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.
Tuesday, January 6, 2009
Saturday, January 3, 2009
FMLA General Notice Requirements January 16, 2009
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.
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.
Monday, December 29, 2008
I'm back...and looks like it's just in time!
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.
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.
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.
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