are able to understand your policies as written.
Fifth, (and I confess to some reservations about this next option), consider training a subset of your employees, i.e., those whose English-language skills are suspect. Depending on the size of your workforce, you could consider having a HR representative meet with these employees to ask them about several of your most important company policies, including your arbitration policy. (Three admonitions with respect to this approach. 1) Undertake this effort carefully and diplomatically. 2) Explain carefully to the affected employees the legitimate purpose of your inquiries, so this group does not feel discriminated against or mistreated in any way. 3) Ensure that the company does not take any adverse action against those whose understanding of your policies may be limited due to deficiencies in their English-language skills.)
Sixth, regardless of how you approach all of the recommendations set forth above, ensure that your key policies are not buried in a lengthy handbook or other document. Display them prominently. Where appropriate, use separate acknowledgement forms for each important policy.
In a recent decision by the United States District Court for the District of Maryland, Oumar Dieng v. College Park Hyundai, Civil Action No. DKC 2009-0068 (July 9, 2009), the District Court addressed a number of issues involved in the enforceability of arbitration agreements, including whether the agreements were enforceable as to employees whose English-language skills were limited. Unfortunately, the Court’s opinion does not shed much light on the issue because the Court concluded, with little explanation, that while English was not the first language of the plaintiffs, “all Plaintiffs are fully capable of speaking, reading and writing in English.”
The plaintiffs in Dieng claimed that they were not paid the commissions for vehicles they sold and were required to work in excess of 40 hours per week without receiving overtime compensation. Plaintiffs sued for violations of the FLSA, the Maryland Wage Payment Statute, and common law claims. The Defendant auto dealer moved to compel arbitration based on the arbitration clause set forth in the employee handbook. The Court granted the Motion to Compel notwithstanding the plaintiffs’ claims that the agreement: a) lacked consideration; b) lacked mutuality; c) was unconscionable both procedurally and substantively; and d) was void as against public policy. (I won’t discuss the ways in which the Court dealt with each of the arguments advanced by the plaintiffs but they all were rejected by the Court. If your company is confronting any of these issues, however, you might find the opinion an interesting read.)
The lack of English fluency played out in the procedural unconscionability argument. The plaintiffs argued that because English was not their first language, they needed time to consult with counsel prior to executing the arbitration agreement. Similarly, plaintiffs argued that the defendant failed to explain how arbitration worked or how their rights would be affected under the agreement. The court rejected these arguments, noting, “In its simplest terms, Plaintiffs argue that they should not be held to an agreement that they signed, but not have or take the time to read and understand.” The court pointed out that the arbitration provision was on the second page of a two-page document, and was written in bold, underlined and CAPITALIZED lettering. Given the prominence of the arbitration provision and the Court’s perception that although English was not the native language of the plaintiffs, they all were capable of reading and understanding English, the Court was not persuaded by the plaintiffs’ arguments.
The Dieng opinion does not provide much insight into how the issue might have been resolved if the plaintiffs truly were not able to read or understand English.; But, as referenced in the recommendations above, the decision does highlight another way in which an employer can insulate itself from a challenge to the arbitration agreement – display it prominently and clearly, and have the employees acknowledge reading and understanding the document. Another option available to employers, but not discussed by the Court, would be to provide prospective employees with a copy of the arbitration policy several days in advance of their hiring, with encouragement that they seek legal guidance or other assistance to read and understand the policy. Taking these steps should ensure that an otherwise valid policy is not subject to challenge.
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