Monday, December 22, 2008

Employee Time Off Does Cost You

We all know that the cost of training new hires and recruiting new employees is more than just paying new salaries and recruiting fees. However, did you know that your basic employee absence carries a significant cost?

According to a new study by Mercer, the cost of an employee absence averages about 36 percent of base payroll. Mercer surveyed over 450 organizations. It found that direct costs (such as pay provided to an employee for time not worked) and indirect costs (such as replacement labor costs and lost time) of employee absence run almost 36% of base payroll, the majority of which(26.6 percent) are attributed to “planned” absences like vacations. However, “unplanned incidental” absences (like sick days) amount to 6% of payroll.

The study suggests that employer can reduce these costs by having sound benefits and attendance policies; effect absence management and administration; and identifying the underlying causes of employee absence.

Tuesday, December 16, 2008

Should You Get Credit for Pregnancy Leave?

Does the Pregnancy Discrimination Act (PDA) require employers to credit pregnancy-related time off in calculating pension benefits if the time off occurred before the law was enacted?

The Supreme Court will take up this issue in AT&T Corp. v. Hulteen. The plaintiffs were granted time off from pregnancy prior to the enactment of the PDA. Years later, the plaintiffs are now seeking to get the time off taken for pregnancy credited as service time for purposes of calculating their pensions. Essentially, the plaintiffs are asking for the law to retroactively apply because if it does not, they are being discriminated against because of pregnancy.

The plaintiffs may benefit from the 1986 decision in Bazemore v. Friday, which allowed black workers to challenge a pay scale that went into effect before Title VII was enacted.

On the other hand, the Court's 2007 decision in Ledbetter v. Goodyear Tire and Rubber holds that "The fact that pre-charging period discrimination adversely affects the calculation of a neutral factor like seniority … that is used in determining future pay does not mean that each new paycheck constitutes a new violation and restarts the EEOC charging period", which would mean that the claims may fail.

Either way, it is an interesting case.

Tuesday, November 25, 2008

Take Proper Care with Layoffs

With the economy spiraling downwards, many companies have chosen to layoff staff in an effort to reduce costs or to streamline operations. Layoffs raise a number of legal issues that make it imprudent to simply let an employee go without forethought.

1. If you plan on offering an employee severance, you must consider that if the offer differs between similarly situated employees (either offered in the past or at the same time), you may run afoul of the federal employment discrimination laws. You must be mindful of laying off persons in protected classes, such as race, religion, disability, national origin, or sex. If you offer a lesser severance to an employee in a protected class, you may be facing an EEOC discrimination charge.

2. Severance agreements must comply with certain laws and contain certain disclosures in order to be legally enforceable. This is particularly true when you are offering severance to an employee over the age of 40. The Older Workers' Benefit Protection Act which is contained within the Age Discrimination in Employment Act, contains certain requirements that mandate an employee be able to make a "knowing and voluntary waiver" if the severance is in exchange for giving up any claims against the company that the employee might have.

3. If you are closing an entire facility or laying off a group of employees, you may be required to give 60 days notice prior to the layoffs under WARN Act.

4. If you have laid off employees based on "least best" performers, you should have solid documentation to support the reasons why the employee was a low performer. If you have not maintained documentation on performance, you will have difficulty in challenging an unemployment claim or in justifying why you laid a certain employee off over another (which again, may get into a discrimination claim).

Tuesday, November 11, 2008

Too Many Americans Feel Workplace Discrimination

According to a recent FindLaw survey, more than one in four Americans has been discriminated against at their place of employment.

If that figure is accurate, it's way too high. I used to represent individuals in employment law matters. I made the transition over to the management side many years ago due to a variety of reasons, including:
  • Amendments to the Civil Rights laws resulted in few plaintiff's cases successfully surviving summary judgment;
  • Because of defense success on summary judgment, settlement value (and offers to settle) were reduced or reserved until after the ruling on the motion for summary judgment;
  • Most of the cases I saw arose out of some one's "bad day at work", which was a symptom of a larger problem: employers did a poor job of bridging the communication gap between rank-and-file employees and management. Most employees were unhappy because they had no outlet to aggrieve concerns, so instead of complaining to management, they were seeking out attorneys.

I realized that what I was doing had limited societal utility; I was "leveraging" cases to the point of settlement, but the problem was not being solved with the communication gap in the workplace. So, I started transitioning to the management side with an emphasis on preventing workplace disputes before they arose. Put another way, if I can educate clients on how to properly run a workplace, on what employees' rights and responsibilities are, then I've preventing a "bad day at work" and in the process helped with the great good.

So, given my goals and practice focus, it disturbs me that so many people still feel victimized at their workplace. It shows that we still have a long way to go with training and educating employers on best practices in the workplace.

Wednesday, August 13, 2008

Is Your Company Wage & Hour Compliant?

In case you thought that wages and hour cases were rare, think again. Through April 2008, almost 1,900 wage and hour cases had been filed in federal district courts. If this trend continues, the number of wage and hour cases will exceed 2007 levels. Plus, these figures do not include state court filings.
  • How do you avoid wage and hour claims? Best practices to avoid such claims include:
  • Auditing all positions classified as exempt from overtime.
  • If you have not conducted an audit in the past few years, it's time for a follow-up review of lower level managers and supervisors should to ensure there have been no changes in duties.
  • Making sure your company has adopted and published a "safe harbor" policy on deductions from salaried employees.
  • Reviewing timekeeping policies to avoid or reduce the possibility of an employee claiming to have been working, eliminating such things as "standard" or "automatic" deductions for lunch, rounding hours, and similar practices.
  • Reviewing policies and procedures to review deductions from wages and salaries to ensure that they comply with the minimum wage and overtime requirements of state and federal law.

FMLA Joint Employer Ruling

Many of the Federal employment laws do not take into consideration co-employment, joint employment or other employment relationships that involve more than one employer.

Under the Family and Medical Leave Act (FMLA), the U.S. DOL promulgated regulations explaining circumstances where a joint-employment relationship may exist: (a) Where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under FMLA. Joint employers may be separate and distinct entities with separate owners, managers and facilities. Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between employers to share an employee's services or to interchange employees; (2) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or, (3) Where the employers are not completely disassociated with respect to the employee's employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer. 29 C.F.R. § 825.106(a).

A case just decided a few week ago held that for a joint-employer relationship to exist, each alleged employer must exercise control over the working conditions of the employee, although the ultimate determination will vary depending on the specific facts of each case. That case, Moldenhauer v. Tazewell- Pekin Consol. Communications Center, 2008 WL 2927018 (C.A.7 (Ill.)), is a Seventh Circuit case (which covers Illinois, Indiana and Wisconsin).

Cases like Moldenhauer arise where one of the two employers has less than the requisite "50 employees within a 75-mile radius" to come under the purview of the FMLA, but when aggregated to the second company, falls within the applicable number of employees.

Tuesday, July 8, 2008

You Can't Read Employee Emails?

On June 18, 2008, the 9th Circuit U.S. Court of Appeals decided that employers have no right to read their employees' text messages without their consent. Even if employers pay for the service, providers are prohibited by the federal Stored Communications Act from releasing the text message contents to them.

The Court ruled that reasonable expectations of privacy vary depending on the specific facts and circumstances, and that the availability of other, less intrusive, ways to monitor the amount of text-messaging services played a role in the decision.

This opinion emphasizes the importance of having good policies and procedures, including reference to when and how the employer may search, review or monitor phone calls, emails, etc. This case is only binding in AK, AZ, CA, GU, HI, ID, MT, NV, OR, WA.

E-Verify Required In Georgia

Effective July 1st, under the Georgia Security and Immigration Compliance Act, public employers, contractors and subcontractors with 100 or more employees (but less than 500) were required to use the e-verify system, an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA). Participating employers can check the work status of new hires online by comparing information from an employee's I-9 form against SSA and Department of Homeland Security databases. More than 69,000 employers are enrolled in the program, with over 4 million queries run so far in fiscal year 2008.

In addition, public employers in Arkansas, Colorado, Mississippi, and Oklahoma are required to use E-Verify. Rhode Island mandates its use for public employers and state agencies. Two states-Missouri and Tennessee-encourage its use. In Indiana, Minnesota, North Carolina, Pennsylvania, and Utah, state agencies must use the system, and in California, Colorado, Florida, Illinois, Iowa, Kansas, Missouri, New Jersey, Pennsylvania, South Carolina, Tennessee, and West Virginia E-Verify legislation is pending.

To register for E-Verify, go here.

Supreme Court ERISA Case

On June 19th, the US Supreme Court ruled that the dual role of ERISA plan administrators that both determine whether an employee is eligible for benefits, and pay benefits out of their own pockets, creates a conflict of interest. Thus, a reviewing court should consider such conflict as a factor in determining whether a plan administrator has abused its discretion in denying benefits, and the significance of the factor will depend upon the circumstances of the particular case.

The case is Metro. Life Ins. Co. v. Glenn, No. 06-923.

Jobless Claims Continue To Rise

Employers cut payrolls by 62,000 in June, the sixth straight month of nationwide job losses, underscoring the economy's fragile state. The unemployment rate held steady at 5.5 percent - the same as May. Previously, the last time the unemployment rate hit as high 5.5 percent was in October 2004.

Heavy job losses in construction, manufacturing, business services and retailing eclipsed job gains in education and health services, leisure and hospitality, and government.

Tuesday, June 17, 2008

Responding to Debt Collection

With the economy in a downturn, cash flow is tight for many businesses. In turn, a company may be slow in paying its bills. Before you get involved in litigation for failing to meet a payment deadline, consider the following tips to avoid a creditor's escalating collection efforts:

• Respond in a timely manner to any demand letters you receive;
• Dispute in writing any debt that you believe is erroneous;
• If you can't pay a bill in full, pay as much as you can;
• Contact the creditor and try to arrange a payment plan that you can afford; and
• Contact counsel as soon as possible if you receive any "final demands", threats of litigation or are sued.

Extended Unemployment Benefits Rejected

Last Wednesday, the US House of Representatives rejected a Democratic attempt to extend unemployment benefits for an additional three months after the White House threatened to veto the bill. The bill would have extended the average $300-a-week unemployment benefit check by 13 weeks for all Americans. Job seekers in high unemployment states like Alaska, California, Michigan and Rhode Island would have been able to get an extra 13 weeks on top of that.

Jobless Claims Rise Again

The US Department of Labor reported last week that new applications for jobless benefits rose to 384,000, an increase of 25,000 from the previous week.
That was a much bigger gain than analysts had been expecting and indicated that the labor market still remains under pressure. Last week, the government reported that the unemployment rate jumped to 5.5 percent, up from 5 percent in April. That was the biggest one-month gain in 22 years.

The latest figures come after the government reported the nation's unemployment rate jumped to 5.5 percent in May - the biggest monthly rise since 1986 - as nervous employers cut 49,000 jobs last month.

Monday, February 11, 2008

New Civil Rights Bill Hits Congress

A new bill introduced by Senator Ted Kennedy and Representative John Lewis aims to reverse or modify seven workplace-related decisions handed down by the United States Supreme Court over the past two decades. Entitled the Civil Rights Act of 2008 (S. 2554/H.R. 2159), the bill aims to "restore, reaffirm, and reconcile legal rights and remedies under civil rights statutes."

The Civil Rights Act of 2008 addresses a number of employment issues, including age and gender discrimination laws and improper use of federal funding. The seeks to restrict mandatory arbitration clauses, eliminate damage caps in gender and religious discrimination cases, reward successful plaintiffs with expert witness fees, and allow state employees to seek damages from their employers for age discrimination and Fair Labor Standards Act ("FLSA") violations. The bill also contains a provision allowing undocumented workers to recover backpay for labor and employment law violations.

Upcoming State Holiday Schedule

CA, CT, IL, MO, NJ Lincoln's Birthday February 12

VA, WA, WV, WY Presidents' Day February 18

AL, AR, CA, CT, DC, IL, MS, MO, NV, NJ, NY, VT Washington's Birthday February 18

Friday, February 8, 2008

New Proposed FMLA Regulations

Department of Labor officials recently announced that they have proposed new regulations governing the Family and Medical Leave Act , the New York Times reports (Greenhouse, New York Times, 1/25). The federal law currently requires businesses with 50 or more workers to offer employees who have worked at the business for one year -- or 1,250 hours -- 12 weeks of unpaid leave. The law also requires that unpaid leave be available for serious health conditions, to care for a newly adopted child, or to care for a seriously ill spouse, child or parent.

Currently, employees can take two days off before requesting leave, but the proposed rule generally would require workers to call in to request leave before taking it, the Times reports. The department also is drafting regulations to put into effect changes that Congress approved earlier this month, including leave for the families of wounded veterans or leave for "any qualifying exigency" related to a family member's call-up to active duty or deployment, according to the Times (New York Times, 1/25). According to AP/, areas of the law likely to see changes include medical certification for FMLA leave, unscheduled intermittent leave for people claiming chronic health conditions, and employee awareness of their rights under the law.

Thursday, February 7, 2008

New DOL Wellness Guidelines

In December, the US Department of Labor's Employee Benefits Security Administration issued guidelines to its national and regional offices (Field Assistance Bulletin 2007-04) on "supplemental coverage," a form of health insurance covering co-pays and deductibles in regular insurance. Supplemental coverage is generally used to fill such gaps in either Medicare or Tricare, the health-care plan for current and retired military members. But in recent years, some employers have incorporated a form of supplemental insurance into their wellness programs.

Last July, federal agencies finalized rules granting some exceptions from HIPAA to certain wellness programs. Under the rules, employers can offer financial incentives of as much as 20% of the cost of covering an employee. Popular are discounts to nonsmokers or contributions toward insurance premiums for workers who complete health-risk assessments or have their blood pressure checked.
The new Field Assistance Bulletin establishes an enforcement safe harbor under which supplemental health insurance will be considered excepted benefits for purposes of the health reform provisions in Part 7 of ERISA. Similar supplemental coverage that does not meet the standards for the safe harbor may be subject to enforcement actions by the department.

To fall within the safe harbor, to be similar supplemental coverage, a policy, certificate, or contract of insurance must meet the standards in four criteria detailed in the safe harbor: (1) independent of primary coverage, (2) supplemental for gaps in primary coverage, (3) supplemental in value of coverage, and (4) similar to Medicare supplemental coverage. This guidance has been coordinated with the Departments of Treasury, and Health and Human Services.

Wednesday, February 6, 2008

EEOC Bulletin Effects Those 65 and Over

An Equal Employment Opportunity Commission ruling from last month allows employers to treat younger and older retirees differently without fear of being sued for age discrimination. It permits companies to maintain or spend more on benefits for younger retirees who aren't eligible for Medicare while reducing or eliminating benefits for older retirees. The EEOC says employers would be more likely to drop health care coverage for all retirees if they had to spend the same amount on insurance for both groups.

The AARP has asked for a U.S. Supreme Court ruling that the EEOC lacks authority to issue the regulation. The senior group argues that the regulation is discriminatory and shifts the burden of cost to older retirees.

A copy of the EEOC's Q&A on the ruling can be found at

Friday, February 1, 2008

December Unemployment Rises

From the Bureau of Labor Statisticsof the U.S. Department of Labor :

The unemployment rate rose to 5.0 percent in December, while nonfarm payroll employment was essentially unchanged (+18,000). Job growth in several service-providing industries, including professional and technical services, health care, and food services, was largely offset by job losses in construction and manufacturing.

Average hourly earnings rose by 7 cents, or 0.4 percent.

The number of unemployed persons increased by 474,000 to 7.7 million in December and the unemployment rate rose by 0.3 percentage point to 5.0 percent. A year earlier, the number of unemployed persons was 6.8 million, and the jobless rate was 4.4 percent.

In December, unemployment rates rose for several major worker groups--adult men (to 4.4 percent), adult women (4.4 percent), whites (4.4 percent), and Hispanics (6.3 percent). The unemployment rates for teenagers (17.1 percent) and blacks (9.0 percent) were little changed. The unemployment rate for Asians was 3.7 percent, not seasonally adjusted. Most major worker groups experienced increases in their jobless rates over the year.

Both total employment, at 146.2 million, and the employment-population ratio, at 62.7percent, decreased in December following increases in November. Total employment was essentially unchanged over the year, while the employment-population ratio declined by 0.7 percentage point over the same period. The civilian labor force was essentially unchanged in December at 153.9 million. The labor force participation rate, at 66.0 percent, was unchanged over the month, but was 0.4 percentage point lower than a year earlier.

The number of persons who worked part time for economic reasons, at 4.7 million in December, was little changed over the month but was up by 456,000 over the year. This category includes persons who indicated that they would like to work full time but were working part time because their hours had been cut back or because they were unable to find full-time jobs.

Thursday, January 31, 2008

Supreme Court Tackles ADA case

The United States Supreme Court has granted certiorari from an Eighth Circuit decision and has agreed to address whether an employer violates its duty, under the Americans with Disabilities Act (ADA), to provide a reasonable accommodation to an employee when, instead of reassigning the employee to a vacant, equivalent position, it merely allows the employee to compete for that position. The grant of certiorari was limited to Question 1 of the petition, which stated: "If a disability prevents an employee from performing the essential functions of his or her current position, does the ADA require: (a) that the employer reassign the employee to a vacant, equivalent position for which he or she is qualified, as the Tenth and District of Columbia Circuits have held; or (b) that the employer merely permit the employee to apply and compete with other applicants for the vacant, equivalent position for which he or she is qualified, as the Seventh and Eighth Circuits have held?"
In the decision below, addressing an issue of apparent first impression for the court, the Eighth Circuit Court of Appeals held that an employer did not violate its duty of reasonable accommodation when it required an employee with a disability to enter a pool of applicants for a vacant router position, and ultimately assigned a more qualified applicant to the vacant position and the employee to a maintenance associate position with less pay than her previous position. The ADA did not require the employer to turn away a superior applicant for the router position in order to give the position to the employee in question. Even though the employee was able to perform the job duties of the vacant router position, the employer had a non-discriminatory policy of hiring the best applicant for available positions, the Court of Appeals reasoned. The maintenance position may not have been a perfect substitute job, or the employee's most preferred alternative job, but an employer is not required to provide a disabled employee with an accommodation that is ideal from the employee's perspective, only an accommodation that is reasonable, the court explained.

The ADA's the "reassignment" language cannot be satisfied by merely permitting a disabled incumbent employee to compete with the rest of the world for a vacant, equivalent position, the employee argued in her petition for a writ of certiorari. Moreover, the petition asserted, the judges who dissented from the denial of en banc rehearing correctly observed that the Eighth Circuit's ruling "renders a statutory provision in the ADA superfluous, overlooks EEOC guidance, and is contrary to the Supreme Court's admonition in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), that preferences are a valid means to achieve the statutory goals." (Case below: Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (C.A.8-Ark. 2007), reh'g and reh'g en banc den., 493 F.3d 1002 (C.A.8-Ark. 2007).)

Wednesday, January 16, 2008

Important Deadlines Approaching

1/31 - Furnish Forms 1099 and W-2: Furnish each employee a completed Form W-2, Wage & Tax Statement for 2007.

2/1 - OSHA 300A Form: Employers need to post their 2007 Summary of Work-Related Injuries and Illnesses (Form 300A) from February 1st through April 30th of each year.

2/15 - W-4 Reminder: Any Form W-4 previously given to you claiming exemption from withholding has expired. Employers must change the withholding exemption to "single, with zero allowances" for employees who claimed total exemption from withholding for last year, unless those employees have completed a new Form W-4.

3/31 - Forms 1099 and 8027 Due: Employers are required to file (electronically) Forms 1099 and 8027 with the IRS. Form 1099 is used for reporting payment made to Independent Contractors. Form 8027 is to be filed by large food and beverage an establishment in which tipping is customary.

3/31 - Form W-2 Due: Form W-2 is to be filed with the Social Security Administration.

Friday, January 11, 2008

Minimum Wage To Increase In July

The federal minimum wage is currently $5.85 per hour; it is scheduled to increase to $6.55 per hour on July 24, 2008. A number of states, including California, Illinois and Texas have also increased the minimum wage.

Thursday, January 10, 2008

New IRS Mileage Rate for 2008

The new IRS mileage deduction for business use of a personal vehicle went up 2 cents this year, from 48.5 cents a mile to 50.5 cents. So, if an employee's car gets 20 miles to the gallon, and she uses one gallon of gas for business purposes (i.e., goes 20 business miles), it is about $3 in gas that the employee is expending. The employer is reimbursing the employee $10.10, so the employee is also getting fairly compensated for any wear and tear to the vehicle.

Tuesday, January 8, 2008

New EEOC fact sheet on testing

The Equal Employment Opportunity Commission (EEOC) has issued a fact sheet detailing how federal antidiscrimination laws apply to employer-administered checks and tests which may apply to job candidates and workers who are up for promotions. Common checks and tests include those measuring cognition and personality, medical history, credit, and criminal backgrounds.

Log onto for more information.

New I-9 Form

The U.S. Citizenship and Immigration Services (USCIS), the federal agency that enforces the employment verification requirements, has mandated that all employers begin using a new I-9 form . The I-9 is a form used by an employer to confirm that every new employee is either a U.S. citizen or authorized to be employed in the U.S. The I-9 should be completed within three days of the commencement of employment.

You may find a copy of the new Form I-9 here, as well as a copy of the revised USCIS Handbook for Employers, Form M-274, which explains the I-9 process. To ensure that you the latest version, make sure that the lower right hand corner of the form reads “Form I-9 (Rev. 06/05/07) N”.