Changing Past Practices – You Might Already Have the Right to Do What You Want

16 May 2016 Labor & Employment Law Perspectives Blog

Employers frequently find themselves in a situation where they have the right to do something under their labor agreements, but they have not been exercising the right. For example, the labor agreement might provide:

  • “There shall be no pyramiding of overtime,” but under the employer’s pay practices, the employer has in fact been pyramiding (counting the same hours twice for purposes of overtime)
  • “Double time shall be paid for the seventh consecutive day worked,” but under the employer’s pay practices, it has been automatically paying double time for all work on Sunday, not just on Sunday if it is the seventh consecutive day worked
  • “The employer has the right to change shift start times,” but through past practice, the employer has never exercised that right
  • “The employer can require employees to work overtime,” but as a matter of course, the employer has not been mandating overtime
  • “Employees will be discharged for sleeping on the job,” but the employer has traditionally only suspended employees for that offense

Is an employer stuck with bad past practices when it has the clear contractual right to take (or not take) a certain action? The answer is often no. An employer is generally entitled to start enforcing clear contract terms even where it has a past practice contrary to the contract language, or where it has not previously exercised those contract rights. Put differently, the employer is entitled to insist that the plain language of the labor contract be followed.  Additionally, the employer does not have to wait until the end of the contract to start exercising its rights – it can generally start exercising those rights mid-contract.

Here are four best practices to consider:

  1. Check your labor agreement now. You might be surprised what it allows you to do that you have not been doing.
  2. Use clear and unambiguous language. If the language is ambiguous – if the language could reasonably be read your way, but it could also reasonably be read to support the union’s position – then you likely cannot start enforcing the language in your favor mid-contract.
  3. Talk to the union before you start enforcing clear contract language. Tell the union what you intend to do, and why. Get feedback from the union before you make your change. This will help with relationship issues (obviously, the union is not likely to be happy you are changing past practice). The discussion may reveal problems with your plan to implement the clear language (e.g., the union may produce a contrary “side letter”). And, the discussion will help satisfy your legal duty, if any, to “bargain” the change with the union before you implement it. Note, in this context, bargain does not mean get approval; it means discuss, listen, consider, and then go ahead with your plan if you still believe it makes sense.
  4. Double check your rights. When you get to negotiations for a new contract, and before you make your proposals, always look at your contract first to make sure you do not already have the right to do what it is you will be proposing. If you already have the right to do what you want to do, then you can simply inform the union during negotiations what you are going to do. Conversely, if you make your proposal, and you are unsuccessful in achieving your new language, then it will only undercut your argument that your existing language allows you to do what you want to do.
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