I cannot tell you how many times I have had a client question me about background investigations.  I look at the documentation and everything is written surreptitiously to protect the company doing the background investigation, not the employer.  With all vendors, HR professionals must be diligent in ensuring that their company's interests are protected, that the responsibilities for performance for engaged services are met and that areas of potential liability are not dumped upon the employer in the small print.  The CYA approach to doing background investigations puts employers at risk and it is important to fully and completely understand both the federal and state requirements that are imposed on employers.  Don't expect your vendor to educate you and assume any risk - and be responsible!

For a more comprehensive discussion of state and federal law requirements in this area, see Kristin's post here:  Avoid A Few Common Mistakes When Conducting Background Checks

For a detailed discussion on general employment law requirements imposed on New York Employers, see my latest book:  The Employer's Guide to New York Employment Laws

I'll attempt to summarize and clarify the unwieldy statute in the near future, once I emerge from my grading....  In the mean time for the brave and daring.....go to page 64 of the statute by following the link above.

A few weeks ago, they managed to put everyone into a tizzy by announcing that employers had to use their own poorly written, misleading form to inform employees about their wage rate on hire.  Now, with NO fanfare, announcement or anything, they've back-peddled on the whole idea and haven't told anyone!

Here's the text from the DOL press release on 10/29: The notice must be provided on a form available from the New York State Department of Labor, and must be given to new employees before they do any work.

Here's the where the link from the press release takes you ( with key language I have highlighted in bold).  Language regarding the use of their notice - GONE - with no fanfare or updated announcement:

Starting on October 26, 2009, employers must give newly-hired workers written notice of the rate at which they will be paid and their regular payday, under Section 195.1 of New York’s Labor Law. The notice must be given to new employees before they do any work.

The written notice must also include the employee’s overtime rate of pay, if they qualify for overtime. Most employees must receive overtime pay at one-and-a-half times their regular rate of pay for all hours they work over 40 in a given week. A very few occupations are not covered by the overtime provisions of labor law, such as farm workers and professionals.

No particular form is required.  Employers may create their own forms, or use and/or adapt a sample form available at the link below.  In the near future, sample forms for a variety of pay agreements (salaried, prevailing rate, exempt, and others) will be provided here.

Hey, I'm all about protecting employees from unscrupulous employers.  However, I am not at all a fan of issuing regulations and requirements that are not carefully thought through, misleading, poorly communicated and add additional expense for my clients to do business - particularly in this economy.

• Permit individuals who are involuntarily terminated between April 1, 2008 and December 31, 2009 to continue group health benefits under COBRA for a period of 24 (instead of the usual 18) months. If the individual’s coverage has expired by the time the legislation is enacted, the individual would have the right to elect COBRA coverage for the additional 6 months.

• ARRA would be amended to extend the 65% subsidy until June 30, 2010, and the subsidy would end the earlier of up to 15 months or until December 31, 2010.

Follow this link to:  H.R. 3930: Extended COBRA Continuation Protection Act of 2009

Recently, the Transportation Security Administration implemented a rule that requires flyers to provide their date of birth and gender when making airline reservations.  This half-brained idea is supposed to allow the TSA to compare reservations with no-fly lists.

As everyone knows, asking an applicant for his/her date of birth raises suspicion, regardless of the reason.  In addition, let's not even address issues relating to privacy concerns which arise as a result of providing confidential information to the employer and then the travel agent.  Who knows who will get their hands on this information.

Too bad this rule flies in the face of other rules that employers are subjected to.  It would have been nice if the left hand spoke to the right hand.  Gee, maybe that's why my passport card  - which was touted by the government as a great idea - says it's not approved for flying.  Lovely, I got one so that I can basically be forced to use other identification 99% of the time anyway.

When I started the blog, it was along the lines of wanting to able to share information with other practitioners that would be free and, hopefully, useful - no subscriptions, no fees, no passwords.  I have also used it as a platform to occasionally rant.  Over the years it has become a searchable data base that I know many people use for a first stab at finding a solution to their problem or issue.  I try to always provide a link where I can to other sources of  information that is hopefully explanatory or authoritative.

As one of the few bloggers at that time, I started the blog using typepad and did everything myself.  There were about a dozen or so regulars out there from Michael Fox, to George Leonard, to the folks at the Workers' Comp Insider and to Michael Fitzgibbon up North. Also, the Labor Prof Blog, and Ross Runkel's blogs.  It was a relatively small community then and over the years there have been many who began blogging and quickly faded away.  Over time, I switched to having Lexblog host it - probably one of their earlier clients.  People thought I was absolutely nuts that I would pay someone to host a blog!  The reality was that I am a big technology fan and spent far too much time tweeking it and playing with it for my own good.

Today law firms and other professional service firms have jumped on the band wagon who have their blogs professionally hosted with the idea of using it as a marketing tool - likely carefully analyzing every word crafted by associates and micro managed through several layers of management before the "official posts" appear.  In addition, we have a few HR bloggers who choose to be controversial or anonymous and use that as a forum to get readers.  I, for one, enjoy the personal commentary provided by those whose passion comes through - unfiltered, written with a desire to contribute to the profession and the community and ultimately providing pearls of personal wisdom and information.  And, I hope I have contributed thoughtfully to that community over the years.

My blog has become an indispensable part of what I do professionally.  I can't imagine not writing! Many of its posts have been adapted to newsletters by my firm (and, I know by others who have "borrowed" from it).  Its information has also been used in books that I have written as well as a source of information for those who hear me speak on employment law and human resources.

I think going forward, what I'll change about it is, well, nothing. Thanks for reading.

I stumbled upon a ridiculous blog post about a human resources manager posting a notice in the company cafeteria warning employees not to steal each others' food.   What I found most appalling was not that the employees were stealing each others' food but that the HR manager felt that he/she "had to" post a notice governing refrigerator behavior.  What fools think that it is HR's responsibility to monitor the refrigerator in the employee cafeteria?  And, let me guess, these are the same fools that are upset that they "don't have a seat at the table," that they are "underpaid" relative to their colleagues with similar titles, or that they "don't get no respect."

Come on!  With all of the uncertainty in the economy, health care in its current state, employee engagement at its lowest point in who knows how long, this is not what HR professionals should be focusing on.  Those that do, are missing opportunities to improve the workplace, provide value to their organizations, and make a positive difference in so many other, professional, ways.

• Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy. This differs from current law in that military caregiver leave is now only available to care for current members of the Armed Forces, Guard, or Reserves.

• Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty. Currently, DOL regulations exclude aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave. When the serious injury or illness rises to the level of a subsequent injury or illness an employee will be entitled to take military caregiver leave for the same covered service member.

• Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country. Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.

The U.S. Department of Labor and Office of Personnel Management will work with the Secretaries of Defense and the Veterans Administration in formulating regulations to carry out the amendments, so be careful!

Interestingly, it is unclear whether the legislation is effective immediately or whether it will become effective with the issuance of implementing regulations.

Thanks to Carl Bosland of the FMLA Blog for bringing this important change to our attention.

• their hourly rate
• their potential overtime rate

The form also includes notice of pay days which was already required under state law.  The State DOL had previously issued a model notice for temporary agencies.  Interestingly, in a new twist, it appears that the DOL is now requiring that you use their particular form.

You can find these notices/forms here, and should complete them in accordance with your particular organizational situation.

Follow these links:

Notice and Acknowledgement of Wage Rate and Designated Payday Hourly Rate Plus Overtime

Notice of Pay Rate and Payday for New Hires (for employers and employees)

For employees its 1) benefits, 2) financial compensation, and, 3) their career growth and earnings potential.  Employers, however, believe that management climate, supervisor relationships and culture and work environment keep their employees at work.

In my experience, managers always seems to have a relatively warped sense of their value to employees.  They believe that they are engaging, motivate employees, have open door policies and send messages to employees that they are valued.   For their employees, it seems that according to this survey, nuts and bolts count first, particularly in this economy.  Even if employers do believe this about themselves, many times their actions in practice are contrary to the spirit of these employee-friendly policies.

Not all employers are as misguided as I suggest, but if an employer doesn't even know why employees work there, that's a problem.  And those that think human resources is back office administration, holiday parties and compliance are the ones most likely to fall into this trap and face massive turnover once the economy recovers

Follow this Link:  Firms, workers differ on why people stay in jobs

2010 Benefit Plan Contribution Limits

The Internal Revenue Service just issued an announcement on the cost-of-living adjustments applicable to dollar limitations for pension plans and other items for tax year 2010.  There had been speculation that the amount of contributions were going to go down, not up, next year in response to economic conditions, inflation and whatever other magic the IRS uses to determine contributions.  For the geeks among us:  You will notice they are the same as 2009.

Follow these links....

IRS Announcement:  COLA Increases for Dollar Limitations on Benefits and Contributions

For more discussion:  IRS: Retirement contributions same for 2010

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

Even more interesting, however, is that:

"Separately, the federal government plans to ban text messaging by bus drivers and truckers who travel across state lines, and may also preclude them from using cellphones while driving, except in emergencies."

For those employers who have not yet addressed this issue from a policy perspective - including addressing the use of other technology (like cell phones) while driving, it's time to wake up.  Not only will such employers reduce potential liability as the result of reduced accidents, they will free employees from the pressure of feeling as though they have to respond immediately while on the road.

Follow this link:  Texting While Driving Banned for Federal Staff

1. They are dependent on face-to-face interaction when acquiring information.
2. They are afraid of technology.
3. They need supervision to get things done.
4. They equate busy-ness with productivity.
5. They are not organized.
6. Their work ethic is largely dependent on moods.
7. They can’t say no. Teleworking requires the ability to prioritize ruthlessly.

Thanks to Web Worker Daily for these great considerations.

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.