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.
Monday, December 29, 2008
Sunday, September 21, 2008
Employment Authorization - Who is really legal to work?
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.
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.
Monday, September 8, 2008
Performance Management - Progressive Discipline Tips
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.
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.
Thursday, September 4, 2008
The Truth about the New 2008 I-9 Form
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
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...
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.
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
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.
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!
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
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