Supreme Court to Decide Whether Arbitrators May Decide Whether the Arbitration Clause from Which Their Authority Flows in a Case Is Unconscionable

The U.S. Supreme Court has agreed to hear the appeal in Rent-A-Car, West, Inc. v. Jackson.


The question before the Court will be whether the district court is in all cases required to determine claims that an arbitration agreement subject to the Federal Arbitration Act (“FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision.

The pendulum in the U.S. Congress has certainly been swinging away from enforcement of mandatory forced arbitration provisions in the employment context.  It will be interesting to see what the Court does with this threshold issue.

You can find the opinion of the 9th Circuit being appealed from here.  

Franken Amendment Signed Into Law

 We previously discussed the journey of the Franken Amendment through the halls of Congress.  (The Amendment would prohibit the award of DOD funds to any Federal contractor that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual-assault tort claims.)

This weekend, the amendment was signed into law by President Obama.  This means that most military contractors will no longer be able to enforce mandatory arbitration clauses in their employment contracts under a provision signed into law over the weekend.

The issue has been a high priority this year for trial lawyers and for consumer groups.  When speaking candidly, most employment lawyers would agree that clauses mandating the use of arbitration deny employees an impartial hearing in open court.  Supporters of forced arbitration argue that the process is both fair and efficient.  

The open question is whether the passage of the Franken Amendment will lead to an effort next year by Congress to outlaw forced arbitration of civil rights claims throughout the private employment context.  

First Civil Complaint Filed to Enforce Legal Arizona Worker's Act

County Attorney Andrew Thomas issued a press release this week announcing that his office has filed the state’s first employer sanctions case, a civil complaint against an employer accused of violating the Legal Arizona Worker’s Act. The civil action alleges that a Scottsdale company allegedly hired illegal labor deliberately by using a “subcontractor” which was in reality an employee who was not authorized to work in the United States.

According to the release, in January 2009, the Maricopa County Sheriff’s Office made a number of identity theft arrests after learning illegal immigrants were employed at the business. The civil complaint alleges that an illegal worker who voluntarily returned to Mexico returned to Arizona and created a company to provide services and labor solely for the the charged company. The complaint alleges that the company, which was formed in April 2009, was established to circumvent the Legal Arizona Worker’s Act. 

 

You can read the entire press release here

 

Many states are either implementing or contemplating similar laws so this case will be an interesting one to keep an eye on.

Employee Loses Job Over One-Word Vulgar Statement Online

 Yet another example of an employee believing that his statements published for the world to see online are somehow anonymous or not subject to his employer's scrutiny.  

The Huffington Post this week has the story of a school employee lost his job after he posted a one-word vulgarity in the comments section of an online article at the St. Louis Post-Dispatch.  The school employee posted an anonymous, one-word comment that referred, in vulgar terms, to a woman's anatomy on a newspaper's comment section.  An editor from the paper tracked the IP address for the comment to a school district computer and sent the district the information (perhaps with the thought that a student needed to be warned against using the school computer lab for such activities).  The district's IT department used that information to track down the sender, which turned out to be an employee.

Said employee is, as a result, no longer gainfully employed.  You can read the entire story here.

I've said it before and I'll say it again, don't post something online that you wouldn't want your momma to read.

 

Employers: Time to Update your EEO Postings

For the first time in a while, the EEOC has revised its required employer postings. This new version reflects current federal employment discrimination law, including two new laws, the Americans with Disabilities Act Amendments Act of 2008 and the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

There are several ways for employers to obtain the new required postings:

  1. Print the EEOC's supplemental posting below and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.
  2. Print and post the EEOC’s comprehensive November 2009 version of the “EEO is the Law” poster.
  3. Or order a new poster through the EEOC Clearinghouse.  

 

 

COBRA Health Insurance Subsidies for Recently Terminated Employees

Many employers and employees appear to still be unaware of the temporary COBRA premium reduction passed by Congress. Here is some background:

As a part of the stimulus package, which was enacted as the American Recovery and Reinvestment Act of 2009 (ARRA) temporarily reduces the premium for COBRA coverage for eligible individuals. COBRA (the Consolidated Omnibus Budget Reconciliation Act of 1985) allows certain people to extend employer-provided group health coverage, if they would otherwise lose the coverage due to certain events such as divorce or loss of a job.

Individuals who are eligible for COBRA coverage because of their own or a family member's involuntary termination from employment that occurred from September 1, 2008 through December 31, 2009 and who elect COBRA, may be eligible to pay a reduced premium. Eligible individuals pay only 35% of the full COBRA premiums under their plans for up to 9 months. This premium reduction is generally available for continuation coverage under the Federal COBRA provisions, as well as for group health insurance coverage under state continuation coverage laws.

If you were offered Federal COBRA continuation coverage as a result of an involuntary termination of employment that occurred at any time from September 1, 2008 through February 16, 2009, and you declined to take COBRA at that time, or elected COBRA and later discontinued it, you may have another opportunity to elect COBRA coverage and pay a reduced premium.

 

Here are some FAQ's about the program:

What plans does the premium reduction apply to?


 

The COBRA premium reduction provisions apply to all group health plans sponsored by private-sector employers or employee organizations (unions) subject to the COBRA rules under the Employee Retirement Income Security Act of 1974 (ERISA). They also apply to plans sponsored by State or local governments subject to the continuation provisions under the Public Health Service Act, and plans in the Federal Employee Health Benefits Program (FEHBP). The premium reduction is also available for group health insurance that is required by State law to provide comparable continuation coverage (such as “mini-COBRA”).

How can I tell if I am eligible to receive the COBRA premium reduction?


ARRA makes the premium reduction available for "assistance eligible individuals." An Assistance Eligible Individual is a COBRA qualified beneficiary who meets the following requirements:
Is eligible for COBRA continuation coverage at any time during the period from September 1, 2008 through December 31, 2009; Elects COBRA coverage (when first offered or during the additional election period provided by ARRA); and The COBRA election opportunity relates to an involuntary termination of employment that occurred at some time from September 1, 2008 through December 31, 2009.
However, if you are eligible for other group health coverage (such as through a new employer’s plan or a spouse's plan) or Medicare you are not eligible for the premium reduction.
Moreover, electing the premium reduction disqualifies you for the Health Coverage Tax Credit, which could be more valuable to you than the premium reduction. Additionally, certain high-income individuals may have to repay the amount of the premium reduction through an increase in their income taxes. See FAQ #9 below for more information.
Note: If the employee's termination of employment was for gross misconduct, the employee and any dependents generally would not qualify for COBRA or the premium reduction.

In order to be an Assistance Eligible Individual, must the individual actually have coverage under the group health plan at the time of the involuntary termination of employment?


In general, yes. The individual must have coverage at the time of the involuntary termination of employment. This qualifying event must occur at any time from September 1, 2008 through December 31, 2009 and the individual must be eligible for COBRA coverage at any time during that period. Of course, newborns and children who were adopted or placed for adoption after the qualifying event are also considered qualified beneficiaries and so would have the same rights as someone who had coverage at the time of the qualifying event.

If I am eligible for the premium reduction, how long will it last?


Your premium reduction can last up to 9 months. However, it will end earlier if:

  • You become eligible for Medicare or another group health plan (such as a plan sponsored by a new employer or a spouse’s employer)**, or
  • You reach the end of your maximum COBRA coverage period.

If you continue your COBRA coverage after the premium reduction period, you may have to pay the full amount of the premium. Failure to do so may result in your loss of COBRA coverage. Contact your plan administrator for more information.
**Individuals paying reduced COBRA premiums must notify their plans if they become eligible for coverage under another group health plan or Medicare. Failure to do so can result in a tax penalty.

Who is eligible for a new, second election opportunity for COBRA coverage?


Qualified beneficiaries whose qualifying event was an involuntary termination of employment during the period from September 1, 2008 through February 16, 2009 who did not elect COBRA when it was first offered or who did elect COBRA but are no longer enrolled (for example, those who dropped COBRA coverage because they were unable to continue paying the premium) have a new, second election opportunity. Individuals eligible for the extended COBRA election period must receive a notice informing them of this opportunity. This notice must be provided by April 18, 2009 and individuals have 60 days after the notice is provided to elect COBRA. However, this special election period does not extend the period of COBRA continuation coverage beyond the original maximum period (generally 18 months from the employee's involuntary termination). COBRA coverage elected in this special election period begins with the first period of coverage beginning on or after February 17, 2009.


Under ARRA, this special election period opportunity is not required to be provided with respect to State continuation coverage that is provided pursuant to State insurance law. A State can take action, however, to provide an additional election period in its continuation coverage program for individuals involuntarily terminated from September 1, 2008 through February 16, 2009 in order for them to request premium assistance based upon involuntary termination occurring during that period. For more information on rights and responsibilities regarding election periods under State law, contact your State insurance commissioner’s office or CMS.

 


How do I apply for the premium reduction?


If you were covered by an employment-based health plan on the last day of the employee’s employment, the plan should provide you a notice of your eligibility to elect COBRA and to receive the premium reduction. The notice should include any forms necessary for enrollment. You may also want to contact your plan directly to ask about taking advantage of the premium reduction.

Are there income limits for the premium reduction?


If the amount you earn for the year is more than $125,000 (or $250,000 for married couples filing a joint federal income tax return), you may have to repay all or part of the premium reduction through an increase in your income tax liability for the year. If you think that your income may exceed the amounts above, you may wish to consider waiving your right to the premium reduction.

How does the 65% premium subsidy get paid to me?


You will not receive a payment. Assistance Eligible Individuals are responsible for paying only 35% of the COBRA premium for the period of coverage. The remaining 65% of the premium is reimbursed directly to the employer, plan administrator, or insurance company through a payroll tax credit.

Does the 35% I am required to pay include any administrative fees plans are permitted to charge or do I need to pay that fee separately?


If you are an Assistance Eligible Individual, you will only need to pay the amount that is 35% of what you would otherwise pay for your COBRA coverage, which already includes any administration fee.


Does ARRA impose any new notice requirements?


Yes, plans and issuers are required to notify qualified beneficiaries regarding the premium reduction and other information about their rights under ARRA as follows:

  1. A general notice to all qualified beneficiaries, whether they are currently enrolled in COBRA coverage or not, who have a qualifying event during the period from September 1, 2008 through December 31, 2009. This notice may be provided separately or with the COBRA election notice following a COBRA qualifying event.
  2. A notice of the extended COBRA election period to any Assistance Eligible Individual (or any individual who would be an Assistance Eligible Individual if a COBRA continuation coverage election were in effect); who had a qualifying event at any time from September 1, 2008 through February 16, 2009; and who either did not elect COBRA continuation coverage or who elected but subsequently discontinued COBRA. This notice must be provided within 60 days following February 17, 2009.

Unless specifically modified by ARRA, the existing COBRA notice manner and timing requirements continue to apply.  Under the State programs, the issuer of the group health plan must provide the notice to qualified beneficiaries with the information on how to apply for the premium reduction. These notices must be provided within the time required by State law.

What information must the notices include?


The notices must include the following information:

  • The forms necessary for establishing eligibility for the premium reduction;
  • Contact information for the plan administrator or other person maintaining relevant information in connection with the premium reduction;
  • A description of the second election period (if applicable to the individual);
  • A description of the requirement that the Assistance Eligible Individual notify the plan when he/she becomes eligible for coverage under another group health plan or Medicare and the penalty for failing to do so;
  • A description of the right to receive the premium reduction and the conditions for entitlement; and
  • If offered by the employer, a description of the option to enroll in a different coverage option available under the plan.

Note: The Department of Labor has developed model notices that are available.

If an Assistance Eligible Individual pays the full COBRA premium and is later determined to be eligible for the premium reduction, what should the plan do with the overpayment?


The plan (or other person to whom such payment is payable) can apply the overpayment as a credit toward subsequent premium payments as long as it is reasonable to believe that the credit can be used within 180 days of the overpayment. Otherwise, the overpayment must be reimbursed to the individual within 60 days of receipt.


What can I do if my former employer’s group health plan denies my application for the premium reduction?


If the plan determines that you are not eligible for the premium reduction, you can request an expedited review of the denial. The Department of Labor will handle requests related to private sector employer plans subject to ERISA’s COBRA provisions. The Department of Health and Human Services will handle requests for Federal, State, and local governmental employees, as well as requests related to group health insurance coverage provided pursuant to state continuation coverage laws. The Departments are required to make a determination regarding your request within 15 business days after receiving your completed application for review.


Note: Appeals to the Department of Labor must be submitted on the U.S. Department of Labor application form. The form is available at www.dol.gov/COBRA and can be completed online or mailed or faxed as indicated in the instructions. If you believe you have been inappropriately denied eligibility for the premium reduction, you may wish to speak with an Employee Benefits Security Administration Benefits Advisor at 1.866.444.3272 before filing this form.

 

More Information

Guidance and other information is available on the Department of Labor web site at www.dol.gov/COBRA. You can also call 1.866.444.3272 to speak to an Employee Benefits Security Administration Benefits Advisor.

 

Happy Labor Day!

 "Labor is prior to, and independent of, capital.  Capital is only the fruit of labor, and could never have existed if Labor had not first existed.  Labor is superior to capital, and deserves much the higher consideration."
 

       -- Abraham Lincoln

Sexual Harassment These Days is More Subtle and Often Involves New Technology

MSNBC has an interesting article out this past week called "Where ‘omg, u look gr8’ can land you in court" in which they look at the evolution of sexual harassment in the modern workplace. 

Welcome to the new sexual harassment. It's (usually) not about the stuff you see on Mad Men, and it's not chasing the secretary around the desk. . . . [It is more subtle now.] Those subtle areas can include everything from flirtation at a company party to a complimentary text message or an unwelcome invitation to discuss the latest project over dinner or drinks.

The article also has some discussion about the implications of the use of social media (Twitter, Facebook, etc) and the fact that it is somewhat easier to misconstrue an instant message or cell phone text message than it is a verbal statement. 

Federal Minimum Wage Increases to $7.25 Today

Just a reminder that the federal minimum wage increases to $7.25 Today, July 24. With this change, employees who are covered by the federal Fair Labor Standards Act (FLSA) will be entitled to no less than $7.25 per hour.

Employers can download an updated FLSA Minimum Wage Poster here for posting in the workplace.

 

 

 

EEOC Holding Public Hearing Next Week on Age Discrimination

The EEOC has scheduled a public hearing Wednesday, July 15, 2009, at 10 a.m. (Eastern Time), at agency headquarters, 131 M St, NE, Washington, DC., to discuss age discrimination in employment.

In a release, the agency states that, in light of widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions, such a hearing is advisable.  At the hearing, experts will discuss the results of age stereotyping on older workers’ ability to keep their jobs during layoffs or to find work afterwards and the effect of recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA). Panelists will suggest potential enforcement and policy solutions. In addition, representatives from recent ADEA cases will discuss their experiences. Finally, the Commission will issue a technical assistance document that explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims.

The meeting is open for public observation of the Commission’s deliberations. Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. 

Unfortunately, the hearing is not be webcast so its usefulness, in my opinion, is somewhat limited.

Additional information about the hearing, when available, will be posted at http://www.eeoc.gov/abouteeoc/meetings/index.html

Jay Shepherd: Employers' Rx for swine flu? Eliminate sick days

One of my favorite employer-side HR bloggers has another great piece out this week that I recommend you check out.  As you may have read, the World Health Organization declared an influenza pandemic on Thursday and advised governments to prepare for a long-term battle against an unstoppable new flu virus.

Jay picks up the issue from the employer's perspective. 

[T]he current swine-flu pandemic has employers concerned. Many employment lawyers have added to the hysteria by flacking doom-filled seminars on emergency preparedness and other pandemic responses.

My response? Get rid of sick days.

WHAT!?!  Yes really. 

Jay's article is insightful and, as usual, right on the money with what company's should be doing in HR management.  I encourage you to check out his article at Gruntled Employees.  

 

President Obama Selects Sotomayor for Supreme Court

 According to reports, President Obama has chosen Judge Sonia Sotomayor of a Federal Court of Appeals based in New York as his nominee for the Supreme Court.  If confirmed, she will become the Court's first Hispanic Justice.  

Judge Sotomayor as authored numerous opinions on civil rights and employment law issues.  Recently her opinion in Ricci v. DeStefano (2009) has been getting a great deal of attention as it is currently on appeal to the Supreme Court.  Ricci concerns white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. Joining an unsigned opinion of a three-judge panel of the appeals court, Judge Sotomayor upheld the rejection of a lawsuit by white firefighters, one of them Hispanic, claiming race discrimination and, as part of the full appeals court, she declined to rehear the case. The Supreme Court is currently considering the case, and Justice Anthony M. Kennedy is the likely swing vote. Among the questions in the case is whether the law should treat diversity in the work force differently from diversity in the classroom.

Related Links:

 

Majority of Americans Oppose Forced Arbitration

The Employee Rights Advocacy Institute For Law & Policy and Public Citizen have completed a National Study of Public Attitudes on Forced Arbitration.  The release is no doubt an effort to support the Arbitration Fairness Act, which is currently in Congress.

The study is based on a major national survey on mandatory arbitration of employment and consumer claims conducted by Lake Research Partners.

The survey of 800 likely voters nationwide found that:

  • A solid majority of Americans (59%) opposes forced arbitration clauses in the fine print of employment and consumer contracts, including both men and women and majorities of Democrats, independents, and Republicans.
  • Similarly strong majorities (59%) support the Arbitration Fairness Act. Support for the Act also crosses traditional gender and political divides.
  • Even after voters hear arguments in favor of, and opposed to, forced arbitration, opposition to the practice holds firm. Just one-third of the electorate supports the practice.
  • Roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise - even if they are bound by forced arbitration terms.
  • Most Americans are unaware of the rights being taken away from them. Approximately two-thirds cannot remember seeing anything about forced arbitration in either Terms of Employment or Terms of Agreement for goods and services.

Here is a link to the study materials.

Here are more materials on the current version of the Arbitration Fairness Act.

Employers: Are you Prepared for a Flu Pandemic?

In the event of pandemic influenza, employers will play a key role in protecting employees' health and safety as well as limiting the negative impact to the economy and society. Planning for pandemic influenza is critical. To assist you in your efforts, the Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) have developed the following checklist for large businesses. It identifies important, specific activities large businesses can do now to prepare, many of which will also help you in other types of emergencies.

The checklist -- prepared by the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention -- can be downloaded here.

 

Supreme Court Hears Argument in Race Discrimination Test Case

Firefighters from New Haven, Conn., on Wednesday exposed an enduring Supreme Court split, as the justices confronted the year's most anticipated racial discrimination case.  A case from the New Haven Fire Department poses the questions: Just what is a job-related test? How should a city evaluate applicants for leadership positions? If a city thinks a test that was used will result in a lawsuit, does it have the right to abort the promotions and order a new test?

In 2003, the New Haven Fire Department in Connecticut gave an exam meant to gauge eligibility for promotions to lieutenant and captain. Scores for Hispanics and for African-Americans ranged from 34 to 59 percent of the scores for whites. Because of the way the promotions were structured, no African-American and only one Hispanic would have won any of the 15 promotions. The question then became whether the Civil Service Board would validate the test results.

After five days of hearings, the board decided the exam was flawed and threw out the results.  White firefighters who would most likely have won the promotions if the test results would have been kept sued.

Initial reports indicate conservative justices showed sympathy for the white firefighters who did not receive the promotions. The court's liberal wing suggested that New Haven officials may have acted reasonably in determining that the test was flawed. After an hour-long oral argument, most signs hinted at a close decision later this year.

Here is a link to an initial take on what today's argument revealed.

Here is a link to Nina Totenberg's excellent NPR piece outlining the issues.

A Bad Economy and Social Media Technology Serving to Increase Workplace Defamation Suits

The National Law Journal is reporting that defamation lawsuits are on the rise in the workplace.  Employees are taking on employers over the right to reputation, suing over being labeled as damaged goods after losing their jobs.

With the economy forcing so many people out of work, lawyers say the environment is ripe for defamation claims.

Employers are facing mounting pressure over how to treat departing employees, and how to explain the departure without hurting their reputations. The employers' fear is that negative or offensive information will go out the door along with the exiting employee, providing grounds for defamation claims.

And technology — including e-mails, Twitter, Facebook and blogs — is making it easier to disseminate hurtful information about employees.

 

Read the entire article from the National Law Journal.

Department of Labor Requires Employers to Use Updated Form I-9

As of April 3, 2009, all U.S. employers are required to use a new revised Form I-9.The revised Form I-9 reflects changes made to the list of documents acceptable for Form I-9 in accordance with the Department of Homeland Security’s final rule.

Changes under the new rule:

  • Requires that all documents presented during the verification process be unexpired;
  • Eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards);
  • Adds foreign passports containing certain machine-readable immigrant visas to List A;
  • Adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

The biggest difference in the revised Form I-9 is that all documents presented during the verification process must be unexpired.

Downloads:

How to Lose a Job With Twitter.

Twitter is a fantastic tool.  There is currently no better way to make an idiot out of yourself in front of a national audience for 140 characters or less. 

A recent job applicant at Cisco was offered a position that was apparently a pretty good paying job.  So, what does said job applicant do?  Well, go on Twitter and badmouth the job of course.

"Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”

Well, anyone care to hazard a guess as to whether anyone at Cisco (a tech company) follows posts about the company on Twitter?  Uh.....yeah...they do.  And it gets worse for our job applicant.  Her situation went "viral".  Someone from Cisco saw her post and responded.  This spread across Twitter like wildfire.  Internet goons with too much time on their hands traced her Twitter account to her true identity and outed her.  Blog pages went up about the incident.  She was dubbed on the net "Cisco Fatty."  People with even more time on their hands posted Youtube videos about the incident.  In short she was humiliated and, one would assume, she may not be offered the position at Cisco.

The moral of the story?  Stop, STOP, STOP thinking that electronic communications are private.  They aren't.  Whether it be email or Facebook entries, or Twitter, or whatever comes next, remember, someone is always watching.  So don't put anything down in an electronic communication unless you wouldn't mind if it was read by your mother, your spouse, and your boss.

(Update: Someone inquired about this so here is the info: I have referred to the subject of this story as "her" throughout the article b/c I know her identity.  In fact she has come out and posted about the event.  However, there as been an awful lot of piling on her for this mistake so I am choosing not to identify her or to link to anything identifying her personally.  If you care enough, you can find out who it is...but you shouldn't.)

 

Never post anything you wouldn’t say to your mom, boss and significant other.

One in Six Employers Looking At Your Credit Report

TrueCredit.com, whose parent company is credit reporting agency TransUnion, reports that 16% of employers surveyed use a credit report as part of their regular screening process. That’s one in six companies. (The survey polled 214 people working in human resources. The margin of error is +/- 6.8 percentage points.)

This is especially damaging news as more Americans are looking for work and their credit scores may be taking a beating.

 

Read the story at the Wall Street Journal.

Is Your Daughter Safe at Work?

A story on PBS' news magazine "Now" really gripped me last week.   A shocking statistic—teenagers are in more danger from sexual predators at their part time jobs than through the Internet.  According to one estimate, 200,000 teenagers are assaulted at the workplace each year. It's a vastly underreported phenomenon, but some brave young women are stepping up publicly to tell their stories.

As an employment lawyer that deals with sexual harassment issues every day and as a father of two daughters myself, I found this story to be incredibly important.  Many young women that go into the workplace for the first time simply are not properly prepared to deal with sexually harassing situations.  They don't have the experience to immediately know that conduct is over the line and illegal. 

Employers need to be especially vigilant in preventing and stopping sexual harassment in the workplace when they routinely hire young people.  This issue impacts hundreds of thousands of teenagers across the country—many of whom don't know how to report workplace abuse, or to even recognize when their bosses cross the line.  While teenagers may be old enough to legally work, they are in many ways still children.  Companies that fail to make sure they are not falling prey to illegal sexual harassment at work from co-workers or supervisors will pay a heavy price at the courthouse.  At least they will if I have anything to say about it.

I encourage you to watch the entire story below. 

 

New Blog: Minding the Workplace

We've added a new blog entitled Minding the Workplace to our blogroll.  The blog is authored by David Yamada, a law professor at Suffolk University Law School in Boston and founder of the New Workplace Institute, a research and education center promoting healthy, productive, and socially responsible workplaces.

David says his blog is dedicated to news and commentary about work and employment relations, as well as to discussing and sharing useful books, articles, media programs, and Internet sources about the workplace.  Dignity at work, workplace bullying, and psychologically healthy work environments are recurring themes.

From the looks of things, David's blog is off to a fine start and we welcome him and his efforts to promote dignity in the workplace. 

 

 

Obama Nominates Hilda Solis for Labor Secretary

Barack Obama has nominated California Democratic Rep. Hilda Solis as his labor secretary.  Solis, the daughter of two Hispanic immigrants, has been in Congress since 2000.  She has never served on the House Education and Labor Committee. She currently serves on the Select Committee on Energy Independence and Global Warming.

Solis received her degrees from California State Polytechnic University, Pomona and the University of Southern California and worked for two federal agencies in Washington, D.C. She was elected to the California State Assembly in 1992 and to the California State Senate in 1994. She was the first Hispanic woman to serve in the State Senate, and was re-elected there in 1998. She became known for her work toward environmental justice and was the recipient of the John F. Kennedy Profile in Courage Award in 2000.

Solis is well-liked by labor.  Service Employee International Union ("SEIU") President Andy Stern hailed the nomination of Solis: 

"As someone who has pounded the pavement knocking on doors for Hilda Solis in her first upset campaign in California, I can tell you firsthand that this woman is about opening doors for millions of Americans who get up and go to work each day.

From the streets of Los Angeles where she marched with the janitors who were fighting for jobs with dignity that can support a family through SEIU's Justice for Janitors campaigns, to the halls of Congress where she has been an outspoken supporter of healthcare rights for all, a livable minimum wage, and workers' right to come together for a voice on the job, Hilda Solis has never backed down from the good fight to make the American Dream available to all."

You can find Congresswoman Solis' Homepage here.  It has links to her statements and bills that she is attached to. 

The Associated Press quoted Randy Johnson, vice president for labor issues at the U.S. Chamber of Commerce, with regard to what the response of business groups would be to her nomination: "There’s a new sheriff in town, but they’ll still have to deal with the business community, and they know it.  We would hope she will continue to support programs that help educate employers about voluntary compliance with the law rather than pursue heavy-handed enforcement.”

 

Sources: AP, Wikipedia, SEIU Press Release



 

Bad Economy Turning Employment Agreement Practice into Severance Agreement Practice

One of the staples of practicing HR Law is reviewing and drafting employment agreements for employees and employers.  Another is reviewing or drafting separation or severance agreements.  As a result, the primary way I gage how the economy is doing is by looking at whether I'm doing more employment agreements or severance agreements.  Care to take a guess at which way the tide has been shifting over the last six months?

One of the first areas you see such a shift is in personal luxury services, such as housekeeping and nanny services.  I was just commenting earlier this week to another lawyer that my nanny employment agreement business has all but been replaced by work drafting severance agreements.  Work reviewing these documents for employees is especially somber because I know that these people (often single mothers) have no place to go when they lose their job.

Turns out I'm not the only one to have noticed this trend.  Today's Wall Street Journal has a sad article covering the same trend.  Especially poignant is the human angle to the article.  These workers often become de facto members of the family that the family, especially the children, get emotionally attached to.  One family that hired me to draft a generous severance package for the housekeeper they were being forced to lay off told me it felt like they were "firing their aunt."  

Here's a snippit from the WSJ article:

 

'Second Mom'

A stay-at-home mother whose husband is a litigation attorney, Mrs. Sirof says that Ms. Monterrosa was a "second mom to my kids." Ms. Monterrosa was there when she suffered a bout of depression and when she went on spa trips or outings to get Botox and Juvéderm injections, says Mrs. Sirof.

But a few months ago, the family decided they couldn't afford Ms. Monterrosa anymore and let her go.

Mrs. Sirof's daughters took the separation badly. They inquired incessantly about "Vita," as they called her. Normally a lively child, daughter Addie became sad and withdrawn. A doctor Mrs. Sirof consulted suggested renewed contact with Ms. Monterrosa.

. . . "I can't afford to buy my own children shoes," Ms. Monterrosa says, wringing her hands.

 

Yep, it's going to be difficult to get in the Christmas spirit this year.  I can tell.

 

Source For Quote: Wall Street Journal

Some Lawyers Warn that New FMLA Rules May Create More Confusion and Litigation

The Family Medical Leave Act has undergone major changes for the first time in its 15-year history. (We posted previously about the amendments & the Department of Labor's new regulations here.)  Some attorneys fear that these changes may cause a great deal of  confusion and litigation.

This week issued new rules for the amendments, which take effect on Jan. 16.  The new rules were a response to complaints by employers and employees alike.  Employers have long argued that workers are abusing FMLA, especially in the area of intermittent leave. Employees counter that they're unfairly being denied FMLA, and, are often retaliated against for taking it.

The new rules address many of employer's long-standing issues with the FMLA and also address under which circumstances military families can take FMLA leave.  However, some attorneys believe that the changes will still be problematic for employers.

Here is a link to the story in the National Law Journal.  $$

Here is a link to the new Department of Labor Regulations.

Department of Labor Working to Make Regulation of Workplace Toxic Environments More Difficult

While there may only be a few weeks left for the current administration, it certainly has not given up efforts to effect the country's HR laws.  Specifically, the Department of Labor is rushing its rule-making process to issue a rule making it more difficult for the government to regulate workers' exposure to toxic chemicals at work.  Here is an excerpt from a recent story in the New York Times:

The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job.

The rule, which has strong support from business groups, says that in assessing the risk from a particular substance, federal agencies should gather and analyze “industry-by-industry evidence” of employees’ exposure to it during their working lives. The proposal would, in many cases, add a step to the lengthy process of developing standards to protect workers’ health.

Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses.

If the administration manages to get the rule issued, the Obama administration will almost certainly begin efforts to repeal it as soon as they take office.  Repealing such a rule, however, can take a considerable amount of time.  In the meantime, the rule will have the force and effect of law. 

In Economic Tough Times Should Employees Stick with the Job they Know or Be Looking for Greener Pastures Elsewhere

The Wall Street Journal has an interesting piece today on the fact that the rate at which people change jobs is decreasing due to the economic downturn.  According to the article, a growing number of professionals are saying "no, thanks" to prospective employers asking them to change jobs.

Spooked by the shaky economy, 46% of U.S. middle managers polled in mid-September said switching employers in the current environment is risky. Just 13% said they were actively looking for a new job, down from 30% in 2005.

The article indicates that search firms say they are finding it harder to lure prospective candidates. In my own practice, the search firms I deal with have noticed more caution on the part of prospects.  Certainly I think employees would do well to insist on firm offers in writing with signing bonuses and/or guaranteed terms of employment with cause protection or buy-out provisions.  An oral promise and a handshake just isn't going to be enough to get quality prospects to leave their current employers in these difficult times.

 

Here is a link to the whole article

 

Getting Rid of Performance Reviews

The alleged primary purpose of performance reviews is to enlighten subordinates about what they should be doing better or differently. But too often they are used as intimidation aimed at preserving the boss's authority and power advantage. This defeats the purpose of the review and worse, harms employee morale. 

The Wall Street Journal has a good article out this week on why performance evaluations so often do not work.  First and foremost in my mind is this: Performance reviews often just are not very accurate or useful.  There are many reasons for this. 

  1. First, they are subjective but they try not to be. -  I don't care how objective the HR department designed them to attempt to be, they always end up being subjective.  The fact that you have your managers rate performance on a numeric scale doesn't change this fact.  Reviews that are designed to eliminate subjectivity in an inherently subjective task actually do more harm than good.
  2. Managers hate doing evaluations as much as employees hate getting them. -  Both managers and employees feel the process is reminiscent of getting a report card and therefore, somewhat demeaning.  As a result, managers put off doing evaluations until the last minute and don't really put valuable thought into the process.
  3. Managers don't want to be the bad guy/gal. -  Ask any employment lawyer and they will tell you about case after case of litigation involving a company that claims the employee in question was a long term problem who was never a good performer BUT has a record of good (if not excellent) employee evaluations.  The simple fact is that not many managers relish the idea of telling their employees what they are doing wrong or possibly harming the employee's chance for a bonus or a raise.  So they glaze over problems and don't document them as they should. 
  4. Who designs these things? - Possibly in an effort to address the problem in item one, above, employee reviews have become so byzantine as to be utterly useless. Categories and subcategories with numerical scales and other nonsense.  It ends up not really meaning that much frankly. 

So what is the solution?  Well the WSJ has some good recommendations regarding up and down reviews and I think those ideas would be helpful.  My own thoughts are to keep it simple.  Feedback is important but structure always isn't.  Try taking out a blank sheet of paper and simply writing a thoughtful letter to subordinates a few times a year addressing how they are doing.  Address both what they are doing well and pick one or two things that they could improve on and how you as the manager would like to help them do that. 

I know some HR types will disagree with this (and have when I have spoken on this topic) and point out that this practice could lead to many different types and levels of quality among reviews throughout the organization.  And I suppose this is true to an extent.  Although I would point out that whoever is doing the manager's review should be looking at the evaluations the manager writes and, if necessary, point out any weaknesses in this area and working with the manager on this issue if necessary. 

Furthermore, if the goal of your evaluation system has devolved into the main goal being making all evaluations look like the same shade of vanilla so that they can't ever be used against you in a legal action as evidence of disparate treatment,  just stop doing them. 

 

Here is the full WSJ article.

 

Employers: Be careful about viewing employees' personal text messages.

Employee privacy in the workplace has become an increasing thorny issue over the last 10 to 15 years as the methods by which employees communicate with each other and the outside world have multiplied and become more complex.  It used to be that privacy issues at work had to do with whether an employee had an expectation of privacy in their workplace locker or on their phone conversations.  Now employers have to be concerned about blog postings, chat rooms, email, Twitter, instant messenger, etc. etc.  So where does an employees right of privacy end and an employer's right to make sure its employees are doing what they ought to be doing begin?  Your guess is as good as mine.  

A recent decision by the 9th Circuit Court of Appeals has provided a loud wake-up call to employers who wish to monitor employee communications. In Quon v. Arch Wireless Operating Co, Inc. et al., 529 F.3d 892 (9th Cir. 2008), the court held that the City of Ontario, Calif., violated the state and federal constitutional privacy rights of its police officers when it reviewed their personal text messages.

Importantly, the Court in this opinion did not find it persuasive that the company had a policy stating that electronic emails should not be considered private to be determinative.  The Court held that the policy was not specific enough under the circumstances.  Does this mean that employers should be regularly reexamining their electronic communications policies to specifically address new forms of electronic communications?  In a word, yes.

 

Read the full opinion here.

 

 

 

Source: Law.com.

Oral Argument in Crawford v. Metropolitan Government of Nashvilled

Yesterday the Supreme Court heard argument in Crawford v. Metropolitan Government of Nashville, in which the issue is whether and to what extent Title VII’s anti-retaliation provision protects employees from being fired for cooperating with an employer’s internal sexual harassment investigation.

Here is a humorous excerpt from the argument of Eric Schnapper, counsel for the employee that in addition to being funny, really gets to the heart of one of the most important issues in the case:

   JUSTICE GINSBURG:  "But why are we -- why are we spending so much time on hypotheticals that are so far from this case?  This was a person who appeared at an internal proceeding, she gave testimony, very specific testimony.  She wasn't saying: I'm against harassment.  She said: This boss harassed me.  It is about as specific as you get.  So we're dealing with a particular case of somebody who was a witness in an internal investigation.  Why do we have to reach the outer boundaries of this claim in this case?"
    MR. SCHNAPPER:  "You do not, Your Honor."
    CHIEF JUSTICE ROBERTS:  "Well, but, you know, that's why we ask hypotheticals that aren't related to the specific facts, because we're interested in how broadly the proposition you're asking for goes.  I'd still like to find out where you draw the limit.  What if the person says: Mr. Jones would never do anything like that, but if he did that would be terrible.  Now, is that actionable as opposition?"
    ***
    JUSTICE BREYER:  "Is this a real problem?  I mean, let's suppose the opposition clause protects everybody in the internal investigation who could be at all interpreted as favorable to the complainant.  It also protects everybody who could possibly be viewed as neutral.
    "Then you have a problem about what about a person who loves sexual harassment?  This is the hypothetical: he comes in, testifies: I love sexual harassment; it's wonderful, and they fire him.  Now is this a real problem?
    MR. SCHNAPPER:  "It -- it is not, Your Honor.  But -- but as the -- as the Chief Justice pointed out, I'm -- you know, I'm here to answer hypothetical questions, and I'm going to do so."
    JUSTICE GINSBURG:  "But I thought that --"
    [Laughter.]


You can read the entire transcript here.

The Presidential Candidates on HR Issues

As promised, here is additional information regarding what each of the presidential candidates plans to do with regard to workplace and HR issues.  This information is taken directly from the candidates' respective campaign websites without any editing or alteration whatsoever.

John McCain

John McCain is calling for National Commission on Workplace Flexibility and Choice. This Commission would bring together a bi-partisan set of leaders representing workers, small and large employers, labor, and academics.  The Commission would make recommendations to the President on how modernizing our nation’s labor laws and training programs can help workers better balance the demands of their job with family life and to enable workers to more easily transition between jobs.

The Commission would examine the following issues that John McCain believes are important to workplace flexibility and choice:

  • Modernizing the nation’s labor laws so that they allow for more flexible scheduling arrangements
  • Ensuring that the nation’s labor laws don’t get in the way of working at home
  • Promoting telework so that workers can spend less time commuting
  • Making health more portable so that workers don’t lose their benefits when they switch jobs
  • Ensuring that workers can choose retirement plans that best suit their needs
  • Providing workers with more choice in job training assistance so that they can build the skills they need for new and better jobs

Barack Obama

Obama will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama will ensure that his labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama will also increase the minimum wage and index it to inflation to ensure it rises every year.

  • Ensure Freedom to Unionize: Obama believes that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA's passage and sign it into law.
  • Fight Attacks on Workers' Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB's "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
  • Protect Striking Workers: Obama supports the right of workers to bargain collectively and strike if necessary. He will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
  • Raise the Minimum Wage: Barack Obama will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.
  • Create New Job Training Programs for Clean Technologies: The Obama plan will increase funding for federal workforce training programs and direct these programs to incorporate green technologies training, such as advanced manufacturing and weatherization training, into their efforts to help Americans find and retain stable, high-paying jobs. Obama will also create an energy-focused youth jobs program to invest in disconnected and disadvantaged youth.
  • Improve Transition Assistance: To help all workers adapt to a rapidly changing economy, Obama would update the existing system of Trade Adjustment Assistance by extending it to service industries, creating flexible education accounts to help workers retrain, and providing retraining assistance for workers in sectors of the economy vulnerable to dislocation before they lose their jobs.
  • End Tax Breaks for Companies that Send Jobs Overseas: Barack Obama believes that companies should not get billions of dollars in tax deductions for moving their operations overseas. Obama will also fight to ensure that public contracts are awarded to companies that are committed to American workers.
  • Reward Companies that Support American Workers: Barack Obama introduced the Patriot Employer Act of 2007 with Senators Richard Durbin (D-IL) and Sherrod Brown (D-OH) to reward companies that create good jobs with good benefits for American workers. The legislation would provide a tax credit to companies that maintain or increase the number of full-time workers in America relative to those outside the US; maintain their corporate headquarters in America if it has ever been in America; pay decent wages; prepare workers for retirement; provide health insurance; and support employees who serve in the military.
  • Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama will expand it to cover businesses with 25 or more employees. He will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children's academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
  • Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
  • Expand High-Quality Afterschool Opportunities: Obama will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve a million more children. Obama will include measures to maximize performance and effectiveness across grantees nationwide.
  • Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Obama will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
  • Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
  • Expand Flexible Work Arrangements: Obama will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.

Calvalcade of Risk #60 is Available

Julie Ferguson Over at the Workers' Comp Insider Blog has posted the newest edition of the Calvacade of Risk.  Check it out. 

 

 

Obama on The Dignity of Work

Barack Obama recently spoke at some length regarding his views regarding labor and workplace issues.  The video of his remarks is included below.  Leave a comment and tell us what you think.

P.S. I am looking for video of McCain addressing work-related issues and will post it up as soon as I find it.   

 

Inability of Small Company Employees to Get Health Insurance Gains Attention from Congress

As the number of people without health insurance continues to rise, many states and Congress have begun to focus on one of the biggest causes: the growing number of small business owners and their workers who are unable to afford coverage.

Congress, in response, is considering legislation that, among other steps, would make it significantly easier for small businesses to organize insurance-buying pools. Despite bipartisan backing in both the House and Senate, it is uncertain whether the bills can be passed in this, an election year. But proponents say the legislation would almost certainly be reintroduced next term.

 

Here is the article from the New York Times.

A Holiday for Workers

How Labor Day Came About

"Labor Day differs in every essential from the other holidays of the year in any country," said Samuel Gompers, founder and longtime president of the American Federation of Labor. "All other holidays are in a more or less degree connected with conflicts and battles of man's prowess over man, of strife and discord for greed and power, of glories achieved by one nation over another. Labor Day...is devoted to no man, living or dead, to no sect, race, or nation."

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity and well-being of our country.

Founder of Labor Day

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

Some records show that Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a co-founder of the American Federation of Labor, was first in suggesting a day to honor those "who from rude nature have delved and carved all the grandeur we behold."

But Peter McGuire's place in Labor Day history has not gone unchallenged. Many believe that Matthew Maguire, a machinist, not Peter McGuire, founded the holiday. Recent research seems to support the contention that Matthew Maguire, later the secretary of Local 344 of the International Association of Machinists in Paterson, N.J., proposed the holiday in 1882 while serving as secretary of the Central Labor Union in New York. What is clear is that the Central Labor Union adopted a Labor Day proposal and appointed a committee to plan a demonstration and picnic.

The First Labor Day

The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union. The Central Labor Union held its second Labor Day holiday just a year later, on September 5, l883.

In l884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a "workingmen's holiday" on that date. The idea spread with the growth of labor organizations, and in l885 Labor Day was celebrated in many industrial centers of the country.

Labor Day Legislation

Through the years the nation gave increasing emphasis to Labor Day. The first governmental recognition came through municipal ordinances passed during 1885 and 1886. From them developed the movement to secure state legislation. The first state bill was introduced into the New York legislature, but the first to become law was passed by Oregon on February 2l, l887. During the year four more states -- Colorado, Massachusetts, New Jersey, and New York -- created the Labor Day holiday by legislative enactment. By the end of the decade Connecticut, Nebraska, and Pennsylvania had followed suit. By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.
 

ADA Amendments Act Working Its Way Through Congress

A large, bipartisan group of senators signed on as co-sponsors of the ADA Amendments Act (S.3406) which was introduced August 1. The bill will strengthen the protections of the original Americans with Disabilities Act (ADA), passed in 1990.

Sens. Tom Harkin, D. Iowa, and Orrin Hatch, R. Utah, led the effort to sign on 66 senators as co-sponsors of the bill.  With so many co-sponsors, there is a good chance that the Senate leadership will bring the bill to the floor to a vote.

The House passed its version of the bill overwhelmingly (402-17) on June 25.  Thus it is possible that it will be sent to the President on veto-proof majority votes from both the House and Senate. 

In a statement, Nancy Zirkin, executive vice president of the Leadership Conference on Civil Rights, praised the bill's introduction: "The ADA Amendments Act is the most significant civil rights bill of the 110th Congress. This act will correct narrow court interpretations that have restricted ADA coverage in the workplace, and taken away coverage for people with diabetes, epilepsy, serious heart conditions, mental disabilities, and even cancer."

She noted the cooperation and bipartisan spirit under which the Congress has considered the legislation: "In this era of partisan politics, the dramatic convergence of the business, disability and broader civil rights communities is a testament to the importance of this legislation to diverse constituencies as well as the power of coalition politics."

Sandy Finucane, vice president of the Epilepsy Foundation, agreed: "The introduction of this bill, with such broad bipartisan support, is a tribute to the hard work and conviction of Sens. Hatch and Harkin, who worked tirelessly to get it done. This is a major victory for the disability community."

The bill will overturn several Supreme Court rulings which have narrowed the interpretation of the ADA and substantially limited protections for millions of Americans.

For example, the Court ruled in the 1999 case Sutton v. United Airlines that individuals are not considered disabled if they are able to manage the symptoms of their impairments with medication or assistive devices. The new bill clarifies that disability should be determined without considering "mitigating measures."

Similarly, the bill requires that people whose disabilities occur only in episodes have their disabilities assessed when their symptoms are present – important for many disorders including depression and epilepsy.

 

 

Source: David Schraub - Civilrights.org Article
August 5, 2008

Guest Post: Ask Wise Questions Before Terminating An Employee

Lessons From a Hotel Lobby

We think we shape life. That’s wrong. Life shapes us. All
readers know how they first learned this. Here’s my story,
one that will help corporate counsel when it comes to decid-
ing whether to impose the equivalent of capital punishment in
employment: termination.

It was 1975. Much to my mother’s dismay, I dropped out of
college, moved to Washington, D.C., and started to work at a
large, 800-room convention hotel as a desk clerk. Working hard,
I was promoted to chief clerk (hot stuff).

D.C. was a mosaic of cultures. The bell staff was mostly Ara-
bic; when it was slow, they taught me salty language in their
native language. Jean-Paul Sartre wrote that words are like
loaded guns. I was about to find out how right he was.

It was Sunday night. The hotel was busy earlier and finally
had slowed down. It was around 11 p.m., and I got off at mid-
night. Suddenly, several guests came in, crowding around the
front desk. A gentleman from Dubuque, Iowa, was at the line’s
head, surrounded by his large family, all blocking my view of
line’s end.

As I checked them in, I handed the keys to a bellman,
Manny. He was from Jordan. I needled Manny by using my
new vocabulary to call him a pig in Arabic, which is one of the
worst words to say to an Arab.

As the family cleared away, my view finally unobstructed, I
saw three Arab gentlemen whose reservations were made by
the Lebanese embassy around the corner from the hotel. Oh
geez! Had they heard? Was I toast? Could I bribe them into
silence with an upgrade to a suite? They let on nothing. It was
a restless night.

Next shift, I came in but was told to see the assistant man-
ager before starting work. He was Lebanese. Coming into his
office, he swept his hand toward his guest chair, and I saw
spread out across his desk my personnel file, including many
complimentary letters from satisfied guests. (When anyone ever
thanked me for my assistance, I asked them to write a letter to
the hotel extolling my virtues.)

I sat. He looked at me evenly and quietly said, “Mike, I am
not going to fire you. Not now, at least. You have many good
letters. Read my memo later today. Read it, live it.”

Relieved, I went to work, focused on the Zen of checking in
guests. The memo came out:

To: Front desk staff
Re: Swearing in Arabic
Henceforth, only I will be allowed to swear in Arabic
at the front desk. Any staff violating this rule will
be terminated.

Close call. Years later, I am an employment lawyer, and I
have never forgotten what that boss taught me. I like to think
of it as principled compassion (PC). What happened to me
was one aspect of it.

Time To Reflect
PC is best understood in a Q-and-A format. Here’s a key
one: Are there any mitigating factors warranting a less severe
punishment than termination? That’s the one that saved me,
but it has various cousins, all looking to whether capital pun-
ishment is warranted. Here are others:

• What is a proportionate response to the misconduct in
question?
• Is the company focusing on just one person as the cul-
prit or should others be held accountable? Be wary of this,
because the fundamental attribution bias bends our minds to
embrace a single cause for a mishap, when in fact there are
usually several.
• Has the straying employee been properly trained for the
position?
• Were checks and balances in place to prevent the mis-
deed? Trust me, a jury will often blame the employer for not
putting these in place, on the belief that employers should
take steps to ensure that the darker angels of an employee’s
nature are cabined off.
• Is the company giving too much weight to information
that comes in first (the availability bias) and then holding fas
to its first conclusions (the confirmation bias)? Recognize
these when making decisions.
• Are there other alternatives that can achieve the com-
pany’s objectives, short of termination?

PC must not be confused with the ancient human resourc-
es maxim of “no good deed goes unpunished.” By asking
these questions, an employer arrives at the right decision.
Deciding that someone should be terminated and lacking
the backbone to do it is not performing a good deed. It is a
bad decision, often borne of a desire to avoid confrontation.
PC results in a deed that is truly good for the manager and
the employee.

How so? Let’s look at managers first. In his recent book,
“What the Gospels Meant,” Garry Wills argues that most
people incorrectly interpret one of the Beatitudes in the
Gospel of Matthew. Instead of “Happy those who are meek,
for they shall acquire the earth,” it should be “Happy those
who yield, for they shall acquire the earth.”

Wills’ big idea: Those who could be aggressive or careless
with their exercise of power but hold back and reflect before
acting are those who shall reap rewards. For employees? I
became, I think, a better employee and, I know for certain,
a more loyal one — good all around.

I went on to graduate from the Cornell University School
of Hotel Administration; graduating in the half of the class
that makes the top half possible confirmed that my skill set
was elsewhere. I lost touch with the assistant manager but
never lost touch with his lesson. I use it to this day, which
brings me to asking readers for a favor. Take a minute to
recall your lessons learned, who did the teaching and why
the lessons are important. Then take the next step: Pass
them on. A little karma can do a lot of good.


About the Author:
Michael P. Maslanka
is the managing partner of Ford & Harrison
in Dallas. His e-mail address is mmaslanka@fordharrison.com.
He is board certified in labor and employment law by the Texas
Board of Legal Specialization. He writes the Texas Employment Law Letter. 

This article is reprinted with permission from the June 2, 2008 issue of In-House Texas. © 2008, Texas Lawyer.

Plaintiff Awarded $46 Million Dollar Verdict in Retaliation Case

An Ohio jury recently awarded the largest verdict in Ohio history -- $46.7 million -- to a man who they said was wrongfully fired last year.  This is the largest employment verdict I have seen, possibly ever. 

Ronald Luri, 55, accused Republic Services Inc. of retaliation and of forging documents critical of his job performance after he refused to fire three of his employees -- all about 60 years old -- on the grounds that such actions would constitute age-discrimination.

The jury awarded Luri $3.5 million as compensation for his lost wages as general manager of Republic's Cleveland division, and $43.1 million in punitive damages as punishment for the company's treatment of Luri.

The jury also ordered Republic to pay Luri's attorneys' fees, which could run into the millions of dollars and will be determined by Judge Bridget McCafferty.

Several of the jurors said they were especially dismayed by testimony of evidence-tampering and actions taken by Luri's superiors to prevent him from obtaining new employment in the Cleveland area after his firing.

Even after Luri was fired on April 27, 2007, he didn't file the wrongful termination and retaliation lawsuit until after Republic enforced a one-year non-compete clause that prevented him from working at a local competitor.  The jurors reportedly felt that the company blocked every opportunity for the plaintiff to get another job and left with with little choice but to sue.

Reportedly, the jurors said the key piece of evidence was an email penned by the plaintiff's boss.  The Plaintiff presented a computer expert who found that Bowen had post-dated the memo and added two paragraphs critical of the Plaintiff's job performance two weeks after he filed the lawsuit.

Republic is in the process of a merger that will make it the second largest waste-collection company in the country. It employs 13,000 workers in 21 states, and had $3.2 billion in revenue last year.


Hat Tip: Ohio Employer's Law Blog

ADA Restoration Bill Passed

The New York Times is reporting that the U.S. House has passed a major civil rights bill on Wednesday that would expand protections for people with disabilities and overturn several Supreme Court decisions issued in the last decade.  We previously addressed this bill here

The bill, which was approved 402 to 17, would make it easier for workers to prove discrimination. It would explicitly relax some stringent standards set by the court and says that disability is to be “construed broadly,” to cover more physical and mental impairments.

Perhaps the most important change contained in the bill is a fundamental change in what by definition would qualify as a protected disability.  Under the bill,  a less stringent standard, that an impairment qualifies as a disability if it “materially restricts” a major life activity like seeing, hearing, eating, walking, reading or thinking would replace the existing strict standard.

And you thought you had it rough at work...

Here is a funny for the end of the week:

New Website Design

Thanks to Mike Fox of Jottings by an Employer's Lawyer for his mention of our site's new design.  It's my hope that the new layout will give visitors easier access to useful information on our site.

If you have not already done so, I would encourage you to visit Jottings and bookmark it.  It is truly one of the finest information sources for anyone working in HR.  It is one of the few sites that I check every single day.  You should too.

Adventures in Questionable HR Management

HR Management Award.jpg

Yes friends, it's time once again to issue our Questionable HR Management Award Grand Prize. As you know we periodically hand out this prestigious award to a company that has shown particularly bad HR judgment and a complete lack of common sense.

Today the award goes to Packaging Corporation of America in Counce, Tenn. for its inadvisable termination of an employee in response to said employee's election to the Mississippi State Senate. According to the Clarion Ledger, Freshman state Sen. Eric Powell learned two days after his swearing-in last week that he had been fired from his regular job. Powell, said his firing came as a result of his election as a state senator in Mississippi.

"All of a sudden, with no phone call or anything, just a letter in the mail after 11 1/2 years of service," said Powell, who is married and has three children. "That's the kind of thanks I get for hard work and loyalty. It's the kind of thing I came to the Senate on behalf of working people to fight."

Labor Prof Blog, who put me on to the story, noted that it seems pretty clear that the termination was directly related to Mr. Powell's election. This was especially boneheaded given the fact that the company initially encouraged Powell in his run for office.

Now thanks to this bizarre HR snafu, instead of having an employee in the state senate, PCA likely has:

1) a union grievance (Powell was a union member and the collective bargaining agreement specifically allows for employee leave when running for public office and only requires resignation if the office obtained is a full-time job);

2) a lawsuit (many states have statutory prohibitions on retaliation against employees for serving in public office); and

3) a state senator that is less than enamored with the company.

We therefore proudly award Packaging Corporation of America our Questionable HR Management Award! Feel free to print out the award emblem and wear it with pride.

"Don't put this in writing, but ... "

Just came across a good article at Law.com dealing with the implementation of new e-discovery rules that are forcing companies to turn over damning evidence that has been stored electronically.

General Counsels are pulling their hair out trying to educate their managers and others that email often lasts forever and that they should not opine as to the reason an employee was fired, etc. using email.

The article features several types of emails that cause the most trouble. Some of my favorite opening lines from emails:
"Don't put this in writing, but ... " "This is off the record," started the e-mail that in fact put it all on the record; and "We may be in breach of contract, and here's why."
And of course there are the HR-related emails:
"I can't believe she's pregnant at such an inconvenient time at work." and "we need to get rid of the dead wood."
The message is clear: Employers must continue to train and retrain employees on what is an is not appropriate subject matter for an email. And for Plaintiffs, be diligent about seeking production of emails in discovery. There's gold in them there hills.

100 Resources to Attract, Retain and Leverage Talented Women

Women are a powerful and valuable force in today's workplace. They represent some of the best and brightest that industry has to offer, but many organizations aren't set up to properly attract and retain them. The HR World Editors have put together a list of 100 resources designed to help your organization recruit and retain talented female employees.

Source: HR World Editors

Another Good Employee Privacy Article

Peter Mullison over at the Colorado Employment Law Blog has a good article on employee privacy in the workplace, or more specifically, the lack thereof. Peter discusses the Court's opinion in United States v. Barrows, a 10th Circuit Court of Appeals decision finding that an employee did not have a protected privacy interest in the child pornography files found by a co-worker on this personal computer that he brought to work.

The analysis in this case is slightly more involved because the employer in question was a government entity and therefore state action was at issue. In cases involving employees of private employers, the employee's positions would be even weaker.

Mullison points out two rules to live by:

1) Stay away from kiddie porn; and 2) Recognize that your privacy rights in the workplace are less than you might think.

Good rules.

Source: Colorado Employment Law Blog

Limits of Free Speech in the Workplace

This is a question that I get quite often from employees: What are the limits of what I can say in the workplace? The answer is usually "Not as much as you think." Many employees are surprised to learn that, generally speaking, employees of private sector employers have no constitutional "free speech" rights in the workplace.

The Delaware News Journal has an article on the limits of free speech in the workplace that employees would do well to read if they have questions in this are.

We have previously covered instances in which employees have been fired for posting something on their blog that their employer did appreciate. With the advent of Facebook, MySpace and other social media, the problem is only becoming more acute.

Employers are wisely beginning to respond to the situation by publishing their own policies governing such communications. You can find IBM's blogging policy here. And here is Yahoo's policy as to personal blogs.

If your company does not have its own policy yet, you might give these two policies a look to get a general idea as to what an employer's expectations will likely be regarding its employee's conduct in the online world.

WARN Act Refresher

The WARN Act is one of those areas that everybody needs a refresher course in now and again. Most HR officers (and frankly many HR lawyers) deal with it infrequently at best. To the rescue comes Diane M. Pfadenhauer or Strategic HR Lawyer Blog, and her article: "BEYOND THE WARN NOTICE: GETTING TO THE TIPPING POINT AND BEYOND"

I commend it to your reading.

Managing Telecommuters

As more companies adopt workplace models in which employees work from home, it has become more important for managers to learn to communicate and supervise, as well as foster teamwork among employees who work remotely, without the benefit of frequent face-to-face contact in a regular office setting.

Here is a good article from the Wall Street Journal addressing the topic.

Hat tip to Home Office Lawyer Blog for the link.

Why At-Will Employment is Bad for Employers

Most employers believe that if they set up an at-will system and police it vigorously they will be safe from lawsuits. However, despite almost universal acceptance of at-will relationships in the United States, employment litigation is on the rise and is now a large percentage of cases on court dockets. A recent article by Ellen Dannin gives thoughtful consideration to the at-will doctrine and whether it still serves a useful purpose.

In her article, she notes that dissatisfaction with at-will doctrine has led courts and legislatures to develop many common law contract, tort doctrines and statutory exceptions, leading to greater complexity and uncertainty. By now most bad reasons for firing workers have been made illegal, so an at-will regime is limited to firing workers for a good reason or no reason. It also seems unlikely that most employers want to fire their employees for no reason, because, by definition, this means firing good employees. Thus the so-called "at will" doctrine is reduced to one in name only. Her article asks what is the benefit to employers of this strategy. . . and what is the alternative.

Source: LaborProf Blog

How Bad Is Your Boss?

The Working America blog has announced its winners in its "My Bad Boss" contest. The winner? A boss that through out an employee's leave paperwork, causing him to lose out on any pay for days missed due to cancer treatment. Now that is bad.

New Minimum Wage Poster

There is a new federal minimum wage and with it comes a new minimum wage poster. All employers subject to the FLSA must display the poster. Fortunately, you need not go out and buy one. The Department of Labor has been kind enough to produce a printer-ready file of the required poster that you can download straight from their website.

You can get the poster here.

The Developing Work World: Distributed Work

Those on the cutting edge of workplace issues continue to argue that telecommuitng and increased use of distributed work is the way of the future. They see a perfect storm being created by the convergence of many factors, including: technology advances making it easy to work virtually from virtually anywhere, increasing cost of benefits making companies more and more interested in part-time and other non-traditional employment relationships, and polution, congestion and gas prices making it increasingly impractical to move such a large number of people across town twice a day.

This past week retired Harvard Business School Professor Shoshana Zuboff published an article addressing the issue from an environment standpoint. He is addressing mayors from the around the country that were meeting to discuss the air polution and road congestion issues facing their respective cities. Here is a snippet:
Big city mayors meet this week [note: that was the week of May 15] to discuss what they can do to reduce global warming. Alot of their talk will focus on how to get people to do less: drive less, use less electricity, etc. As in the spirit of John's recent post, the debate takes the form of parsing a scarce resource. It's punitive and puritanical. Worst of all, it assumes that the institutional demands on us stay the same. As always, it's the individual that is asked to sacrifice and change-not the institutions.

But inside the support economy is a far more sustainable and profound response to climate crisis. It entails the shift from concentrated to distributed patterns of life, work, consumption. Start with our daily obeisance to the gods of command and control: the commute. The commute exists because in the late eighteenth century canny British factory owners figured out that they could get more work out of people and use fixed assets more efficiently if everyone worked in the same place at the same time. Today, the concentrated pattern of work costs far more than it saves for firms, individuals, and the planet: It feeds needless bureaucracy; it destroys value by insulating employees from consumers; it requires mass-carbon-spewing transport. The barriers to distributed working are not technological or substantive. Progress on this front has been slow because employers don't want to give up physical supervision, because office politics require face time, because people who work "away" take unfair hits on their careers and prospects. Concentrated work patterns express power politics and are maintained out of inertia on both sides of the power equation.
You can read the rest of her article here.

Guns in the Workplace Revisited

With all the terrible news this week regarding the attack at Virginia Tech, it seemed an appropriate time to revisit the issue of guns in the workplace. Workplaces that tolerate guns are five to seven times more likely to suffer homicides than job sites that ban firearms, according to a 2005 study in The American Journal of Public Health. Yet the gun lobby is hard at work trying to pass laws in state legislatures that would make it illegal for an employer to forbid guns on the employer's grounds.

As this recent editorial in the New York Times points out, this fight is pitting two formidable interests - the gun lobby and corporate America - against one another. From the article:
Bills to deny this common-sense right to workplace safety were initially approved in three states. But they failed last year in such gun-friendly states as Florida, Georgia, Indiana and Virginia after business interests rose up in active opposition. The National Rifle Association is back at work harder than ever in a dozen states. But so are Chambers of Commerce and corporate executives, warning of the danger -- and business liability -- of forcing companies to allow workers to carry guns.
Here in Texas, the gun lobby is hard at work to pass just this sort of legislation. My friend Mike Fox put me on to state House Bill 220, which would prohibit employers from banning guns in parking lots except under very narrow circumstances, and SB 534/HB 992, which would provide a cause of action for anyone discharged for having a gun on an employer's parking lot if certain notice requirements have been met by the employee.

As if employers didn't have enough to deal with without employees being allowed by law to pack heat at work. Pure insanity.

OK here is some homework for every Texas employer that reads this blog: Contact your state senator and congressperson and let them know that employee safety is important to you and that you hope they will not support any of these bills.State Senator Contact Info . State Representative Contact InfoTheoretically related Links:Guns in the Workplace - HR Lawyer's BlogNational Rifle Association web page in support of the Texas billsHouston Chronicle Article on the Texas bills

One Year Ago at HR Lawyer's Blog

Last year at this time we were covering a topic that got a great deal of attention. Women in the Workplace: Having it all or "Half of it all." Among other things, the article noted:
"Although the nation's law schools for years have been graduation classes that are almost evenly split between men and women, and although firms are absorbing new associates in numbers that largely reflect that balance, something unusual happens to most women before they begin to climb into the upper tiers of law firms. They disappear."
So, a year later. . . are we doing any better?

Do you really need an employee handbook?

Answer: Yes.

Although there is no law that requires employers to have employee handbooks or personnel manuals, they are one of the best tools for communicating information to employees about your company's policies, their performance standards, and employment benefits. By having written policies in place, an employer is also able to develop uniform standards within the workplace that can help promote fairness and the consistent treatment of its employees. Handbooks are therefore a must in terms of an employer's ability to comply with their legal obligations to their employees.

An employer that does not have written guidelines in place is much more likely to encounter problems arising from ignorance of its policies, inconsistent or unfair application of those policies, conflicting policies, and resulting confusion among its employees. This can lead to internal problems such as employee dissatisfaction and discrimination charges filed by employees who feel they have been treated unfairly.

Jacqueline McManus has an excellent article in the Monterey Herald describing all of the reasons why an employee handbook is really a necessity for even relatively small employers. I reccomend it to you for your consideration.

Alternative Billing - Clients Want It - Big Law Firms Hate It

Jay Shepherd over at Gruntled Employees has a great post out discussing the increasing clamor from corporate general counsels for billing alternatives to the increasingly unpopular "billable hour". Unfortunately, big law firms continue to ignore their clients' wishes in this regard and push the antiquated billable hour model. This recent survey of corporate legal expense issues from the New Jersey Law Journal found that:
Despite criticisms of the hourly billing format, its use continues to grow. In 2005, 87.1 percent of companies said they used standard or discount hourly rates, compared with 81.2 percent in 2004 and 81 percent in 2003.

While 62 percent of respondents are open to alternative fee arrangements -- including fixed, blended hourly rate, contingency and retainer -- they say that 90 percent of outside counsel resist the suggestion. (Emphasis added).
Ninety Percent? So why are big law firms resistant to change? The answer is simple. Hourly billing is often nothing short of an acceptable form of overbilling. Work on a project is open-ended, set objectives are often as vague as "win the case" and there often is no billing budget set out at all. Combine these ingredients with the incredible pressure large firms place on their associates to bill hours and the pressures partners face in earning enough to cover their gigantic overhead plus a more than attractive PPP and you have a recipe for an unbelievable amount of over...er... hourly billing.

With these kind of economics at work, its no wonder that large firms treat alternative billing as some type of odd-ball granola alternative lifestyle. "As if traditional (hourly) billing came over on the Mayflower."This problem is often no more apparent than in the employment law context. How frustrating must it be for general counsels to see case after case cost $50K, $75K, $100K or more to litigate through the summary judgment phase only to then settle for $50K or less. Ridiculous. And just as strange, some large firms still don't offer flat rates for everyday types of services such as employment handbooks or EEOC Charge responses. I agree with Jay that I don't think corporate counsels are going to allow themselves to be ignored forever on these issues. It may take more of an effort on their part to shop around for local firms that truly believe in providing real customer service and sensible billing models but eventually they will decide its worth it.

For more on alternative billing, read:

The Culture of Extreme Work

Friend of mine Michael Maslanka has an excellent article this month in Texas Lawyer entitled "A Plea for Sanity: How GCs Can Help Stop the Culture of Extreme Work". I encourage everyone to read it. The dangers of overworking employees is an issue that I have spoken on and written about here before. Mike's article is an excellent description of the problem and a thoughtful look at some possible solutions.

From the article:
Employees work too hard, and that's not good for business. Tired accounting staff don't add columns A and B correctly. Exhausted executives make rash decisions. Sleep-deprived employees driving home from a late night at the office run off the road or worse. I'm not talking about work-life balance. I'm talking about working to extremes.

Simply put, there's no return on investment on exhausted employees. It's the general counsel, the adviser and counselor to the company, who's often in the best position to put the work lives of the executives, managers and employees into a context that makes sense and that creates the biggest ROI.

Don't believe that overtired employees and execs are a problem? The December 2006 issue of the Harvard Business Review has an insightful article titled "Extreme Jobs: The Dangerous Allure of the 70-Hour Work Week." In it, authors Sylvia Ann Hewlett and Carolyn Luce report that 62 percent of high-earning individuals work more than 50 hours per week, 35 percent work more than 60 hours per week and 10 percent work more than 80 hours per week.
Michael goes on to discuss some possible solutions including:
  • Creating a Sleep Policy for Employees;
  • Create a Policy Requiring Employees to take Vacation;
  • Provide Training to Supervisors on Dealing with Exhausted Employees
This is one of those issues that is not discussed enough in HR circles because of American's sick affection for the hard-driving overworked lifestyle. Do your company a favor and email Michael's article around or, better yet, set up a meeting to consider implementing some of his excellent suggestions.

Union membership falls to 12% of U.S. workers

Union membership dropped to 12% of U.S. workers last year, extending a steady decline from the 1950s when more than a third belonged to unions.

After membership had held steady at 12.5% in 2005, it declined anew last year, a decrease of more than 325,000 workers, the Bureau of Labor Statistics said.

Membership had been 20.1% in 1983, when the bureau first provided comparable numbers. About 35% of American workers were union members in the mid-1950s.

Source: LA Times

Restless Work Force - 45% of Employees Plan to Seek a Better Job This Year

Discontented workers, lured by promises of better salaries and more opportunities, could move in sizable numbers to new jobs this year, a national survey by Yahoo HotJobs shows. The online survey of 5,331 workers showed 45 percent planned to change jobs at some time during 2007 and only about one-third were so satisfied with their current position they were not expecting to look.

Given that this was an internet survey, the fact that internet users tend to be younger and more affluent thant the geeral public should be taken into considerationSee more coverage here.