When an employee handbook ... isn't.
January 16, 2020 7:17 PM   Subscribe

After years of freelancing, I've just signed on as an employee at my company. The workers in my unit are currently unionizing, so my hire was (favorably and expertly) negotiated by representatives from that union. Unfortunately, it appears my employer is already violating the terms of that contract ... but the union has returned to focusing on bigger and more contentious issues affecting the whole unit, and I'm feeling a bit adrift as to my options for recourse. More details inside.

I'm in the U.S. (California).

After seven years as a freelancer/contractor, I was hired under the auspices of AB5 as a three-quarters-time employee (32h/week). The documents presented to me for review prior to signing indicated that all staff working more than 30h/week would be entitled to paid holidays. This is written into and codified in the official company employee handbook.

After the first few single-day holidays, I shot an email to HR asking about the processes for accounting for that time on a timesheet and got no response. In anticipation of the much longer holiday break (two weeks off, paid), I inquired again and was told that, in fact, the employee handbook is wrong, and I would not be entitled to any paid time off for holidays since I work fewer than 40 hours/week. (The company's standard for full-time is 40 hours - not 35, 39, only 40.)

Naturally, I asked the union to investigate and was told that the company is standing firm on this policy and refuses to honor the agreement and the employee handbook. The union has said they will raise the issue again at some point, but as of now the company is stonewalling them. The unit is also in the most contentious phase of our collective bargaining where the company is offering offensively low wages for the bargaining unit as a whole, so I understand why they don't feel the need to press on this particular case right now, especially since they just spent weeks negotiating for my position. But in the meantime, I've lost 2-3 weeks of pay and more to come for every holiday.

I think it would be hugely counterproductive and unethical to do an end-run around the union and retain private counsel for the purposes of exerting pressure on the company ... but if we weren't in union negotiations, I would sure as hell lawyer up and try to get them to abide by the contract they offered me and signed. But as it stands, I'm not sure how to handle this. The union has already said "Sorry, we feel for you, but we're getting nowhere on this issue and we just have too much else on our plate." Meanwhile, I'm left wondering how an employer can take any portion of their own employee handbook and say "Sorry bro!" to the parts they don't feel like honoring. How can I get this resolved without running afoul of the union -- who are otherwise, believe me, doing the best they can for our unit?
posted by anonymous to Work & Money (8 answers total) 2 users marked this as a favorite
Is the Union a stand alone, or is it affiliated with a larger organization? If so, ask to speak up the chain. Yes, bargaining takes up a lot of time, but they can not leave you hanging. Ask to see the bylaws of the Union in regards to representation. The Collective Agreement should also have something in place for grievances and the process you need to follow. Sometimes unions blow off concerns until a member says the magic phrase I am filing a formal grievance”, which the union has to legally follow through with. (This is all from my Canadian Union experience and my familiarity with the Labour Relations Act, but I can’t imagine US unions being much different)
posted by saucysault at 7:44 PM on January 16

If your union is in the middle of negotiating a first collective agreement with the employer, you can be in a weird kind of limbo where everyone knows you will soon be represented, but aren't yet.

I agree with saucysault's point that it could be worth escalating up the chain in the union. But, you might also want to have a blunt conversation with them about lawyering up. In general, it will be in their interests to have as many beneficial practices in place before they reach their agreement, since that makes it more difficult for the employer to walk things back. You might find that they are happy to have you take this issue forward when they cannot.
posted by rpfields at 8:06 PM on January 16

The union has a bargaining strategy and they will try to deal with bigger issues first as they negotiate the first contract. I think when they say they will try to deal with it later, they likely mean that they can and will negotiate backpay for you, but it will come later in the process. These small individual issues often get settled at the end of bargaining, when the real meat of the contract has been covered.

The caselaw around employee handbooks suggests they are legally binding in most cases, so the employer probably won't find it. So....you will probably get this money eventually but it might take some time as these negotiations are often protracted. It might make you feel more confident if you asked a union staff member or officer to confirm in writing (e.g. in an email) that you have raised this issue and they agree about your entitlement, and plan to seek redress as part of the bargaining process.

If you are under financial strain because of this missing pay, you might ask the union whether they have a welfare fund and how you could access it. You could also write a formal letter to HR, referencing that they are bound by the employee handbook. You can find a few legal citations to include, or ask a librarian or lawyer friend for help; you can definitely write a solid letter without engaging a lawyer. You could also mention in the letter your support for the bargaining process, saying something like "I look forward to working under our negotiated collective bargaining agreement, when issues like this will be clearly addressed in the contract."
posted by cushie at 8:48 PM on January 16 [4 favorites]


So, if you are in a union it is highly likely that you cannot retain private counsel to negotiate with the company for you. Your union owns the relationship between you and the company and is responsible for administering it. They have exclusive jurisdiction over your workplace issues.

What it sounds like you want them to do is file a grievance on your behalf. If they refuse, or tell you to wait, they are probably looking at the bigger picture. If that really doesn't sit right with you, you could look at getting counsel to force the union to take action (by enforcing their duty to represent you - in my area it is called the duty of fair representation).

Also, it is worth noting that "included in the employee handbook" and "included in the collective agreement" are not the same thing, unless the collective agreement specifically incorporates the handbook.
posted by hepta at 5:09 AM on January 17

Hepta's advice (about exclusive representation and grievances) applies after a first contract is negotiated, not before.
posted by cushie at 1:33 PM on January 17 [1 favorite]

Meanwhile, I'm left wondering how an employer can take any portion of their own employee handbook and say "Sorry bro!" to the parts they don't feel like honoring.

Every employee handbook I've ever received has said something to the effect of 'this handbook in no way constitutes a contract of employment yadda yadda yadda,' so I'd bet your says something similar.
posted by Ragged Richard at 1:56 PM on January 17 [2 favorites]

Ok, so you want to get a copy of the actual, current in effect, collective bargaining agreement. It will cover the negotiated grievance procedure. Most negotiated grievance procdures are multi-step hearings with succesively higher officials. Almost all end up in binding arbitration if not solved before then.

There may be a way you can do it on your own without a union representative.
posted by ctmf at 11:22 AM on January 18 [1 favorite]

Are other workers who work the same hours as you and are in the same bargaining unit getting paid holidays? If not, this is a problem to work out WITH your new fellow union siblings. I would suggest staying in touch and involved with the members who are involved in negotiations to make sure this issue remains a priority at the bargaining table. I would specifically ask your new coworkers if they have the same problem, keep close track of your unpaid hours, encourage others to do the same, and continue to be loud and assertive about this priority issue, if possible together with others.

'The union' (which now includes you!) can't magically compel the employer to do stuff. You and your fellow members can only exert collective power to pressure the employer, and depending on the strength of that collective power, you may ultimately be able to force them to behave. Once there is a signed contract you'll have a bit more power where the structure of the union can help you to file unfair labor practice charges or what not, but for now your new union siblings and you are just developing these structures and power.

I can't speak to the wisdom of hiring a lawyer, but asking for a brief consult to help you understand the issues probably can't hurt. The California Bar Association offers a service where you can have a phone consult with a lawyer for I think $30. I've used the service and gotten some helpful, simple advice before.
posted by latkes at 7:27 AM on January 19 [2 favorites]

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