HR and Employment Law Today

HR and Legal Update Week of May 2, 2011

2011-05-06T10:44:00.000-07:00

Religion in the Workplace - 5 Employer Mistakes

FMLA FAQ - What if a Doctor Refuses to Use Our Forms?

No More Business As Usual - ADAAA Regulations Will Be a Bear For Employers
This is a really informative article on all of the ADAAA changes.

Dramatic Increases In HIPAA Privacy And Security Enforcement

Social Security Administration Resumes "No Match" Letters

A Look at the EEOC’s Final Rule Interpreting Title II of GINA

PA -Philedelphia Bans Felon Question on Application

GA - Sweeping Immigration Law Goes to Governer
This immigration bill is very similar to Arizona’s which requires business to participate in E-Verify and gives the police the ability to question the immigration status of individuals. One major difference is that this bill creates the criminal offense of “aggrevated identity theft” which is punishable by imprisonment from 1- 15 years and fines up to $250,000. “Aggrevated identity theft” is defined as “fraudulently using any counterfeit or fictitious identifying information concerning a real, fictitious, or deceased person with intent to use such information for the purpose of obtaining employment.”

Constructive Discharge Claim Requires "Intolerable Conditions"

HR and Legal Updates the Week of August 16, 2010

2010-08-16T17:54:00.000-07:00

The Government is Being Sued by the EEOC - Census Bureau Was Warned That Screening Process Could Be Discriminatory

Massachusetts - Gov. Duval Signs Changes to Criminal Records Law

EEOC v. 7-11 - $10K Settlement for Disclosing a Former Employee's Medical ADA Data

HR and Legal Updates Week of August 2, 2010

2010-08-03T17:04:00.000-07:00

New York - NYC Employers Are Strictly Liable For Supervisor Discriminatory
Behavior

This ruling by the NY Court of Appeals means that in NYC if a supervisor commits the discriminatory behavior (here sexual harassment) the employer will ALWAYS be liable even if the plaintiff never even reported it to anyone! In the past employers could avoid liability under the New York
City Human Rights Law if no adverse employment action took place, the employer took reasonable efforts to prevent or correct behavior, or the associate did not take advantage of any of the complaint reporting procedures the employer may have in place. But the Appeals court found this defense, known as Faragher-Ellerth Test is not available for claims brought under the NYCHR Law.

EEOC vs. Adecco - $62,500 Settlement for Retaliation Lawsuit

This settlement highlights a new disturbing trend in litigation which is the rise of the retaliation claim. In this claim a female supervisor filed a charge of sexual harassment against her supervisor. But the retaliation lawsuit was brought by her male subordinate who claimed that he was terminated for speaking out and supporting his manager's complaint! The important thing to remember with retaliation complaints is that the plaintiff does not have to prove the discrimination happened. For retaliation all that is required is that the plaintiff show they were penalized for "testifying, assisting in, or participating in" a proceeding that is protected by the law (someone filing a discrimination complaint). This settlement is just another reminder to document every step in the performance management process.

EEOC v. John Weiland Homes - $378,500 Settlement of Race and Gender Discrimination Claim

This case is a great example of "disparate impact" discrimination where what seems like a neutral employer policy can adversely affect a whole protected class of people (here African Americans). In this case the home builder assigned agents to sell homes in different areas based on the race of the surrounding community. This resulted in African American agents being assigned to similar communities and making less then their Caucasian counterparts who were assigned to higher home priced communities. An interesting detail about this settlement is that the agreement requires the company to hire at least 10 African American women into management positions within the next 6 years.

EEOC vs. Sears - $30,000 Settlement for Age Discrimination Lawsuit

Legal Updates

2010-06-17T05:51:00.000-07:00

I will try and start posting links to some interesting and important articles on a weekly basis.

Accepting Bad Behavior Can Be a Reasonable Accommodation Under the ADA?

EEOC vs. Starbucks - $80,000 Settlement for Disability Discrimination

Have You Forgotten about the "Glass Ceiling"?: Equal Pay Act Claims are Coming Your Way

2009-07-05T06:49:00.000-07:00

Last week an article appeared in the New York Times announcing the filing of a class action Equal Pay suit against Bank of America by some of it’s female brokers. The brokers claim that when Merrill Lynch was absorbed into BoFA as part of the federal government’s program, female brokers were offered lower retention bonuses then their male counterparts. This event, two recent US Appeals court cases, and upcoming legislation changes to the Equal Pay Act may be combining to show that equal pay claims are becoming the new “hot” area of employment law litigation in the next few years.

For those who may be unfamiliar with the Equal Pay Act, under the law a plaintiff can establish a prima facie case of pay discrimination if they can show that an employer pays different wages to employees of opposite sexes for equal work in jobs that require the same level of skill and responsibility and are performed within similar working conditions. If a plaintiff can establish this then the burden of proof shifts to the employer to prove that the employee was paid a lower wage due to some reason other then gender (i.e. seniority, merit, some other system that measures quantity or quality of work).

In Conti v. American Axle & Mfg., Inc. No. 08-1301 (6th Cir. May 22, 2009), company executive Suzanne Conti claimed that she had not received the same work benefits as her male counterparts, specifically, salary increases and opportunities for advancement and training. Her employer argued that compared to many of her male executive peers, she made the same or more in salary and that her job duties were oftentimes different then theirs and would explain any pay discrepancies. This argument worked in all but one instance.

In her last position with the company, Conti had been promoted and she was paid substantially less then her male predecessor. The company argued that she was paid less because the position was downgraded from a Director to a Manager level and that the new title reflected a difference in the duties. However, Conti argued that she performed the same duties as her predecessor and that she also had acquired some additional responsibilities while in the role. The Appeals Court found that Conti did not have to prove that the duties associated with the different titles were identical to establish her prima facie case, but just that there was a “substantial equality of skill, effort, responsibility and working conditions.” They allowed her proceed with her claim.

While the Conti case points out the importance of paying a replacement an equal salary, another case points out the danger of not paying the predecessor properly. In Drum v. Leeson Electric Corp. 2009 WL 1350737 (8th Cir. May 15, 2009), a Human Resource Manager’s unequal pay claim was prompted when the employer hired a male replacement at a much higher salary. Since the plaintiff had established her prima facie case that she had been paid differently for equal work the issue in this case was whether the pay differential was based on something other then her gender. Her employer argued that the male replacement was the best candidate for the HRM position and that they had to pay a higher marker rate to acquire him. They also try to justify Drum’s lower salary by pointing to her prior salaries arguing that they resulted from a hiring policy that set salaries slightly under market rates. The court rejected these arguments stating that showing that they had to pay the male replacement a higher rate did not explain why they paid Drum a lower salary for the same position, and that they could not use a “lower market salary theory” to explain her prior salaries unless they could show that they were not related to her gender. As a result she was also allowed to proceed with her claim.

Some may argue that perhaps the plaintiffs in Drum and Conti did not have the same qualifications and past experience as their male counterparts and therefore deserved to be paid less. Potentially that could be a valid argument to explain a disparity in pay. However, interestingly, neither employer made that argument (because it wasn’t documented/true?). More important though I think the facts in both cases show their employers obviously both thought they were “qualified’ enough to do the jobs in question in the first place. Maybe the most important message to take away from these cases is that the Equal Pay Act states you should make sure you pay people the same for the same skills and requirements that the position itself requires, not necessarily for the skills and qualifications the person may have as an individual.

Many candidates may be able to meet the minimum requirements of a position, but many often have experience and qualifications that may go above and beyond. Usually this is a good thing because most employers hire with a view towards the future recognizing that talent acquisition is not just for the job today but for the job tomorrow. So what can an employer do to protect themselves from equal pay claims and yet still ensure that their organization is hiring leaders for the future?

• Job Descriptions and duties should be clearly outlined and defined. Any differences in responsibilities, education, or experience requirements should be clearly outlined and differentiated from other jobs.

• Employers should review their compensation structures to make sure they are up to date and market competitive. If hiring an external candidate to fill a position would cost you a significantly higher amount of salary, maybe that is a signal that the pay grades for that position are too low.

• Compensation packages for external and internal candidates for the same positions should be evaluated for consistency. If a candidate has a higher level of experience or qualifications that creates a pay disparity with another employee in the same position this information should be documented so that those decisions can withstand a lawsuit.

• No more perks! Companies will also have to be careful of the traditional “handshake deals” that fall outside of a specific job’s normal compensation package. (i.e. extra weeks of vacation, signing bonus, etc.).

One final reason why employers should re-evaluate their compensation practices is because of legislation that is currently moving to expand the reach of equal pay claims. If the Paycheck Fairness Act becomes law it will expand the Equal Pay Act from pay differences based on gender to include claims based on race and national origin. In addition, the Lilly Ledbetter Act now allows employees to file claims for prior adverse compensation decisions, meaning that decisions that were made years in the past that still affect the employee now can be the basis for claims.

2009-06-14T11:53:00.000-07:00

Hello Everyone!

It has been a busy Spring in the Capitol City...and looks to be even busier as 2009 marches on. Here are some important employment law related pieces of federal legislation that may be "hot" topics this year:

 E-verify – E-Verify still hasn’t been mandated for use by public employers, however, this may be changing as extended authorization for the E-Verify program was included in recent Omnibus Appropriations Bill in 2009. In addition, the Obama Administration’s budget for 2010 included $110 million in continued funding for E-Verify.

 FOREWARN Act – This Act would amend the Federal WARN Act which requires employers who have over 100 full time employees be given 60 days notice before a plant or location closing and layoff. The amendments would reduce the full time employee requirement to 25 and extend the layoff notice period to 90 days. Failure to comply with the notice requirements would make an employer liable to the employees for double the back pay for each day of the violation up to the 90 days.

 More FMLA Changes?? – Recently, the Family Fairness Act of 2009 was introduced in the House of Representatives. This Act would amend FMLA by eliminating the requirement that an employee has to have worked 1,250 hours during the 12 month prior to the leave request. The Family and Medical Leave Enhancement Act 2009, also introduced in the house would allow employees to take up to 4 hours of FMLA protected time within a 30 day period for school or community related activities.

 The DOL is growing = more inspections – The Government Accountability Office’s recent review of the Wage and Hour Division of the Labor Department did not go well. GAO staffers found that DOL employees frequently failed to respond to wage and labor law violation claims brought to their attention in a number of ways: telling callers to get a lawyer, failing to follow up on phone calls to employers, and failing to follow up on complaints at all. President Obama sent a letter to the new Labor Secretary Hilda Solis in March indicating his displeasure with the departments past failure to enforce labor laws vigorously. To remedy the situation, the Labor Department is currently hiring 250 additional investigators which will increase the staff of the wage and hour division by more then a third.

The New I-9 Form.....

2009-01-23T09:01:00.000-08:00

Ok so I wasn't exactly correct about the new I-9 Form but leave it to the federal government to be ambiguous ;) Days before the new I-9 Form was set to be effective, President Obama's Chief of Staff sent a letter to all Government Agencies that any final rules or changes could not be sent to the Federal Register until it is reviewed by the new administration. This morning they announced they would postpone implementation of the New I-9 Form until April 2009 to give them time to review.

Until any further information is released the Rev. 06/07 I-9 is still the only valid version of the I-9 Form.

The Myth of the New February 2, 2009 I-9 Form....

2009-01-06T09:45:00.000-08:00

Some of you may have recently seen announcements about a new I-9 Form that must be in place by February 2, 2009. Unfortunately, the messages coming from the Department of Homeland Security(DHS), various legal firms, and HR websites have a lot of conflicting information and dates so I wanted to clarify and propose MY thoughts about what is really going on.

If you will remember my HR friends, an I-9 Form with an expiration date of 2009 was released in June 2008. Normally when the government produces new Forms for things it must publish them in the Federal Register, after which usually 45 days later the new form is effective. Ahh but the trick here is DHS never published that June I-9 Form in the Register! (I think this observation is backed up by the fact that the USCIS website currently lists the Form with an expiration 6/07 as the correct version of the I-9).

Recently, on December 18, 2008, DHS did publish in the Federal Register new rules that would eliminate certain forms of identification and a copy of a different 2009 I-9 Form reflecting those changes,but it is marked with a gray "informational purposes only" across the body of it and it is open for public comment until February 2, 2009. Unfortunately, some people have interpreted this as a requirement to use a new I-9 Form. But that begs the question, if there is a new Form which one is it? The one printed last June (which does not have the updated ID changes) or the one printed in the back of the Register in December (which is informational only)?

So here is my theory.....DHS printed the I-9 Form last June because they had to, the expiration date for the Form was 6/30/08 so something had to be created to extend the approval DHS has from the budgeting office to actually collect Immigration information. (See my earlier post on 9/4/08 for clarification on the form creation process). However, they never published it keeping in mind they may want to make edits to it. The information published in the Federal Register in December is an "Interim Rule" which means it is NOT final, and they would like people to comment on the new ID removals and the new I-9 Form format before they officially release a new form.

Hopefully DHS will send out some clarification before February 2, 2009 but I would recommend for now sitting tight and waiting for more information.

FMLA General Notice Requirements January 16, 2009

2009-01-03T06:09:00.000-08:00

The Family Medical Leave Act Final Rule was released in November 2008 and has changed some major provisions of the Act affecting the responsibilities of employers and employees. I will be posting a more detailed outline of these changes soon, but the most immediate concern to my fellow Human Resource Professionals is the new Notice requirements.

FMLA now requires that each individual employee be given "notice" of their rights under FMLA. The provisions state that this can be accomplished by placing the general notice posting in an employee handbook if it is distributed to all employees but if not then it must be handed to employees at the following times:
- at the time they are hired,and
- when they first request a FMLA leave of absence.

In addition, the new notice poster must be posted in a conspicuous place within the workplace.

Here is a link to a copy of the general notice poster:

www.dol.gov/esa/whd/fmla/finalrule/FMLAPoster.pdf

The general notice poster must be distributed to employees and posted by January 16, 2009.

I'm back...and looks like it's just in time!

2008-12-29T12:58:00.000-08:00

Whew! Well it certainly has been awhile since I last posted here but no more excuses!! It's so busy out there in the Human Resource world and I have some great posts on recent laws and requirements just in time for the new year!

While I finish up pieces on the passage of the Americans with Disabilities Amendments Act (ADAA) and the recent release of the Family Medical Leave (FMLA) Final Rules, here are some major legislation changes Congress will be evaluating in 2009:

 Employee Freedom of Choice Act (EFCA) – this Act in it’s current form would make it possible for unions to organize new workplaces by getting a majority of employees to sign up through Authorization Cards. This card-check approach would eliminate the secret ballot election. In addition, it would require binding arbitration on first contracts after 120 days.

 Fair Pay Act of 2007 – Amends the Equal Pay Act and FSLA and would set up a “comparable worth” pay system which would compare jobs for equal pay based on gender, race, and national origin. A violation would occur if an employer pays lower wages for a certain job that is dominated by a particular gender, race or national origin if the wages are lower then that which the employer pays for another job that is dominated by the opposite gender, race, or national origin.

 Working Families Flexibility Act – would require employers to negotiate with individual employees over work hours, schedule, and location. Under the Act within 14 days of a request for a change in working conditions and employer must schedule a meeting with the employee to discuss the request and must provide them with a written decision 14 days later. If the decision is to reject the request the written decision must state the grounds for the rejection including:
o The cost of a change in a condition of employment (i.e. lower productivity)
o The overall financial resources involved;
o Geographic challenges
o The effect of the change on the employer’s ability to meet customer demand

 Healthy Families Act – this Act would mandate that employers provide 7 days of sick leave with pay and employment benefits annually for employees working 30 hours per week or more. In addition, a pro rata number of days or hours of sick pay would also be given to employees who work less then 30 hours per week or 1,500 hours throughout a calendar year.

Although these Acts may or may not be passed in 2009, the growing number of employee friendly laws (i.e. paid sick days, anti-discrimination, paid Leave of Absences) in state and city legislatures indicate that the Federal Government will soon follow their example.

Employment Authorization - Who is really legal to work?

2008-09-21T14:02:00.000-07:00

Over the last two years immigration and employment authorization has been a hot topic in the news. When employers are faced with a variety of visas and work documents sometimes it can be hard to verify who is really legal to work, and unfortunately the guidelines given in the I-9 Employer Handbook can be more confusing then helpful.

Here are a few important distinctions between different statuses and visas and some tips on how to make sure the employees you are hiring and continuing to employ are really legal to work.

Not all Aliens need a Work Visa

Here is a list of some aliens who do not need an actual employment authorization document (EAD) to work as they have been granted the ability to work as part of their status:

A Lawful Permanent Resident Alien – please note even though there may be an expiration date on the card itself this just shows that the card must be renewed, the status and ability to work does NOT expire with the card.

A Temporary Resident Alien – same rule for expiration date for a permanent resident alien applies.

Asylees who have been granted asylum in the US. Increments are usually granted in 5 year blocks and like the Permanent Resident Alien the expiration date on the Form does not mean the status to work has expired just that the document needs to be renewed.

Some Common Visas and Their Limitations:

F1- This visa is for non-immigrant students who has valid student status. They are ONLY authorized to work for the school they currently attend.

H2B – This visa applies to positions that are temporary or seasonal and the “petitioner” must show that there are no U.S. workers who are willing or able to work in the position. The important thing to remember about this visa though is that the “petitioner” who applied for the visa for the individual is considered the employer, the individual is limited to working ONLY for that employer. So if a new applicant to your company presents an H2B visa to your company but you did not petition the government for them to work for you, then they are most likely not authorized to work.

J(1)(2) - The J-1 and J-2 visas are for an alien participating in an exchange visitor program that has been approved by the government and their dependent spouse or child respectively. The J-1 visa only authorizes the alien to work for the actual program that was approved by the government. One example of this visa might be an individual who was originally approved to work as a nanny or a summer camp counselor. This means that the individual can only be employed in the U.S. through that approving program and cannot just switch to another employer when that authorization is up. However, a dependent spouse or child on a J-2 visa is NOT as restricted in their employment.

Receipts

According to the I-9 Handbook for employers there are only 3 cases when a receipt can be accepted in lieu of an actual employment document:

1. When the document was lost/stolen/or destroyed and they have filed for a replacement.
2. A Form I-94 that has a temporary I-551 stamp and a photo. This is a temporary receipt for Permanent Resident Aliens.
3. A Form I-94 that has a refugee status stamp.

In addition, an alien who has been granted asylum or “asylee status” in the United States may show a copy of the hearing document that granted them the status for employment purposes.

Oftentimes many alien employees will re-apply for extensions of their work authorizations. These applications should normally be sent in well before their current authorization is set to expire but even with all of the best intentions an approval application can find itself languishing in the administrative labyrinth that is the United States Immigration Service. In those cases DHS does allow for an extension of their employment not to exceed 240 days but they must get an interim employment authorization document from their local USCIS office.

Also some aliens are protected under the Temporary Protected Status Program where certain work authorizations will be extended automatically for a period of time. These extension notifications are printed in the Federal Register and can be checked online (please see the Federal Register Online link on the right!).

Tips on how to check a work authorization:

Check the original documents that were/are given for I-9 employment purposes. If a visa or Form is giving look for the section that shows the Class of Visa. You will see a letter sometimes followed by a number (i.e. H1, H2B, J1, etc.). If you are legally savvy, or you think you can wade through some of the confusing language, check the visa against 8CFR Part 1273a Section 1274.12 which can be found on the www.uscis.gov website (link to the right). This is the section of the US Immigration rules that lists all of the work authorization requirements for different classes of aliens.

Performance Management - Progressive Discipline Tips

2008-09-08T06:52:00.000-07:00

What is considered a difficult employee? Some would say someone who comes to work late, has a low level of job performance, or just an all around bad attitude. These types of employees can bring the rest of the workforce down, especially when workers have to put in extra time to help do someone else’s job. So how do you make people work the way you want them to?

One of the mistakes managers make when they see a behavior that is not wanted is that they treat it too lightly. They speak to the employee, issue a warning, and then move on without looking deeper into the problem. Sometimes with a little further digging there are reasons for poor performance and ways it can be fixed.

When I worked for a trucking company back in 1997 I received a call from one of my supervisors. There was an employee who had a habit of coming in late, not doing his post trip reports, and just performing below his usual standards. The manager thought the employee was a good person and couldn't figure out what had caused the change in the employee’s performance. To make matters worse the Regional Manager wanted this person fired. There were no warnings in the file so this was not an option. I spoke with the manager about writing a warning for the most recent incident but also opening a dialogue with the employee about their performance in general…pointing out that there had been an obvious change and wondering why.

The manager called me later to tell me he had spoken to the employee. He had discovered that the employee was extremely bored with his job and finding it hard to focus on his duties. He and the manager came to a compromise and the employee took up some dispatch duties to give him some new responsibilities. Sometimes it is just the trick of figuring out what drives a person. Some people crave recognition while others want responsibility. By understanding your employees you can think of ways to make them better performers.

Tools For The Manager

Job Descriptions. Employees need clear and concise directions on what their roles are. Make sure that the employee knows exactly what is expected of them. Sometimes if a certain task is not getting done maybe it is because they do not realize it is their job to do it!

Training. It is very important that employees receive the proper job training. The early days on the job are when habits are formed and can determine the work style of your employee. If you take a thorough approach and spend a sufficient amount of time training the employee the way you want the job done…chances are you will be pleased with their performance.

Positive Feedback. They say that plants respond to people singing and talking to them. So why shouldn't that be true of people? Unfortunately the truth is that people are FIVE times more likely to hear negative feedback than positive. It may feel strange at first but telling your employees when they do a great job can have a huge effect. One note of warning…..when giving positive feedback relate it to a certain task or incident. When positive feedback is given too often or vaguely it can sound insincere.

Reviews. The review process is the best time to address performance issues with employees. Instead of criticizing weaknesses or past mistakes, the manager should concentrate on constructive suggestions. The indirect approach is useful because it encourages the employee to think about the reasons for poor performance. This will tell the manager about their motives and perceptions. A close ended question often gets a one word answer: “yes” or “no” because it asks for specific information. Asking an open-ended question will give you more information.

Sometimes even after trying to understand an employee’s behavior you will find that some people are still poor performers. When performance is not improving managers need to take action. Often people give a few verbal warnings, get frustrated, and then the employee eventually gets terminated. But when you go to contest unemployment or an unfair dismissal charge there is no written documentation and the former employee can just deny everything. Guess what….the judges and officials will believe them! That’s why it is important to write everything down!

Different employers have different employee progressive discipline systems. Make sure when you are filling out any written documentation for the employee that you:

1. Describe the unwanted behavior or performance (no personality descriptions!)
2. Clearly indicate what needs to be changed.
3. Clearly indicate what will happen if the behavior is NOT changed (“will include disciplinary action up to and including terminated”).
4. Whenever possible make sure there is another manager level person present to act as a witness to the giving of the discipline. This will come in handy if the employee refuses to sign the document or they dispute that they ever saw it later.

One that thing employers and managers should try to remember is that warnings should be used not to punish but to correct poor performance.

The Truth about the New 2008 I-9 Form

2008-09-04T17:55:00.000-07:00

In June 2008, the Department of Homeland Security released a new I-9 Form. This under publicized action has caused a lot of confusion for companies who just started using the I-9 form released in December 2007. I would like to take a moment to clarify the process behind the new form release and the expiration dates at the top of the I-9 Form.

Listed next to the expiration date is OMB No. 1615-0047. This is actually a reference to a government process, at the Office of Management and Budgeting where a government agency must submit a supporting document for the actual creation of the I-9 form and the information that it is going to collect. The expiration date at the top is for how long the OMB has approved the agency (here the Dept. of Homeland Security) to use the Form. It's up to DHS to go to OMB and get extended approval.

In June 2008 the Department of Homeland Security got approval from the OMB to continue using the Form and released a new version bearing an expiration date of 6/30/09. Although DHS has released the new I-9 Form, it does not invalidate the previous 6/30/08 Form until 30 days after it has been printed in the Federal Register which has not occurred yet. So for companies who dread the thought of having to roll out a new form every 6 months rest assured that BOTH the 6/30/08 and the 6/30/09 Expiration Date Forms are currently valid. However, it may be a good idea to use up any 2008 Forms and start using 2009's as soon as it is feasible.

Here is a link for where you can find the 2009 Form:

www.uscis.gov/files/form/I-9.pdf

Bullies Beware...Anti- Bullying Statutes Are Coming...

2008-09-04T17:54:00.000-07:00

When most people think of the word “bully” they associate it with that child who stole their ice cream cone when they were 7 years old or the person who they used to hide from when they waited for the bus each morning before school. However, there is another type of bully who is getting a lot more attention these days from regular people and Human Resource Professionals alike and that is the Workplace Bully.

Many people know this type of bully, that Manager or Employee who puts fear in the hearts of others. There are many reasons why this person is never addressed for their bad behavior ranging from "she always gets results" to "that's just the way John is, you just need to grow a thicker skin."

However, this enabling point of view seems to be changing as some states tackle what can be considered the grey area between regular behavior and what is considered "harassment". Bullying in the workplace is not a new trend, but due to recent efforts by certain lobbying groups, employers are starting to recognize that bullies cost companies a lot of money through employee absenteeism, disability, higher attrition, and sometimes litigation.

A 2007 online survey conducted by the Workplace Bullying Institute (WBI) /Zogby International of 7740 American workers found the following results on workplace bullying:
37% of workers have been bullied at work.
Bullying is 4 times more prevalent then illegal forms of “harassment”.
72% of bullies are supervisors.
Women are targets in 57% of cases.
40% of those employees who are bullied never complain.

Since 2003 many groups have tried and failed to enact bullying statues in states like California, Massachusetts and New Jersey. Some others states like Vermont, Oregon, and Washington will not revisit their anti-bullying initiatives until January 2009. However, in March 2008 the New York State Assembly introduced an anti-bullying statute that is now being reviewed by the state’s labor committee. This bill would allow employees to sue for psychological, physical, and economic harm from being subjected to an “abusive” work environment. Traditionally, employment law discrimination statutes require that an individual must be a member of a protected class to bring a discrimination claim (i.e. race, color, gender, etc.) however, this statute would eliminate that protected class requirement.

In the statute, “abusive conduct” is defined as "malicious conduct that is taken against an employee by an employer or another employee in the workplace that a reasonable person would find to be offensive, and unrelated to the employer’s legitimate business interests". In addition, abusive conduct can include verbal abuse such as derogatory remarks, insults, conduct that a reasonable person would find intimidating, or the sabotage of an employee’s performance.

Remedies for violations of the act would provide that if an employee suffered a “negative employment action” like disciplinary action or termination they could ask for reinstatement, removal of the offending party from the workplace, reimbursement for lost wages, medical expenses, compensation for emotional distress, and punitive damages and attorney fees. In cases where there was not a “negative employment action” the employer’s liability will be limited to $25,000 for emotional distress.

It remains to be seen whether this legislation will be passed but to manage workplace bullying employers should try to reinforce their company policies that deal with communication, respect, and appropriate behaviors in the workplace.

Look Into My Crystal Ball ...Predictions for 2008/2009

2008-09-04T17:53:00.000-07:00

As we approach the next presidential election in 2008 the US is facing huge challenges in the area of employment and labor laws. Over the last 20 years the Federal Government has been slow to keep up with the needs of the American Workforce. Minimum wage was finally increased in 2007 after a 10 year standstill, FMLA and the ADA are finally being reviewed in 2008 after their passage over 20 years ago, and the century old Fair Labor Standards Act had its first major update in 2004.

Although the federal government has finally begun to update these laws, states and cities that grew tired of waiting for change have started passing their own legislation in many areas including paid leave, sick time, sexual orientation, and parental benefits. This has created a patchwork of laws that share no common pattern and vary from place to place. To ensure workforce readiness, employers should begin to cultivate a pro-active approach to creating human resource policies as new employment laws are enacted.

Here are a few areas where employers should expect changes:

FMLA and ADA
The Federal Government has offered FMLA proposed resolutions that are currently open for comment before they are enacted. Some of these proposed rules favor employers and clarify areas of previous confusion like medical documentation and employee notice requirements. However, many clearly serve to make FMLA more accessible to the workforce. One provision would allow employees to count their previous service with a company towards the eligibility requirement (12 months or 1,250 hours) as long as the break in service does not exceed 5 years. In addition, Barack Obama has pledged to expand FMLA’s reach to an additional 13 million workers through proposed revisions should he be elected into office. These changes will require employers to re-write and revise their leave policies.

In addition to the proposed revisions to FMLA, the ADA Restoration Act is currently on it's way to the Senate after being passed in the House. The bill was proposed as a way to overturn Supreme Court decisions that Congress feels have narrowed the scope of the ADA too much. As a result of these revisions people with mental or physical disabilities would no longer be required to show that the disability is “substantially limiting of a major life activity”. This change would allow many more people with medical conditions to claim coverage under the ADA and ask for reasonable accommodations in the workplace. This Act is set to be effective January 2009.

Paid Sick Time
Under current FSLA guidelines states are not required to pay employees sick and vacation days. Over the years companies have recognized that the benefit of time off to their workforce outweighs the costs and have gladly created paid time. However, despite these efforts some have felt there is a need for more regulation. One example is the Federal Healthy Families Act which is being reviewed in House Committees. This Act would grant all employees 7 paid sick days per year. In addition, there are some states and cities that have grown tired of waiting for federal action, and have started to legislate sick pay requirements for employers.

The first law of this type was the San Francisco Sick Time Ordinance which was passed in Feb. 5, 2007. This law states that all employees working within the city limits regardless of employer size or full or part time status would be eligible to earn 1 hour of sick pay for every 30 hours worked with a maximum of 72 hours per year.

Although San Francisco was just one city this trend seems to be spreading. On February 14th The Safe and Sick Leave Act of 2008 was passed in Washington D.C. This law will require employers in D.C. to offer a set number of sick pay days to all employees depending on how many "full time equivalent employees" they have. This law is set to go into effect November 13, 2008. Finally, 12 other states including Maine and Massachusetts currently have bills set for review this year that all mandate varying amounts of sick time for employees. Ohio has already put their proposed 7 day Sick Pay Act on the ballot for the November election.

EEOC and the Department of Labor
The EEOC received a record number of complaints in 2003 but then experienced a rapid decline for the next few years. The most recent numbers for 2007 show that the number of complaints being filled has gone up again and exceeded those 2003 numbers with the biggest jump in harassment and religious based charges of discrimination.

In addition to increased EEOC activity, the DOL reported that back wage collections exceeded the record levels collected in fiscal year 2003 by 3.8 percent and back wages for overtime violations represented roughly 90% of all FSLA back wages collected. In the area of Child Labor Violations a total of 4,672 minors found illegally employed. The majority of these violations occurred when workers under the age of 16 worked too many hours, too late at night, or too early in the morning.

Other Unique Laws on the Horizon:
• Lactation Laws – Effective July 1, 2008 Indiana has passed a law stating that all employers with over 25 employees must provide a place “other then a bathroom stall” for employees to express breast milk. Washington D.C. has passed a similar law but it is waiting to be signed by the mayor.
• Sexual Orientation/ Gender-Identity Laws – In California gender identity disorder can be considered a disability under the ADA and therefore require reasonable accommodations.
• Parental Leave Laws – Georgia is evaluating 24 hours of unpaid leave for parents to use for school conferences for their children.

As you can see it should be a busy few years to come! With the 2008 election looming, I feel that the movement towards more "employee friendly" legislation will show no signs of stopping regardless of which party gets into the White House. Human Resource Professionals should prepare now to pro-actively create Human Resources policies and procedures as new employment laws are passed to ensure compliance within their organizations.

Welcome to the Blog!

2008-09-04T17:52:00.001-07:00

Hello Readers,

Over the last few years as employment law has changed and evolved, I have found in my Human Resource Career that it was increasingly hard to stay up to date on important changes. I work for a large retailer with over 1000 stores spread across 40 states and there just doesn't seem to be one place on the web to find out about federal and state law changes. Navigating illegible websites, legal jargon, and internet junk is enough to make most people go grey early! Unfortunately, I am sure I am not the only HR Professional who has lamented the lack of consolidated easy to understand legal information on the web. Since I have become an attorney this process has become infinitely easier but it is still difficult to be aware of every little change in law. So I decided to start this blog.

Although I am not proposing that this blog will be able to solve the problem of a universal state law data bank, I am hoping that I may be able to provide pertinent information to today's HR Professionals or at least other resources that may have the information they are looking for. I will be happy to answer any questions that readers have and to read any comments on any of my posts.

Thanks for stopping by and happy reading.

Corey