Nonunion companies may be required to allow employees to have representation in meetings that threaten discipline.

Nonunion companies may be required to allow employees to have representation in meetings that threaten discipline.

Most good nonunion employers think that discipline is something done behind closed doors and is a private matter between the company and the employee. Sometimes if termination may be involved two managers from the company will participate in the meeting to insure accuracy of information. What if you had to let the employee have a representative in the meeting as their witness?

The Weingarten Rule

In 1975 the Supreme Court of the United States (SCOTUS) ruled on the case of the NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975), which dealt with the right of an employee to have union representation in a disciplinary and/or investigatory hearing. The Supreme Court SAID that the following rules apply:

Rule 1: The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.

Rule 2: After the employee makes the request, the employer must choose from among three options:

  • grant the request and delay questioning until the union representative arrives and (prior to the interview continuing) the representative has a chance to consult privately with the employee;
  • deny the request and end the interview immediately; or
  • give the employee a clear choice between having the interview without representation, or ending the interview.

Rule 3: If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal. (Source: Wikipedia)

This ruling only applied to union members until 2000 when the Clinton Administration National Labor Relations Board extended it to nonunion companies as well. I bet you did not know that this was a right you had to allow at one point. However, in 2004 the Bush administration NLRB overturned the previous ruling and thus nonunion companies no longer had to allow employees any representation in a disciplinary or investigatory meeting. That is how it stands today. Unless….

Obama NLRB

Now the very active Obama Administration NLRB is thinking of reversing the reversal with the announcement that “The GC also seeks to review cases involving the applicability of Weingarten principles (the right of an employee to have a representative or witness at investigatory interviews that can potentially result in disciplinary action) to non-union workplaces” according to the attorneys at Epstein, Becker & Green.

This is just one area these attorneys warn us that the NLRB’s General Counsel is looking at. Read here for more. Just this one area however, could be very disruptive to nonunion workplaces and slow down the process of investigations and discipline.

Let us hope the NLRB sees the wisdom of leaving Weingarten rights to union companies and not extending them to nonunion companies.


How to Make Your Company Attractive to Skilled Workers

by Michael Haberman on June 28, 2016 · 0 comments

Choosing the right person is critical for companies.

Choosing the right person is critical for companies.

Certain first world countries, including the United States, Germany and Australia, have a deficit of skilled workers. Each of these nations has special immigration processes to attract the best workers globally. When a company is competing for these human resource assets, it needs to create a smart corporate culture to attract and retain these skilled workers. Research in the field shows that these expert workers are looking for specific traits in a sought-after company.

Challenges and Challenging Work

Skilled workers understand the importance of enjoying their careers. They seek challenge and stimulation in their jobs. This is the most important of the workplace cultural traits that employees seek.

At the announcement and application level, include a well-defined job description that highlights the challenging aspect of the job without going so far as to scare a prospect away. Blend your enthusiasm with a well-written job description to attract employees looking for a fun, challenging workplace environment.

Recruit skilled workers the way that the U.S. military does. Let them know upfront that it is challenging but rewarding.

Opportunities for Learning and Professional Development

Supermarkets are not known for their expert staff, yet the grocery store chain Publix uses a great education benefit package to recruit and retain its best employees. It offers more than $12,000 in education reimbursement for full-time and some part-time employees.

This benefit is not restricted to a four-year degree, and trade and technical school are equally reimbursed. What is important with this benefit is not the dollar amount. It is the culture of success that the company is offering its people.

Your company may not have the budget to send everyone to school, but it can offer education in the form of mentorships and in-house certifications.

Work Relationships

People spend a third or more of their day working. Most of their social and business relationships happen during that time. In our remote work, entrepreneurial world, the relationships that a company offers are a significant, although often intangible, perk.

Take a look at Amway. The company sells health care and beauty products, but what it offers the contractor is a connection via a worldwide network. Even if your company is not global and well networked, a dynamic, fun environment and a good social media presence will bring skilled staff to your door.

Opportunities to Take Responsibility

An employee with no advancement potential already has one foot out the door. If you want to acquire and retain the best, offer a clear advancement path. Advancement goes hand-in-hand with professional development.

According to the career site Glassdoor, General Electric is one of the best places for promotion opportunities because it has a policy of training its people on career and advancement specific topics. If your company is small, then use cross training to open up more advancement opportunities for your staff.

Ability to Make a Difference

At the end of the day, every employee wants to sleep well, knowing that they made the world a better place. Contrary to what we see on the news, most people are inherently good and want to work for a socially conscious company.

Socially responsible and sustainable companies automatically attract a skilled mindset. They are the Microsofts and the Googles. Use your company’s social responsibility plan as a recruiting tool to make your company irresistible to the hero in all of us.


A #SHRM16 Interview with Ray Bixler of SkillSurvey

by Michael Haberman on June 27, 2016 · 0 comments

Ray Bixler of SkillSurvey

Ray Bixler of SkillSurvey

I have to admit that I have long said that reference checks have limited value. Let me differentiate that from background checks of which I am a big proponent. However, after interviewing Ray Bixler of SkillSurvey I may have to change my tune.

Getting rid of the phone

According to Bixler, who has been the CEO for over 10 years, the goal of SkillSurvey is to forever change reference checking. They are trying to do that by getting rid of using the phone in the process. If you have ever checked a candidate’s references by phone you know that it can be a daunting process. Playing the inevitable phone tag game takes time and effort. When you finally get to the person you find they are hesitant to provide you with any information because they don’t really know if you are genuine or they have a company policy about information being given over the phone. This is frustrating to the point that often references are not talked to at all.


SkillSurvery has redefined the process according to Bixler by automating the process and making it accessible on any device. The reference is sent out as a survey to the named reference. The request appears to come from the candidate, thus providing the authorization to release the information. The survey, which has been developed by a team of industrial and organizational psychologists, can be completed in a relatively short time by the person asked to complete it. It helps companies make more effective decisions on whether a candidate has what it takes to work for them.

It integrates with 19 applicant tracking systems. It allows a request for a reference to be created in 8 minutes. Bixler says that recruiters love it and applicants love it as well.

Additional uses

One of the additional uses that can come from using this method is the data base of sources of references. Recruiters have long discovered that references are also a great source of candidates. When you contact 100,000 references per month that gives you a great candidate pool that is available to clients.

They are currently trying to make greater use of the big data they are collecting in order to improve the selection process. Their patented Pre-Hire 360® allows the client to “View the overall reference feedback for each of the competency areas to see where the candidate excels, and which areas a hiring manager might want to further explore in the interview.”

According to Bixler there is yet a great deal that can be learned from the data they have collected.

This short interview cannot provide a complete picture of SkillSurvey and what it can do, so I suggest you visit their website to get a more complete picture. I was impressed.


Future Friday: Lessons from #SHRM16 about resiliency

by Michael Haberman on June 24, 2016 · 0 comments

BlankyOne of the early sessions I attended was presented by Alex Hagan, CEO at Kienco and an Instructor at The Futures School. He was talking on Three Rules to Creating resilient HR Strategy. He talked several different issues. I thought I would  give you the tweets I wrote during his sessions as my way of taking notes and then comment on them.


Following trends allows you to be agile, but doesn’t allow you to create.

Hagan, in his Aussie accent, told us we all need to follow trends but to remember that trends are the past. You have to be agile to respond to those trends to create the future you want.

Strategy is not a road map it has to be a GPS that adjusts to the changing landscape.

Your strategy cannot be so inflexible that you don’t allow for things to change and eliminate your ability to respond appropriately just in the name of “strategy.”

We are in a post normal society and normal is not coming back.

The world of HR is changing radically and we are not going to see a change back to the “good ol’ days” regardless of how much you wish.

An example of post normal is using crowdsourcing to recruit the best candidates.

Rather than using “standard methods” to find employees crowdsource those candidates from around the world. Maybe your best engineer is in Mumbai rather than Chicago.

Educated incapacity is knowing so much about your area that you are the last person to realize it is changing.

HR does have to be very guarded about this and we all need to be open to learning new things from new people.

We are dealing with wicked problems, which are where more problems arise as we solve the problem we are working on.

That never happens in HR!

Adult coloring books are a reaction to our “always on” society.

This is certainly an issue as we deal with the issues of work/life balance.

Data is about the past. Decisions are in the future. We need strategic foresight.

As the slide in the picture says, data can be a “warm blanky” that we need to make sure does not blind us to new opportunities.

Crowdsourcing blurs the lines of your workforce. Who really is your workforce?

With the global nature of many of our businesses we can have people working for us from anywhere. Is that person on Fiverr that is doing a project for you part of your workforce? How will you adapt to the “gig” worker?


Alex ended with a discussion of the Mesh Network, where 100 people are working for free on Elon Musk’s Hyperloop Transportation Technologies. The highly skilled employees were found through crowdsourcing and the funds were found through crowdfunding. What are you prepared to do that changes the nature of your workplace?

Alex did a great, stimulating presentation. If you would like to follow him on Twitter you can find him at @alexhagan.


#SHRM16- Images from the conference

by Michael Haberman June 23, 2016


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#SHRM16 report Day 3- Focus on the FLSA

by Michael Haberman June 22, 2016

Tweet Today I attended two packed sessions on the FLSA and its impact on companies. One session dealt with nonprofits and the second dealt with the FLSA overtime rules in general. #SHRM16 People still very concerned about the FLSA. Room packed for @TDMcCutchen presentation. — Mike Haberman (@MikeHaberman) June 21, 2016 Nonprofits The session […]

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#SHRM16 Report- Day 2: Visiting the Vendors

by Michael Haberman June 21, 2016

Tweet Although I hit two great concurrent sessions today and a very interesting keynote address I will talk about them at another time. I wanted to highlight some of the vendors I have visited. I look for some of the smaller vendors, not exclusively, but generally some that have an interesting product or service. Ultimate […]

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#SHRM16 Report on Opening Day

by Michael Haberman June 20, 2016

Tweet The 2016 SHRM conference started with a great set of keynote that followed Hank Jackson’s opening remarks. According to Hank Jackson, SHRM’s CEO this is a breakthrough year for human resources. In fact that is the theme for this year BREAKTHROUGH. Jackson says that today’s workplaces need to be innovative, competitive, and equitable. Flexibility […]

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Future Friday: Next week at #SHRM16

by Michael Haberman June 17, 2016

Tweet I am changing the focus of Future Friday from several years from now to next week. As most of you know I am an official blogger for #SHRM16. I will be at the conference starting Saturday, June 18th. If you are not attending there is still a way for you to follow the action […]

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#SHRM16 Interview with Tim Mulligan the CHRO of the Year

by Michael Haberman June 16, 2016

Tweet I lived in Southern California for my high school and college years. In college I studied comparative animal psychology, primates in particular. As a result I was very familiar with the San Diego Zoo. I have probably been at least 15 times and consider it to be one of the premier zoos I have […]

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