WJR Employment Law Ledger

Expired FMLA Forms Extended

2012-01-19T14:16:00.000-05:00

You may noticethat the most current versions of the Family and Medical Leave Act (FMLA) formsfrom the US Department of Labor (DOL) bear an expiration date of December 31,2011. Of course, the deadline haspassed, yet the DOL has not issued new forms.

The DOL mustsubmit the new forms to the Office of Management and Budget (OMB). At first, OMB had not yet approved the newFMLA forms, so DOL was advising that employer could still use the expiredforms. However, on Saturday, January 14,2012, the DOL changed the expiration date for the most current forms to January31, 2012, extending the use of the existing forms.

The most currentforms are subject to updating in part because they do not address the GeneticInformation Nondiscrimination Act (GINA) safe harbor notice employers canprovide when seeking medical information from employees or employees’ medicalproviders. The safe harbor notice states that “GINA prohibits employers andother entities covered by GINA Title II from requesting or requiring geneticinformation of employees or their family members. In order to comply with thislaw, we are asking that you not provide any genetic information when respondingto this request for medical information. ‘Genetic information,’ as defined byGINA, includes an individual’s family medical history, the results of anindividual’s or family member’s genetic tests, the fact that an individual oran individual’s family member sought or received genetic services, and geneticinformation of a fetus carried by an individual or an individual’s familymember or an embryo lawfully held by an individual or family member receivingassistive reproductive services.”

What's the Real Cost?

2012-01-18T09:22:00.002-05:00

With the increase in Federal agency initiatives targeting employers, such as I-9 audits or independent contractor classification audits, employers face increased scrutiny. In addition, disgruntled current or former employees are free to lodge complaints with State and Federal agencies that may spark an investigation. In either case, an employer faces potential liability, as very few employers are capable of keeping up with the myriad of employment laws. In reality, most employers try to remain compliant with employment laws, but if the government looks hard enough, it is likely to find a violation or two.

What’s the cost of a claim? It might be fines for incomplete I-9s, unpaid taxes for misclassification of workers, overtime for unpaid wages or a need to change employment practices. But, the biggest cost is usually legal fees. It is a best practice to hire counsel when an employer faces a government investigation, employee claim or audit. Contacting counsel before reacting/responding to a claim is prudent, but it does create an expense. Moreover, a disgruntled employee is likely to have an attorney herself. When an employee has an attorney, that attorney will likely make a demand for some kind of monetary compensation for whatever wrong the employee alleges. The demand ordinarily includes the payment of that employee’s attorney’s fees.

Most Federal discrimination laws allow for the recovery of attorney’s fees to the “prevailing party”. In a case that goes to litigation, this can mean that the employee’s attorney will ask the court to award “reasonable attorney’s fees”. Typically, the employee’s will ask that the court award attorney’s fees in excess of $100,000. Even in cases that settle, employees expect their attorney’s fees to be paid by the employer, which again can add up to significant amounts of money even in a case that is considered suspect.

In a recent Federal employment discrimination case, a jury awarded an employee $110,000 in damages for the employer’s retaliation for her protesting unlawful employment practices. The employee asked the court for an award of attorney’s fees. Although the employee also brought two other unsuccessful claims (one for gender discrimination and one under the FMLA) that the jury rejected, the judge in that case awarded the employee $250,000 in attorney’s fees and expenses. Think about it: her attorney’s fees award more than doubled the amount of actual damages that the jury awarded to her. The judge reasoned that the winning claim (retaliation) was “intertwined” with her other discrimination claims such that she was entitled to all of her attorney’s fees.

What is the lesson learned from this illustrative case? Be proactive as an employer. Conduct regular training for both employees and management, including on topics such as harassment. In addition, conduct a self-audit of internal recordkeeping, policies and procedures, etc. If you find violations on your own, it’s cheaper and easier to correct with the assistance of counsel than when your company is facing a claim or audit. Finally, while not all claims are avoidable despite best efforts, if the company has taken proactive steps such as those mentioned above, it can mitigate its exposure and can reduce the number of claims. After all, paying someone else’s attorney’s fees doesn’t exactly help the bottom line.

Sexual Harassment Revisted

2011-11-07T13:20:00.000-05:00

Sexual harassment has taken over headlines again.

First, the 20th anniversary of the Anita Hill/Clarence Thomas controversy just passed. To rewind, in 1991 when U.S. Supreme Court Justice Marshall decided to retire, then-President George Bush appointed Thomas to the U.S. Supreme Court. During the the Senate's confirmation process, Hill went public with her allegation that Thomas had sexually harassed her while both worked for the Equal Employment Opportunities Commission (EEOC).

Second, in the past few weeks, Republican presidential hopeful Herman Cain's campaign has had to answer charges that he sexually harassed several women while he was the head of the National Restaurant Association in the 1990s.

Sexual harassment has always existed in the workplace, although it receives much more attention in legal circles than it does in mainstream dialogue. By law, a company is supposed to train and educate management and staff on what harassment is, what do if a worker is a victim or witness to harassment, and how the company will handle the report or complaint. Generally, a company should have a written anti-harassment policy covering all forms of harassment, including sexual harassment. Typically, a company puts such a policy in an employee handbook or on a company intranet. The key elements of an appropriate investigation include:

interviewing the alleged victim, harasser and any witnesses; and
taking prompt remedial action if the allegations can be substantiated.

The law also creates a strict liability situation (i.e., no defense) in some situations, such as where a supervisor is the alleged harasser and the company has failed to provide any form of policy or guidance on how to report the conduct. A company can also be held liable where a member of management learned of alleged harassment and failed to take action to investigate or address the complaint.

A best practice is for a company to bring in outside assistance, such as legal counsel, to perform annual training on harassment and to review existing policies and procedures. During training, it is a good idea to explain the current state of the law, to review the company's anti-harassment policy and to reiterate a zero tolerance for any form of harassment.

NLRB Posting Deadline Now Delayed

2011-10-05T17:05:00.000-04:00

After I posted the information on the NLRB final rule called “Notification of Employee Rights under the National Labor Relations Act”, the NLRB issued a statement on its website that:

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

So, the NLRB still intends to implement the rule. Curiously, the NLRB made no mention of the federal court litigation challenging the rule.

NLRB Posting Rule and Current Status

2011-10-05T10:13:00.000-04:00

On August 25, 2011 the National Labor Relations Board (NLRB) issued a final rule called “Notification of Employee Rights under the National Labor Relations Act”. The rule was to be effective 75 days from publication, putting the effective date as either November 9, 2011 or November 14, 2011 (the NLRB put out a press release creating some confusion on the effective date).

In summary, the rule requires covered employers to notify employees of their rights to engage in organized activities (concerted activity) and apprises such employees of their rights to raise complaints concerning terms and conditions of employment. For instance, the notice states that employees have a right to:

• Organize a union to negotiate concerning wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing over wages, benefits, hours, and other working conditions.

• Discuss terms and conditions of employment or union organizing with co-workers or a union.

• Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The notice requires employers subject to the NLRA to post a notice in 11x17 format much in the same way that other rights have to be posted, such as wage and hour and EEO notices. However, it also requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means, however.

Failure to post the notice may be treated as an unfair labor practice (ULP) under the NLRA. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an ULP case involving other alleged violations of the NLRA. Note that the NLRA, and this rule, apply to private employers that have an impact on interstate commerce. The NLRA specifically excludes public employers, railway and airline employers, and people who are employed as agricultural laborers. The law covers a retail or service establishment with annual gross receipts of at least $500,000. It also covers manufacturing companies that ship at least $50,000 worth of goods across state lines, or that purchase at least $50,000 worth of goods from out of state.

A copy of the poster can be found here.
But, the rule is being challenged in a U.S. District Court in Washington, DC. If successful, the lawsuit would block the notice positing requirement. But for now, employers should presume that they are to comply with this rule.

ICE turning up the heat

2011-02-24T15:34:00.000-05:00

Last week, the U.S. Immigration and Customs Enforcement ("ICE") announced a new initiative targeting over 1000 employers in all 50 states. This initiative will include site visits for document inspections. According to ICE, "the inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny". Essentially, this means that ICE is stepping up its efforts to audit employers. Any company is potentially subject to being audited.

Over the past few years there has been a shift from seeking to punish undocumented workers to the pursuit of employers that knowingly hire undocumented workers or who fail to comply with immigration laws. This trend began with employer audits in July 2009, when ICE announced more than 650 firms were being investigated. Another 1,000 notices were issued in November 2009, with 200 more in March and an additional 500 notices of inspection in September 2010.

A concern for employers should be ensuring the form I-9 is properly completed each time it hires a new worker. The I-9 form is used to verify that a worker is authorized to work in the U.S. and is to be completed within three days of initial hire.

If an employer fails to properly complete an I-9 or does not retain I-9s for all employees, it can be subject to ICE enforcement. Civil fines for violations range from $100 to $1,100 for each violation, and fines for substantive violations - employing an unauthorized worker - range from $375 to $16,000.

In line with the previous blog posting, conducting a self-audit to identity and correct any violations is the best way to avert violations. If your company is contacted by ICE, you should contact counsel immediately.

No surprise: EEOC charges way up

2011-02-21T14:31:00.000-05:00

The EEOC reported last month that the number of discrimination charges was at record levels. The report was not a surprise given the high unemployment rate, continued company layoffs and general economic climate.

A greater number of EEOC charges also means that it is likely that a greater number of EEO lawsuits will be filed in the courts. Now more than ever, it is imperative for employers to be cognizant of the potentail for cases of this sort being filed against them, to understand the nuances involved in the EEOC’s handling and prosecution of such cases, and to be prepared to timely challenge any attempts by the EEOC to overreach.
Our firm is recommending that employers engage in proactive self-audits, in order to seek out and eliminate vulnerability. We do not want our clients to be among the list of targeted businesses, nor do we want our clients to be found in violation of any laws, paying fines, being sued, etc. We engage in an interactive interview process, examine records and review policies and procedures to ensure that a company is compliant with the various employment laws.

A self-audit can mitigate potential penalties and fines that a government investigator might uncover. In addition, the audit process can lead to identifying weak areas and problems with record keeping and certain employment practices. In turn, the audit process can lead to the development of "best practices" and can function as a long-term cost savings, as a single lawsuit can cost over $100,000 to defend.
If your company hasn't reviewed policies and procedures in some time or hasn't had an audit, now is a good time to do so.

Weighing in On Weight Discrimination

2010-09-08T10:26:00.000-04:00

In 2009 and 2010 the Equal Employment Opportunity Commission (EEOC) received the highest number of charges of employment discrimination than ever before. The increase in discrimination charges is likely the product of a poor U.S. economy. Employees being laid off from work are turning to the EEOC, complaining that their employer's decision to separate them from employment was motivated by unlawful discrimination. Of course, not every employment decision is based upon discriminatory motivation or animus. To the contrary, companies struggling to make ends meet often are left with no choice but to reduce the number of employees on the payroll. In many instances, persons selected for layoffs are just the victim of lagging sales or cash flow problems.

Of late, there has been discussion about adding weight to list of protected classes (such as age, sex, religion and race) under federal employment discrimination laws (some states already protect weight under their discrimination laws, such as Michigan). For example, a potential employee files an EEOC charge alleging that an employer failed to hire him/her because he/she is overweight.

A few years ago, Obesity, a journal, reported that discrimination based on weight increased 66% in the past decade, up from about 7% to 12% of U.S. adults.

Weight is already protected under federal law. Under the Americans with Disabilities Act (ADA), a person suffering from diagnosed obesity may be considered "disabled" and would be afforded protection under that law. In addition, there have been cases brought under Title VII of the Civil Rights Act of 1964 where plaintiffs argued that weight standards imposed by an employer that were applied differently to men and women was discriminatory on the basis of sex since such standards adversely impacted women.

Like race, weight is something that is immediately identifiable. An employer may meet a potential employee and determine that because he/she is overweight, that the person will be lazy or unhealthy. Further, an employer may simply choose not to hire an overweight person on the basis of customer disdain or for any other reason. Some commentators argue that weight should not be afforded protection under law since it is a mutable characteristic (a person can lose weight with a better diet and exercise), but in some instances weight gain is a result of medication or a disorder, which is not something that the person can control.

Restrictive Covenants

2010-08-25T14:58:00.000-04:00

With the economy lagging, and jobless rates still hovering at around 10%, many employers are finding that having employees sign a restrictive covenant agreement is a good idea. Restrictive covenants can take several forms, including a covenant not to compete (non compete), a confidentiality provision, a covenant not to solicit co-workers to leave their employ and a covenant not to solicit customers. In many instances, an employer will include one or move restrictive covenants in an employment agreement.

In Georgia, the general rule is that a restrictive covenant in an employment agreement is enforceable when it is limited in scope, duration and geographic territory. Determining a reasonable scope, duration or geographic territory is usually a case-by-case analysis. Restrictive covenants that lack reasonable scope, duration or a geographic territory are ordinarily deemed unenforceable. In an employment context, Georgia courts may not "blue pencil" an agreement, meaning they cannot rewrite the restrictive covenants to scale back the duration, if it's too long, for example. Instead, restrictive covenants tend to be an all or nothing proposition; either they are written properly under Georgia law or they are unenforceable in their entirety.

So, employers looking to retain customers, protect confidential information, and who want to retain valued employees should consider having counsel draft a restrictive covenant agreement for all employees. Continued employment may be sufficient consideration for signing the agreement, so there's no problem with asking an existing employee to sign one.

Obviously, the value of a well-written restrictive covenant agreement is to deter and prevent any employee who is laid off or quits from going down the street to a competitor with the promise to bring on the company's customers or to bring other staff with them. In addition, a confidentiality provision can prevent a former employee from taking customer lists, pricing and other sensitive data to a competitor.

Also, since the job market is tight, some former employees will stop looking for another job and will instead start their own business, essentially becoming a new competitor.

In short, if a company wants to hold onto its market share or to valued employees and customers, having employees sign a restrictive covenant agreement makes good business sense.

Pitfalls of Monitoring Emails

2010-08-05T15:21:00.000-04:00

Most employers have established a policy regarding surveillance in the workplace. Typically, this type of policy states that the employees have no expectation of privacy and that telephones, internet use and emails may be monitored. In Georgia, an employer is permitted to monitor phones, email and internet use. However, case law is beginning to emerge that interpets when an employer may cross a line in interfering with an employee's privacy, such as where an employee uses a private email address for communications while using a company-owned computer, posting on social networking sites such as Facebook, etc.

A New Jersey case is illustrative of the challenges and evoluation of legal issues in this electronic age. In Stengart v. Loving Care Agency, the New Jersey Supreme court held that an employer was not permitted to read e-mails between an employee and her lawyer, even though she sent them using her work computer. The case is interesting because ordinarly, since the computer belonged to the employer, it had a right to monitor activity on such computer and therefore there was no invasion of privacy.

In addition, most company policies addressing surveillance do not specifically mention whether the use of a personal email address would be prohibited or would be subject to monitoring. And, the email communication was between the employee and her attorney, which raises other issues, such as the attorney-client privilege.

Steingart was using a personal, password-protected web-based e-mail account. She also thought that the e-mails, sent to her attorney (and related to a potential employment discrimination suit against her employer) were private. When Steingart later filed a discrimination suit against her employer, the employer retrieved the emails and attempted to used them as evidence, but the court refuse to allow them into evidence.

“[The employee] plainly took steps to protect the privacy of those e-mails and shield them from her employer. She used a personal, password-protected e-mail account instead of her company e-mail address and did not save the account’s password on her computer. … In addition, the e-mails bear a standard hallmark of attorney-client messages. They warn the reader directly that the e-mails are personal, confidential, and may be attorney-client communications,” the court said.

The court also found that the employee “had a subjective expectation of privacy in messages to and from her lawyer discussing the subject of a future lawsuit. In light of the language of the policy and the attorney-client nature of the communications, her expectation of privacy was also objectively reasonable.”

So, it is important that employers clearly set forth when employees do not have an expectation of privacy and that all modes of communication made from company telephones, BlackBerrys, PDAs, email accounts or from a company-owned computer may be subject to search and that no expectation of privacy exists in using such modes of communication.

Break Time for Nursing Mothers under the FLSA

2010-07-28T08:58:00.000-04:00

The US DOL has issued a fact sheet to address the break time requirement for nursing mothers in the Patient Protection and Affordable Care Act (PPACA) which took effect on March 23, 2010 as an amendment to Section 7 of the Fair Labor Standards Act (FLSA).

The amendment requires an employer to allow "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk." The employer must provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk".

Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements of Section 7, they may be obligated to provide such breaks under State laws.

The law is vague as to how many and how long these breaks are permitted since the language of the statute is “reasonable break time” to express the breast milk “each time the employee has the need to do so.” These breaks are at the prerogative of the mother. The mother is not required to take these breaks.

These rest breaks need not be compensated, under the Act. However, other federal legislation requires employers to compensate employees for “rest periods of short duration running from 5 minutes to about 20 minutes…” Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies.

In addition, the “lactation room” must be a place “other than the bathroom that is shielded from view and free from intrusion from coworkers and the public.” The Department of Health and Human services states this room may be as small as 4 feet by 5 feet to comfortably accommodate a chair and table or shelf.

The area need not be a room at all either, with several employers using privacy screens in less traveled areas of the office. While a possible solution, this is definitely not the best, as it does not allow for restricted access via lock and key to prevent accidental intrusion.

Employers should locate private areas other than the bathroom that could operate as a “mother’s room.” Having a lock or some other way to prevent accidental intrusion is recommended. An unused office is a good option.

If there are multiple mothers or the room serves as a multipurpose room, a “reservation” schedule should be organized to best make use of the space and prevent conflicts.

Caregiver Issues in the Workplace

2010-06-16T15:14:00.001-04:00

Be careful in handling how you treat employees who are caregivers. If a worker must miss time from work as a result of family responsibilities, the employer may be liable for discrimination.

Increasingly, lawsuits have been filed by employees over caregiving responsibilities. Unlike other types of discrimination, which employers prevail in about 90 percent of the cases, plaintiffs have succeeded in about half of these cases. Claims of this sort arise over pregnancy and maternity leave, elder care, care for sick children, care for ill spouse, for newborn care by fathers or adoptive parents, and care for a disabled family member. Most of the cases have been brought by female workers.

In addition, even if an employer settles these type of cases, settlements can be $500,000 or more, making it very expense to be sued, let alone defend, such claims. Claims may arise out of the Family & Medical Leave Act, Title VII, or other state or federal discrimination laws.

It is very important to establish an effective supervisor training program to prevent supervisors from acting with bias when employees have family responsibilities that may conflict with workplace obligations.

Small Business Tax Credits

2010-06-15T16:44:00.000-04:00

The Patient Protection and Affordable Care Act (PPACA) was signed into law on March 23rd. This law gave small businesses a special tax credit for offering health insurance coverage. A small employer is eligible for the credit if it:

employs less than 25 full-time employees (FTEs);
pays an average wage of $50,000 or less (for tax years 2010-2013); and
provides health insurance under what's called a "qualifying arrangement".

A "qualifying arrangement" is where the eligible employer makes non-elective contributions for employees who enroll in the company-provided health plan for at least 50% of the premium (on a uniform basis).

Employers with 10 or fewer FTEs who pay an average wage of $25,000 or less will receive the maximum tax credit. Those employers with between 10-25 FTEs or who pay an average wage between $25,000 and $50,000 get a reduced credit.

The credit is applied on the employer's tax return against income taxes. But, if the employer has no income tax liability, there is no credit available. The credit can also be carried back (one year) or forward (20 years). However, the credit for 2010 can only be carried forward.

The credit can be up to 50% of the employer premiums paid.

Jobless Rate Down? Good News for the Economy?

2009-12-22T08:43:00.000-05:00

Bloomberg News has reported that the unemployment rate decreased in 36 states in the month of November. The states with the biggest decline in unemployment were Kentucky (from 11.3% down to 10.6%) and Connecticut (from 8.8% to 8.2%).

However, some states have bucked the trend, such as Georgia, where the U.S. DOL reports the jobless rate increased in November to 10.2%,, up one-tenth of a percent.

The overall U.S. unemployment rate is close to a 26-year high, with economists forecasting that the rate will exceed 10% through June 2010 (in November it fell from 10.2% to 10% nationwide). Ten states currently have an unemployment rate of 10% or more, which experts say will continue to stagnate consumer spending.

With 7.2 million jobs lost during this current economic downturn, the market for labor should be strong for employers who take the time to carefully screen and scrutinize candidates for jobs. In addition, the vast labor pool might serve as an incentive for employees to perform their very best, knowing that many qualified individuals are available for work as replacements.

EEOC To Get More Resources

2009-12-21T15:20:00.000-05:00

Employers beware: the EEOC is getting more ammunition to process and move along backlogged cases - $23 million worth.

The 2010 version of the omnibus appropriations bill, first passed in the House on December 10th and then the Senate on December 13th, would provide $23 million in funding to help the EEOC resolve more than 70,000 backlogged employment discrimination charges. The EEOC has reported that it experienced a 35% increase in the volume of backlogged cases, from 54,970 in 2007 to 73,951 in 2008. Combined with a record number of new discrimination complaints (95,402 - a 20% increase), the EEOC, with its current financing, is ill-equipped to meet the current volume of current and backlogged charges. At the same time, EEOC staffing has fallen 25% over the past decade.

So, while the EEOC may have taken several years to address and resolve complaints, expect a more expedited process in the future.

Federal Minimum Wage Increased

2009-07-27T19:24:00.000-04:00

The Federal minimum wage increased on July 23rd from $6.55 per hour to $7.25 per hour. This wage increase is proscribed by 2007 amendments to the Fair Labor Standards Act. While the increase brings good news to workers making minimum wage, it also creates an added burden on business owners who must now pay higher wages in a struggling economy. Some small business asked Congress to defer the wage increase to some time after the U.S. recovers from the recession.

As a reminder, employers must update their labor law posters to reflect the new wage increase.

Interestingly, even with the increase to $7.25 per hour, a full-time employee making minimum wage only earns about $15,080 per year, hardly enough to live on.

Thirty states, including Georgia, have had to raise their minimum wage as well (states can have a higher minimum wage than the Federal, but not less). Nineteen states already have minimum wages laws that mandate a higher minimum wage than the Federal.

Some economists are predicting that the increase in minimum wage will have a negative effect on the consumer, as many businesses are expected to raise prices to offset increased labor costs.

Respect Employees in the Military

2009-07-24T13:36:00.000-04:00

We have grown to better appreciate our military and the men and women who serve in the armed forces. It is not uncommon to witness uniformed servicemen getting applause in an airport or being honored and recognized at a sporting event. However, the same level of respect is not always given in the workplace. Employers need to understand that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects employees who are called to service. USERRA is intended to provide military service members the ability to return to their jobs with credited seniority following absence due to service. The rights provided under USERRA include:

non-discrimination based on military status;
reinstatement rights to the position and pay that the employee would have held had the employee remained continuously employed;
continuation of medical benefits for service under 30 days;
optional continuation of medical benefits;
all seniority, rights and benefits upon return to work as if the employee had remained continuously employed; and
protection from discharge upon return to work, except for cause, for a period of time.

The US Department labor has jurisdiction over USERRA claims and can investigate any violations of that law. If the DOL cannot resolve a complaint directly with the employer, the matter is referred to the Department of Justice (DOJ). The DOJ has the ability to file a lawsuit in the appropriate federal district court on behalf of the aggrieved employee.

All employers should review their policies and procedures to make sure that they are in compliance with USERRA, including having the required posted notice apprising employees of their rights under USERRA. An employee returning from military service should be reinstated as dictated under law and must not be discharged subsequent to his/her return per USERRA.

In addition, recent changes to the Family and Medical Leave Act (FMLA) set forth military leave rights under that law.

Pregnancy Discrimination Claims Increase

2009-07-17T12:30:00.000-04:00

It is not a surprise that the EEOC is receiving a greater volume of discrimination charges given that the U.S. unemployment rate is now over 10%. Naturally, many people who have lost their jobs have claimed a discriminatory basis for their separation. But, it is surprising that a large number of pregnancy discrimination claims have come into the EEOC. Pregnancy discrimination is covered under Title VII via the Pregnancy Discrimination Act (PDA). The EEOC reported that it received 6,285 claims in FY 2008, up from 5,587 in FY 2007.

The 7th Circuit Court of Appeals recently held that the PDA covers a "potential pregnancy" after an employee claimed she lost her job because she had taken time off for fertility treatment. This ruling certainly expanded the scope of covered claims (at least in that Circuit).

In addition, on January 1, 2009, the Americans with Disabilities Act (ADA) Amendments Act of 2008 went into effect. The ADA was amended because "the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect." Pregnancy can be covered under the ADA if it effects a major life activity (such a major complications requiring bed rest).

Further, the Family and Medical Leave Act (FMLA) allows employees with serious health conditions, including conditions related to pregnancy, to take leave on a reduced work schedule if it is “medically necessary.” A reduced work schedule is “medically necessary” if an employee has a serious health condition that requires a treatment regimen which is best accommodated by this type of leave. Thus, if a health care provider certifies a pregnant employee’s need for part-time work, an employer may have to modify the employee's work schedule.

As always, employers should make sure that they are in compliance with all laws and should consult with counsel if any questions arise.

Right Staffing and Preserving Exemption

2009-07-07T15:19:00.000-04:00

Yesterday I discussed supervisors and need to meet certain criteria in order to maintain an exemption from overtime. One reader aptly pointed out that paying on a "salary basis" means that an employee regularly receives each pay period a fixed, predetermined amount of money (of at least $455 per week) for every workweek in which the person performs any work. The U.S. Labor Department rules provide that, with some exceptions, the salary amount cannot be reduced based on the number of hours or days the employee works. And, the employee's salary may not be docked for absences during a workweek caused by the employer or by the organization's operating needs.

More and more, companies are looking to save money on labor costs while at the same time retaining valuable employees. Some companies have elected to reduce employee hours, work days or workweeks. Other companies have resorted to furloughs.

An employer can reduce an exempt employee's salary (temporarily or otherwise) on a going-forward basis, which can be made a part of a shortened work schedule. To meet the exemption rules, the employee's salary must be at least $455 per week and must still be paid per the "salary basis" rules, meaning that the lower salary could only be docked per those rules, which would not include days off in a workweek due to shutdowns.

Also, a salary does not need be paid for any workweek in which the exempt employee performs no work. If the employee is furloughed for one or more entire workweeks, then the "salary basis" rules do not require that she be paid any of the salary.

Be mindful that in order to preserve the exemption under these scenarios, the company should not allow an employee to take work home, handle matters remotely, by telephone, to perform duties from outside the office, etc. The relevant time period is the seven-day workweek the employer has established and documented for the employees as is required under the FLSA; this does not necessarily have to be a standard calendar week.

Wage & Hour and Multiple Locations

2009-07-06T10:08:00.001-04:00

If your company maintains more than one location, such as multiple retail store locations, chances are you maintain a manager or store supervisor that oversees each location's operations. In tough times like now, many retailers staff very conservatively. A supervisor may be one of two employees staffing a retail store. While the supervisor may direct and control 1 or 2 other employees, she may also perform the same/similar duties as her subordinates, such as ringing up customers at a cash register.

The federal Fair Labor Standards Act (FLSA) determines whether a supervisor is exempt from overtime and is not based on what title the company uses or if the person is salaried. Whether or not an employee is exempt from overtime depends on that individual's job duties and the proper application of FLSA regulations.

A store manager at one location may be exempt from overtime, while a manager at another may not. The difference is sometimes subtle and difficult to understand under the FLSA. The question arises when when managers perform many non-managerial tasks: can they be exempt from overtime?

Store managers generally are not exempt from overtime where they do not customarily and regularly direct the work of two or more other full-time employees or the equivalent. Whether a manager's primary duty is "management" under the FLSA is based on all the particular facts and circumstances. Recent cases under the latest FLSA regulations, define "primary duty" as the principal, main, major or most important duty that the employee performs. The determination must be made with a view toward the character of the employee's job as a whole. So, an employee performing some nonexempt work can still be exempt if her primary duty is managerial in nature.

With the increase in wage and hour class-action suits, you should be very careful when making a determination on the exempt status of management personnel. Your policies and procedures will help define the scope of duties and managerial responsibilities, but remember, the FLSA governs.

Obama Administration Committed to I-9 Compliance

2009-07-03T10:05:00.000-04:00

The Obama administration just announced that it was launching an investigation of hundreds of businesses as part of its strategy to focus immigration enforcement on the employers who hire illegal workers. The administration will be auditing I-9s and compliance with same.

An I-9 is a federally-mandated document that all employers are supposed complete with the cooperation of employees within 3 days of hire. It is intended verify that a person is authorized to work in the U.S.

Employers who do not properly retain, complete and verify I-9 information are subject to fines by the Immigration and Customs Enforcement (ICE). Reportedly, ICE served "Notices of Inspection" to 652 businesses, which is an increase from last year.

The biggest challenge facing employers subject to an audit may be their inability to confirm whether documents presented to them by workers were authentic (such as a Social Security Card) or that the worker's identity is genuine.

Now is the time to consult with counsel and to conduct a self-audit!

Federal Min. Wage to Increase Soon

2009-07-01T11:15:00.000-04:00

The federal minimum wage is currently $6.55 per hour. It will increase to $7.25 per hour effective July 24, 2009. Many states have also raised their minimum wage rates.

Employers in these 17 states will see their minimum wage increase the same as above:

Alabama
Georgia
Idaho
Indiana
Kansas
Louisiana
Mississippi
Nebraska (State law is not tied to federal law, so employers covered by state but not federal law will not be required to pay federal minimum wage.)
North Dakota
Oklahoma
South Carolina
South Dakota
Tennessee
Texas
Utah (The state's minimum wage does not apply to anyone entitled to the federal minimum wage.)
Virginia
Wyoming (Like Nebraska, Wyoming’s law is not tied to federal law, so employers covered by state but not federal law will not be required to pay federal minimum wage.)

Demystifying the COBRA subsidy

2009-03-11T11:38:00.000-04:00

The federal stimulus package is called the American Recovery and Reinvestment Act. The Act allows qualified beneficiaries who are eligible for COBRA due to an involuntary termination to pay 35% of the cost of the COBRA coverage. The remaining 65% of the plan cost will be paid by the U.S. government. An employer gets reimbursed for the 65% of the plan cost when it files its 941 for payroll taxes. The subsidy eligibility ends on December 31, 2009.

The Act is retroactive in that the coverage applies to all employees involuntarily terminated from September 1, 2008, to February 16, 2009, and to their qualified beneficiaries, even if they did not elect COBRA coverage when it was offered to them. So, that means employers have to contact employees and beneficiaries terminated during that time frame by April 18, 2009 (60 days after the February 17, 2009 enactment date).

In addition to the regular COBRA notice, an employer should send a supplemental notice to affected individuals with additional information including, for example, information about the individual’s right to the subsidy and the conditions on the subsidy, a description of the obligation of the individual to notify the employer of eligibility under another group health plan or Medicare, and the penalty for failure to provide this notification. The DOL is required to provide a sample notification form by March 19, 2009.

Unfortunately, the Act does not define the term “involuntary termination”, so any involuntary termination is covered. Accordingly, employees who are terminated for poor performance, attendance problems, and other reasons appear to be eligible for the subsidy. Employees who are terminated for gross misconduct, however, are not covered, since a termination for gross misconduct is not a qualifying event under COBRA.

The subsidy is equal to 65% of the monthly COBRA premium for the qualified beneficiary for up to 9 months. The subsidy applies to medical, dental, and vision benefits. It does not apply to medical flexible reimbursement accounts. Employees and other qualified beneficiaries are required to pay the other 35% of the premium.

What's the Ledbetter Fair Pay Act?

2009-03-03T13:45:00.000-05:00

A female employee is hired by an employer in 2009 and receives 24 paychecks, each reflecting a discriminatory pay practice by the employer because of his disability. How long of a period does the she have to file a complaint with the EEOC alleging pay discrimination under the Americans with Disabilities Act?

The answer is governed by Lilly Ledbetter Fair Pay Act of 2009, Public Law No. 111-2, 123 Stat. 5. The Ledbetter Act was drafted to overturn the Supreme Court's May 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co.

The new law adds a provision to Title VII, which provides:

"unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

So, the law treats each and every discriminatory paycheck as a new discrimination, thus re-starting the 180-day clock (300 days if the charge is also covered by state or local fair employment laws).

Don't Text and Drive!

2009-02-11T10:05:00.000-05:00

The press has widely reported the perils of using a cell phone while driving. Certainly, every company whose employees travel by car in the scope of their employment should have a policy that prohibits the use of a cell phone while driving. There have been recent cases where employers have been held liable for injuries suffered by persons involved in accidents caused by the employee's cell phone use.

Some states prohibit cell phone use while driving unless a driver is using a hands free device. Unfortunately, Georgia has yet to regulate cell phone use. Studies have shown that it is a distraction and can cut down on reaction times while driving. Since employers have a duty to keep their employees safe, they should implement policies to prevent needless cell phone related accidents.

Of course, cell phone use goes beyond being on the phone. With the increase use of smart phones, persons are just as likely to be text messaging as they are to be on the phone with someone. Text messaging while driving can be more dangerous than talking on a cell phone because it usually requires both hands to type, as well as looking down at the smart phone (and not at the road). In response to "texting while driving", several states have completely banned the practice by drivers. These states are: Alaska, California, Connecticut, District of Columbia, Louisiana, Minnesota, New Jersey and Washington. Unlike many seat belt laws, most of the states that have banned text messaging while driving make it a primary offense, meaning law enforcement can stop a driver for the offense (as opposed to secondary, where the police can pull a driver over for something like a broken tail light and then can add an offense such as texting or not wearing a seat belt).

So, companies should amend their policies and procedures to address "texting while driving", particularly where state law addresses the subject.

Do you give notice when you layoff employees?

2009-02-04T08:13:00.001-05:00

The obligation to give notice of a layoff depends upon whether the company is engaging in a mass or group layoff or a single layoff situation. If the WARN Act applies to the layoff in a group layoff situation (or more typically, where a plant or location completely closes down), that can require a 60-day notification to all effected employees.

State law may address this issue as well, but this typically falls into a question of an employer's comfort level with the employees and how they will react to the layoff. Assuming that it is one person effected by the layoff, would giving advance notice to that person result in possible sabotage? Would it cause the person to lack productivity until his/her last day of work? Does it create a security risk because that person has access to sensitive information?

In some case, an employer might consider some giving as a courtesy to the employee to allow him/her a jump on finding other employment (which could also cut down on the length of an unemployment claim).

Finally, an employer can offer a severance package which would typically be under the condition that the employee have at least 21 days to consider the offer (assuming it would be in compliance with the ADEA and the OWPBA). The last date of employment can be a future date or be in the past. In this sense, a severance package can be used to provide advance notice of a layoff.

Employee Time Off Does Cost You

2008-12-22T15:45:00.000-05:00

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.

Should You Get Credit for Pregnancy Leave?

2008-12-16T08:00:00.000-05:00

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.

Take Proper Care with Layoffs

2008-11-25T10:49:00.000-05:00

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).

Too Many Americans Feel Workplace Discrimination

2008-11-11T14:05:00.000-05:00

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.

Is Your Company Wage & Hour Compliant?

2008-08-13T12:39:00.000-04:00

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

2008-08-13T12:37:00.000-04:00

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.

You Can't Read Employee Emails?

2008-07-08T15:11:00.001-04:00

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

2008-07-08T15:09:00.002-04:00

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

2008-07-08T15:09:00.001-04:00

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

2008-07-08T15:08:00.000-04:00

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.

Responding to Debt Collection

2008-06-17T10:30:00.001-04:00

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

2008-06-17T10:29:00.003-04:00

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

2008-06-17T10:29:00.001-04:00

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.

New Civil Rights Bill Hits Congress

2008-02-11T10:35:00.001-05:00

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

2008-02-11T10:33:00.000-05:00

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

AK, AZ, CO, DE, HI, ID, ME, MD,
MA, MI, MN, MT, NE, NH, ND, OH,
OK, OR, PA, SC, SD, TN, TX, UT,
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

New Proposed FMLA Regulations

2008-02-08T08:25:00.000-05:00

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/Google.com, 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.

New DOL Wellness Guidelines

2008-02-07T16:31:00.001-05:00

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.

EEOC Bulletin Effects Those 65 and Over

2008-02-06T15:44:00.000-05:00

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 http://www.eeoc.gov/policy/docs/qanda_retireehealthrule.html

December Unemployment Rises

2008-02-01T08:09:00.000-05:00

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.

Supreme Court Tackles ADA case

2008-01-31T14:20:00.000-05:00

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).)

Important Deadlines Approaching

2008-01-16T09:20:00.000-05:00

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.

Minimum Wage To Increase In July

2008-01-11T16:30:00.002-05:00

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.

New IRS Mileage Rate for 2008

2008-01-10T09:42:00.000-05:00

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.

New EEOC fact sheet on testing

2008-01-08T08:54:00.000-05:00

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 http://www.eeoc.gov/policy/docs/factemployment_procedures.html for more information.

New I-9 Form

2008-01-08T08:23:00.000-05:00

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”.

Office Party Season

2007-12-12T10:14:00.000-05:00

Once again, we are approaching that time of year where companies host holiday parties. Office parties are a great way to thank employees and customers for their contributions in making your business successful. However, hosting a party can create liability as well, particularly where alcohol is being served, as employees and other guests may consume alcohol, drive their vehicles and can suffer some kind of injury.

According to Insurance Agents & Brokers of Pennsylvania Inc., 70% of all companies that have a holiday party will serve alcohol. Your state's Dram Shop law may apply to a private party. Put another way, an employer can be held liable for hosting or sponsoring a party where an attendee leaves intoxicated and causes injury to themselves or others.

A good suggestion is to either not to serve alcohol or to limit the number of drinks that the company offers to employees. Coupons for two drinks per person is probably sufficient; thereafter, if employees or their guests want to continue to consume alcohol, they can do so on a cash basis. Of course, the company still has a duty to observe behavior and to discourage and prevent anyone from driving home intoxicated.

Finally, if you allow employees and their guests to consume alcohol, you should be prepared to offer taxi or other transportation to allow for alternative ways to get intoxicated persons home. Some companies hold parties at hotels, so why not reserve a block of rooms (at a discounted rate) to allow employees and their guests to stay over night?

Changes to Arbitration Coming?

2007-11-13T10:27:00.000-05:00

Congress is considering legislation that would dramatically change the ability of an employer to enter into a pre-dispute agreement with employees that calls for employment disputes to be arbitrated. Under the pending bill, known as "The Arbitration Fairness Act of 2007", arbitration agreements that are entered into before a dispute arises, and that are subject to the Federal Arbitration Act (FAA) would be deemed unenforceable. Employers would have to get employees to agree to arbitrate only after a claim arises.

Further, the bill would give additional oversight functions to a court of law. Existing law leans towards giving great deference to arbitration awards. Courts are very reluctant to overturn an arbitrator's decision unless it is manefestly unjust, obviously in contravention of existing law, or was rendered by fraud.

In addition, the US Supreme Court just heard a case that may judicially expand the role of a court in overseeing/enforcing arbitration awards. In Hall Street Associates v. Mattel, Inc., cert was granted in a case where the parties negotiated an arbitration agreement that expanded the role of the judiciary beyond that provided under the FAA. The dispute arose over a lease which did not contain an arbitration clause. The parties went to litigation. During litigation, they agreed to arbitrate the remaining issues, leaving the court to approve the arbitration agreement and allowing the court to review the arbitrator's findings and conclusions (include a finding of any error by the arbitrator). The arbitration agreement conflicts with the FAA in that the FAA does not allow review of an arbitrator's factual or legal findings.

After arbitrating, both sides appealed the award. The court vacated the award based on its finding of legal error by the arbitrator in applying state law. The arbitrator then revised his award per the court's interpretation of state law. Both parties again sought judicial review, but the court upheld the ruling.

The question for the US Supreme Court is whether a court can enforce a contractual provision that expands the standard of review of arbitration awards under the FAA. Stay tuned...

Managing Your Email Accounts

2007-11-06T10:47:00.000-05:00

I just read a case from a federal court in Colorado that concerns lawyers and their obligations to stay informed with hearing dates and court appearances. In the case, Pace v. United Services Automobile Association, No. 05-cv-01562, 2007 WL 2022059 (D. Colo. July 9, 2007), a Magistrate Judge granted defendant’s motion for attorney fees for plaintiff’s and his attorneys’ failure to appear at a settlement conference. Plaintiff's counsel did not receive notice of the settlement conference, which the court sent via email. Plaintiff's counsel said that the notice was treated as SPAM as was filted into the "junk email" folder.

The Judge found that plaintiff’s counsel failed to show that his absence at the conference was “substantially justified” or “that other circumstances would make an award unjust.” The Court held that attorneys are responsible for establishing office procedures to ensure receipt of notices from the Court: “It is incumbent upon attorneys to adopt internal office procedures that ensure the court’s notices and orders are brought to their attention once they have been received.” The Court went on to indicate that it is the attorneys’ responsibility to monitor cases and that to treat electronic notices as a “functional equivalent of junk mail” is unacceptable.

This ruling could certainly be used to argue that an employer's failure to receive an email from an employee could be insufficient if it went into a junk email folder. By way of example, if an employee sent an email to human resources lodging a complaint of harassment and for some reason the HR person did not receive or respond to it because it got filtered, a court could hold that the employer's failure to take prompt remedial action violated Title VII.

What this ruling suggests is that it is simply not good enough to say that you never received an email and that it "must have gone into the SPAM folder". It may be that the employer's duty is to review junk emails to make sure that there aren't any non-SPAM items that require attention. Under this ruling, it may be negligent or irresponsible for members of management to communicate by email but not check the junk email folder.

Fake Email Alert

2007-11-02T09:08:00.000-04:00

I have become aware of a recent email scam that is circulating. The email comes from what is purportedly the EEOC or FTC. The email claims that a customer has lodged a complaint against the recipient and asks to hit a link to review or respond to the complaint. In actuality, hitting the link will unleash a virus on your network or computer.

According go the FTC:

A bogus email is circulating that says it is from the Federal Trade Commission, referencing a “complaint” filed with the FTC against the email’s recipient. The email includes links and an attachment that download a virus. As with any suspicious email, the FTC warns recipients not to click on links within the email and not to open any attachments.

The spoof email includes a phony sender’s address, making it appear the email is from “frauddep@ftc.gov” and also spoofs the return-path and reply-to fields to hide the email’s true origin. While the email includes the FTC seal, it has grammatical errors, misspellings, and incorrect syntax. Recipients should forward the email to spam@uce.gov and then delete it. Emails sent to that address are kept in the FTC’s spam database to assist with investigations.
Simply opening the email does not appear to cause harm. However, it is likely that anyone who has opened the email’s attachment or clicked on the links has downloaded the virus on their computer, and should run an anti-virus program. The virus appears to install a “key logger” that could potentially grab passwords and account numbers. More information about bogus emails, phishing, and virus protection is available at www.OnGuardOnline.gov.

The EEOC version of this scam is slightly different, but has the same effect (a virus). According to the EEOC:

The U.S. Equal Employment Opportunity Commission (EEOC) late today notified the business community and general public to a "phishing" e-mail circulating to companies that purports to be from the federal agency regarding a harassment complaint. The bogus e-mail contains a Trojan Horse Virus that is likely to harm a recipient's computer if the user clicks on the referenced web link and/or downloads the attached file.

The phony e-mail to employers -- being circulated under the subject "Harassment Complaint Update For"-- contains links where the respondent can allegedly access details of a fake discrimination claim. The EEOC has reported the issue to appropriate authorities.
The EEOC's policy is to notify an employer of the filing of a charge of employment discrimination using the U.S. Postal System. Because of security concerns, the EEOC does not notify employers of the filing of a charge of discrimination via e-mail. Consequently, if a company receives an e-mail notification which purports to advise the respondent of the filing of a charge of employment discrimination with the EEOC, the federal agency urges users to delete it immediately.
The contents of the phishing e-mail include an EEOC logo under the subject line and contain purported language from the EEOC under a subject heading, "Employer Liability for Harassment." Excerpts of the phishing e-mail are highlighted below:

FROM: Equal Employment Opportunity Commission
SUBJECT: "Harassment Complaint Update For"
This is an automated email that confirms the registration of harassment complaint #number...this harassment complaint can lead to law enforcement action. You can download and print a copy of this complaint to keep for your personal records here...Our staff will keep you updated regarding the status of our investigation...To check the status of your complaint access:

Be advised that it is not common for a Federal agency to contact a company with regard to a complaint via email. A formal letter is usually sent by mail. Further, most government communications will include a telephone number to contact the field office or investigator.

Rule of thumb: don't click on attachments if you don't know the sender. If it appears that you received an email from the government, your bank or credit card company, never provide personal or senstive information. Ask yourself: wouldn't my bank or credit card company have all of my contact information? Why would they need me to verify it?

Finally, you should have a spyware program and antivirus program installed on your computer. I don't know if there has been a fix or virus definitions update for this virus,but why take a chance?

Restrictive Covenants for Your Employees to Sign?

2007-10-18T15:46:00.000-04:00

I hear all the time that it's not worth having employees sign a noncompete or other restrictive covenant agreement because they are unenforceable. This is more of an urban myth. While restrictive covenants (namely, noncompetes, nonsolicitation and confidentiality agreements) may be challenging to enforce, they can be a valuable tool for a company to use.

Generally speaking, the law governing restrictive covenants is state-specific, so what is binding and enforceable in Ohio may not be sufficient under Georgia law. I usually tell employers that they should view restrictive covenant agreements as deterrants and not ironclad documents. Whether a restrictive covenant is enforceable can depend on the employer's industry, employee's scope of duties, regularity of contact between the employee and customers, the duration of the covenant and geographic territory in which the employer is trying to restrict the employee.

An employer should decide what it is trying to accomplish by having an employee sign a restrictive covenant agreement:

Are we trying to prevent the employee from taking keep personnel with them to another job if they leave?
Are we trying to prevent the employee from leaving and opening a competing business?
Is there confidential or proprietary information that the employee could misappropriate for his/her own benefit?
Are there customers that the employee has closely worked with that might stop using the employer's services if that person ceases employment?

A restrictive covenant should be drafted in a manner that is the least restrictive as necessary. In states like Georgia, courts will not "blue pencil", meaning they will not rewrite the agreement to make it enforceable if it is overly broad or vague; the restrictive covenant is either enforceable on its face or it fails in its entirety.

Litigating a restrictive covenant agreement can be tricky. If a court rules that it is unenforceable, then every employee who signed the same agreement will be able to claim that his/her agreement is also unenforceable. The employer then has to go back to all employees and have them sign revised agreements (presumably "new and improved"). What if an employee refuses to sign a new agreement? Is the employer prepared to terminate that person for not signing.

Challenging stuff to say the least...

Know who you really are interviewing

2007-10-08T14:51:00.000-04:00

I just read an article about an attorney who applied for a position and was disbarred for misrepresenting information on her resume. It seems that the attorney's immediate prior employer was her husband. She did not explain this on her resume, nor did he disclose that she was married to her boss, despite the fact that she used her husband's letter recommendation in support of applying for the position. This scenario shows you that you never know who you are interviewing or how accurate references or resumes are that are submitted to your company.

I have a client that never calls the reference on a resume; they call the supervisor of the employment reference. After all, who is going to provide a reference to someone that's going to say something negative about the applicant?

Also, after making an offer to someone, it's a good idea to conduct a criminal background, credit check (particularly if the position involves A/P, accounting or finance) and to verify employment. I defending a recent employment discrimination case, a plaintiff completely omitted an employer on her resume for employment after leaving my client's employ. Further, in inquiring further, we learned that the person had mispresented her educational background, including claiming to have earned a degree from a particular university. All it took was a call to the registrar's office to learn that they had no record of the person having graduated.

Ask yourself: if a person would lie about their education or employment history to get this job, what would he or she billing willing to lie about to keep this job?

EEO-1 Reports

2007-10-05T10:48:00.000-04:00

Effective the end of September, covered employers must use the new EEO-1 reporting form. An employer with 100 or more employees or a federal government contractor with at least one government contract of $50,000 and 50 or more employees is a covered employer and must file an EEO-1 Report form annually.

According to the EEOC, the "EEO-1 report is the principal reporting form by which certain employers provide the federal government with a count of their workforces by ethnicity, race and gender, divided into job categories."

Changes include:

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

This is not an area or issue to take lightly, as there are penalties for noncompliance. The EEOC can obtain a court order requiring you to make a future filing and, for federal contractors, record keeping violations could lead to debarment from future contracts.

No-Match Letters and Regulations

2007-09-25T08:12:00.001-04:00

I don't know if you have been reading about the no-match letter issue and new regulations. A no-match letter is where the Department of Homeland Security (DHS)sends a letter to an employer advising it that an employee may be using an improper SSN. The SSN does not match what the DHS has on file - the person's name and SSN do not match up. Of course, every employer should verify a person's right to work in the US before allowing him/her to perform services. Within 48 hours of hire, an employer should present form I-9 to the prospective worker. If you receive a no-match letter, you are required to respond. Getting a no-match letter does not mean that your employee gave a false SSN; it could mean that the person has changed their name (by marriage, for example) or there could be a typo on a filed document (like a transposed number on a W-2). You have to give the employee an opportunity to verify and correct the potential error.

On August 15, 2007 DHS issued a regulation entitled “Safe Harbor Procedures for Employers who Receive a No-Match Letter.” The amended regulation describes the obligations of an employer, under current immigration law, when the employer receives a no-match letter from the Social Security Administration or DHS. It also describes "safe-harbor'' procedures that the employer can follow in response to such a letter so that DHS will not find that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States.

The proposed rule also states that whether DHS will actually find that an employer had constructive knowledge that an employee was an unauthorized alien in any of the regulation's examples will depend on the totality of relevant circumstances. The "safe-harbor'' procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee's identity and employment authorization through a specified process.

On August 31, 2007 a California federal trial judge has issued a temporary restraining order prohibiting the DHS from mailing no-match letters or taking any other action to implement its new regulation. See AFL-CIO v. Chertoff (N.D. Ca. Aug. 31, 2007).

A copy of the regulations is at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-16066.htm.

The injunction does not mean that employers should not continue to diligently verify whether a worker may be lawfully employed, nor does it mean that you should ignore a n0-match letter if you receive one.

Stay tuned for updates on this matter.

Train, train, train

2007-09-21T08:31:00.000-04:00

It amazes how companies can spend thousands of dollars are marketing, branding and the like, but zero time and expense on training. As many of you know, a "best practices" as an employer includes regular training for management and staff on complying with the company's policies and procedures. It is a good idea to periodically confer with counsel on whether your training presentations, employee handbook or other policies are in need of updating. One area that a company should regularly focus on is harassment prevention. When most people think of harassment, they think of sexual harassment only. However, the law covers all kinds of harassmsent, including on the basis of religion, race and even sexual orientation. In some states, such as California, companies are required to conduct mandatory annual sexual harassment training. I advise my clients to conduct at least two training sessions a year that all employees have attend. Aside from harassment, your company should choose a topic that is of concern and that is a potential issue, but you should never single out an employee or a specific situation when training. Keep it generic. When I am asked by a client to conduct training, I also use visual and written materials. While I give specific examples of violations, or inappropriate behavior, the examples are never "personal"; they remain generic.