Strategic HR Lawyer

The EEOC recently issued proposed regulations addressing disparate impact claims under the ADEA.  The proposed rule addresses the Supreme Court ruling in Smith v. City of Jackson 544 U.S. 228 which held that recovery is available under the ADEA not only for disparate treatment or intentional discrimination but also unintentional claims or disparate treatment.

The announcement of the rule is available here in the Federal Register.  Comments must be made on or before May 30, 2008.

Posted By Diane Pfadenhauer In Employment Law | Permalink

This press release notes that charges filed with the EEOC are up over 9% from 2006 to 2007 - this single largest annual increase since 1993.  Yikes!

Posted By Diane Pfadenhauer In Employment Law | Permalink

The Supreme Court recently ruled that when a complainant completes and intake questionnaire with the EEOC and the EEOC does nothing with it, it does not preclude the complainant from then bringing a claim of discrimination in Federal District Court.  In Federal Express v. Holowecki, the claimant went to the EEOC and completed the EEOC's intake questionnaire.  The EEOC did not issue a charge of discrimination and provide it to the employer.  Thus, the employer was unaware of the claim.  Next thing.... the employer was being sued in Federal Court as the claimant was able to successfully circumvent the EEOC's internal process.

Here's a good point raised by John Hyman of the Ohio Employer's Law Blog:

"My problem with this ruling is that Fed Ex never had any meaningful way to respond to the Intake Questionnaire. That form was never sent to it, and it had no notice that a proceeding had even been initiated until after the actual charge was filed 6 months hence. Thus, an employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit."

Posted By Diane Pfadenhauer In Employment Law | Permalink

The US Department of Labor recently issued proposed revised FMLA regulations.  The new regulations, subject to a comment period, comprise well over 400 pages - sufficient to cure insomnia.  Here are few changes of note while all the dust begins to settle:

-          Serious Health Condition - Where leave involves more than three consecutive days plus two health care provider visits, the two visits must occur within 30 days of the beginning of the period of incapacity (subject to certain exceptions). 

-           ‘Periodic treatment’ is defined as requiring treatment two of more times a year.

-          Includes separate regulations for leaves as a result of treatment for pregnancy, substance abuse and adoption/foster care. 

-          Eligibility - The DOL is looking to further define a break in service to determine the eligibility for FMLA.

-          Health Care Providers - Adds Physician Assistants as recognized health care providers.

-          Amount of Leave - Addresses how an employer should handle the situation when a holiday falls during the employee’s leave.

-          Paid Leave Substitution –Proposes  two substantive changes to the current regulations regarding paid leave:

o   The DOL clarifies that "substitute" means to run concurrently with respect to Paid time off. 

o   The proposed regulations seek to remove any distinction between sick leave and vacation leave in connection with an employer policy requiring substitution.

-          Return to Work & Bonuses - Under the new regulations, an employee must meet a specific “goal” in order to be provided a bonus.  If he fails to meet that goal due to FMLA leave, he can be denied the bonus as long as individuals who were on non-FMLA leave were also denied the bonus.

-          Notice Requirements - We should be expecting a new poster soon.

-          Employer Notice to Employee – in order to designate leave as qualifying for FMLA, the employer would now have 5 days instead of two.

-          Foreseeable Leave – Employers can require employees to explain why they failed to give notice at least 30 days in advance.  And, if not an emergency, if the need for the leave is foreseeable leave, the employee should provide notice of the need the same or next day.  With respect to unforeseen leave, the regulations indicate a narrowing of this exception.

-          Medical Certification - Employee consent to contact the health care provider to verify medical certification would no longer be required and the regulations would permit an employer to contact the employee's health care provider directly without having to use a health care provider. 

-     

Posted By Diane Pfadenhauer In Employment Law , FMLA | Permalink

OK, better late than never... The California Labor & Employment Law Blog has a great post summarizing new legislation taking effect in California in 2008.  The laws range from legislation as simple as an increase in the state's minimum wage to laws such as:

• A new law requiring employers with 25+ employees to grant unpaid leave to spouses or domestic partners of combatants on leave from deployment in a combat zone.
• The new San Francisco paid sick leave requirement.
• Work hours are now regulated for pharmacists
• A crackdown on Workers Compensation “Deadbeats”
• And amendments to California law dealing with discrimination.

Follow this link to the California Labor & Employment Law Blog for more information and details on this and more legislation.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The EEOC recently issued a Fact Sheet on Employment Tests and Selection Procedures to Screen Applicants and Workers.   The Commission noted that there has been an increase in employment testing due in part to post 9-11 security concerns as well as concerns about workplace violence, safety, and liability. In addition the number of discrimination charges raising issues of employment testing, and exclusions based on criminal background checks, credit reports, and other selection procedures, has been increasing every year.

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

New York's Governor Spitzer recently created a task force to address the incorrect classification by employers of individuals as independent contractors rather than correctly as employees.  The Executive Order immediately cites the attempt by employers to circumvent their obligations as employers and the adverse effects on the economy of the state as a result.  It furthers notes:

• 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

Follow this link to Governor Spitzer's Executive Order Establishing the Joint Enforcement Task Force on Employment Misclassification.

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

I recently authored an article on Plant Closings and the WARN Act.  All too often, we think about bare bones compliance and fail to see the need to engage remaining or transitioning employees in the process of closing a facility.  This article, Beyond the Warn Notice:  Getting to the Tipping Point and Beyond, appeared in the July/August issue of Human Resources Advisor Journal (published by Thomson West).

Perhaps some recent employers in the news with significant layoffs could learn a thing or two...

Posted By Diane Pfadenhauer In Corporate Turnaround , Employee Relations , Employment Law , HR Strategy , Policies & Procedures | Permalink

Last week Governor Spitzer signed new legislation that protects nursing mothers in the workplace.  The law, which goes into effect immediately, "requires employers to provide uncompensated time, and make a reasonable effort to provide private space for women to express milk or nurse their children for a period of up to three years following the birth of a child. In addition, it also bars an employer from discriminating against an employee exercising this right."

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

The Equal Employment Opportunity Commission recently revised the regulations under the Age Discrimination in Employment Act to become consistent with a recent Supreme Court ruling.  According to the EEOC press release on this issue:

 "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

The Department of Homeland Security (DHS) recently announced the approval of the final regulations under Social Security No-Match Letters.  We wrote about  this last year (here) when the proposed regulations were announced.  According to information on the Immigration and Customs Enforcement (ICE) website,The DHS regulations and ICE describe what steps employers should take upon receipt of a no-match letter:

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.

ICE has made available a Safe Harbor Information Center  along with a Worksite Enforcement Fact Sheet.
Follow this link to:  The Final Rule on Safe Harbor Procedures for Employers Who Receive a No-Match Letter (8 CFR Part 274A).

All of this puts employers in the hot seat to verify identity and places potential liability on them for retaining employees who cannot prove that they can lawfully work in the US.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The Office of Federal Contract Compliance Programs (OFCCP) has recently issued the long awaited regulations under the Jobs for Veterans Act.  They have also included an extensive FAQ on the OFCCP home page to provide a simplified explanation of these regulations.

For starters, these new regulations go into effect September 7, 2007.  That gives us about a month to get our activities in order.

Covered in the new regulations and described in the FAQ's is guidance on the following:

• 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.

Follow this link to the VETS-100 FAQ which incorporates a discussion of the 2007 reporting requirement changes for further discussion.

Follow this link to the latest VETS-100 Form for 2007

Posted By Diane Pfadenhauer In Employment Law | Permalink

The folks at Shaw Valenza, who publish the What's New in Employment Law? Blog  recently published this overview of the relevant employment law cases decided by the US Supreme Court during its2006-2007 session.  For a copy of the article, follow this link to:  United States Supreme Court Employment Law Decisions 2006-2007.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The state of California recently approved regulations under A.B. 1825 - the law that requires training for supervisors for sexual harassment.  According to the California Labor and Employment Law Blog, the regulations will go into effect on August 17th.  These regulations help to define what is meant by "interactive," how training should be tracked, what topics should be covered int he training, who should conduct the training, and specifics about covered employers.  These long-awaited regulations will hopefully clarify many of the uncertainties surrounding this law.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Once again an employer has managed to become liable under a statute when it initially failed to meet the threshold number of employees required for coverage.  Michael Fox points out that in a recent Sixth Circuit case, a court held that "it is possible that an employer with fewer than 50 employees within a 75 mile radius, could still find themselves "required" to grant FMLA leave, based on their conduct, even though not technically within the coverage of the statute." In other words, by treating all of the employees the same, even though the employer has some employees who are not otherwise eligible, the employer can become legally obligated to provide the benefits of the FMLA to those otherwise ineligible employees.

Posted By Diane Pfadenhauer In Compensation & Benefits , 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 Department of Labor has finally issued it's report on comment is invited on the Family and Medical Leave Act in December, 2006.  The DOL received over 15,000 comments.  According to the DOL's press release:

"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."

For some late night reading, follow these links:

• 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

Paid family leave has gained steam in a number of states.  The FMLA blog notes that several states have enacted legislation or have pending legislation - notably California, Washington, New Jersey and New York.  The New York proposal was passed by our state Assembly in some late day haggling at the end of their legislative session and now will likely be addressed by the state Senate in their next legislative session.  This article from the New York Times - Spitzer Pushes Paid Leave Plan for Workers - discusses the Governor's push for paid family leave. 

According to the New York State Paid Family Leave Coalition, the legislation would expand New York’s Temporary Disability Insurance (TDI) program to include paid family leave. The bill would provide up to 12 weeks of paid leave to care for a new baby or a newly placed adopted child, or for a seriously ill family member, including a spouse, parent, in law, sibling, child or domestic partner. Benefits – in line with current TDI benefits in New York – would be half of weekly wages up to a maximum of $170 a week.  The proposal calls for the extension of benefits to be paid for by an increase in employer contributions.

Needless to say, the Business Council of New York State, a business advocacy group, opposes paid family leave.

As for me, unless we can come up with solutions for the administrative nightmare that FMLA already is and unless we can provide benefits without burdening small employers, it's just another tax on already over-burdened businesses in NY - particularly small ones.  I'm not suggesting that the burden to care for family members should be overlooked by society and recognize that there truly are those who are torn between caring for family members and paying their bills.  Unfortunately, however, the burden on certain employers, at times, outweighs the social benefit of this type of legislation.

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

The EEOC recently held a public meeting to discuss employer testing and screening procedures, which they note are on the rise.  According to the press release:

“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.”

Discussion topics included:

• 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

The EEOC  recently issued Enforcement Guidance:  Unlawful Disparate Treatment of Workers With Caregiving Responsibilities.  The EEOC notes that caregiving responsibilities (of children, the elderly and the disabled) fall predominantly on women, but also note that caregiving responsibilities are increasingly borne by men.  Some of the topics in the new guidelines include:

• 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

I'm still in disbelief over all of the press lately about text messaging while driving.   Apparently, it's a larger problem than I thought.  According to a recent article in the New York Times, several states have enacted legislation or are in the process of outlawing "DWT" or "Driving While Texting."  Seems that too many of our fellow drivers can't keep their hands off of their cell phone text messaging features while they are cruising.  According to the article, a driver, fixated on his BlackBerry, slammed his van into the car in front of him, causing a five-vehicle pileup, thus prompting the state of Washington to enact the DWT legislation. 

This reminds me of one of my pet peeves about cell phones and driving.  We have a hands-free law here in New York, which, in my observations, is largely ignored.  I routinely see drivers yammering away on their cell phones, holding them up to their ears.  What's most ridiculous, however, are the drivers that think they are complying when they use the speaker feature of their phones, hold them about a foot away from their heads and yell into them.  Somehow, I don't think this is what our legislators envisioned when they wrote the "hands-free" law.  Do you think these drivers ever heard of a headset????

Hopefully, this will prompt everyone to review their technology, cell phone and related policies to make sure employees are engaging in this dangerous behavior.

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

According to a recent article on Law.com, several states are considering legislation that would make it permissible to sue your employer for bullying or abusive treatment.  According to the article:

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.

Although no one wants an abusive boss, The New Jersey Employment Law Blog points out one of the potential problems with this type of legislation - 44% of employees think they have an abusive boss!

The article further describes efforts in New York to include targeting:

"...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."

I sure hope if these things become law that there is a clear distinction between actual abuse and a manager or an employee having a bad day.  And, I hope this isn't another of the many examples where instead of acting like adults and treating each other as human beings, we have to legislate our behavior.

Posted By Diane Pfadenhauer In Employment Law 1 Comments | Permalink

I'll be presenting as part of St. Joseph’s College Human Resources Forum.  The topic is an annual labor and employment law update.  The presentation will take place Friday, May 11, 2007 in the Shea Conference Room on the Patchogue Campus.  The cost of the program is $10 and includes a continental breakfast.  For further information, including registration, contact Jo Ann Petrone at jpetrone@sjcny.edu or call (631) 447-3259.

Posted By Diane Pfadenhauer In Employment Law , Miscellaneous | Permalink

All too often employers make the mistake of misclassifying someone as an independent contractor rather than an employee.  Jerry Kalish at the Retirement Plan Blog points us to two solutions when that error is made.  The first deals with the retirement plan issue - in other words, how you get the person on the retirement plan without wrecking the plan?  The other relates to the problem of payroll taxes.  That is, once you've determined that the person should really be an employee, how do you handle the fact that you did not previously pay payroll taxes for this person?  Well, Jerry has the answers.  Take it away , Jerry.

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

The Equal Employment Opportunity Commission recently announced a new initiative to combat racism and colorism in the workplace.  E-RACE (Eradicating Racism And Colorism from Employment) is a reminder that race claims continue to be the highest number of claims that the EEOC receives each year.  In addition, the EEOC's website points us to some startling statistics and demographic changes which they believe necessitate this initiative.

• 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.
  

The EEOC has updated portions of its website, including Section 15 of the new Compliance Manual, on “Race and Color Discrimination.”

Posted By Diane Pfadenhauer In Employment Law | Permalink

One of the more interesting cases that the US Supreme Court will hear this year (BCI Coca-Cola Bottling Co v. Equal Employment Opportunity Commission) surrounds a human resources manager who terminated an employee based almost exclusively on information from the employee's supervisor.  According the the EEOC, the supervisor allegedly had a history of treating black employees more adversely when compared to others and had a history of making racially disparaging remarks in the workplace.  The human resources manager, who harbored no discriminatory motive, relied on the word of the supervisor when terminating the employee.  In addition, the HR manager did not know that the employee was black.

However the Court rules on this issue there are certainly lessons to be learned here for HR professionals:

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

Yes, if you ask the EEOC.  No, if you ask the Sixth Circuit Court of Appeals.  In an interesting case in Virginia, an employee was offered severance pay in exchange for signing a release that contained a covenant not to sue her employer.  Believing that she was the subject of discrimination, the employee chose not to sign the agreement and filled a charge with the EEOC.  The trial court agreed with the EEOC and held that the agreement was facially retaliatory, but the Court of Appeals reversed noting that the employee was not an adverse action for the purposes of the retaliation analysis.  In other words, she was not being given something or owed something that was then taken away because of some protected conduct.

See EEOC v. Sundance Rehabilitation Corporation 6th Cir., No. 04-4178, 10/24/06.

Posted By Diane Pfadenhauer In Employment Law | Permalink

The new Consumer Communication Records Privacy Act places limits on the use and disclosure of Social Security account numbers, and clarifies what is considered a computer crime.
The new law is actually comprised of three different laws and protects consumers by:

• 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.
  

For the actual text of the new law, go here.

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

With the proliferation in the use of technology in the workplace, it is not uncommon for employees to be issued thousands of dollars worth of equipment.  Typically, when the employee leave and the equipment is either not returned or is returned in poor condition, many employers want to deduct the value of the equipment from the employee's last check.  I've been advising people for years on the perils of doing this (illegal wage deductions, etc., etc.).  The US Department of Labor has made available one its Opinion Letters on Improper Wage Deductions.  Use it to convince your managers not to do this.

The DOL posts its Opinion Letters on their website.  They can be found by following this link:  Department of Labor FLSA Opinion Letters.  Read to your heart's content!

Posted By Diane Pfadenhauer In Employment Law | 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

By now most of us know that the State of California requires employers with 50 or more employees to provide mandatory sexual harassment training to supervisors (California Code A.B. 1825). I previously discussed this training requirement here.  Now there is discussion to confirm that the training requirement should extend to employees beyond California's borders.  That is, to be required of managers located out of the state of California who supervise those working in the state.  These proposed modifications to the regulations of California's Sexual Harassment Training Requirement for supervisors are open to public comment.

As we conduct training for our clients throughout the country, we often advise that this requirement is merely a minimum.  An effective prevention program should be ongoing, thorough and should not matter where employees are working.

Posted By Diane Pfadenhauer In Employment Law | Permalink

Ross Runkel has a great summary of the Supreme Court's 2005-2006 term. He provides a detailed summary of all of the employment law cases of the term.  Take it away Ross....

Posted By Diane Pfadenhauer In Employment 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

The Supreme Court yesterday issued its verdict in the Burlington Northern v. White case that I previously discussed here.  There has been a buzz in the news regarding this case, which is likely the most important case of the year.  Here's what happened:

The plaintiff, a railroad employee, alleged that following her report of sexual harassment and the suspension of her supervisor as a result, she was reassigned to dirtier work, even though her job classification stayed the same. The railroad argued that both the forklift job and the laboring tasks were within her job description, and that she had suffered "no direct economic effect," especially since she had received back pay for the 37 day suspension.

The Supreme Court, however, upheld the United States Court of Appeals for the Sixth Circuit and noted that:  "Many reasonable employees would find a month without pay a serious hardship.... An indefinite suspension without pay could well act as a deterrent to the filing of a discrimination complaint, even if the suspended employee receives back pay."

In addition to various news articles on the ruling, several fellow bloggers have provided worthy analysis of the case:

• 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."

Looking at the spirit and intent of Title VII, this doesn't seem unreasonable to me.  When Ellerth and Faragher were decided almost 10 years ago, many people predicted doomsday for employers.  The reality is that we now have a standard that, although must be sorted out in the courts, will provide guidance to both sides of the bar as to what retaliation really is.

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 Non-farm Employment as of January 1, 2006. 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.

The folks as the Workers Comp Insider also remind us of the need to focus on the safety of younger workers. Their top ten list includes a few useful tips as well as links to other resources on the web concerning teen safety on the job.

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

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 act