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Hidden risk: Do your employee committees violate labor law?

by on
in Employment Law,Human Resources

Consider these two scenarios:

1. At the suggestion of a project manager, your organization starts an employee committee to provide workers a voice in safety issues. Management and the safety committee go back and forth with numerous proposals and ultimately adopt a new safety policy.

2. Your department managers want to launch employee suggestion committees. You plan to allow supervisors to pay bonuses to employees whose suggestions are accepted by management and save the organization money.

At first glance, those common ­management-employee participation groups seem legally risk-free. But looking deeper, such committees could, under certain circumstances, be viewed as illegal, employer-dominated unions under federal labor law.  

Key point: According to a handful of National Labor Relations Board rulings, an employer commits an unfair labor practice whenever it dominates any “labor organization.”

You may think this doesn’t apply to your nonunion workplace. But the term “labor organization” is quite broad. It includes any organization in which employees participate and “deal with” management concerning wages, hours or any other terms and conditions of employment.

Avoid the ‘dealing’ trap

Courts have said “dealing with” workplace issues occurs when management participates in a give-and-take with workers, typically involving proposals and counterproposals.

But if employee committees truly show the authority to make and implement decisions on their own, even if the decisions are subject to management review, it’s unlikely that the committee would be caught up in this “dealing with” trap. Reason: The committee is acting as a “delegate” of management.

Advice: To prevent a complaint that employee committees “deal with” workplace issues, you should structure committees in one of two ways:

  1. The committee possesses the power to decide matters for itself, rather than simply make suggestions to management.
  2. The committee’s main purpose is to share information with your company.

The key is to avoid any point/counterpoint negotiations, which would be indicative of a labor organi­zation. Also, the committee should discuss productivity or operations issues, not employees’ terms and conditions of employment. And management representatives should be in the minority.

Don’t create a ‘company union’

To avoid the appearance that your committee is seen as a “company union,” you should:

  • Let employees decide who will serve on the committee.
  • If your organization is small enough, give every employee a chance to serve on the committee, perhaps on a rotating basis.
  • Inform workers that they’re not representing their co-workers during committee meetings (as would be the case with a union).

Bottom line: If you’re thinking about forming employee committees, take the following steps:

  • Minimize support to the committee, and don’t pay participants extra.
  • Let the committee run the committee, and don’t handpick members.
  • Stress the group’s role in sharing information with the organization. Don’t run the show.
  • Remind committee members that they don’t represent their co-workers; they’re simply offering their opinions.

As explained in the box below, your trick is to make certain that your organization doesn’t dominate the committee. If you can do that, you won’t violate federal labor laws.

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