Strategic HR Lawyer

Following are links to materials on the WPTA:

My Previous Blog Entries on the WTPA

NYS Department of Labor FAQ's on the WTPA

I'll be presenting on the Legal Panel today at #NYSSHRM11.  Looking forward to presenting with Dan Morris of Clifton Budd, Linda Carlozzi of Jackson Lewis and Jennifer Loftus of Astron Solutions (@astronsolutions)

Posted By Diane Pfadenhauer In Employment Law | Permalink

Is this just a gadget or an empowering legal tool?

Earlier this month the U.S. Department of labor launched its first smartphone application – the DOL-Timesheet. This timesheet application, available in English and Spanish, provides a timesheet that will assist employees with tracking their work hours and determine wages owed. Users can track regular work hours, break time, and overtime hour for one or more employers; they will be able to add comments on information related to their work hours, view a summary in a daily, weekly, and monthly format, and email the summary of work hours and gross pay as an attachment.

What makes this opportunity significant is that instead of relying on employer records, workers can now keep their own records. This information could prove to be invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

Should employers be reviewing their time keeping systems? And, could this lead to more complicated situations challenging the employer with details of time records that disagree?

This free app is compatible with the iPhone and iPod Touch; the Labor Department will be looking into updates that would allow similar versions for other smartphone, such as Android and Blackberry, as well as other pay features that would provide for detail on tips, commissions, bonuses, deduction, holiday pay, pay for weekends, shift differentials, and pay for regular days of rest.

For those who don’t have a smartphone, the Wage and Hour Division has a printable work hours calendar. This calendar, available in English and Spanish, allows an employee to track rate of pay, work start and stop times, and arrival and departure times. It also includes information about workers’ rights and how to file a wage violation complaint.

Both the app and the calendar can be downloaded from the DOL’s Wage and Hour Division homepage.

Posted By Diane Pfadenhauer In Employment Law , Wage & Hour | Permalink

Are you considering hiring teens this summer? The US Department of Labor website provides useful information for compliance with state labor laws … it may be time to review child labor rules and regulations.

The Department of Labor monitors child labor and enforces child labor laws and under the Fair Labor Standards Act (FLSA). These rules vary depending upon the age of the worker and his or her occupation.  With the FLSA – Child Labor Rules Advisor one can view an introduction to federal child labor rules and link to discussions on the US DOL Wage and Hour Division State Labor Laws. 

The US DOL Wage and Hour Division also provides a summary of Employment/Age Certification Issuance Practices Under State Child Labor Laws.  The Federal government does not require work permits or proof-of-age certificates for a minor to be employed. However, many states may require them for workers of certain ages.  These certificates help to protect the employer from prosecution for employing an under-aged worker.  Having these age certificates constitutes a good faith effort to comply with minimum age requirements.

For employers in New York, in addition to the many resources available on the Department of Labor Wage and Hour Division State Labor Laws site we referenced above, you can visit additional links specific to the New York State Department of Labor as they relate to Laws Governing the Employment of Minors.

Don’t make a mistake when it comes to hiring minors this summer – do the right thing. 

Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures , Staffing, Recruitment, Selection , Wage & Hour | Permalink

Providing internship and training programs can benefit businesses as well as students. These programs can provide many great opportunities to young workers but are these interns doing it solely for the experience and working without pay? Some actually think so. The New York Times recently published an interesting article discussing the scope of the problem.   And it should come as no surprise that the Federal and State Departments of Labor are out in force. As we approach the summer months, when internship levels are at their highest, these guidelines will help keep employers in compliance.

In order to explain the federal internship regulations, The US Department of Labor Wage and Hour Division has provided an Internship Programs Under the Fair Labor Standards Act (FLSA) fact sheet making available the information needed to determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act (FLSA) for the services they provide. Some circumstances under which individuals who participate in internships or training programs may do so without compensation.  This fact sheet provides the necessary criteria to determine whether an employment relationship exists and whether the intern is entitled to minimum wage and overtime compensation.

New York State also has rules concerning the use of interns. It relies on the factors used by the USDOL but also adds a few of its own factors. Follow this link to a recent NYS DOL Opinion Letter on this subject: http://www.labor.ny.gov/sites/legal/counsel/pdf/Other/RO-09-0189.pdf

When hiring an intern, carefully review federal and state law … and avoid labor law violations.

Follow this link to the New York Times article: The Unpaid Intern, Legal or Not

Posted By Diane Pfadenhauer In Employment Law , New York Law , Staffing, Recruitment, Selection , Wage & Hour | Permalink

On March 24, 2011, the Equal Employment Opportunity Commission (EEOC) issued its Final Rule implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).  The ADAAA was enacted on September 25, 2008, and became effective on January 1, 2009.  This Rule expands the definition and determination of the term “disability” and will make it easier for claimants seeking protection under the Americans with Disabilities Act (ADA). The EEOC’s Final Regulations:

·         Implement a broader definition of “Disability”.  The ADAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. The Regulations retains the basic definition of the term “disability” as a physical or mental impairment that substantially limits one or more of the major life activities; a record or past history of such an impairment; or being regarded as having such an impairment. These regulations, however, implement the changes made regarding how those terms should be interpreted and how they remain an individualized determination.

 ·         Adopts “Rules of Construction” to use when determining if an individual is substantially limited in performing a major life activity. These include:

o    “Substantially limits” does not need to prevent or severely or significantly restrict a major life activity.

 o    “Substantially limits” is to be construed broadly, to the maximum extent allowable under the law.

 o    With one exception,ordinary eyeglasses or contact lenses, Mitigating Measures, such as medication and assistive devices, cannot be considered in determining whether an individual has a disability.

 o    The determination of whether an impairment substantially limits a major life activity requires Individualized Assessment; such a determination should not require extensive analysis

o    An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.

·         Make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.” The focus for establishing coverage is on how a person has been treated because of a physical or mental impairment, rather than on what an employer believes about the nature of the person’s impairment.

·         Clarify that an individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for a reasonable accommodation. This clarifies that it is generally not necessary to proceed under the first or second prong if an individual is not challenging an employer’s failure to provide reasonable accommodation.

 ·         The Final Regulations also modify or remove language that groups representing employer or disability interests had found confusing or had interpreted in a manner not intended by the EEOC; these include:

o    Rather than providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, nine rules of construction are provided to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability.  Even though there should be case-by-case assessment of impairments, the Regulations also provide examples of impairments that should easily be concluded to be disabilities, including epilepsy, diabetes, cancer, deafness, and blindness.

 o    Consistent with how other major life activities are addressed, language describing how to demonstrate that an individual is substantially limited in “working” has been deleted from the Final Regulations and moved to the appendix. In addition, existing language of “class or broad range of jobs” is retained and examples of individuals who could be considered substantially limited in working are provided.

 o    Final regulations maintain the concepts of “condition, manner, or duration” when determining disability; and while consideration of these factors may be unnecessary to determine whether any impairment substantially limits a major life activity, in certain cases, these concepts may be relevant.

Additional Question and Answer documents and fact sheets about these regulations can be found on the EEOC website at www.eeoc.gove/laws/statutes/adaaa_info.cfm.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The Federal Trade Commission recently published guidelines regarding testimonials and endorsements in advertising.  The goal of the update was to address blogs and social media. So why should HR professionals and employment lawyers care about this?  Because, it's your employees who are saying all of those nice things. 

Fellow Lexbloggers at Porter Wright over on their Technology Law Source Blog explain the reasons why we need to worry about endorsements our employees are making on line.  They've done a great job of spelling it out for us. Take it away:

Endorsement Guides Create Concerns for More Than Just Bloggers

Posted By Diane Pfadenhauer In Employment Law | Permalink

There has been quite a buzz of late on the use of information found on social networking sites in employment.  Often the concern arises when information that may become the basis of an adverse employment decision is found and relates to a protected characteristic.  In other words, the employer didn't mean to stumble upon certain protected information when "google-ing" the applicant but did so.  And the next question usually relates to how the employer might demonstrate that this newly found information concerning a protected characteristic did NOT play into the employment decision.

The Genetic Nondiscrimination in Employment Act makes the mere collection of the information illegal.  In other words, and ably explained by Megan Erickson in her Social Networking Law Blog,

"With respect to social media issues specifically, GINA makes the mere acquisition of genetic information illegal. Because the Act broadly defines the term “genetic information” (including even medical conditions of family members), checking out an employee’s or applicant’s Facebook profile could easily result in a violation. For example, if an employer found an employee’s status update saying he is raising money for multiple sclerosis in honor of his father who is suffering from it – just getting that information could be a violation."

We are still awaiting the final regulations under GINA.  In the mean time, be careful!

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Staffing, Recruitment, Selection | Permalink

In time for Summer and college breaks, the US Department of Labor has issued guidance on the use of unpaid interns.  This guidance could not come soon enough as far as I am concerned. I am amazed, particularly in this economy, how many employers use “interns” to perform work that should be done by employees. The reality is that the test for unpaid interns is intended to be construed VERY narrowly. And, as an employer, if you are considering using unpaid interns, be extremely careful.

The following is the test used by the US DOL when evaluating interns in the private sector.  The following six criteria must be applied when making this determination:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.  

If ALL of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern. In other words, if the intern is intended to perform work over the summer that employees on vacation would otherwise be doing, it’s not an internship!

Follow this link to:  United States Department of Labor - Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

Posted By Diane Pfadenhauer In Employment Law | Permalink

The recent HIRE Act requires that an individual sign an affidavit attesting to certain requirements that would make the employer eligible for the Social Security tax exemption under the law.  The IRS is planning on issuing a model affidavit for employer's use (as indicated on its website).  Until then, there are a lot of "other" forms floating around on the internet.

Now, I know exactly what will happen.  Some employer (actually a lot of them) is going to start using one of these forms.  They won't comply the IRS requirement. The employer won't be bothered to look for the IRS form when it is issued and well, guess what?  The employer will be out of compliance.  Now, who in their right mind wants to be on the wrong side of the IRS.?

For the absolute latest on this enticing topic, the IRS website was updated as of Monday:

Follow this link to: FAQs About Qualified Employees Under the HIRE Act

As I learn of the new form, I will update my blog here.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The new HIRE Act, signed by President Obama on March 18th provides tax incentives to those employers who hire unemployed workers.

Several important tax breaks are available:

1. If an employer hires, between February 3, 2010 and January 1, 2011, someone who has not been employed for more than 40 hours in the previous 60 days (as of that employee’s start date), the employer is excused from paying the employer portion of the Social Security tax otherwise paid by the employer (6.2% of salary).
2. Under certain additional criteria, employers can receive a tax credit in 2011 for new employees hired and retained for 52 weeks – the lesser of $1,000 or 6.2% of wages paid for the 52 weeks.

The HIRE Act is predicted to be one of several news laws projected to stimulate job creation. Let’s see what comes next!

Follow this link to: Hiring Incentives to Restore Employment (HIRE) Act
 

Posted By Diane Pfadenhauer In Employment Law | Permalink

The EEOC recently voted to approve a Notice of Proposed Rulemaking to conform its ADA regulations to the Amendments Act of 2008. The NPRM was published in the Federal Register on September 23, 2009.

Some highlights of the proposed rule:

• The definition of “disability” is to be broadly interpreted.

• With regard to “substantially limiting a major life activity,” the limitation no longer needs to be significant nor severely restrict a major life activity.

• Greatly expanded the definition of “major life activities.”

• Provides that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability." This is far beyond the limitations that were the result of several Supreme Court cases several years ago and what many consider a major influence for the proponents of this new law.

• An impairment that is in “remission” or “episodic” a disability if it would substantially limit a major life activity when “active."

• Now an applicant or employee who is subjected to an action prohibited by the ADA because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor.

• An individual covered only under the “regarded as” prong are not entitled to reasonable accommodation by the employer.

• With respect to vision, it provides that standards, tests, or other selection criteria based on uncorrected vision cannot be used unless they are shown to be job-related and consistent with business necessity.

The EEOC has also issued a Question and Answer Guide on the Notice of Proposed Rule Making which, surprisingly, is rather terse and, well, understandable!

Follow these links: 

EEOC - Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended

EEOC Notice Concerning The Americans With Disabilities Act (ADA) Amendments Act of 2008

EEOC Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008

Posted By Diane Pfadenhauer In Employment Law | Permalink

This time, the question is whether an employer can be held liable for injuries occurring in a car accident in an employees commute home?  Well, if you are in California, the answer may be yes.  In an interesting case involving Warner Brothers, an employee was traveling his usual commute home, although this time from a business conference (not his regular job) and was involved in an accident resulting in several injuries.  Injured pedestrians sued Warner Brothers for the negligence of its employee.  An appellate court found liability on the part of the employer by noting that the drive home from the conference was more like a "special errand" for the employer rather than a commute home (even though it was essentially the same route) and thus fell within the scope of his employment.  

Follow this link to:  C. Jeewarat, et. al. v. Warner Brothers Entertainment

Hat tip to fellow Lexbloggers at the California Labor and Employment Law Blog for bringing this to our attention.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

There has been a great deal of speculation about increased government enforcement in the wake of the recession and the new administration in Washington.  Well, now the rubber has hit the road.  Asserting that "employment and labor laws are regularly and systematically violated," the US Department of Labor has begun the process of hiring hundreds of new employees to focus on enforcement of federal labor laws.  According to US Secretary of Labor, Hilda Solis, "Beginning this year and into 2010, I am hiring an additional 250 new wage and hour investigators so we can continue to effectively monitor wage and hour violations. During the first six months of this year, the Department of Labor already has recovered more than $82 million in back wages for nearly 107,000 minimum wage workers."

In addition, the Wall Street Journal reports the following:

• There will be 150 investigators added in the Wage and Hour division to enforce wage rules and child-labor laws.
• 100 staff will be added to ensure contractors on stimulus projects are in compliance with applicable laws, increasing the division's staff by more than one-third.
• The Employee Benefits Security Administration is adding 75 staffers to conduct nearly 600 more criminal and civil investigations.
• The Occupational Safety and Health Administration recently formed a task force to design an enforcement program for severe violators.

Follow this link to: Secretary Solis' Press Release

Follow this link to WSJ's article:  Labor Department to Tighten Scrutiny

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , Wage & Hour | Permalink

The Equal Employment Opportunity Commission recently issued some friendly guidance on the subject of waivers and releases.  It provides a question and answer format to remind employers of their obligations with respect to waivers in general and with respect to waiver of age discrimination claims.  In addition, the document provides a checklist for employees to consider when offered severance by their employers and provides a sample waiver and release for consideration.

Follow this link to: Understanding Waivers of Discrimination Claims in Employee Severance Agreements

Posted By Diane Pfadenhauer In Employment Law | Permalink

Textual Harassment?  I recently reviewed a friend's cell phone bill. Her 14 year old son had sent 2500 text messages that month. Seems now that such frequency is not limited to 14 year olds. Your employees are texting and they're not being very nice. It used to be that email was considered the smoking gun of workplace investigations. If that's so, then text messages are now the exploding cannon!

According to a recent article in the National Law Journal (subscription required), “Perhaps the biggest culprits...are male bosses who are sending scandalous text messages to female employees, asking them out on dates or promising promotions in exchange for sexual favors. These texts are explosive evidence in lawsuits, and pretty tough to dispute.”

The article further cites a recent case where two collegiate athletes received a large settlement from a university after alleging that they were sexually harassed by their coach. He had apparently sent text messages which were useful in helping their claims.

As we've said here before, social media and technology policies are a must for every organization!

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Trends | Permalink

The EEOC recently voted to approve a proposed Notice of Proposed Rulemaking (NPRM) to conform its ADA regulations to the American's With Disabilities Amendments Act (ADAA). The proposed NPRM is now sent for comment by other federal agencies. When this process is completed, the Commission will publish its NPRM for public comment.

The ADAA makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. These changes will broaden the scope of those individuals who are considered disabled under the law.

Here are some notable changes identified by the EEOC:

The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

• directs EEOC to revise that portion of its regulations defining the term "substantially limits";

• expands the definition of "major life activities" by including two non-exhaustive lists:

  • the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);

  • the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");

• states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;

• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

• changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;

• provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

EEOC Press Releases: Notice Concerning the ADAA

The Americans With Disabilities Amendments Act  (It's not that long.  Really, I promise!)

Posted By Diane Pfadenhauer In Employment Law | Permalink

For those considering hiring teens this summer, these links to pages on the USDOL website offer useful information for compliance with state labor laws relating to minors. The first is a Summary of State Laws Concerning Child Labor Standards Affecting Minors Under 18. In addition, this link provides a summary of Employment/Age Certification Issuance Practices Under State Child Labor Laws.

For those in New York, here is the link to the New York State Department of Labor's information on child labor law.

Now there are no excuses for making mistakes when hiring minors this summer.

Posted By Diane Pfadenhauer In Employment Law , New York Law , Staffing, Recruitment, Selection | Permalink

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a Notice of Proposed Rule Making implementing employment provisions of the Genetic Information Non-Discrimination Act of 2008 (GINA). Title II of GINA, which relates to employment, goes into effect on November 21, 2009.

GINA, which was signed into law last May, prohibits discrimination by health insurers and employers based on genetic information. Title II of GINA (the subject of the proposed regulations), prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.

Some Basics About GINA:

Title I amends portions of the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code, addresses the use of genetic information in health insurance.

Title II prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.

Title II applies to private and state and local government employers with 15 or more employees, employment agencies, labor unions, joint labor-management training programs, Congress and federal executive branch agencies.

What is “genetic information?”

Genetic information includes, “information about an individual’s genetic tests, genetic tests of a family member, and family medical history.” It does not include “information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder.”

Prohibited Employment Practices:

Generally, GINA prohibits the use of genetic information in connection with any terms or conditions of employment. In addition, employers cannot intentionally acquire information and imposes additional confidentiality requirements with respect to genetic information. GINA's confidentiality provisions impose similar requirements on genetic information as that required under the Americans With Disabilities Act. With regard to remedies, The same remedies available under Title VII are available under GINA.

Follow These Links to:

EEOC Proposed Regulations Under the Genetic Information Nondiscrimination Act 
of 2008
Questions and Answers on the Genetic Information Nondiscrimination Act of 2008

Posted By Diane Pfadenhauer In Employment Law | Permalink

Part of the AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 deals with the subject of transit benefits.  Previously, employers could offer a benefit to employees to permit them to spend $120 of pre-tax income in an employer-sponsored commuter benefits program and then use this money to pay for mass transit.  ARRA raises the commuter mass transit benefit to $230 per month which is equivalent to over $1000/year.  I know when I was commuting daily to New York City a few years ago, the $120 barely made a dent in my commuting costs.  With the seemingly annual increases in subway and train fares, this is a badly needed increase.

The new amount is intended to be equivalent to the amount previously available for parking and is intended to be indexed in 2010. 

See the following - page 13 - for a brief summary of the subsidy.  THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 – FEBRUARY 12, 2009 - FULL SUMMARY OF PROVISIONS FROM SENATE FINANCE, HOUSE WAYS & MEANS COMMITTEES

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , Policies & Procedures | Permalink

President Obama issued three Executive Orders applicable to labor law, which, in part, specifically reversed policy under President Bush.  And, its time for the DOL to update it's website for our new President.

Here are the new Executive Orders:

Economy in Government Contracting
This Executive Order specifically prohibits federal contractors from using federal monies received under their contracts to persuade employees not to join a union.

Non displacement of Qualified Workers under Service Contracts
The second Executive Order creates rights for employees of federal contractors when a contract changes hands to continue employment with the successor employer. New federal service contracts covered by the Service Contract Act must now contain language specifically addressing this right. The successor employer cannot hire new employees until all of the employees of the previous employer have been offered jobs. This Order is viewed by many as one that will perpetuate union security in the successor firm.
 

Notification of Employee Rights under Federal Law
The third Executive Order essentially kills the Beck Notice. The Beck Notice requirement issued under the Bush administration have been revoked. The Beck notices was a requirement that federal contractors provide notice to employees of the fact that unions could not use member dues for issues unrelated to collective bargaining without the consent of the members. The Beck Notice was required as a result of the holding in a Supreme Court case. The US Department of Labor has been directed to issue a new notice which will replace the Beck Notice which will also provide information to employees about their right to form and join a union.

We should be seeing further guidance from the Department of Labor on these Orders.  Times, they are a changin'! 

OK, so why does the DOL need to update its site?  When I searched on the DOL website for "Obama," the site thought I made an error and suggested I might try "Osama."  Maybe we can get the DOL to update their search engine soon?!

Posted By Diane Pfadenhauer In Employment Law | Permalink

The US Department of Labor recently issued its long-awaited Final Rule under the Family & Medical Leave Act.  The 200+ page document provides commentary and discussion regarding the proposed rules and the Departments rationale for the final rules provided.  There are significant changes to what already is a very technically complex and difficult statute.  To begin with, here is a very basic overview of some of areas of the law affected by the new rules.  There are a variety of training programs, seminars and overviews of these rules available as these changes are far too numerous and complex to include in a simple blog post.  We are working with our clients to help them understand these changes and modify their policies and practices accordingly.

For Military Personnel:

• Military Caregiver Leave (also known as Covered Servicemember Leave)
• Qualifying Exigency Leave
• Two new DOL certification forms that may be used by employees and employers to facilitate the certification requirements for the use of military family leave.

Changes to the Overall Regulations:

• Modification to penalty provisions
• Changes to the how Light Duty is treated in connection with FMLA
• Waivers of FMLA rights
• Six individual definitions of “Serious Health Condition”
• Substitution of paid leave for FMLA leave
• Attendance awards
• Employer and Employee Notice requirements
• The Medical Certification process
• Fitness for Duty Certifications

For more information on the Final Rule, follow these links:

An Overview:  DOL's Final Rule on Family and Medical Leave

The DOL's Final Rule Website

From the Federal Register:  The Family & Medical Leave Act of 1993; Final Rule

Posted By Diane Pfadenhauer In Employment Law , FMLA , Policies & Procedures | Permalink

The new Americans with Disabilities Act Amendments Act of 2008 (ADA A) was signed into law in September and becomes effective on January 1, 2009. There are some interesting changes to judicial interpretations of the original law which many allege had watered down the protection available under the law. Therefore, the new amendments are generally tailored to reverse some of those holdings and some of the regulatory interpretation. Here is a basic overview of the changes:

• The EEOC must now revise its regulation which define the term "substantially limits";

• The Act expands the definition of "major life activities" by including two non-exhaustive lists, one relating to many currently recognized by the EEOC and one that relates to major bodily functions.

• Reverses judicial interpretation of the original law and now requires mitigating measures other than "ordinary eyeglasses or contact lenses" cannot be considered in assessing whether an individual has a disability;

• Adds and clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

• Clarifies and provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and

• Asserts that the definition of "disability" should be interpreted broadly.

For text of the law from the Congressional Record follow this link to The ADA Amendments Act of 2008

Posted By Diane Pfadenhauer In Employment Law | Permalink

EEOC Compliance Manual Section 12 - Religious Discrimination

1. Coverage issues, including the definition of “religion” and “sincerely held,”

2. Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.

3. Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.

4. Reasonable accommodation analysis

5. Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

Questions and Answers: Religious Discrimination in the Workplace

Best Practices for Eradicating Religious Discrimination in the Workplace

Employment Discrimination Based on Religion, Ethnicity, or Country of Origin

QUESTIONS AND ANSWERS ABOUT THE WORKPLACE RIGHTS OF MUSLIMS, ARABS, SOUTH ASIANS, AND SIKHS UNDER THE EQUAL EMPLOYMENT OPPORTUNITY LAWS

QUESTIONS AND ANSWERS ABOUT EMPLOYER RESPONSIBILITIES CONCERNING THE EMPLOYMENT OF MUSLIMS, ARABS, SOUTH ASIANS, AND SIKHS

Posted By Diane Pfadenhauer In Employment Law | Permalink

"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

-          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. 

-     

Posted By Diane Pfadenhauer In Employment Law , FMLA | Permalink

• 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.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Some of the assessments that employers use include cognitive tests, physical ability tests, sample job tasks, medical inquiries, personality and integrity tests, criminal background checks, credit checks performance appraisals and language fluency tests.

The EEOC makes several recommendations with regard to tests and assessments, some of which are more obvious that others. Here are a few that I often see overlooked:

• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used.

• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. Many employers don't even know if this is the case.

• To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly. When was the last time you reviewed your job descriptions?

• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. I am sure your managers know very little about the legal implications of all of this and my be implementing assessments or tests with good intentions. However, they should seek guidance before doing so.

Posted By Diane Pfadenhauer In Employment Law , Staffing, Recruitment, Selection | Permalink

• up to 10% of workers were misclassified in audits between 2002 and 2005.
• enforcement can be achieved through inter-agency cooperation, information sharing, and joint enforcement/prosecution

Posted By Diane Pfadenhauer In Employment Law , New York Law | Permalink

 "The revised regulations clarify that the Age Discrimination in Employment Act (ADEA) does not prohibit employers from favoring an older employee over a younger one when both are protected by the Act."

Posted By Diane Pfadenhauer In Employment Law | Permalink

1) verifying within 30 days that the mismatch was not the result of a record-keeping error on the employer’s part;
2) requesting that the employee confirm the accuracy of employment records;
3) asking the employee to resolve the issue with SSA;
4) if these steps lead to resolution of the problem, follow instructions on the no-match letter itself to correct information with SSA, and retain a record of the verification with SSA; and
5) where the information could not be corrected, complete a new I-9 form without using the questionable Social Security number and instead using documentation presented by the employee that conforms with the I-9 document identity requirements and includes a photograph and other biographic data.
Employers unable to confirm employment through these procedures risk liability for violating the law by knowingly continuing to employ unauthorized persons.

Posted By Diane Pfadenhauer In Employment Law | Permalink

• how to handle required job postings now that the America's Job Bank is gone.  Previously we posted that about a month and a half ago we were hard pressed to find states that had available sites easily accessible.  In the bitter end of June, many of them were continuing to link back to America's Job Bank!
• Coverage for contractors who had contracts prior to December 1, 2003 and a discussion of  requisite $$ coverage and relevant regulations.
• A discussion of "veteran" including the old definitions of Viet Nam Era Veterans, and Special Disabled Veterans.  In addition, there are definitions of new categories of protected veterans including:
  • Disabled Veteran -- (1) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or (2) A person who was discharged or released from active duty because of a service-connected disability.

    Recently separated veteran -- any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval or air service.

    Armed Forces service medal veteran -- any veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.

    Other protected veteran -- a veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense.

Prior to amendment by the Jobs for Veterans Act (JVA), the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and its implementing regulations at 41 CFR 61.250 required all contractors and subcontractors with Federal contracts in excess of $25,000 to report their efforts toward hiring and employing veterans in four specified categories: veterans of the Vietnam era, special disabled veterans, other protected veterans and recently separated veterans. JVA raised the VETS-100 reporting threshold from $25,000 to $100,000 for contracts awarded on or after December 1, 2003, and modified the report categories of veterans to: disabled veterans, other protected veterans, Armed Forces service medal veterans, and recently separated veterans (41 CFR 61.300 in clearance). Additionally, JVA will require Federal contractors and subcontractors to report the total number of all current employees in each job category and at each hiring location.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The USDOL has recently issued the new Federal Wage and Hour poster that will become effective when the minimum wage goes up on July 24.  Instead of running out and buying new posters, throw out those warning letters from all of those companies trying to sell you stuff and get it for FREE on the DOL's website:

New 2007 Federal Minimum Wage Poster

Posted By Diane Pfadenhauer In Employment Law | Permalink

"The 15,000 comments from workers, employers and others attest to the importance of family and medical leave for America’s caregiving workforce," said Victoria A. Lipnic, assistant secretary of labor for the department’s Employment Standards Administration. "While family and medical leave is widely supported, we also heard from many workers and employers that there are challenges with the way certain aspects are being administered. This report provides information for a fuller discussion about how some of the key FMLA provisions and their interpretations have played out in the workplace."

• The DOL's Press Release - Report on FMLA Request for Information issued by U.S. Department of Labor
• The Executive Summary
• The Request for Information Website
• The Whole Report - a mere 181 pages

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law | Permalink

“Today employers commonly use a range of employment tests and other screening tools to make hiring, promotion, termination or other employment decisions,” said EEOC Chair Naomi C. Earp. “With the growth of technology, buttressed by post-9/11 security concerns, it is important that employers review their applicant selection procedures to ensure they are non-discriminatory.”

• written tests
• criminal and credit histories as a basis for selection
• medical exclusions in hiring
• employer best practices
• the increased use of personality and integrity tests.

"Following an EEOC determination that the city’s use of the examinations violated Title VII, the Justice Department conducted its own investigation and determined that the city’s use of the [written] examinations also constituted a pattern or practice of discrimination against both black and Hispanic applicants."

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Staffing, Recruitment, Selection | Permalink

• Sex-based Disparate Treatment of Female Caregivers
• Unlawful Disparate Treatment of Female Caregivers as Compared with Male Caregivers
• Unlawful Gender Role Stereotyping of Working Women
• Gender-based Assumptions About Future Caregiving Responsibilities
• Mixed-motives Cases
• Assumptions About the Work Performance of Female Caregivers
• “Benevolent” Stereotyping
• Effects of Stereotyping on Subjective Assessments of Work Performance
• Pregnancy Discrimination
• Discrimination Against Male Caregivers
• Discrimination Against Women of Color
• Unlawful Caregiver Stereotyping Under the Americans with Disabilities Act
• Hostile Work Environment
• Retaliation

Posted By Diane Pfadenhauer In Employment Law | Permalink

Currently, 11 states are considering legislation that would give victims of abuse like taunting and yelling the right to sue for damages. They are Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon and Washington.

"...malicious conduct by supervisors that hurts employees either physically or psychologically. Mental health harm could include humiliation, stress, loss of sleep, severe anxiety and depression. The bill also would punish retaliation of the complainant or anyone who helps the complainant."

Posted By Diane Pfadenhauer In Employment Law 1 Comments | Permalink

• 31% of Asian Americans surveyed reported having witnessed or experienced incidents of discrimination, the largest percentage of any ethnic group, followed closely by 26% of African Americans, the second largest group

• 84% of 328 Blacks/African Americans and 66% of 703 non-Hispanic Whites/Caucasians think racism is a ”very serious” or “somewhat serious” problem in America.
• With a growing number of interracial marriages and families and increased immigration, racial demographics of the workforce have changed and the issue of race discrimination in America is multi-dimensional. Over the years, EEOC has received an increasing number of race and color discrimination charges that allege multiple or intersecting prohibited bases such as age, disability, gender, national origin, and religion.
  
• Overt forms of race and color discrimination have resurfaced. In the past decade, some of the American workforce have witnessed nooses, KKK propaganda, and other racist insignia in the workplace. Racial stereotypes and cultural distortions continue to influence some decisions regarding hiring, discipline, evaluations, and advancement.
  
• Some facially neutral employment criteria are significantly disadvantaging applicants and employees on the basis of race and color.
  

Posted By Diane Pfadenhauer In Employment Law | Permalink

1. Know your workplace.
2. Always review every termination.  Know who the employee is and be sure you know your supervisors.   Don't just rely on paperwork and someone else's word - verify!  All too often I end up conducting an investigation or reviewing a separation after the fact because the HR professional failed to independently verify the allegations surrounding the termination.
3. Even if the employer is ultimately not liable here - just think of what the legal fees must be to defend this all the way to the Supreme Court - Ouch!

Posted By Diane Pfadenhauer In Employment Law | Permalink

• prohibiting the sale, fraudulent transfer, or solicitation of a consumers telephone records without consent from the consumer.
• placing limits on the use and dissemination of this Social Security numbers – it,
  

• prohibits the intentional communication of an individual’s SSN to the general public;
• restricts businesses’ ability to print an individual’s SSN on mailings or on any card or tag required to access products, services, or benefits; 
• prohibits businesses from requiring an individual to transmit his or her encrypted SSN over the Internet; and
• requires businesses that possess Social Security Numbers to implement appropriate safeguards and limit unnecessary employee access to them.
  

• New York State’s Penal Law has been revised as it pertains to the unauthorized use of computers. This law strengthens existing law to allow for the prosecution of those who intentionally disrupt, steal personal information, and plant malicious programs on consumer’s computers without authorization.

• The Security Freeze Law - which allows consumers, who are either identity theft victims or are concerned that they might be at risk of having their identities stolen, to cut off an identity thief's access to credit, loans, leases, goods and services by placing a “freeze” on their consumer credit report.
• The Disposal of Personal Records Law - requires any business to properly dispose of records containing personal information through one of the following means: shredding, destruction, modification, or other reasonable action to ensure that no unauthorized person will have access to the personal information.
  
• The Anti-Phishing Act of 2006 - prohibits the deceptive solicitation of personal information through electronic communications. “Phishing” accounts for nearly 25% of all Internet fraud.
  

Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures | Permalink

A recent article discusses a former Lockheed employee who was upset by the fact that he felt his complaints to the company and the Coast Guard regarding what he believed to be safety flaws in boats sold to the Coast Guard went unheeded.  After several complaints, he took his case to YouTube.  Alleging he faced retaliation for his complaints, the employee is no longer working at Lockheed.

I reported earlier about a Comcast employee recorded sleeping on an unhappy customer's couch.  In terms of managing public perception, this is yet another vehicle for unhappy employees and customers to tarnish the image of companies.  While you may believe the complainers are wrong, it is important to take these issues very seriously lest your company end up all over YouTube as well.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Rutgers University recent issued a press release quoting a Rutgers prof who notes that:   

"...the fast and relentless pace of technology-enhanced work environments creates a source of stimulation that may become addictive. While addiction to work has been a widespread phenomenon for some time, ...employers may face legal liability for these addictions."

In addition:

"...if an employer manipulates an individual’s propensity toward workaholism or technology addiction for the employer’s benefit, the legal perspective shifts. When professional advancement (or even survival) seems to depend on 24/7 connectivity, it becomes increasingly difficult to distinguish between choice and manipulation.”

How nice, another reason to sue....

Posted By Diane Pfadenhauer In Employment Law , Miscellaneous , Trends | Permalink

The California Labor Law Blog and Inhouse Blog refer to a useful list of important concepts that out of state employers need to know about California employment laws.  I'll list them here, but you have to refer the the locals (that would be the Californians, not us New Yorkers) for the details.  Follow this link.

1. Meal and Rest Period Penalties
2. California Overtime Exemptions Are Based on “Counting Hours” Test.
3. Daily Overtime and Double-Time
4. Mandatory Sexual Harassment Training for Supervisors
5. No “Use-It-Or-Lose-It” Vacation Policy
6. California’s “Baby WARN Act”
7. Strict Final Paycheck Requirements
8. Profit Based Bonuses Are Potentially Illegal
9. Employees Are More Likely To be Deemed “Disabled.”
10. Covenants Not to Compete Are Generally Unenforceable.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The New York State Workers Compensation Alliance has a detailed post on recent amendments to New York State's Workers' Compensation Law.    These changes were enacted in the most recent legislative session.  Everything from spinal implants, lyme disease, 911 injuries, self-insurance and so on are covered by this lengthy analysis, with understandable explanations. 

Posted By Diane Pfadenhauer In Employment Law , New York Law | Permalink

The Department of Homeland Security (DHS) has issued proposed regulations which will provide guidance to employers when they receive a "no match" letter from either the DHS or the Social Security Administration (SSA).  The DHS sends out such a letter to an employer when the immigration-status or employment-authorization documentation presented or referenced by the employee is inconsistent with its records. The SSA sends out a "no match" letter when the combination of name and social security number submitted for an employee does not match.

Here's how the new regulation would work.  Upon receipt of such a letter, an employer would be required to take "reasonable steps" or the DHS could take the position that the employer has "constructive knowledge" that the individual's status was in violation of immigration law.  These reasonable steps would include:

• Within 14 days, correct and clerical errors in an employee's records or other communications with the government (such as transcription errors);  Request that the employer confirm the correctness of the previously provided information and instruct him/her to resolve the issue directly with the SSA; Verify with either the SSA or DHS that the matter has been resolved by providing relevant documentation.
• After 60 days, if the employer still cannot verify the legal status of the individual, it must then, within 3 days, attempt to verify the employee’s identity/work authorization.  This might include having the employee complete a new I-9 form.  However, if relying on the I-9:
  • the employer cannot rely upon a document which contains the Social Security number or alien number identified in the no-match notice
  • the employer cannot rely upon a receipt of an application for a replacement for the document in question.
  • the document relied upon by the employer must contain a photograph of the employee in order to establish identity or identity and employment authorization
• If, at this point, the no-match issue cannot be resolved or the work authorization verified, the employer would be required to terminate the employment of the individual or face government action.
• Following these procedures is considered a Safe Harbor under the regulations.  An employer who follows these would be deemed to have acted in "good faith."  In addition, failure to respond to a no-match letter in a timely and appropriate manner would now be considered evidence of “constructive knowledge” that an employee is an unauthorized alien.

The comment period for these proposed regulations is August 14th.  In addition, these proposed regulations were announced with another proposed regulation on electronic storage of I-9 forms.  For more information, follow these links:

• DHS Press Release on No-Match Data Sharing

• Proposed Rule on Electronic Signature and Storage of Form I-9, Employment Eligibility Verification

• Proposed Rule on Safe-Harbor Procedures for Employers Who Receive a No-Match Letter

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

• Michael Fox, has a list of news coverage and commentary on the ruling - generally with the theme that the ruling is pro employee.
• Ross Runkel has a clear analysis of what the standard is under the ruling
  

"...the anti-retaliation provision...does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

Posted By Diane Pfadenhauer In Employment Law | Permalink

This summary of state drug testing laws enacted in 2005 provides a nice overview of various state laws on this subject. Legislation was enacted in the following states:
- California - Testing of Drivers of School Vehicles
- District of Columbia - Testing of Public-Sector Employees/Those with Direct Access to Children
- Maine - Notification of Test Results; Confirmation Tests
- Minnesota - Random Testing of Professional Athletes
- Montana - Oral Fluids Testing Permitted; DOT Regulations Mirrored
- North Carolina - Reporting to State of CDL Driver Positives
- South Dakota - Testing of Public-Sector Job Applicants
- Tennessee - Drug Testing of Employee/Drivers for Childcare Agencies
- Texas - Reporting to State of CDL Positives
- Washington - Reporting to State of CDL Positives and Refusals-to-Test

Thanks to the Jackson Lewis Legal Update and its reference to The Institute for a Drug-Free Workplace for this information.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Interesting case from the 5th Circuit found by Ross regarding the question of whether the Family and Medical Leave Act's 50 employee threshold can be overcome by estoppel. In the case of Minard v. ITC Deltacom (5th Cir 04/18/2006) The Fifth Circuit Court of Appeals held that:

"an employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an "eligible employee" and entitled to leave under FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage, if the employee reasonably relies on that representation and takes action thereon to her detriment."

In other words, the employer told her she was eligible for Family/Medical Leave, when she really wasn't as they later claimed that they had fewer employees. Moral of the story: count your employees.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Most of us by now know that we need to comply with the requisite leave laws in the various states in which we operate and the Family and Medical Leave Act if it applies. The difficult question concerns an employee who has exhausted leave under the FMLA or is not eligible. If a leave of absence could be considered a reasonable accommodation under the American's With Disabilities Act, how long is reasonable? Related to this is the need for an employee to have a modified work schedule.

The folks at the Workplace Prof Blog have identified a case which deals with this very issue:

"In Schierhoff v. GlaxoSmithKline, No. 05-1552 (8th Cir. Apr. 14, 2006), an employee was absent from work during a two year period over 40% of the time and had accumulated 172 days worth of absences. At that point, the company fired him finding that his absences "ha[d] impaired the operation of the Department and diminished [his] effectiveness to the Company. On the disability discrimination claim, the court found that the amount of absences that the employee had taken basically amounted to him not being able to perform the essential functions of the job. In other words, the Court seemed to suggest that because he was no longer a "qualified" individual with a disability, the company no longer had to provide him with an accommodation under the ADA."

While this doesn't provide us with a bright line answer, it helps (a little).

Posted By Diane Pfadenhauer In Employment Law | Permalink

As a follow up to my post the other day regarding the woman who sued her employer alleging that she was spanked during a team building exercise, a jury award was announced today awarding her $500,000 in damages. According to CNN:

"The jury of six men and six women found that Janet Orlando was subjected to sexual harassment and sexual battery when she was paddled two years ago at Alarm One Inc., a home security company in Fresno."

The next phase of the trial, to determine if she will be awarded punitive damages, will begin shortly. While some in the blogosphere have made light of this and harped on the humor associated with all of this, the reality is that there are unfortunately many people making decisions in the workplace that have a complete lack of common sense and professionalism. Sadly, I guess that is what keeps a lot of HR professionals and employment lawyers busy.

Posted By Diane Pfadenhauer In Employment Law | Permalink

This video, of one of the most "interesting" depositions I've seen, cannot be adequately described. You must see for yourself. Warning: if laughing out loud is not appropriate in your workplace, view at home. It shows lawyerly decorum at its best!

Posted By Diane Pfadenhauer In Employment Law | Permalink

This interesting little article from CNN describes how a 53-year-old plaintiff is seeking $1.2 million for allegedly being spanked at work. Yup, that's right. According to the article,

"Employees were paddled with rival companies' yard signs as part of a contest that pitted sales teams against each other, according to court documents. The winners poked fun at the losers, throwing pies at them, feeding them baby food, making them wear diapers and swatting their buttocks."

Apparently, attorneys for the company said the spankings were part of a voluntary program to build camaraderie and were not discriminatory because they were given to both male and female workers.

So, my only question is.... Who on earth thought of this idiotic team building activity?

Posted By Diane Pfadenhauer In Employment Law , Weird News | Permalink

The Equal Employment Opportunity Commission has issued new guidance on race and color discrimination. The new compliance manual is available here. A summary is provided here.

Kudos to Ross Runkel for bringing this to our attention.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Ross has two great posts on his Employment Law 101 Bog (which I highly recommend) explaining and discussing discrimination against transsexuals and discrimination based upon sexual orientation. I find that people often people become confused when looking at Title VII's definition of discrimination "because on sex." Rather than attempt to restate what Ross explains clearly, see lessons 32 and 33 on his blog.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The Supreme Court will hear oral argument today in the case of Plaintiff Sheila White and Burlington Northern Santa Fe Corp. Ms. White alleges that following her report of sexual harassment and the suspension of her supervisor as a result, she was reassigned to dirtier work on the tracks, even though her job classification stayed the same.

According to the EEOC, about 30% of all charges are retaliation claims. In fact, it is not uncommon for claimants to win on the retaliation charge after their underlying discrimination charge is dismissed. See my recent posts on this very subject here, here and here.

The question the Court will have to grapple with is helping us to understand what retaliation really is. In other words, when is a seemingly simple management decision (i.e. to reassign work or transfer an employee) just that and when is it retaliatory? We'll soon find out.

In the mean time, here are some suggestions that many organizations miss in their preventive practices:
1. Make sure your training deals specifically with the subject of retaliation - not a gloss over but in-depth discussion of what it is AND what managers and employees obligations are.
2. Make sure your policy deals with it specifically - again not a gloss over.
3. Make sure when you have completed an investigation, that you take further steps to a) follow up with the claimant to ascertain whether there is retaliations, AND, b) to observe subtle patterns of behavior in the workplace. The end of your investigation is not the end of your responsibilities.

Posted By Diane Pfadenhauer In Employment Law , Workplace Investigations | Permalink

This quick post on the Workplace Prof Blog reminds us of the importance of properly classifying employees. I can't tell you how many times someone has told me that there are two types of employees - regular ones and "1099 employees." The notion of a 1099 means that the employer is treating the person as an independent contractor, not an employee. The post identifies an employer in California being sued by the Department of Labor for a mere $900,000 for misclassifying its employees as independent contractors. Here's the problem as I see it:

First, there will be one lonely person who you have classified as an independent contractor. After their "employment" ends with your firm, they will do what most other unemployed persons do - file an unemployment claim stating your firm employed them.

Next, you will try to claim that the person was one of those "1099 employees" (grrrrrr.... makes me crazy) and not a real employee. If you're really smart, you have the employee sign something.

Then, guess what?! - you lose the unemployment claim. Then the real fun happens:
1. First the unemployment compensation audit - oops, you didn't pay enough.
2. Second, the IRS audit - after all, you did not withhold taxes and FICA
3. Third, the workers' compensation audit.....
4. Fourth, the "employee" now wants part of your pension and other benefits plans
5. Oh, and don't forget that lawsuit by the DOL because your records are not in order and you didn't pay over time...

Bottom line, unless you can prove, based on control, that the individual is not your employee - they are! I tend to take a very conservative view of this for the obvious potential headaches listed above.

For more on this subject, go to the IRS Guidance Here.

Posted By Diane Pfadenhauer In Employment Law | Permalink

A recent case in the Washington D.C. concerned a plaintiff who alleged that the Library of Congress did not hire her because she was a transexual. According to the Workplace Prof Blog - quoting the court in the case:

"the court nevertheless concluded that "the failure of numerous attempts to broaden Title VII to cover sexual orientation says nothing about Title VII's relationship to sexual identity, a distinct concept that is applicable to homosexuals and heterosexuals alike."

Stay tuned.

Posted By Diane Pfadenhauer In Employment Law | Permalink

All too often I hear of the human resources professional being dragged into litigation - either being sued personally, or being abandoned by an employer who, during the heat of litigation, states that the HR professional's actions were not in the scope of their employment or contrary to policy.

This articulate post on the Kentucky Employment Law Notes blog discusses a recent case against a Human Resources Manager in connection with statements made in an employee termination meeting. The plaintiff alleged that the statements made by the Human Resources Manager, in the presence of a witness, were defamatory. The author offers some worthy advice:
"(1) Conduct termination meetings in a closed door environment.
(2) If a witness is to be present at the termination meeting, select a witness with some legitimate, business need to know the reasons for termination and/or to be present at the meeting.
(3) Be able to articulate concrete facts that support the allegations made against the employee.
(4) Be able to articulate the reasonable steps the Company took to investigate the allegations against the employee, and...be able to prove the Company did not conduct a one-sided investigation."

Thanks to our northern neighbor, Michael Fitzgibbon for bringing this to our attention.

Posted By Diane Pfadenhauer In Employment Law , Workplace Investigations | Permalink

A while back I discussed the importance of understanding how a retaliation claim can often be worse than the original claim. This is something I emphasize in training that I do. Ross Runkel has an interesting post explaining the law behind this concept. He notes that the provision of Title VII which prohibits discrimination is different from the provision that prohibits retaliation, noting that the latter is far more encompassing. Ross does a better job explaining it than I probably would, so take it away Ross.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Michael Fox's recent post on a naughty employee who wiped out the hard drive on his laptop should make bitter employers happy. In this case, the employee in question allegedly used a program to erase his laptop so that his employer could not see the "no good" he was up to. According to Michael: "The employee had been hired to help his employer identify properties which it might want to acquire. After deciding to go into business for himself (in violation of his employment agreement), he deleted data from his company issued laptop, including both data that the company did not have and data which would have shown the improper conduct he engaged in. He made sure the evidence could not be recovered by loading an erasure program which by writing over the deleted files prevented recovery of the missing data."
Many employers, typically smaller employers, typically resign themselves to giving up when an employee walks off with an computer and if the employee erases information. Now I think that employers may think twice before giving up. In this case, the employer is permitted to continue with its lawsuit against the employee.

Posted By Diane Pfadenhauer In Employment Law | Permalink

A recent case in New Jersey raises the obligation of employers who learn that one of their employees is surfing illicit pages on the web. In Doe. v. XYC Corporation an appellate court in New Jersey held that when an employer has notice that one of its employees is using its work computer to access pornography (or in this case child pornography) that it has the obligation to investigate and put a stop to it.

The court held:
"We hold that an employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee's activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer"

In this case, the employee had a history of using his workplace computer to view pornographic sites. In addition, he transmitted several photographs of his stepdaughter on his workplace computer to a child porn site. He was later arrested.

The Court further noted:
"...Given the public policy against child pornography, as reflected in these statutes, and the fact that "public policy favors the exposure of crime," ..., we agree with plaintiff that defendant had a duty to report Employee's activities to the proper authorities and to take effective internal action to stop those activities, whether by termination or some less drastic remedy."

All too often I hear of companies with less than stellar computer security systems turning a blind eye to employees who use the internet on company computers inappropriately. Perhaps they will now take more affirmative steps to stop the misconduct, even if it does not rise to the level of child pornography.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

Most reading on electronic discovery effectively discusses the traps for the unwary in litigation when electronic evidence is either destroyed or the organization fails to preserve documents in the face of litigation.  This list of blunders, by the folks at Nexsen Pruett provides a simple explanation of the 10 biggest mistakes made in electronic discovery.  In addition to a discussion about failing to preserve documents and directing employees to delete files, the article provides information that not only the legal community can use, but employers as well. 

I'll add my own blunder to the list  as number 11:  Failing to educate staff regarding electronic discovery.  In the investigations and expert witness work I do, it amazes me how your every day employee or manager thinks that it is appropriate to delete files and how they haven't a clue about the technology available which will allow the retrieval of information.  Don't you think employers would be better off if their employees and managers knew about this stuff and it wasn't just held secret by the legal department?

Posted By Diane Pfadenhauer In Employment Law | Permalink

A recent case in the Third Circuit demonstrates the dangers of retaliation claims under federal discrimination law.  According to this interesting article by the folks at Littler:

"...a cause of action predicated upon a hostile work environment is cognizable under the anti-retaliation provisions of Title VII, 42 U.S.C. §2000e-3(a). In doing so, the Third Circuit weighed in on a circuit split by joining a majority of courts of appeals that have recognized such a cause of action."

In addition,

"This holding was grounded in the court's prior recognition that "retaliatory conduct other than discharge or refusal to hire violates Title VII when it alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities or adversely affects his or her status as an employee." The court then noted that a discrimination claim founded on a hostile work environment is well-established based on the "notion that discriminatory ridicule or abuse can so infect the workplace that it alters the terms and conditions of an employee's workplace." It logically follows that, since harassment can be severe or pervasive enough to alter the terms or conditions of employment under the anti-discrimination provision of Title VII, the same must be true under Title VII's anti-retaliation provision."

I often tell people that it's not enough to have only prompt remedial action.  You need to be aware of what's going in the workplace to be able to notice ongoing activity which can be construed as retaliation.  Check up with the complainant some time after an investigation is over to make sure he/she is not being subjected to retaliation.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Last week New York City's "Equal Benefit Law" was struck down by the New York Court of Appeals.  The law required any contractor with contracts in excess of $100,000 with a city agency to provide benefits to domestic partners, equal to those provided to spouses.  The Court noted that the law was pre-empted by ERISA and another state statute relating to public works contracts.

Thanks to Ross for bringing this to our attention.  For more information (and a link to the opinion), view his post here.

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , New York Law | Permalink

Many organizations find themselves confronted by seemingly conflicting regulations when it comes to whether it is permissible to mandate that only English be spoken in the workplace.  Often employers consider such a requirement as a result of safety concerns, because of regulation in their particular industry or the desire to mitigate employee relations problems which may arise as a result of cultural differences in the workplace.

The EEOC provides some specific guidelines in this area and, not surprisingly, frowns upon such rules where they prohibit employees on breaks and meal periods from speaking a language other than English.  There is a fundamental difference between requiring employees to only speak English in the workplace and a requirement that they have the ability to read and write English.  The latter does not prohibit them from speaking other languages while the former does.  Follow this link for more on the EEOC's guidance on English Only Rules.

Posted By Diane Pfadenhauer In Employee Relations , Employment Law , Policies & Procedures | Permalink

Ross Runkel has an interesting blog that I've been watching for a while.  Called Employment Law 101, it provides a nice summary of the various elements of employment law starting with sources of the law and employment at will.  He updates it every Monday, Wednesday and Friday.  Take a look here.

Posted By Diane Pfadenhauer In Employment Law , Resources , Weblogs | Permalink

The Department of Justice has filed its first class action case again American Airlines under USERRA.  Allegedly three pilots were denied certain benefits during their military service.  For information see this article.

In conversations I have had with human resources professionals and other attorneys, most of them note that the issues arise when employees return and they are not sure what their obligations are.  Certainly there is enough information available to make sure this type of suit is not brought against your company.  I previously posted here on the new regulations that just went into effect as well as on other USERRA issues here and here

Source of post - The Employment Law Bulletin

Posted By Diane Pfadenhauer In Employment Law | Permalink

The minimum wage in New York State increased to $6.75/hour, effective January 1, 2006.  It will increase to $7.15 on January 1, 2007.  Now it's time to update that wage and hour poster.  Now all of those poster companies that annoy you with emails, faxes, and telephone calls will be inundating you with messages telling you that you will go to jail if you don't buy the poster from them.  To bad for them, you can get it here for FREE!

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , New York Law | Permalink

The Department of Labor has issued new regulations under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  For those of you interested in reading the 268 page document available on the DOL's website, go here.  However, an easier way to understand the regulations is also available - go to the DOL's USERRA Information Page.  Thanks to Professor Ross for bringing this to our attention.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

For those employers giving gifts to employees this holiday season, the IRS, according to this article, follows the general rule that a gift an employer gives to its employees is treated as compensation for services, past or future, and falls within the definition of wages for income tax withholding and payroll tax purposes.  So does that mean you have to add the value of the turkey to the employees' gross incomes?  Not so fast.  There are three exceptions, discussed in more detail in the article:

1. De minimis fringe benefits  - any property or service, the value of which, makes accounting for it unreasonable or administratively impracticable.  This might include occasional personal use of an employer's copying machine, occasional cocktail parties,  traditional birthday or holiday gifts of property (not cash) with a low fair market value, coffee and soft drinks, local telephone calls, flowers or similar property provided to employees under special circumstances (e.g., on account of illness, outstanding performance, or family crisis).  Cash, however, is never excludable as a de minimis fringe benefit because it is never administratively impractical to account for cash. This is true even if the cash is given so that the employee can obtain property that would be excludable as a de minimis fringe benefit - like the coupon for the turkey, instead of the turkey itself.

2. Qualified Disaster Relief Payments - any amount paid to or for the benefit of an individual to reimburse or pay reasonable and necessary personal, family, living, or funeral expenses incurred as a result of a "qualified disaster" (i.e. declared by the President).  Think Hurricanes Katrina, Rita and Wilma...

3. Employee Achievement Awards. These include awards that are given for length of service or safety achievement.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

Bet you never even heard of it!  Why?  Because it's not found in any New York wage payment law.  The regulation applies when an employer pays employees at or near the minimum wage  Generally, the rule applies when:

1. The employee's spread of hours' exceeds 10 hours (from the start of the day to the end of the day, including meal and break time).
2. When the employee works a split shift in the workday with nonconsecutive work hours.  Meal periods of one hour or less don't count to interrupt the continuity of the shift.

The employer is obligated to pay one hour of additional pay for each hour in excess of 10 hours and for each split shift.   If both situations occur, the employee gets 2 hours additional pay.  In other words, if the employee works 11 hours at NY's current minimum wage ($6.00 until January 2006 when it will go up to $6.75), it owes the employee 12 hours of pay.  If those 11 hours were the result of a split shift, it would owe the employee 13 hours pay for those hours.  These additional hours where the employee did not work are paid at the minimum wage.

So how does the employer get around this?  They should pay $6.60/hour if their work schedules would result in the instance where one additional hour would be owed (spread of hours or split shift), or $7.20/hour in the instance where work schedules would result in 2 hours being owed.

For those of you who want to try to figure this out yourself, good luck!  I actually can't even provide a link to the regulation as the state doesn't have it online!!  But, it can be found here 12 N.Y.C.C.R. Sec. 142-2.4 (if you remember what an actual library is!).

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , New York Law , Policies & Procedures | Permalink

There has been an explosive growth in background checks conducted by employers, since 09/11, on applicants and, more recently, current employees.  All to often, however, employers who are looking to skimp on price may find that the report is inaccurate or incomplete or that the company was sloppy in its collection of information.  This article in the Christian Science Monitor describes some of these problems. 

So who is doing background checks and what are they finding?  According to the article, approximately 80% of employers now conduct some sort of background check.  The results of these checks are interesting.  According to one survey, 41.6% had motor vehicle violations, 39% had bad credit, 26% had discrepancies on their  resumes, 8% had criminal records, 8.2% had inaccuracies about their education and 3.3% tested positive for illegal drugs.

The article reminds us that not all is so rosy in the industry.  Often, I suggest that you get what you pay for.  So many times I have seen background screens come back with questionable flags only because the company failed to verify or continue to search for accurate information.  It's the automated process of searching potentially inaccurate public record databases, human error or just plain negligence on the part of the screening company.  Much of this is caused by employers who don't want to spend the money to work with a reputable firm upon whose results they can rely.

Lest we also forget that the FACT Act also applies to background checks conducted by third parties.  There is a link on the sidebar on the left for more information.  In addition, see one of my previous posts on this subject here.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Trends | Permalink

Ross Runkel has a nice post outlining the new approved changes to the EEO-1 Form.  The new survey format will go into effect in 2007 and includes the following changes:

• Adding a new category titled "Two or more races not Hispanic or Latino";
• Separating "Asians" from "Pacific Islanders";
• Adding a new category titled "Asians not Hispanic or Latino";
• Adding a new category titled "Native Hawaiian or Other Pacific Islander not Hispanic or Latino";
• Extending the EEO-1 data collection by race and ethnicity to the State of Hawaii; and
• Strongly endorsing self-identification of race and ethnic categories, as opposed to visual identification by employers.
• Dividing "Officials and Managers" into two levels based on responsibility and influence within the organization: "Executive/Senior Level Officials and Managers" and "First/Mid-Level Official and Managers"; and
• Moving non-managerial business and financial occupations from the "Officials and Managers" category to the "Professionals" category.

Some of these changes are long overdue as our society becomes more diverse.  For years the EEOC has been discussing expanding the job categories.  It's nice to see that changes have finally come.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Instant messaging and other forms of electronic communication can pose serious problems for organizations.  This little article I wrote for Law Technology News describes some of the pitfalls.  If you think email is too informal, look at what your employees are writing in instant messages!  Many employers have found that their employees are using IM utilizing their private (AOL, MSN and the like) accounts.  What's the problem with that you ask?  Read on (free registration required)...

Posted By Diane Pfadenhauer In Employee Relations , Employment Law , Policies & Procedures | Permalink

When organizations are faced with the need to reduce their workforces, they often immediately think of layoffs.  Early Retirement Incentive Programs (ERIP), however, are often a viable alternative to traditional layoffs and less disruptive to organizations.  So, why don't people think of an ERIP more often?  Well, when you put actuaries, plan administrators/fiduciaries and benefits lawyers in a room together, the results usually completely overwhelm anyone else there!  So, my colleague, Heidi Hayden,  and I have prepared this step-by-step guide which will serve as a road map for any organization considering any ERIP.  Happy reading (it's a LONG one)!

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , HR Strategy , Retirement | Permalink

This article provides an overveiw of recent changes to the New York City Human Rights Law.  The new amendments, called the Local Civil Rights Restoration Act of 2005, make the following changes:

1. [Domestic] "Parnership Status" has been added as a protected class.
2. The definition of retaliation has been modified so that liability may be imposed even though there has been no adverse employment action, so long as the retaliation might deter an individual from engaging in protected activity.
3. The $$$ penalities have increase.

Posted By Diane Pfadenhauer In Employment Law , New York Law | Permalink

Here's the scenario - you are conducting fire drills, evacuation drills or generally engaging in emergency preparedness.  You've watched the news - hurricanes, blackouts, 09/11 - you think it's time to have a plan.  Here's the problem:  to what extent can you request information to help identify individuals who might need assistance because of a medical condition and can you share this information with others in the workplace?

This EEOC Fact Sheet explains how an employer may go through the process of obtaining such information and using it for emergency preparedness.  Generally, federal disability discrimination laws do not prevent employers from obtaining and appropriately using information necessary for a comprehensive emergency evacuation plan.  The fact sheet provides guidance on what kind of inquiries can be made, who this information can be provided to and how it is to be used.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Last week the EEOC issued Q&A guidance on working with individuals who are blind or visually impaired.  The press release announcing the new guidance explains some of the information provided including:

• When a vision impairment is a "disability" within the meaning of the ADA;
• What questions employers may ask job applicants or employees about their vision impairments and when employers may conduct medical examinations that test vision;
• What accommodations people who are blind or visually disabled may need to apply for a job, to perform a job's essential functions, or to enjoy equal benefits and privileges of employment, such as the ability to take advantage of training and other opportunities for advancement; and
• How employers should handle safety concerns they may have about applicants or employees with vision impairments.

The document, itself notes some startling statistics:

• Approximately 10 million people in the United States are blind or visually impaired.
• One million adults older than the age of 40 are blind, and 2.4 million are visually impaired.
• Over the next 30 years, as the baby-boomer generation ages, the number of adults with vision impairments is expected to double.
• Only 46% of working-age adults with vision impairments and 32% of legally blind working-age adults are employed.

For the detailed EEOC document, go here.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Long awaited regulations have been issued by the OFCCP defining "Internet Applicant."  The regulations, available HERE, define an internet applicant as:

...any individual who meets all of four of the following criteria:

1. the individual submits an expression of interest in employment through the internet or other electronic data technology;
2. the employer considers the individual for employment for a particular position;
3. the individual's expression of interest indicates that the individual possesses the basic qualifications for the position; and
4. at no point prior to receiving an offer from the employer does the individual remove him- or herself from further consideration, or otherwise indicate that s/he is no longer interested in the position.

This will hopefully clear up much of the confusion over who employers have to consider as applicants in their affirmative action plans.   Thanks to the  Greater Valley Forge HR Law Link for being the first to bring this to our attention.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The EEOC issued this press statement today as part of it's observance of Disability Awareness Month.  It discusses a provision of the Americans With Disabilities Act which protects those individuals who are associated with a disabled person.  The press release notes that the  following actions would likely be discriminatory under the law:

• firing or refusing to hire someone based on concerns that the individual will acquire a condition from a family member or other individual with whom he has a relationship;
• refusing to provide health insurance for an employee's family member with a disability when the employer generally provides health insurance for employee dependents;
• harassing someone based on the individual's association with a person with a disability;
• providing lesser benefits to someone who has a relationship or association with an individual with a disability than it provides to all other employees; and
• firing, refusing to hire, or denying any benefit or privilege of employment to someone because of concern that the employer's image will be negatively affected by an applicant's or employee's association with individuals with disabilities - for example, discriminating against an employee who provides volunteer services for people with HIV/AIDS or psychiatric disabilities is prohibited.

It is surprising to me how many don't know about this provision.  In fact, in one HR Management text book I reviewed (no names please...) the section on employment law omitted this provision in its discussion of the ADA - Yikes!  For the full text of the EEOC statement, which is written in a "Question and Answer" format, go here.

Posted By Diane Pfadenhauer In Employment Law | Permalink

An article in my BNA Bulletin to Management subscription (sorry, no link)  identified an interesting, yet unfortunate issue relating to pay that military reservists receive from their companies.  Seems that when companies make supplemental payments to reservists to makeup the difference between their reservist pay and full salary, problems occur.   Here's the rub - the IRS wants the supplemental pay reported on a 1099, treating the employees as terminated for tax purposes.     The Uniformed Services Employment and Reemployment Rights Act (USERRA), administered by the Department of Labor, essentially  operates in a way to treat the employee as though he/she is "on a furlough or leave of absence." So, the problem from an employer perspective obviously goes beyond the issue of which form and whether to withhold tax.  According to the article, by treating the employee as terminated, the supplemental pay is not pensionable earnings.  An employer who continues to make 401k or pension contributions pursuant to USERRA's benefits protection provisions runs the risk of disqualifying their plans.  This is definitely one of those instances where you should call a qualified benefits attorney....

The article provides this link to the IRS Website which provides guidance on how to handle monies paid to the reservists.  Essentially, they say that FICA and income taxes should not be withheld and that the payments are not subject to FUTA.  Here's the link.

Posted By Diane Pfadenhauer In Employment Law | Permalink

This interesting article notes five common mistakes that are made in connection with the Family & Medical Leave Act.

1. Failing to verify employee leave eligibility
2. Failing to notify employees of their rights under the FMLA
3. Failure to verify that an employee has a serious health condition
4. Requiring too much or too little medical information
5. Failure to reinstate an employee to the same or equivalent position

I'll add a few of my own....

1. Failing to understand how FMLA can coordinate with absence policies and PTO
2. Forgetting that many states have their own "mini" leave acts
3. Not centralizing the management of FMLA in one area with knowledgeable professionals so that it can be administered fairly and consistently.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Janell Grenier's post several weeks back noting the myriad of abbreviations in the benefits world reminded me of the "employment law alphabet soup" that I used to share with my students many years ago.  Not sure where it originated and, unfortunately, failed to find the original.   So, alas, I had to start all over.  Here's the new 2005 "unofficial" employment law alphabet soup.....

A - ADEA, AAP's, ADR

B - BFOQ

C - COBRA, Comp Time, Consumer Report, Comparable Worth

D - Disparate Impact/Treatment, Disability, Discipline/Discharge

E - EEOC, ERISA, EPA

F - FLSA, FACTA, FMLA

G - Glass Ceiling Recommendations, Government Contractors, Good Faith

H - Handbooks, HIPAA, HMO's, Hostile Environment

I - Intermittent Leave, IRS, Investigations, IRCA

J - Just Cause

K - KSA's

L - Labor Relations, Layoffs

M - MSDS's, Mediation, Military Leave

N - NLRA

O - OSHA, OWBPA

P - PDA, Privacy

Q - Quid Pro Quo Harassment

R - Religious Discrimination/Accommodation, Restrictive Covenants, Releases, RIF

S - Sexual Harassment

T - Trade Secrets and Confidential Information, Third Party Harassment

U - USERRA, Unemployment

V - Violence in the Workplace, Voting Time Off

W - WARN, Weingarten Rights, Waivers

X - eXcelsior List

Y - Yield Ratios, Yellow Dog Contract

Z - Zero Tolerance

There are many more that can fit here, but we'll have to wait until I lose this and have to start over again.  In fact, why don't we just let Janell be the keeper of the lexicon since she's come up with hundreds already!  Thanks to Heidi Hayden at Epstein Becker and Green for X and Y - my brain stopped working by the time I got to the end of the alphabet.

Posted By Diane Pfadenhauer In Employment Law , Miscellaneous | Permalink

Benefits Blog points us to a recent Littler Article citing a 10th Circuit Court of Appeals case regarding the definition of "knowing and voluntary" under the Older Workers' Benefit Protection Act (OWBPA).  The Act, which applies to the release of age discrimination claims, requires that the release be knowing and voluntary.  According to the article, the Court found that the employer failed to make sufficient disclosure to the affected employees in a reduction in force to enable them to make an educated decision about whether to sign release in exchange for the severance offered.  Specifically, the Court cited the recent case of Oubre v. Entergy Operations which noted that the OWBPA is...

"designed to protect the rights and benefits of older workers...[and therefore it] imposes specific requirements for releases involving ADEA claims." The court held that to fulfill its obligations under Oubre, an employer must provide an individualized, detailed explanation of why it chose each particular employee. Absent this information, the waiver cannot be considered knowing and voluntary.

The employer in this case failed to do so.  It noted that it considered each employee's leadership abilities, technical skills, and behavior, and whether each employee's skills matched its business needs, to arrive at a list of employees who would be laid off. Unfortunately, however, it did not provide this  information to the affected employees before they made their decision to sign the release.

Posted By Diane Pfadenhauer In Employment Law | Permalink

This interesting article provides an overview of the basics of employment practices liability insurance (EPLI).  Many HR practitioners know very little about EPLI as they are not likely to be in the corporate risk management office.  Unfortunately, many find out far too late of the limits of such coverage or how it is intended to work.  HR practitioners should understand the policies that exist in their workplaces.  They should also be involved in the purchase of such policies in order to provide guidance to the risk management office regarding work-related issues and litigation.  If you don't know what a hammer clause is, what panel counsel means, or how intentional acts exclusions might apply, this read is for you.

Posted By Diane Pfadenhauer In Employment Law 1 Comments | Permalink

In August, New York became one of many states seeking to protect confidential information by enacting the "Security and Notification Act."  The act requires businesses and state agencies, upon discovery or notification of a security breach in their computer systems, to notify any New York resident whose personal information has been acquired, or is reasonably believed to have been acquired, without authorization.  The Act applies to private information (such as social security numbers, driver's license numbers or credit card account numbers) which are obtained by others without authorization. 

This new law requires prompt notification to those affected and contains substantial penalties for failure to do so.

This Jones Day article provides a detailed summary of this new law along with some recommendations and steps that employers should begin taking now in order to be in compliance.  The law will become effective early December, 2005.

Posted By Diane Pfadenhauer In Employment Law | Permalink

While everyone was taking time away from the office to hang out at the beach this summer, new regulations went into effect requiring disposal of confidential information.  The rule applies to organization that utilize consumer reports.  The Federal Trade Commission (FTC) defines a consumer report as:

"including information obtained from a consumer reporting company that is used - or expected to be used - in establishing a consumer's eligibility for credit, employment, or insurance, among other purposes. Examples of consumer reports include credit reports, credit scores, reports businesses or individuals receive with information relating to employment background, check writing history, insurance claims, residential or tenant history, or medical history."

Organizations must adopt reasonable measure to prevent unauthorized access to or use of the information.  Such measures include:

• establishing and complying with policies to burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed;
• destroying or erasing electronic files or media containing consumer report information so that the information cannot be read or reconstructed;
• conducting due diligence and hiring a document destruction contractor to dispose of material specifically identified as consumer report information. Due diligence could include reviewing an independent audit of a disposal company's operations and/or its compliance with the new Rule; obtaining information about the disposal company from several references; requiring that the disposal company be certified by a recognized trade association; or reviewing and evaluating the disposal company's information security policies or procedures.

The FTC has established guidance (in understandable language) available on its website here.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

Michael Fox, over at Jottings by an Employer's Lawyer, has an interesting summary of a case I've been hearing about regarding EPLI coverage (or lack of).  Essentially, the Employment Practices Liability Insurance policy an employer obtained to cover it in instances of allegations of intentional discrimination, may not cover them after all due to an interesting interpretation of the language of the policy.  Obviously, employers purchase such policies to protect against disparate treatment claims, which represent the majority of claims.  Turns out the insurance company has successfully been able to weasel out (a highly technical term) of responsibility for the claim so far.

Posted By Diane Pfadenhauer In Employment Law | Permalink

CNN recently reported that an Air Force investigation released by the Pentagon identified a failure to accommodate the diverse religious needs of some of the cadets in the military.  According to the report:

"The [Air Force] team found a religious climate that does not involve overt religious discrimination, but a failure to fully accommodate all members' needs and a lack of awareness where the line is drawn between permissible and impermissible expression of beliefs..."

Some of the examples cited included a perception of intolerance among some cadets and staff; complaints that evangelical Christians wield so much influence at the school that anti-Semitism and other forms of religious harassment have become pervasive; allegations that students, faculty, staff and members of the chaplains' office frequently pressured cadets to attend chapel and receive religious instruction;  others said prayers were frequently conducted before official events.

This is particularly disturbing after the scandal concerning complaints of sexual harassment which allegedly were ignored several years ago.  Obviously, there are issues concerning respect in the workplace, tolerance and diversity that need to be addressed there.  According the the article, the Air Force was credited in the report for moving to address these issues.  Let's hope their intervention is sufficient.

Posted By Diane Pfadenhauer In Employment Law | Permalink

This article from the Christian Science Monitor discusses an increase in wage abuse by employers.  While we typically think of sweatshop, there seems to be a trend of finding it in some alternative employers in the service sector - specifically in industries like retail, grocery stores, laundries and nursing homes.  The theory is that as our economy becomes more focused on the service sector, this is where violations are being found.  According to the article, in my own back yard - New York City, 14 types of businesses have been identified as areas where overtime and minimum wage laws are routinely violated.  Now, in light of NY State's recent minimum wage increase this past January, I am sure the problem is worse.

Thanks to the Employment Law Bulletin for bringing this article to our attention.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Sean politely corrected an error in my recent post the other day about Employer Liability for Employee Drinking.  The "judge" I referred to in my original post wasn't the actual judge, but rather Bill Judge, an attorney.  Sorry for the confusion.  It's been corrected.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Workers' Comp Insider had a recent post on the liablity of employers for employee drinking.  What's interesting about this case, it that it's not the usual 'employee gets drunk at the holiday party and runs over the little old lady' scenario.  It's not even a case of the employee who entertains a client, gets loaded, and gets back in the company car and then runs over the little old lady. In this case, and employee with a seemingly obvious drinking problem left work and was involved in an accident killing two other people.  The driver survived and is charged with vehicular homicide. 

Here's where it gets interesting....  It turns out that the employee had gone out the previous evening and became very intoxicated, he came to work the next day, but left early, and somehow came back to work.  When he hit the other vehicle, his blood alcohol level was .43 - which our friends at Worker's Comp Insider remind us is enough to kill most people!   The case that has emerged questions the potential liability of the employer.   Was it obligated to stop what may have been an obviously inebriated employee from leaving the office in such a state?  According to an attorney, Bill Judge:

"You have to understand that once a worker shows up drunk, the employer must act ... he becomes the employer's responsibility.You put him in a cab, or you call the emergency contact person on his application and say come get him. If he decides he's going to drive anyway, you call the police."

Very interesting.   And certainly something for every HR professional to be thinking about.

Posted By Diane Pfadenhauer In Employment Law 1 Comments | Permalink

Here's an interesting site, EEO News, sponsored by Interactive Employment Training, Inc.  It provides actual case summaries of recent employment law decisions, links to a wealth of information on employment law for employees and employers, and links to all sorts of HR information.  I have added it to the resource list on the left.

Posted By Diane Pfadenhauer In Employment Law 1 Comments | Permalink

New Jersey recently joined fourteen other states that provide for a minimum wage above the federal minimum wage of $5.15/hour.  The New Jersey law, which is effective October 1, 2005, raises the state minimum wage to $6.15 per hour.  The minimum wage there will rise to $7.15 per hour on October 1, 2006.  For more information, view the Proskauer Rose Client Alert here.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Janell Grenier in Benefits Blog, recently pointed us in the direction of some recent opinion letters issued by the Department of Labor regarding the Fair Labor Standards Act.  Noting that it is often difficult to find the actual letters, she provides this link to take you to the page on the DOL website where you can access all of the opinion letters.  These letters deal with the white collar exemption under the FLSA.  Now, rather than reading a summary, you can go to the source.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Every year there is a top 10 list of employment law cases that finds its way through the media.  The National Law Journal provides this list of interesting, amusing and down right strange cases from 2004.  They include, among others:

• The Lone Ranger Rides Again
• Senior Moment
• The Exorcism House Call
• Raunchy Writers of 'Friends'
• No High Tea at the Savoy

Read on!

Posted By Diane Pfadenhauer In Employment Law | Permalink

The EEOC recently issued its annual report on the federal workforce.  In a press release announce last week, the Commission discussed complaint information and other data on the federal workforce.  Some of the findings include:

• There were 19,024 discrimination complaints filed against federal agencies by 17,878 individuals (some of whom were repeat filers) - a 6% decline from FY 2003.
• The most frequent bases of allegations continue to be: reprisal (7,782), age (5,449), race-black (5,021), and sex-female (4,613). The top issues cited in complaints continue to be harassment (non-sexual), promotion/non-selection, and terms/conditions of employment.
• Only about 43% of investigations by federal agencies were completed on time, as agencies overall continued to exceed the regulatory 180-day time frame. A total of 11,876 investigations were completed government-wide in an average of 280 days during FY 2004 - up from 267 days the previous year.
• Complainants obtained approximately $55 million in total monetary benefits which includes findings and settlements through alternative dispute resolution (ADR) - as a result of EEO complaints closed by the employing agency or on appeal - down from $61 million in FY 2003.
• Reflecting the diversity of the nation, 66.9% of federal employees in 2004 were white, 18.2% were Black, 7.5% were Hispanic, 5.8% were Asian or Pacific Islander, and 1.7% were American Indian or Alaskan Native. Women have made the most gains in securing senior level positions in the federal government.

For the EEOC press release go here.  For the detailed report, go here.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Inc. Magazine tells us that sex discrimination suits are on the rise - particularly at small companies (those with fewer than 200 employees) who are often ill-prepared and ill-equipped to handle such issues.   According to the article:

"Sex-discrimination suits against small companies don't make headlines but they are just as common. In fact, nearly half of all sex-discrimination charges -- running the gamut from sexual harassment to gender-related firing -- filed with the Equal Employment Opportunity Commission last year were aimed at firms with 200 or fewer employees."

And, according to Cari Dominguez, Chairperson of the EEOC:

"... claims could surge in the years ahead as more women gain confidence from high-profile cases in the news.  Many female baby boomers are entering their 50s and are "looking to leave a legacy... taking on the role of whistleblower."

I'm not so sure I agree with her on that last point, but I would agree that many small employers haven't a clue on how to deal with these issues.  The article makes the mistaken point, inferring that a quicky handbook with a discrimination policy will help save the day.  Unfortunately, it's what the employer does after it issues the handbook (or, perhaps, does not do) that typically gets them in hot water.

Posted By Diane Pfadenhauer In Employment Law | Permalink

It can get very ugly, particularly if you do everything wrong.  Littler Mendelson cites a recent case in which employees of a retail establishment had a noncompetition agreement with its employer that precluded the employees from working with a competitor within one mile from the store for three years.  Additional consideration was provided in exchange for employees entering into the noncompetition agreement.  The defendant's general counsel indicated that the restriction was unenforceable and gave the OK to hire the two employees.  In addition, the defendant further agreed to indemnify the employees in the event of litigation on the issue.

Seems that it got very interesting at that point.  The employees took information, labeled as confidential, from the employer when they left and, curiously, the new employer apparently knew about it and looked away.

After a multitude of claims by the new employer against the old employer, the court found that the restrictive covenant was reasonable and enforceable, the employees were enjoined from working at the new employer.  Among some other interesting holdings, the court awarded $548,611 in compensatory damages that was trebled under Virginia law to $1,654,833.

Here are some of Littler's suggestions about how to avoid this kind of disaster:

1. Solicit and hire skills and abilities but not client information and relationships.
2. Get advice from independent counsel - here the defendant had no attorney client relationships with the employees before they joined the company.  Smart, eh?
3. Set up entry barriers to competitor's trade secrets.  Or, in other words, educate employees that it is not appropriate to steal prior employer information and bring it with you!
4. Avoid up front indemnity agreements.

I had some other suggestions, but I'll not include them here.  They're not very nice.  Suffice to say that this deserves a medal for stupidity.  For the article, go here.

Posted By Diane Pfadenhauer In Employment Law | Permalink

I recently had a conversation with someone who had attended his company's annual mandatory compliance training.   Like most training of this type, it seemed to be the same annual update of unengaging information that is repeated year after year so the employer can "check off a box."  As I often do such compliance training (but not the "check the box" type...), I usually try to get people to consider the idea that not only does the organization need to do the standard training for rank and file and supervisors, but it also needs to consider the training for individuals who are the responders to the complaints.   Typically, the responders are the ones who will conduct an investigation - and they, themselves, have not received a great deal of training. 

I can't tell you how many human resources professionals I know who have never taken a class or done any substantive reading on the subject of responding to and investigating such complaints.  I had a recent conversation with a fellow outside lawyer who indicated that he typically relied on internal HR staff to conduct investigations - what he couldn't tell me, however, is if those people really knew what they were doing.  What concerns  me is that he'll soon learn how well the HR staff can do an investigation when "it" is all over the proverbial fan.

Posted By Diane Pfadenhauer In Employment Law 1 Comments | Permalink

Contingent Workforce recently cited an article which appeared in the Indianapolis Star which noted that 40% of Americans in a recent poll indicated that employers should be allowed to discriminate based upon appearance.  Appearance included such things as weight, clothing, piercing, body art and hairstyle.  The survey also noted that 47% of those with supervisory responsibility agreed that discrimination based on appearance should be permitted.

The problem here is that if we let people exclude people from employment based upon their appearance, at what point have gone too far into the gray and it becomes unlawful discrimination?  Do certain "groups" of people wear a certain style of clothing or dress?  Do people of certain religious backgrounds wear certain displays of their faith?  Just how fat (or not so fat) do you have to be to be considered just "overweight" and subject to lawful discrimination?  What about people who just aren't good looking?  Should we hire only tall thin blonds?  I thought that good people practices involved hiring based upon qualifications and experience. 

Posted By Diane Pfadenhauer In Employment Law , Trends | Permalink

For what seems like decades the Supreme Court has dodged the question of whether the Age Discrimination in Employment Act recognizes discrimination cases brought under a disparate impact theory.  Unfortunately, I've been a tad busy the last few days with little time to blog, and several of my fellow bloggers have beaten me to the punch on this one.  Specifically,

• Ross Runkel in LawMemo has a good summary of the law and the decision,
• Janell Grenier in Benefits Blog as a link to the actual decision,

In addition, almost every newspaper has a story on it - USA Today, Christian Science Monitor, CNN, Wall Street Journal, etc.  I've been following this issue for years and until today, the question always lingered - did the ADEA only apply to disparate treatment discrimination not disparate impact discrimination?  Now we know the answer is NO.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Someone recently asked me about whether they could require mandatory direct deposit for their employees.  Apparently, this was a company with out of state employees.  Typically what happens in this scenario is that the payroll is processed centrally and each pay period a pile of checks is mailed to each (typically out-of-state) location.  Everything works well until the overnight courier misses the delivery.  Payday comes and goes with no paychecks.  For the employees who have direct deposit - no problem.  For the employees who are waiting for their checks - big problem. 

The answer to this question generally is a subject of state law.  New York State Labor Law has  specific guidance on this issue.  While many other state do not prohibit mandatory direct deposit, unfortunately New York limits the ability of employers to mandate direct deposit.  Specifically,

S 192. Cash payment of wages.  1. No employer shall without the advance written consent of any employee directly pay or deposit the net wage or salary of such employee in a bank or other financial institution.   2. This section shall not apply to any person employed in a bona fide executive, administrative, or professional capacity whose earnings are in excess of six hundred dollars a week, nor to employees working on a farm not connected with a factory.

For more on New York State's law, go here.  For those in other states, be sure to check in with your particular state's law before mandating direct deposit.

Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures 1 Comments | Permalink

The Department of Labor had previously issued the new USERRA poster and then, just as quickly, pulled it from their site.  After a few modifications, they have made the shiny new poster available as of today.  You can access the new poster here.  Happy posting (the effective date for posting is TODAY!)!

Posted By Diane Pfadenhauer In Employment Law | Permalink

Anyone who has tried to access the link previously provided to the DOL's website for the new USERRA poster, has come up empty handed.  Turns out the DOL has pulled the poster and will reissue the revised poster on Thursday.  I'll keep you "posted."

Posted By Diane Pfadenhauer In Employment Law | Permalink

"...notify any employee terminated from employment, in writing, of the exact date of such termination as well as the exact date of cancellation of employee benefits connected with such termination. In no case shall notice of such termination be provided more than five working days after the date of such termination..."

Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures | Permalink

As noted in my earlier post (January 12, 2005), recent amendments to USERRA will now require employers to post a notice of rights.  The US Department of Labor just issued this new poster, available on their website here in PDF format. For more information about USERRA in general, you can read the regulations (proposed rule), which are quite lengthy, or go to the DOL's more user-friendly summary here.

Posted By Diane Pfadenhauer In Employment Law | Permalink

An interesting article at workforce.com describes a controversy between Broadcom and Intel.   Broadcom had been interviewing Intel's employees for jobs.  While this is a seemingly innocent occurrence throughout human resources offices everywhere, Intel accused Broadcom of conducting the interviews in order to obtain Intel's trade secrets.  Guess what?  The court agreed with Intel and granted an injunction against Broadcom.  The author, Christopher Kondon of the LA office of Kirkpatrick & Lockhart, notes the importance of educating interviewers about the importance of confidentiality and trade secrets.  In my corporate days as a SVP of HR, I can remember an occasion where I was being aggressively recruited by a competing firm and was subjected to some unusually probing questions which, in light of this case, would be considered beyond the scope of an employment interview.  Today, when I teach business law in an MBA program, we deal with this topic regularly.  Kondon provides an useful definition in his article of the kinds of information that can be considered trade secrets:

"...trade secrets include a wide range of confidential business or proprietary information, such as chemical formulas, industrial processes, business plans and, under certain circumstances, customer lists. In order to maintain business information as a trade secret, one must take reasonable precautions to prevent the information from becoming generally known to his or her competitors. "Reasonable precautions" usually include requiring employees to execute confidentiality and nondisclosure agreements in favor of the employer."

I find that many employers really foul up in the reasonable precautions area.  For example (Diane's quick list of how to lose trade secret protection):

1. They fail to secure information that should be maintained in a locked area.  For example, financial information, codes, etc. are left out in a department and others have free access as they walk through.
2. They fail to mark things as confidential.  Information that a competitor would love to get their hands on is transmitted throughout the company in the same manner as all other inter-office communication.
3. They fail to obtain non-disclosure agreements when they conduct interviews of candidates who will potentially have access to sensitive information.
4. They fail to obtain non-disclosure agreements when they have conversations with potential vendors or suppliers.
5. They set up computer systems that contain specific and detailed information and do not restrict access.  For example, a sales organization that enables all sales professionals throughout the company to have access to sales information for all other sales professionals, instead of restricting access to divisions or territories.

There are many others, but suffice to say this area is one that is continually evolving and companies should think about how they use and manage this information in order to adequately protect themselves.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Trends | Permalink

A series of cases in the 2nd Circuit (Southern District of NY) have significantly influenced the discovery of information held in electronic format.  The case began as a typical gender discrimination case.  What has ensued is 5 opinions regarding the discovery of electronic data, the obligations of both the parties to litigation, and the duty of counsel to communicate with clients regarding discovery obligations.  In the latest opinion, dubbed Zubulake V, Judge Scheindlin imposed sanctions on USB Warburg for destroying relevant email messages during the litigation.  The Court further ordered the defendant to pay the plaintiff's attorneys fees in her quest for the missing evidence, granted the plaintiff's request for additional discovery and will permit the jury to make a negative inference about certain emails which were deleted by the company.

The Zubulake cases are widely viewed as the first series of definitive cases on electronic discovery and provide guidance in the areas of a party's duty to preserve electronic evidence during the course of litigation, counsel's duty to monitor their client's compliance, the ability of a party to shift the costs of retrieval of information to the requesting party, and the imposition of sanctions against a party found to have destroyed relevant evidence.

Zubulake IV specifically provided guidance on explaining whether electronic data is accessible based upon the media upon which it is stored.  These include online data, near-line data, offline storage/archives, backup tapes, and erased fragmented or damaged data.  Previously the Rowe case governed the question as to whether the costs of reproduction can be shifted to the requesting party.   Noting the Rowe test "incomplete," Judge Scheindlin identified a new Seven Factor test, detailed in the opinion.  She further noted that the factors of this new test should not be weighted equally and that the cases are fact-specific.

Interestingly, Judge Scheindlin noted that she disagreed with some of the Sedona Principles identified by the Sedona Conference (which provides more information than you thought you ever wanted to know in this area).  What this demonstrates is that this is, indeed, an area of the law that is in flux and developing quickly.  When confronted with discovery in a lawsuit, the parties should be very careful and counsel very attentive to client actions with regard to such information.  For more information on electronic discovery, the Electronic Discovery Law Blog tries to make sense out of something that is Greek to most of us.

Posted By Diane Pfadenhauer In Employment Law | Permalink

As previously discussed here, there are new rules which govern a retirement plan's decision to require mandatory cash-out of a participant's assets if they are less that $5,000 at their separation from employment.  This rule applies to pension, profit sharing, 401(k) and other qualified plans.  The recently issued IRS Notice 2005-5 identifies which plan distributions are impacted and identifies considerations for plan administrators in deciding whether to amend their plans to require mandatory cash-out.  Generally, according to Seyfarth Shaw in a recent Management Alert,

"With some exceptions, plans that provide mandatory distributions in excess of $1,000 must adopt a good faith plan amendment implementing the automatic rollover rule by the end of the first plan year ending on or after March 28, 2005."

They further note that the IRS has provided a sample plan amendment for this purpose.

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law | Permalink

By this time, everyone knows that California has joined Connecticut in requiring managers to participate in sexual harassment prevention training.  Much has been said, but also much has been understated.   This legislation will likely result in the birth of a cottage industry of providers seeking to cash in on this new requirement.  Many providers will have little experience in the area and will be unable to effectively ensure that participants in the training are adequately trained.  Unfortunately, the buyer must beware.  Littler Mendelson's ASAP Newsletter on this topic provides some insightful commentary the selection of trainers and the training overall (the important aspects I have highlighted):

The quality standards require an employer to closely examine its training programs. Merely sitting a supervisor down and having her or him view a video or non-interactive web-based product - "show and go" - would likely not meet the statutory requirements to conduct "classroom ... or ... effective interactive training and education." Would classroom training by someone who has done a significant amount of harassment training but who has no practical experience preventing harassment meet the requirement to have the training conducted by those with "knowledge and expertise" in preventing harassment, discrimination, and retaliation? Although not entirely certain, the answer will likely be "no." Given this uncertainty, the most prudent approach is to use trainers and training organizations with both a solid training and harassment prevention background regardless of whether the training is done live or on-line.

The newsletter further notes that the legislation is merely a floor, not the maximum of what a proactive employer should necessarily do to adequately prevent harassment in the workplace.  In other words, it is possible that an employer could adequately comply with the new state law, but fail to adopt the other necessary requirements of a valid Ellerth/Faragher defense for a federal discrimination claim.  Thus, while everyone is aware (hopefully) that we now must do training, the obligation really has existed for some time now.  It has existed in the context of a variety of other necessary practices that an employer must have in order to adequately defend itself.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

A recent Nixon Peabody Employment Law Alert provides a nice summary of the Sarbanes-Oxley whistleblower cases.  With all the talk and hype about the availability of whistleblower protection, this article gives the reader a summary of the cases so far and a background on the whistleblower protection under the law, in English.

Posted By Diane Pfadenhauer In Employment Law , Trends | Permalink

As of February1, employers are required to post their annual report of job-related injuries that occurred last year.  This form, 300A, is available here on OSHA's record keeping page  in Adobe PDF or Excel formats.  Employers are required to post the notice from February 1 through April 30th.  Other requirements for covered employers:

• The summary should list the total  numbers of job-related injuries and illnesses that occurred on 2004 and that were logged on the OSHA 300 form.
• Companies with no reportable injuries should post the report with zeros.
• It should also include information about annual average number of employees and total hours worked during the calendar year to assist in calculating incident rates.
• It needs to be displayed in a common area and employers are required to make the notice available to employees who move from worksite to worksite.

For more information about OSHA in general, their website is here at osha.gov.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

The Federal Trade Commission recently issued its final rule and revised notices under the Fact Act (a.k.a. the Fair and Accurate Credit Transactions Act).  The Fact Act amended the Fair Credit Reporting Act (FCRA) which imposes certain obligations on employers who conduct background checks using consumer reporting agencies.   A consumer reporting agency is an entity that collects or evaluates consumer information for a fee in order to furnish background information to third parties.  There are two different kinds of reports:

1. Consumer reports, which can be oral or written, relate to an individual's character, creditworthiness, reputation, personal characteristics, and mode of living and are taken into consideration by employers when considering applicants for employment.
2. Investigative Consumer Reports are prepared by a consumer reporting agency and include, in addition to the items above, personal interviews with individuals associated with the subject of the report.

When companies use consumer reporting agencies, they must first notify the individual that such a report may be obtained and get that individual's permission.  If any adverse action is taken as a result of the report, the employer must first provide a copy of the written report to the individual and then must wait a period of time before taking the adverse action.  The Summary of Rights, prepared (and recently revised) by the FTC, must be given to the individual who will be the subject of an investigative consumer report at the outset, or at a minimum with the copy of the report prior to taking adverse action.  The FTC's final rule, along with other information about the Fact Act is available here.  These changes are effective January 31, 2005.

Posted By Diane Pfadenhauer In Employment Law | Permalink

For those of you who were diligently doing your holiday shopping and missed the changes to USERRA, there are some changes worthy of note.  Specifically, the Uniform Services Employment and Re-Employment Rights Act of 1994 has been amended by the Veterans Benefit Improvement Act of 2004 ("VBIA") effective December 10, 2004.  The new law  provides for three major changes:

1. The law requires that employers provide for elective continuation of employer-sponsored health coverage, similar to COBRA, for service members who would otherwise lose their coverage because of an absence due to service in the military.  The VBIA extends this period from 18 to 24 months.
2. VBIA now requires employers to provide notice of USERRA rights.  The Department of Labor is required to provide a notice for employers and this posting requirement will go into effect March 10, 2005.
3. Sometime this year, new regulations will be issued for this law.

For more information on the VBIA, go here.  For more information on USERRA, go here.

Posted By Diane Pfadenhauer In Employment Law | Permalink

For those of you following your demographic statistics, as of tomorrow all Baby Boomers will be over the the hill.  That is, 40 and over and, of course, now protected by the Age Discrimination in Employment Act.  Happy Birthday and Happy New Year!

Posted By Diane Pfadenhauer In Employment Law | Permalink

A recent survey by the American Management Association revealed some troubling statistics regarding employer policies associated with email and instant messaging.    While  79% of employers have implemented a written e-mail policy, only 20% have adopted a policy governing IM use and content.  This in light of the fact that in 2004 up to 20% of employers have had employee e-mail subpoenaed in the course of a lawsuit or regulatory investigation, up from 14% in 2003.  I recently attended a New York State Bar Association CLE class on electronic discovery.  What was most troubling was that one of the clear messages was that essentially everything can be found - whether seemingly "erased" or "deleted."  In addition, the costs associated with retrieval of this information as well as the litigation expense associated with reviewing countless emails and IM's could make the cost of litigation skyrocket.   This is scary stuff, indeed.  Employers should not only ensure that they have adequate policies, but they should also make sure they provide additional guidance - bringing policy into practice - rather than distributing a policy that remains unread.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

Employees in the United States feel continuing pressure to remain productive.   Those who survived the extensive corporate layoffs of the past several years feel even greater pressure to get more work done.  How often have we seen drivers on the road talking on their cellular phones, often in an effort to cram more work into their day?  While New York remains one of the few states that require hands-free driving with cellular phones, others are sure to follow.   Recognizing the dangers and the potential liabilty based on negligence theory, many companies are also implementing and enforcing policies addressing the dangers of driving while talking on cellular phones - some prohibiting it outright.  As a New York driver, I've gotten relatively used to driving hands-free and am often surprised at the number of drivers who continue to use their cellular phones without hands-free devices, despite the law and the known dangers.  When I travel to other states, I continue to be amazed at the number of distracted drivers who are focused on their cellular phone conversations instead of the road.

Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink

In an effort to provide additional guidance and clarification into the confusing world of mental, psychological and related disabilities, the EEOC has recently attempted to provide information to help employers comply with the law.  This new guidance addresses the challenges that employers face in hiring, accommodating, and preventing harassment of employees with intellectual disabilities. In its 20-page question-and-answer guide, the commission provides examples of situations in which intellectual disabilities are protected under the Americans with Disabilities Act, as well as guidance on interview questions, confidentiality of medical information, accommodation, on-the-job conduct, and harassment. The guidance is on the EEOC Web site.  You can view the information here.

Posted By Diane Pfadenhauer In Employment Law | Permalink