It”™s not the laws, but the people who administer them that can make the difference in the way labor relation situations are handled, advises attorney Bob Heiferman.
Heiferman, who works in the White Plains law office of Jackson Lewis L.L.P., has been helping employers grasp the complexities of labor laws for 25 years. He said 2007 changed the way New York state handles cases.
Why?
“A new governor and a new administration,” he said. “The laws haven”™t changed, but the way that cases are being handled and scrutinized has changed. We have a new commissioner of human rights and a new commissioner in the department of labor.”
According to Heiferman, after 12 years of Republican stewardship, some things did change on Spitzer”™s “Day One.”
“I am not saying it was a bad or good change ”“ but it is an immediate change ”“ for example, up until 2007, almost 90 percent of discrimination charges were dropped or there was no finding of discrimination. Now, these agencies are finding more than a third of the cases have merit. The result is ”¦ a situation where prosecution, rather than conciliation, is more prevalent.”
That translates into employers spending more money fighting charges of discrimination.
Patricia Smith, the state labor department”™s new commissioner, has a different view about wage and hour claims than did her predecessor. “She is encouraging unions and community groups to file claims against employers. It is a very aggressive and confrontational approach for the business community.”
What does “prevailing wage” really mean?
“Typically,” Heiferman said, “it is the hourly wage people make doing a particular job. But in New York, (it is what) the unions pay for a particular job. Eighty-five to 90 percent of our local employers are not unions. If you say to them, ”˜Pay the prevailing wage,”™ which is more than most people make, it ends up contributing to the exodus of jobs leaving the state.
“They are going South, and it”™s not just because of the weather. People are moving to states where the business atmosphere is friendlier, taxes are cheaper and workers”™ compensation affordable.”
As labor litigators, Heiferman said, the firm spends time dealing with “reasonable accommodation” for people with physical disabilities.
“More and more, our clients are getting requests to accommodate people with mental disabilities or accommodate certain religious beliefs. We do have a more diverse and interesting work force than we did when I started out 25 years ago, but it has also created a need for employers to become much more creative in the way they deal with these ”˜accommodation requests.”™ They are becoming more frequent and there has been a rise in the kind of accommodation requests employees are making.”
Employers not only need a human resources person who can think outside the box but need to network to stay on top of workplace challenges, he said. “Solutions are not always in a book where you can look them up. Employers need to be more flexible, more creative and build a network of resources. When they come across a unique problem, they can network with peers to find a solution.”
Employers must be on top of situations in the workplace “and solve problems before they end up in litigation,” which can prove costly and aggravating.
“You can”™t wait until someone complains. Look around in your office and see if there are potential problems going on. If you have more than four people in your employ, you need to be on top of problems,” he said.
While most corporations have human resource departments to deal with these issues, “here in the Hudson Valley, most of our businesses have under 100 employees,” Heiferman said. “It is not uncommon to find the person who does the payroll also starts taking care of problems within the office. But these people need a support network …”
That”™s where the Society of Human Resource Management (www.shrm.org) can be a godsend, he said. “There are SHRM chapters all over the country, and we have several right in our backyard … They meet on a monthly basis, and they usually have a guest speaker who will talk on a specific subject or answer questions.”
For those business owners who are multi-tasking or a payroll administrator who has been unofficially elected the office “problem solver,” getting out and networking with others who face similar workplace challenges is the best way to learn how to deal with issues as they arise.
Heiferman”™s best advice to employers: “Don”™t wait until something happens … if you see something you don”™t like, talk to the person immediately. Send them a memo, it does not have to be more than three or four sentences, saying you hope it will not occur in future.”
If it continues, “get the person out. Don”™t wait a year. If you have an employee who is not doing what they were hired to do, or is not following company policy, you need to talk to the person right away. Don”™t wish they would quit or disappear … it”™s probably not going to happen. As soon as someone screws up, don”™t wait for the second or third time. Let them know immediately.”
