Stress at Home Spills Over to the Workplace
We've heard a great deal lately about the gas prices, the economy, sub-prime mortgages and the like - all bad. I suspect we've also seen the level of stress at work increase as employees carry over the stress from their personal lives into the workplace. As gas nears $4.00/gallon here in New York, everyone is beginning to tabulate the cost of going everywhere - $10.00 round trip to work, $5.00 to the mall, etc. Doesn't appear to be much relief in sight in the near future. So, hold onto your hats as things unravel a bit at work!
Worker's Bring Economic Stress into the Office
Workplace Waterboarding?
Yes, just when you think you've seen it all..... The Word On Employment Law Blog points to an article reporting that as part of motivational training session, a company engaged in waterboarding of a participant in order "to demonstrate to the employees that they should work as hard as the employee being waterboarded was working to breathe."
For new on this story - see this Washington Post article on the progress of the legal case so far.
And, what were they thinking???
EEOC Proposes Rule Addressing Disparate Impact Claims Under the Age Discrimination in Employment Act
The EEOC recently issued proposed regulations addressing disparate impact claims under the ADEA. The proposed rule addresses the Supreme Court ruling in Smith v. City of Jackson 544 U.S. 228 which held that recovery is available under the ADEA not only for disparate treatment or intentional discrimination but also unintentional claims or disparate treatment.
The announcement of the rule is available here in the Federal Register. Comments must be made on or before May 30, 2008.
Posted By Diane Pfadenhauer In Employment Law | Permalink
New FMLA Poster Containing Military Leave Amendments
The Department of Labor has available a poster reflecting the recent changes to the law affecting military personnel. It's meant to be temporary and a supplement to the existing poster. It's available on the DOL website:
National Defense Authorization Act / FMLA Poster
Posted By Diane Pfadenhauer In FMLA | Permalink
EEOC Reports Largest Percentage Increase in Charges in 15 Years
This press release notes that charges filed with the EEOC are up over 9% from 2006 to 2007 - this single largest annual increase since 1993. Yikes!
Posted By Diane Pfadenhauer In Employment Law | Permalink
Supreme Court Says EEOC Intake Questionnaire Triggers Employee Rights
The Supreme Court recently ruled that when a complainant completes and intake questionnaire with the EEOC and the EEOC does nothing with it, it does not preclude the complainant from then bringing a claim of discrimination in Federal District Court. In Federal Express v. Holowecki, the claimant went to the EEOC and completed the EEOC's intake questionnaire. The EEOC did not issue a charge of discrimination and provide it to the employer. Thus, the employer was unaware of the claim. Next thing.... the employer was being sued in Federal Court as the claimant was able to successfully circumvent the EEOC's internal process.
Here's a good point raised by John Hyman of the Ohio Employer's Law Blog:
"My problem with this ruling is that Fed Ex never had any meaningful way to respond to the Intake Questionnaire. That form was never sent to it, and it had no notice that a proceeding had even been initiated until after the actual charge was filed 6 months hence. Thus, an employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit."Posted By Diane Pfadenhauer In Employment Law | Permalink
Pay Overtime - Even When it Violates Policy
The Second Circuit Court of Appeals ruled recently that an employee who works overtime must be paid for those hours even though he/she may have been prohibited from working overtime. There are many who already operate consistent with this ruling, so this may not be something new for all of you. In the case of Chao v. Gotham Registery, an employment agency refused to pay for overtime for temporary nurses unless the overtime was approved in advance by the agency. Thus, when the employees actually worked overtime without approval, they were not paid for those hours. The Court held that the company's overtime practices violated the Fair Labor Standards Act.
Moral of the story - if your employees work overtime without permission, pay them and then address the matter as a discipline issue.
Thanks to the Connecticut Employment Law Blog for a comprehensive summary of the case.
Posted By Diane Pfadenhauer In Wage & Hour | Permalink
NLRB Reduces Rights of Employee Union Advocates to Use Employer Email
The National Labor Relations Board recently issued a decision severely limiting the rights of employee union advocates to use employer email to conduct solicitations of fellow employees. What the new decision means is that employers can safely prohibit all non-work related email solicitations by employees even if union related. For the text of the decision follow this link to The Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194.
For more commentary by fellow Lexbloggers see:
- Michael Moore's commentary on the Pennsylvania Employment Law Blog
- Christopher Onstott's commentary on the California Labor & Employment Law Blog
New Proposed Regulations to the Family & Medical Leave Act
The US Department of Labor recently issued proposed revised FMLA regulations. The new regulations, subject to a comment period, comprise well over 400 pages - sufficient to cure insomnia. Here are few changes of note while all the dust begins to settle:
- Serious Health Condition - Where leave involves more than three consecutive days plus two health care provider visits, the two visits must occur within 30 days of the beginning of the period of incapacity (subject to certain exceptions).
- ‘Periodic treatment’ is defined as requiring treatment two of more times a year.
- Includes separate regulations for leaves as a result of treatment for pregnancy, substance abuse and adoption/foster care.
- Eligibility - The DOL is looking to further define a break in service to determine the eligibility for FMLA.
- Health Care Providers - Adds Physician Assistants as recognized health care providers.
- Amount of Leave - Addresses how an employer should handle the situation when a holiday falls during the employee’s leave.
- Paid Leave Substitution –Proposes two substantive changes to the current regulations regarding paid leave:
o The DOL clarifies that "substitute" means to run concurrently with respect to Paid time off.
o The proposed regulations seek to remove any distinction between sick leave and vacation leave in connection with an employer policy requiring substitution.
- Return to Work & Bonuses - Under the new regulations, an employee must meet a specific “goal” in order to be provided a bonus. If he fails to meet that goal due to FMLA leave, he can be denied the bonus as long as individuals who were on non-FMLA leave were also denied the bonus.
- Notice Requirements - We should be expecting a new poster soon.
- Employer Notice to Employee – in order to designate leave as qualifying for FMLA, the employer would now have 5 days instead of two.
- Foreseeable Leave – Employers can require employees to explain why they failed to give notice at least 30 days in advance. And, if not an emergency, if the need for the leave is foreseeable leave, the employee should provide notice of the need the same or next day. With respect to unforeseen leave, the regulations indicate a narrowing of this exception.
- Medical Certification - Employee consent to contact the health care provider to verify medical certification would no longer be required and the regulations would permit an employer to contact the employee's health care provider directly without having to use a health care provider.
For those interested in an insomnia cure, this link to the USDOL FMLA Proposed Regulations should suffice as a fine cure.-
Posted By Diane Pfadenhauer In Employment Law , FMLA | Permalink
New California Employment Laws
OK, better late than never... The California Labor & Employment Law Blog has a great post summarizing new legislation taking effect in California in 2008. The laws range from legislation as simple as an increase in the state's minimum wage to laws such as:
- A new law requiring employers with 25+ employees to grant unpaid leave to spouses or domestic partners of combatants on leave from deployment in a combat zone.
- The new San Francisco paid sick leave requirement.
- Work hours are now regulated for pharmacists
- A crackdown on Workers Compensation “Deadbeats”
- And amendments to California law dealing with discrimination.
Follow this link to the California Labor & Employment Law Blog for more information and details on this and more legislation.