Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

As employer wellness programs become increasingly more common, so do questions regarding their benefits and drawbacks. On May 8, 2013, the EEOC issued a press release that outlined a meeting of a panel of representatives of business, advocacy groups, and providers held that same day. You can read the full press release here.

According to the EEOC’s release, the panelists discussed potential violations of the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), Title VII, and the Age Discrimination in Employment Act (ADEA) that may arise through the implementation of employer wellness programs. For example, one of the panelists pointed out that certain groups such as women or older people tend to have more health problems than other groups. Additionally, certain races tend to have more problems with health conditions such as obesity and diabetes. Therefore, employer wellness programs may have a disparate impact on these groups that tend to have more health problems.

Some panelists also had questions regarding the interaction between employer wellness programs and the ADA or employer wellness programs and HIPPA. The ADA and HIPPA both allow for certain health related information to remain confidential but the employer wellness program may ask for the same information to be disclosed.  Employers will need to be careful to ensure that wellness programs do not cross the line to impermissible medical examinations of employees.

Despite the questions that these wellness programs bring, the programs may also have a positive impact by rewarding healthy behavior by employees. Some wellness programs may provide financial incentives for those that do not smoke cigarettes or are active in monitoring their health. Whatever your personal opinion is regarding employer wellness programs, it is clear that employers will be wise to seek guidance about their interplay with federal anti-discrimination laws before implementing such a plan.

 

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 Loss Prevention Is Lying To You

So you're called into the back room. It's a tiny one with no windows and only one door. In the room is someone who identifies himself as being from Loss Prevention. He seems so nice. He tells you he's there to help you save your job. If you only tell him what he wants to hear, you can go back to work.

He's lying! Don't fall for it. Everything you say can and will be held against you. Be careful.

 

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  The fact that unemployment has been so high for so long has created a terrible reality for many Americans.  Many employers simply won't consider hiring someone who has been out of work for more than six months.  

  This has created an ugly dichotomy in the labor market.  Really, it has created two separate labor markets: one for those who are recently unemployed and another for those who have been unemployed for a lengthy period of time. Those in the former category wouldn't argue they are in perfect shape but for the most part they are being given an even shake in the the job application process.  Those in the latter category, however, are learning that they need not apply for many positions.  Their careers have been severely damaged by their long-term period of unemployment.

  This was the conclusion of recent research by Rand Ghayad, a visiting scholar at the Boston Federal Reserve and William Dickens, a professor of economics at Northeastern University. Ghayad and Dickens' study looked at Beveridge curves for different ages, industries, and education levels to see who the recovery is leaving behind.  The results clearly showed that the likelihood of you getting a job drops dramatically once you have been out of work for more than six months.  The results held true regardless of whether you're young or old, a blue-collar or white-collar worker, or a high school or college grad; all that matters is how long you've been out of work. Read more about the study here.

  The studies show what many of us who work in this area have known for a long time, it is much easier to find a job from a job or from recent unemployment than it is after you have been out of work for a long period of time.  The long and the short of it is that employers (whether consciously or unconsciously) discriminate against the long-term unemployed. Employers think that a long period of unemployment indicates that there must be something wrong with a job candidate, even if it doesn't reveal itself in the intake or interview process. In fact, the study shows that employers tend to hire newly unemployed candidates over long-term unemployed candidates even when the candidates' relative objective qualifications for the job dramatically weigh in favor of the long-term unemployed candidate.

  So what is the solution?  Some favor statutory protection of the long-term unemployed as a protected class.  Some favor tax breaks for employers who hire candidates who have been unemployed for a longer length of time.  Would these proposals work?  I really don't know.  

  But what I do know is that this is a very real problem that is likely to last at least until the economy achieves another broad "boom" period.  And from what I read, this could be a long time.  Perhaps at the very least, those who make hiring decisions and those who advise such decision makers can be made more aware of this issue. Let's start talking about this problem.

  We already run our hiring decisions through a myriad of checklists to make sure we aren't favoring a candidate because of his or her gender, race, etc. Why not take another look and make sure that we aren't unfairly holding someone's long-term unemployment against them either. After all, a job candidate who is still out hitting the bricks after more than six months of unemployment may have just the sort of tenacity and follow-through that your company needs.

 

 

 

 

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The Texas Supreme Court dealt a painful blow to Texas employees in two decisions issued on February 22, 2013. The cases decided were The University of Texas Southwestern Medical Center at Dallas v. Gentilello and Texas A&M University - Kingsville v. Moreno. Both cases deal with Section 554.002 of the Whistleblower Act which, importantly, only covers employees of state or local governmental entities, not private employees.

In interpreting Section 554.002 of the Whistleblower Act, the court considered whether “an employee’s report to a supervisor is a report to an appropriate law enforcement authority…where the employee knows his supervisor’s power extends only to ensuring internal compliance with the law purportedly violated.” The court decided that while other states may protect purely internal whistleblowing, Texas does not.

What this means is that in Gentilello, the court dismissed the suit where a medical school faculty member made a complaint to another faculty member who was responsible for law compliance but not law enforcement. And in Moreno the court also dismissed the suit where the complaint was made to the University President. The suits were dismissed because neither one of the complaints were made to a “law enforcement authority” based on the Court’s interpretation of the statute. According to the Court only a report to “someone the employee ‘in good faith believes’ can ‘regulate under or enforce’ the law allegedly violated or ‘investigate or prosecute a violation of criminal law’” will suffice as a report under the statute.

As Michael Fox points out here, while the Court’s decision may seem like cause for celebration by officials at government agencies, the effect of the Court’s decision may actually be for whistleblowers to deal with their complaints about illegal activity outside of the agencies rather than having it dealt with internally. However, the full effect of the Court’s restricted view of the Whistleblower Act remains to be seen.

 

 

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We have all seen movies where futuristic robots rove around home or the workplace. Now, that future is becoming a reality of sorts.  Only the robot may be you.

As technology allows us to communicate in faster, increasingly more mobile ways, several companies including Double Robotics are developing new, relatively inexpensive ways for employees to be "present" through a robotic surrogate.  Double's solution is essentially a pole with a set of wheels and a dock for an iPad. A person may control the iPad on wheels remotely from anywhere in the world with an app on his or her own iPad. It is remarkably simple and surprisingly cheap given the promise of the technology.

Double (and its competitors) all allow employees to effectively be at work even when they are someplace else. Such technology obviously has the potential for both positive and negative impacts on workplaces. For example, Double allows coworkers to communicate easily and to experience an office space as if they were almost actually present there even though they are in another city or country. However, such telepresence solutions have the potential to bring up some thorny issues too The increasing use of technology such as Double to conduct business may lead to violations of overtime and FMLA laws. As such, it is important for both employers and employees to be clear on the use of technology to conduct business while on leave or outside of normal work hours.

 

 

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Dallas employment lawyer and personal friend Michael P. Maslanka of Constangy, Brooks & Smith, LLP is starting a new video blog on employment law matters.  His first installment has to do with the Difference Between “Right to Work” and “At Will” Employment.  

These are two concepts that are often mixed up by both employers and employees.  In a nutshell, "Right to Work" is a statutory scheme that about half of the states have implemented in an effort to destroy unions outlawing closed union shops.  Pro tip: it's been working.  Union membership has been steadily on the decline in America for years.  No coincidental, employee pay (in real terms) and benefits have been declining for both union and non-union employees have been declining during the same period.  Put simply, when unions get weaker, all employees get weaker vs. their corporate employers.

"At will" is what many think "Right to Work" means.  It means that an employee has no general entitlement to continued employment.  An employee can be fired or quit at any time for any reason or now reason at all.  It is the general rule of employment throughout the country (except in unionized situations).

 

Click through to watch Mike's video blog and get his take on these important concepts.

 

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The intersection of social media and the workplace has been all the rage at HR and employment law conferences this past year. A lot of attention has been given to the Phonedog v. Kravitz case and more recently to Eagle v. Moran. In these cases companies have tried to lay claim to employees’ personal social media accounts because the employees also used them to benefit their work activities.

The Phonedog case recently settled. And while the terms of the settlement were confidential, it appears that the former employee is keeping the Twitter account as a part of the settlement. This didn't, unfortunately, prevent the employee involved from having to waste an untold amount of time and money fighting off a frivolous claim from a former employer. The Eagle case is not yet resolved.

So, moving forward what is an employee to do. First, if you use Twitter or other social media to discuss topics relating to what you do at work or use it in support of your employer, watch out. Your employer may try to come take it from you when you leave the company. Management-side employment lawyers are advising employers to draft HR policies requiring employees who use social media as part of their job to agree that the company owns the account. (Why stop there, why not try to force employees to agree that the company owns a trademark on the employee’s name).

In any event, if you are an employee who uses social media beware. If your employer wants you to use your accounts to support the aims of the business, you need to respectfully refuse and suggest that the company create its own social media accounts and then give you access to those accounts it wants you to use. If you use your private accounts to discuss work or work-related subjects, keep in mind that your employer may be following your messages and may try to muscle your account away from you if you are successful and have a good number of followers.

Remember that the only thing that companies like better than bullying current employees is bullying former employees. And when it comes to post-employment litigation, the employer generally has the big advantage of having lots of money to waste on management-side lawyers willing to do their bidding.

This area of the law is evolving quickly and there is only so much you can do to protect yourself as an employee. Here is one idea: consider placing a message on your account bio or other prominent place making it clear that your social media messages are your own and should not be considered to come from your employer. This may make it a little more difficult for the company to argue to a court that it thought your account was for work and that it should therefore be able to lawfully take it from you.

 

 

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There was a survey done recently by Michelle McQuaid to find out if given a choice, would employees choose a better boss or a pay raise – and guess what they found!? Yes, 65 percent of employees say they would rather have a “Better Boss” than more money!

Here are some other interesting findings from McQuaid's survey:

• 31 percent of employees feel uninspired and unappreciated by their boss
• Nearly 15 percent feel downright miserable, bored and lonely.
• 38 percent described their boss as “great”; 42 percent say that their bosses don’t work very hard and close to 20 percent say their boss has little or no integrity.

But Tim Sackett of TLNT HRBusiness and The Tim Sackett Project blog isn't buying it.  He calls the survey "crap" and says,

"Telling yourself that your employees will pick a better boss over a raise is fool’s errand and makes you look like an idiot to your executives, because they know reality. People want a better boss AND people need and want more money. More!"

Well, while I can't vouch for the statistical integrity of McQuaid's survey, I must respectfully disagree with Sackett's rather cynical view of the American workplace. I spend most of my time helping people deal with terrible work conditions.  Americans spend the vast majority of their waking ours at work.  For many of us our work is a very large part of our personal identity.  I've got news for Mr. Sackett, people DO care about their working conditions and many would trade a few thousand bucks for a workplace that didn't make them feel like a refrigerator got dropped on their shoulders the instant the arrived at the office.

Mr. Sackett's attitude is unfortunately pretty prevalent in corporate America's boardrooms and HR departments.  They believe that employees are "just in it for the money" so it really doesn't matter how you treat them.  They see employees as fungible and easily replaceable.  When you burn one out, get rid of it and grab a new one.  And...they are wrong.

Great managers and great companies know that work is a huge part of who we are and they look for ways to inspire their employees and cultivate a true team attitude among their employees.  Do they pay market rate salaries? I'm sure they do. But that's not what makes their employees love their jobs and talk them up to friends and family throughout the community.

As a plaintiff-side employment lawyer, I know who these companies are in my area b/c I don't get calls from their current/former employees.  Their employees WANT to work there and they WANT to stay. And it's not because they are being treated terribly but earn an extra $2,500 a year.

Look, I know money is important.  We all know money is important. But arguing that it is practically all that matters to employees is just wrong. Having a job that you love, a boss that you respect and actually want to impress, and a company that you want to have a hand in helping to build and succeed is truly important.  And if that doesn't sound like your company then you are doing it wrong.

 

 

 

UPDATED: Corrected spelling of Sackett.

 

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Last week, Illinois became the second state in the nation to enact a law banning employers from requesting passwords for Facebook and other social media accounts from employees and job applicants, reflecting a growing trend.

The Illinois statute bars employers from demanding passwords or otherwise accessing the nonpublic
portions of workers' social media profiles. It does not prohibit employers from maintaining policies governing employees’ access to social networks while at work.  This move follows Maryland, who passed a similar law in April.  Several additional states are reportedly considering passing similar laws.

 

Read More: Chicagoist

 

 

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On April 25, 2012, the EEOC issued a new Guidance regarding the use of arrest and conviction records in the hiring process. The EEOC’s goal in issuing the Guidance is to ensure that arrest and conviction records are not used in a discriminatory way by employers in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin.

The Guidance suggests that using an individual’s criminal history in making employment decisions may constitute a violation of Title VII. While an individual’s criminal history is not a protected basis under Title VII, the Guidance states that an individual’s criminal history may be used in a discriminatory way in violation of Title VII.

One way that an employer’s use of an individual’s arrest and conviction records may constitute a violation of Title VII is disparate treatment because of the individual’s race, national origin, or other protected basis. An example of disparate treatment discrimination is when an employer treats two individuals with the same criminal histories differently because of a protected basis such as race or national origin.

Another way that employer’s use of arrest and conviction records in making employment decisions may constitute a violation of Title VII is disparate impact on people of a particular race, national origin, or other protected basis. In a situation where people of a particular race, national origin, or other protected basis are being disparately impacted by an employer’s use of criminal histories, the employer may avoid liability under Title VII by proving that the use of criminal histories is “job related and consistent with business necessity.” The Guidance instructs employers may do this by considering the nature of the crime, the time elapsed, and the nature of the job in question. Then, the Guidance instructs employers to conduct assessments of individuals identified in the employer’s screen to decide whether the policy as applied is job related and consistent with business necessity.

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This blog's humble author is quoted in a Law360 story today about the dubious distinction Texas has as the state responsible for more EEOC Charge filings than any other state:

"More federal workplace discrimination charges were filed in Texas than in any other state in 2011, with 10 percent of all charges nationwide lodged there, according to state-by-state data released by the U.S. Equal Employment Opportunity Commission on Monday.

The EEOC received a record 99,947 charges of discrimination during the 2011 fiscal year, which ended Sept. 30, and of those, 9,952 charges were brought in Texas, the agency said.

* * * * 

While the sheer size of Texas' population is most likely a factor in the state's position as the one with the most charges, it is not the only factor, attorneys say. Population size alone can't account for why Texas' number would trump that of another populous state like California, attorneys told Law360.

“Many states like California have a robust state-level agency that provides protections for workers, but in Texas the agency provides very little, so more of that work has to be shouldered by the federal government rather than the state,” said San Antonio-based attorney Christopher J. McKinney of The McKinney Law Firm PC, who represents employees and select employers.

Management-side attorney Ron Chapman Jr. of Ogletree Deakins Nash Smoak & Stewart PC agreed that the state agencies' activity level likely accounted for the number of charges being higher in Texas than in California. ..."

 Read the entire story at Law360.

The statistics really are quite damning for Texas. Texas accounted for a full 10% of all national EEOC charge filings, and 15% of the country’s religion and national origin charges. That's pretty deplorable. 

Followup: 

Link to the EEOC Chart of Charge Filings by State

 

 

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Last week Facebook issued a statement stating that they have seen an increasing number of employers attempting to force their way onto employees' Facebook accounts by demanding employees turn over their passwords as a condition of employment.  The company's Chief Privacy Officer, Erin Egan, issued the statement: 

In recent months, we've seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user's friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.

The most alarming of these practices is the reported incidences of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.

Heavy handed tactics like this by employers put employees in a difficult position.  Complying with an employer's request to turn over his or her password violates Facebook's terms of service and opens up their private communications to any number of company personnel unknown to them.  Failure to do so likely means they will not get the job they are applying for or may lose their current job.  Currently such activity by employers is likely legal in most states...at least for now.  

Connecticut Sen. Richard Blumenthal announced last week that he's going to propose legislation to ban employers from requesting access to Facebook accounts as a term of employment.

I think this is really just the tip of the iceberg.  Get ready to hear some version of this story every week or so for the next 10 years.  We are all feeling our way through this brave new world of social media and personal privacy.  Frankly, it is a little fuzzy to know exactly where the lines are or will be or should be.

That being said, I think it is a pretty creepy and inappropriate overreach for employers to force employees to give up any normal amount of online privacy in order to get a job.  This is a bad idea for many reasons. First, it makes the employer look like a heavy-handed thug.  Secondly, it could be argued that the employer is now on notice or constructive notice of everything on every employees' Facebook page. Couple of possible examples:

• What if a female employee posts something on her Facebook page indicating that she is having trouble with her boss and his wandering hands only to be fired the following week?  She files a lawsuit for harassment and retaliation, arguing that while she never complained to HR the company surely knew of the conduct of her boss because they have full access to her Facebook account; or
• What if an employee who goes off the deep end commits violence in the workplace posted something the month before on his or her Facebook account that arguably should have been a warning that such conduct was likely? Might the company now be held liable for having had access to such information but never acting on it to protect its employees?

Being in possession of all employees' Facebook data puts a company in the position of having to argue and prove that it really didn't know what was posted and that it didn't have a duty to know.  This is not someplace an employer should want to put themselves voluntarily.  There is a saying that with great power comes great responsibility.  Employers might do well to consider their responsibility if they choose to exercise this much power over the private information of employees.

 

 

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"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983. 

A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.

In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.

Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.

 

 

 

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Employment Lawyer Daniel Scwhartz has a piece out this week in the Connecticut Law Tribune titled "What Does Magic 8-Ball Think About 2012?" 

Daniel discusses many expected 2012 employment law developments both nationally and in his home state, including expected Supreme Court decisions.  He is keeping his eye on:

 

Christopher v. SmithKline Beecham Corp, in which the court will decide the scope of the “outside sales” exemption under the Fair Labor Standards Act. The case arose over a dispute regarding the overtime pay of SmithKline’s pharmaceutical sales representatives. Pharmaceutical companies have traditionally viewed sales reps as “outside sales” employees, meaning they are exempt from overtime pay. The U.S. Department of Labor has disagreed. A decision is expected in June.

The Court will also be deciding the scope of the “ministerial exception” in Hosanna-Tabor Lutheran Church & School v. EEOC. At issue in whether the First Amendment restricts employment-related suits against religious organizations. The law has been universally applied to pastors, priests and rabbis who allege discrimination. But there is a divide about whether the doctrine extends to other church employees. This case is likely to set forth some of the parameters. A decision in this case is expected by June 2012.

I recommend the article to your reading.  You can find the entire article here.

 

 

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Patrick Danner of the Express News is covering this story involving a Medal of Honor winner who has brought suit against his former employer, alleging the employer defamed him and interfered with his ability to seek gainful employment.

 

A lawsuit brought by a U.S. Marine awarded the Medal of Honor against his former employer underscores the treacherous ground companies must navigate if they reveal too much about the circumstances surrounding an ex-employee's employment or termination.

 

Lawyers generally advise companies to say very little about ex-employees, otherwise those companies risk getting ensnared in costly and time-consuming litigation.

 

“In a lot of cases, saying something like (why someone was a bad employee) might be legal and you might be able to beat the rap, but you can't beat the ride. You could still get sued,” said Chris McKinney, a San Antonio lawyer who primarily represents individuals in employment disputes.

 

As the article details, proving that an employer is black-balling an employee by giving out false and defamatory information about you can be extremely difficult.  Before you call a lawyer, however, keep in mind that it is perfectly legal for an employer to say not nice things about you to a prospective employer . . . as long as the statements are fact-based and TRUE.  

There are third-party providers who can attempt to check what type of references you are getting (a lawyer cannot do this for you).  These usually run between $100-$200 and can give you some piece of mind if you are concerned what type of reference you might get from your last boss.  

If you have a serious indication that your past employer is making false, defamatory statements about you that are harming your ability to get hired, then you definitely should consult with an employment lawyer.  There may be steps short of litigation that will resolve the issue.    

Read the entire story.

 

 

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A technology Web site, PhoneDog.com, and one of its former chief editors are duking it out in a legal battle that could impact anyone who tweets from work.

Employee ("Noah Kravitz") is suing PhoneDog over his employment contract.  The employer has counter-sued - and here is the interesting part - claiming that Kravitz personal Twitter handle "PhoneDog-Noah" actually belongs to the company and that Kravitz essentially stole it by not turning it over to the company when he left their employment.

According to this article in SlashGear, the company values the Twitter followers at $2.50 a pop - that's $370,000 per year for the roughly 17,000 followers the account currently has.  According to the article, Kravitz reports that the company did not ask him to create the account; he did it on his own and posted both work-related and personal tweets to it.

Clearly, the employer's claim on the account is murky at best.  But this cautionary tale should give pause to any employee that posts to Twitter regarding issues that are in some way related to his/her work.  Perhaps it would be best not to include a specific reference to your employer in you Twitter handle, at the very least.

 

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Think all your boss does is wonder around the cubicles asking "What's happening?"  Well get ready for him/her to get even less involved.

Anybots, Inc. is now selling a line of remote-control robots that, among other uses, can be used by bosses to attend meetings and wander the office halls remotely.  Richard Garriott has purchased one to run his Austin, Texas-based video game development company, Portalarium.  

The robot rolls around the office on two wheels, allowing boss Garriott to participate in meetings and even strike up conversations with his developers when working from his New York home.

Hmmm.

So, what do you think? Innovation or indignity?

Video of the story from KXAN-TV in Austin after the break:

 

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Social media has presented a particular problem for employees and employers over the last couple of years. How much privacy does an employee deserve with regard to comments made to “friends” on his or her own time on Facebook, Twitter and the like? To what degree can an employer police Facebook pages of its employees and protect its own good name? These are hard questions that we are going to be grappling with for some time as our very concept of privacy changes. This week the All Facebook blog has an article discussing the current legal constraints on an employer’s ability to police its employees’ use of social media. Read the entire story here.

 

 

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Here is a link to today's Employment Law Daily - Now hosted at paper.li

 

 

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Every Tuesday through Thursday, its the...

Daily Update for October 25, 2011

• EEOC Sues Scooter Store for Disability Discrimination

In an ironic twist, The Scooter Store, which serves people with limited mobility, has been sued by the U.S. Equal Employment Opportunity Commission (EEOC) for disability discrimination. According to EEOC, the Texas-based retailer refused to accommodate an employee’s request for a temporary leave due to a knee injury and then fired him from a New York store. Read the entire story here.

• Disney Mickey Mousing Employees with an “Electronic Whip”

Disneyland Hotel laundry workers answer to what they call the “electronic whip.” Laundry rooms are outfitted with large flat screen monitors that keep track of employee efficiency. Each person is listed, followed by a number representing their current speed. Everyone can see who is the quickest–and slowest–in the group. Keeping track of employees’ work is not the issue but the public nature of this tote board “whip” does have some questionable aspects to it. Employees are reportedly skipping bathroom breaks out of fear, and some also have expressed concern for pregnant and/or elderly colleagues. Read the whole story here.

 

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Daily Update for October 20, 2011

• The ethics surrounding lawyers Facebook friending people in connection with litigation

  Can a plaintiff’s lawyer “friend” on Facebook high-ranking executives of a company he is suing and who he believes are dissatisfied with their jobs (therefore likely to make disparaging comments about their employer on FB)? That’s the subject Mike Maslanka tackles here on his Work Matters blog.

• FMLA FAQ

  FMLA FAQ: Can an Employer Credit Pre-FMLA Leave Against an Employee’s FMLA Entitlement When the Employee Becomes Eligible? Put another way, if the employer grants leave during an employee’s first twelve months of employment (during which said employee does not qualify for FMLA protection) can the employer take a credit for that leave against the employee’s FMLA entitlement once he or she DOES become eligible. Jeff Nowak of the excellent FMLA Insights Blog tackles that issue this week. You can find the article here. Here’s a hint: If you are an employer, you might not like the answer.

• Occupy Your Workplace: Changes To Employment Laws That Would Make a Difference

  My friend Donna Ballman has an excellent article in the Huffington Post this week discussing what changes to the country’s employment laws that would have the most positive impact for workers. Her list includes: 1. Fair Pay Laws Regarding Overpaymen of Executives; 2. Just Cause Protection For Employees; and 3. Freedom of Speech Protection for Private Employees. Give her article a look. Many readers might be surprised what isn’t in the law already.

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Daily Update for October 18, 2011

• SCOTUS grants cert on federal employment jurisdiction issue

  Yesterday the US Supreme Court granted certiorari in Elgin v. The Department of the Treasury, which raises the issue of whether the Civil Service Reform Act precludes federal district court from having jurisdiction over constitutional claims for equitable relief brought by federal employees. Read the entire story at LawMemo.com.

• Connecticut Becomes First State to Mandate Paid Sick Leave

  While many employees do enjoy some form of paid sick time, the law does not mandate that any paid sick leave be granted to employees… at least until now. Connecticut’s paid sick leave law (Senate Bill 913, Public Act 11–52) is set to become effective on January 1, 2012. The law will make Connecticut the first state to mandate paid sick leave for employees. You can read Jeffrey Mogan’s complete analysis of the new law at the Connecticut Labor & Employment Law Journal. Will other states follow?

• Romney Legal Advisor Robert Bork: Women 'Aren't Discriminated Against Anymore'

  Last August, former Massachusetts Gov. Mitt Romney announced former Supreme Court nominee Robert Bork as the co-chair of his "Judicial Advisory Committee." Bork's selection was a clear sign that, if elected, Romney will appoint hard right justices with little regard for how the Constitution protects ordinary Americans. Bork once described the federal ban on whites-only lunch counters as "unsurpassed ugliness." He believes that the government is free to ban contraception outright. And in a recent interview, he stated that he doesn’t believe that the 14th Amendment should protect women because they aren’t discriminated against anymore. Elections have consequences - every woman in the U.S. (and any man that cares about the rights of women) should think really hard about whether Mitt Romney is who they want picking judges in this country. Read the whole story here.

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American workers have been taking to Facebook and Twitter to passionately vent their workplace gripes, often in the most personal and vulgar ways possible. And as their bosses respond in kind with notices of termination, companies need to carefully consider whether they're breaking the law by firing someone due to the use of social media.

That's the take-away from a new analysis by the U.S. Chamber of Commerce of more than a hundred charges recently filed with the National Labor Relations Board (NLRB) involving social media and the workplace. Many of the complaints filed with the federal agency were brought by workers who felt they were illegally let go or otherwise disciplined for their Facebook musings. Others alleged that their companies had "overly broad" policies regarding social media that undercut their rights as workers. 

 

Read the entire story here.

 

 

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A question that comes up often in my cases is whether an employee who is being treated as an independent contractor by his or her employer is correctly categorized as such or should instead be treated as an employee? 

Is this really important?  Yes.  It is.

If an employer has mischaracterized an employee as an independent contractor, then the employer likely has not paid the correct amount of employment taxes on that individual.  Instead, that tax burden has been improperly shifted onto the employee.  Additionally, independent contractors are not entitled to overtime pay.  Thus an employee who has been mischaracterized may be entitled to between 2 and 3 years' worth of unpaid overtime.  That can add up to a lot of money. 

This week, AP Business Writer Joyce Rosenberg has an excellent piece describing the basics of this issue and discussing some of the fundamental differences between the two categories.  You can find it in today's San Antonio Express News.  I would encourage you to check it out.

If you believe that you may have been mischaracterized yourself or if you are an employer that has questions about this issue, then I encourage you to seek the counsel of a Board Certified Employment Lawyer in your area.

 

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     Facebook COO Sheryl Sandberg looks at why a smaller percentage of women than men reach the top of their professions -- and offers 3 powerful pieces of advice to women aiming for the C-suite.

     Long before Sheryl Sandberg left Google to join Facebook as its Chief Operating Officer in 2008, she was a fan. Today she manages Facebook’s sales, marketing, business development, human resources, public policy and communications. It’s a massive job, but one well suited to Sandberg, who not only built and managed Google’s successful online sales and operations program but also served as an economist for the World Bank and Chief of Staff at the US Treasury Department.

     Sandberg’s experience navigating the the complex and socially sensitive world of international economics has proven useful as she and Facebook founder Mark Zuckerberg work to strike a balance between helping Facebook users control privacy while finding ways to monetize its most valuable asset: data. 

 

 

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 The cross-street of social media and the workplace continues to complicate the relationship between employers and workers.  This week the government has filed a fascinating case under the National Labor Relations Act ("NLRA") alleging that an employer illegally terminated an employee for posting negative comments about her supervisor on the Facebook social media site.

 

To my knowledge, this is the first time the NLRB (or any other agency for that matter) has taken such a position in court.  The Board's position is that an employee's activity of discussing the workplace online is protected "concerted" activity under the NLRA.  Generally, the NLRA forbids employers from retaliating against employees (whether unionized or not) for discussing working conditions.  The Board has taken the position that it makes no difference whether the discussion is around the traditional water cooler or around the new digital water cooler that is social media - protected activity is protected activity.  

 

The NLRB's position would seem to call into questions many companies' current social media policies, which forbid making negative postings about the employer on the internet. Arguably such policies are now illegal under the NLRB's interpretation of applicable law.  And remember -- this applies to all employers, whether unionized or not.

 

This will be an interesting case to watch.  An administrative law judge is scheduled to begin hearing the case on Jan. 25.  The material I have read about this case indicates that the Facebook post was responded to by several co-workers who were the employee's Facebook "friends".  I think this likely bolsters her position considerably.  A much more difficult question would be a situation in which an employee makes such a post but has no co-workers as Facebook friends or has co-workers as friends but cannot establish that any of them saw or were otherwise aware of the posting.

 

Source: New York Times Article

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Worksite immigration enforcement cases are pretty rare so when they happen they get everyone's attention.  This week, a San Antonio restaurant company, its owner and four managers have been indicted on charges they conspired to hire illegal immigrants.

In 2008 a disgruntled former employee made a report to U.S. Immigration.  After a two-year investigation, a federal grand jury Wednesday indicted the Salsalito Cantina company (which has two restaurant locations here in San Antonio), along with its owner, it human resources manager, its general manager Humberto Gonzalez, and its kitchen manager.

The indictment alleges they conspired to induce people to enter the United States illegally, hired them, completed fraudulent work verification documents and then hid them.

The company and the managers have reportedly denied the charges.  The company's lawyer has implied that the case is built on untruthful statements of scared illegal aliens who were being questioned by the feds.  It will be interesting to follow the case and see if all of the defendants maintain the same story and take the case to trial of if one them makes a deal with prosecutors. 

In case you were wondering, the potential penalties for the defendants in a case like this one: Up to 10 years in prison for the individuals.  The company faces fines of up to $500,000 per violation.

Source: You can read the whole story at the SA Express News.

 

 

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Here are some of the most interesting employment law related articles and blog entries I came across in the last seven days. 

• Can Employers Prohibit Employees From Expressing Their Religious Views in the Workplace?
  • New York Labor & Employment Law Report - Interesting article on the topic.  Employers cannot generally prohibit all forms of religious expression at work.  However, many courts have held that an employer can prohibit employees from attempting to proselytize co-workers, especially when the co-workers are unwilling and are being harassed by the conduct. 

• When Can an Employer Ask for a Second Opinion for FMLA Leave?
  • FMLA Insights - Article addressing when an employer may seek a second opinion to verify an employee's serious health condition for purposes of Family Medical Leave Act ("FMLA") leave. Short answer, if the employer has a solid reason to doubt a medical certification then it may request a second opinion.  But the process should not be used to harass employees seeking FMLA leave.

• COBRA Subsidy Still Available
  
  • Remember that that the American Recovery and Reinvestment Act (ARRA) provided a COBRA premium reduction for eligible individuals who were involuntarily terminated from employment through May 31, 2010. There may not have been an extension of subsidies to individuals terminated after 5/31/10, but the effects of the subsidy are still with us for at least a few more months. Recall that individuals who qualified on or before May 31, 2010 may continue to pay reduced premiums for up to 15 months, as long as they are not eligible for another group health plan or Medicare. Those individuals who qualified for the premium reduction were only required to pay 35 percent of the COBRA premium otherwise due to the plan.  You can review more details about this issue at Fox Rothschild's Employee Benefits Legal Blog.

 

If you come across an article that you think should make the weekly round-up, drop me a line at chris[at]mckinneylaw.net.

 

 

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Can Employers Prohibit Employees From Expressing Their Religious Views in the Workplace?

New York Labor & Employment Law Report has an interesting article on the topic this week.  Employers cannot generally prohibit all forms of religious expression at work.  However, many courts have held that an employer can prohibit employees from attempting to proselytize co-workers, especially when the co-workers are unwilling and are being harassed by the conduct.

Click through to see the full post and the case discussed.

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 I am preparing for a trial next month in a case in which my client's employer fired her while she was out on maternity leave.  So I have been spending some time this week reading and exploring the web to find out what people are thinking and talking about right now with regards to pregnancy and work. 

 

Came across an interview with Sharon Lerner, the author of "The War on Moms."  She has an interesting take on the state of maternity leave laws in the U.S.  Her focus is not so much on the "choice" of continuing work or staying home after having a baby.  Instead she focuses on the practical context in which most women have to make that choice: economic pressure, social expectations, etc. and she reaches the conclusion that many. . . or even most women don't feel like they have much of a choice at all.  

 

Continue Reading...

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Next week the U.S. Supreme Court takes up an important privacy issue regarding digital communications: whether an employee's personal messages are private when transmitted over an electronic device supplied by an employer.  The Court has granted certiorari in City of Ontario v. Quon, which deals with the degree of privacy that an employee maintains in personal message sent digitally via a device provided by his or her employer.

Here are the background documents for the case:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the League of California Cities and the California State Association of Counties

This particular case deals with the privacy interests of public employees (police officers) and their personal use of text messaging on employer-provided phones.  It also has a few factual quirks (namely a conflict between the Department's written policies and statements made by supervisory personnel regarding whether officers' texts would be considered private) that could limit the case's widespread applicability.  However the Court is likely to outline some general principals regarding digital privacy in the employment setting that will be looked to by both public and private employers and employees in the future.

As usual, Nina Totenberg at NPR has an excellent summary of the case and its potential ramifications.  You can read and listen to her report here.

 

The case has some particular quirks that in some ways limi

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The U.S. Supreme Court has agreed to hear the appeal in Rent-A-Car, West, Inc. v. Jackson.

The question before the Court will be whether the district court is in all cases required to determine claims that an arbitration agreement subject to the Federal Arbitration Act (“FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision.

The pendulum in the U.S. Congress has certainly been swinging away from enforcement of mandatory forced arbitration provisions in the employment context.  It will be interesting to see what the Court does with this threshold issue.

You can find the opinion of the 9th Circuit being appealed from here.  

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 We previously discussed the journey of the Franken Amendment through the halls of Congress.  (The Amendment would prohibit the award of DOD funds to any Federal contractor that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual-assault tort claims.)

This weekend, the amendment was signed into law by President Obama.  This means that most military contractors will no longer be able to enforce mandatory arbitration clauses in their employment contracts under a provision signed into law over the weekend.

The issue has been a high priority this year for trial lawyers and for consumer groups.  When speaking candidly, most employment lawyers would agree that clauses mandating the use of arbitration deny employees an impartial hearing in open court.  Supporters of forced arbitration argue that the process is both fair and efficient.  

The open question is whether the passage of the Franken Amendment will lead to an effort next year by Congress to outlaw forced arbitration of civil rights claims throughout the private employment context.  

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County Attorney Andrew Thomas issued a press release this week announcing that his office has filed the state’s first employer sanctions case, a civil complaint against an employer accused of violating the Legal Arizona Worker’s Act. The civil action alleges that a Scottsdale company allegedly hired illegal labor deliberately by using a “subcontractor” which was in reality an employee who was not authorized to work in the United States.

According to the release, in January 2009, the Maricopa County Sheriff’s Office made a number of identity theft arrests after learning illegal immigrants were employed at the business. The civil complaint alleges that an illegal worker who voluntarily returned to Mexico returned to Arizona and created a company to provide services and labor solely for the the charged company. The complaint alleges that the company, which was formed in April 2009, was established to circumvent the Legal Arizona Worker’s Act. 

 

You can read the entire press release here

 

Many states are either implementing or contemplating similar laws so this case will be an interesting one to keep an eye on.

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 Yet another example of an employee believing that his statements published for the world to see online are somehow anonymous or not subject to his employer's scrutiny.  

The Huffington Post this week has the story of a school employee lost his job after he posted a one-word vulgarity in the comments section of an online article at the St. Louis Post-Dispatch.  The school employee posted an anonymous, one-word comment that referred, in vulgar terms, to a woman's anatomy on a newspaper's comment section.  An editor from the paper tracked the IP address for the comment to a school district computer and sent the district the information (perhaps with the thought that a student needed to be warned against using the school computer lab for such activities).  The district's IT department used that information to track down the sender, which turned out to be an employee.

Said employee is, as a result, no longer gainfully employed.  You can read the entire story here.

I've said it before and I'll say it again, don't post something online that you wouldn't want your momma to read.

 

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For the first time in a while, the EEOC has revised its required employer postings. This new version reflects current federal employment discrimination law, including two new laws, the Americans with Disabilities Act Amendments Act of 2008 and the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

There are several ways for employers to obtain the new required postings:

1. Print the EEOC's supplemental posting below and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.
   • “EEO is the Law” poster supplement
2. Print and post the EEOC’s comprehensive November 2009 version of the “EEO is the Law” poster.
   • “EEO is the Law” poster
3. Or order a new poster through the EEOC Clearinghouse.  

 

 

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Many employers and employees appear to still be unaware of the temporary COBRA premium reduction passed by Congress. Here is some background:

As a part of the stimulus package, which was enacted as the American Recovery and Reinvestment Act of 2009 (ARRA) temporarily reduces the premium for COBRA coverage for eligible individuals. COBRA (the Consolidated Omnibus Budget Reconciliation Act of 1985) allows certain people to extend employer-provided group health coverage, if they would otherwise lose the coverage due to certain events such as divorce or loss of a job.

Individuals who are eligible for COBRA coverage because of their own or a family member's involuntary termination from employment that occurred from September 1, 2008 through December 31, 2009 and who elect COBRA, may be eligible to pay a reduced premium. Eligible individuals pay only 35% of the full COBRA premiums under their plans for up to 9 months. This premium reduction is generally available for continuation coverage under the Federal COBRA provisions, as well as for group health insurance coverage under state continuation coverage laws.

If you were offered Federal COBRA continuation coverage as a result of an involuntary termination of employment that occurred at any time from September 1, 2008 through February 16, 2009, and you declined to take COBRA at that time, or elected COBRA and later discontinued it, you may have another opportunity to elect COBRA coverage and pay a reduced premium.

 

Here are some FAQ's about the program:

What plans does the premium reduction apply to?


 

The COBRA premium reduction provisions apply to all group health plans sponsored by private-sector employers or employee organizations (unions) subject to the COBRA rules under the Employee Retirement Income Security Act of 1974 (ERISA). They also apply to plans sponsored by State or local governments subject to the continuation provisions under the Public Health Service Act, and plans in the Federal Employee Health Benefits Program (FEHBP). The premium reduction is also available for group health insurance that is required by State law to provide comparable continuation coverage (such as “mini-COBRA”).

How can I tell if I am eligible to receive the COBRA premium reduction?


ARRA makes the premium reduction available for "assistance eligible individuals." An Assistance Eligible Individual is a COBRA qualified beneficiary who meets the following requirements:
Is eligible for COBRA continuation coverage at any time during the period from September 1, 2008 through December 31, 2009; Elects COBRA coverage (when first offered or during the additional election period provided by ARRA); and The COBRA election opportunity relates to an involuntary termination of employment that occurred at some time from September 1, 2008 through December 31, 2009.
However, if you are eligible for other group health coverage (such as through a new employer’s plan or a spouse's plan) or Medicare you are not eligible for the premium reduction.
Moreover, electing the premium reduction disqualifies you for the Health Coverage Tax Credit, which could be more valuable to you than the premium reduction. Additionally, certain high-income individuals may have to repay the amount of the premium reduction through an increase in their income taxes. See FAQ #9 below for more information.
Note: If the employee's termination of employment was for gross misconduct, the employee and any dependents generally would not qualify for COBRA or the premium reduction.

In order to be an Assistance Eligible Individual, must the individual actually have coverage under the group health plan at the time of the involuntary termination of employment?


In general, yes. The individual must have coverage at the time of the involuntary termination of employment. This qualifying event must occur at any time from September 1, 2008 through December 31, 2009 and the individual must be eligible for COBRA coverage at any time during that period. Of course, newborns and children who were adopted or placed for adoption after the qualifying event are also considered qualified beneficiaries and so would have the same rights as someone who had coverage at the time of the qualifying event.

If I am eligible for the premium reduction, how long will it last?


Your premium reduction can last up to 9 months. However, it will end earlier if:

• You become eligible for Medicare or another group health plan (such as a plan sponsored by a new employer or a spouse’s employer)**, or
• You reach the end of your maximum COBRA coverage period.

If you continue your COBRA coverage after the premium reduction period, you may have to pay the full amount of the premium. Failure to do so may result in your loss of COBRA coverage. Contact your plan administrator for more information.
**Individuals paying reduced COBRA premiums must notify their plans if they become eligible for coverage under another group health plan or Medicare. Failure to do so can result in a tax penalty.

Who is eligible for a new, second election opportunity for COBRA coverage?


Qualified beneficiaries whose qualifying event was an involuntary termination of employment during the period from September 1, 2008 through February 16, 2009 who did not elect COBRA when it was first offered or who did elect COBRA but are no longer enrolled (for example, those who dropped COBRA coverage because they were unable to continue paying the premium) have a new, second election opportunity. Individuals eligible for the extended COBRA election period must receive a notice informing them of this opportunity. This notice must be provided by April 18, 2009 and individuals have 60 days after the notice is provided to elect COBRA. However, this special election period does not extend the period of COBRA continuation coverage beyond the original maximum period (generally 18 months from the employee's involuntary termination). COBRA coverage elected in this special election period begins with the first period of coverage beginning on or after February 17, 2009.

Under ARRA, this special election period opportunity is not required to be provided with respect to State continuation coverage that is provided pursuant to State insurance law. A State can take action, however, to provide an additional election period in its continuation coverage program for individuals involuntarily terminated from September 1, 2008 through February 16, 2009 in order for them to request premium assistance based upon involuntary termination occurring during that period. For more information on rights and responsibilities regarding election periods under State law, contact your State insurance commissioner’s office or CMS.

 

How do I apply for the premium reduction?


If you were covered by an employment-based health plan on the last day of the employee’s employment, the plan should provide you a notice of your eligibility to elect COBRA and to receive the premium reduction. The notice should include any forms necessary for enrollment. You may also want to contact your plan directly to ask about taking advantage of the premium reduction.

Are there income limits for the premium reduction?


If the amount you earn for the year is more than $125,000 (or $250,000 for married couples filing a joint federal income tax return), you may have to repay all or part of the premium reduction through an increase in your income tax liability for the year. If you think that your income may exceed the amounts above, you may wish to consider waiving your right to the premium reduction.

How does the 65% premium subsidy get paid to me?


You will not receive a payment. Assistance Eligible Individuals are responsible for paying only 35% of the COBRA premium for the period of coverage. The remaining 65% of the premium is reimbursed directly to the employer, plan administrator, or insurance company through a payroll tax credit.

Does the 35% I am required to pay include any administrative fees plans are permitted to charge or do I need to pay that fee separately?


If you are an Assistance Eligible Individual, you will only need to pay the amount that is 35% of what you would otherwise pay for your COBRA coverage, which already includes any administration fee.


Does ARRA impose any new notice requirements?


Yes, plans and issuers are required to notify qualified beneficiaries regarding the premium reduction and other information about their rights under ARRA as follows:

1. A general notice to all qualified beneficiaries, whether they are currently enrolled in COBRA coverage or not, who have a qualifying event during the period from September 1, 2008 through December 31, 2009. This notice may be provided separately or with the COBRA election notice following a COBRA qualifying event.
2. A notice of the extended COBRA election period to any Assistance Eligible Individual (or any individual who would be an Assistance Eligible Individual if a COBRA continuation coverage election were in effect); who had a qualifying event at any time from September 1, 2008 through February 16, 2009; and who either did not elect COBRA continuation coverage or who elected but subsequently discontinued COBRA. This notice must be provided within 60 days following February 17, 2009.

Unless specifically modified by ARRA, the existing COBRA notice manner and timing requirements continue to apply.  Under the State programs, the issuer of the group health plan must provide the notice to qualified beneficiaries with the information on how to apply for the premium reduction. These notices must be provided within the time required by State law.

What information must the notices include?


The notices must include the following information:

• The forms necessary for establishing eligibility for the premium reduction;
• Contact information for the plan administrator or other person maintaining relevant information in connection with the premium reduction;
• A description of the second election period (if applicable to the individual);
• A description of the requirement that the Assistance Eligible Individual notify the plan when he/she becomes eligible for coverage under another group health plan or Medicare and the penalty for failing to do so;
• A description of the right to receive the premium reduction and the conditions for entitlement; and
• If offered by the employer, a description of the option to enroll in a different coverage option available under the plan.

Note: The Department of Labor has developed model notices that are available.

If an Assistance Eligible Individual pays the full COBRA premium and is later determined to be eligible for the premium reduction, what should the plan do with the overpayment?


The plan (or other person to whom such payment is payable) can apply the overpayment as a credit toward subsequent premium payments as long as it is reasonable to believe that the credit can be used within 180 days of the overpayment. Otherwise, the overpayment must be reimbursed to the individual within 60 days of receipt.


What can I do if my former employer’s group health plan denies my application for the premium reduction?


If the plan determines that you are not eligible for the premium reduction, you can request an expedited review of the denial. The Department of Labor will handle requests related to private sector employer plans subject to ERISA’s COBRA provisions. The Department of Health and Human Services will handle requests for Federal, State, and local governmental employees, as well as requests related to group health insurance coverage provided pursuant to state continuation coverage laws. The Departments are required to make a determination regarding your request within 15 business days after receiving your completed application for review.

Note: Appeals to the Department of Labor must be submitted on the U.S. Department of Labor application form. The form is available at www.dol.gov/COBRA and can be completed online or mailed or faxed as indicated in the instructions. If you believe you have been inappropriately denied eligibility for the premium reduction, you may wish to speak with an Employee Benefits Security Administration Benefits Advisor at 1.866.444.3272 before filing this form.

 

More Information

Guidance and other information is available on the Department of Labor web site at www.dol.gov/COBRA. You can also call 1.866.444.3272 to speak to an Employee Benefits Security Administration Benefits Advisor.

 

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 "Labor is prior to, and independent of, capital.  Capital is only the fruit of labor, and could never have existed if Labor had not first existed.  Labor is superior to capital, and deserves much the higher consideration."
 

       -- Abraham Lincoln

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MSNBC has an interesting article out this past week called "Where ‘omg, u look gr8’ can land you in court" in which they look at the evolution of sexual harassment in the modern workplace. 

Welcome to the new sexual harassment. It's (usually) not about the stuff you see on Mad Men, and it's not chasing the secretary around the desk. . . . [It is more subtle now.] Those subtle areas can include everything from flirtation at a company party to a complimentary text message or an unwelcome invitation to discuss the latest project over dinner or drinks.

The article also has some discussion about the implications of the use of social media (Twitter, Facebook, etc) and the fact that it is somewhat easier to misconstrue an instant message or cell phone text message than it is a verbal statement. 

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Just a reminder that the federal minimum wage increases to $7.25 Today, July 24. With this change, employees who are covered by the federal Fair Labor Standards Act (FLSA) will be entitled to no less than $7.25 per hour.

Employers can download an updated FLSA Minimum Wage Poster here for posting in the workplace.

 

 

 

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The EEOC has scheduled a public hearing Wednesday, July 15, 2009, at 10 a.m. (Eastern Time), at agency headquarters, 131 M St, NE, Washington, DC., to discuss age discrimination in employment.

In a release, the agency states that, in light of widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions, such a hearing is advisable.  At the hearing, experts will discuss the results of age stereotyping on older workers’ ability to keep their jobs during layoffs or to find work afterwards and the effect of recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA). Panelists will suggest potential enforcement and policy solutions. In addition, representatives from recent ADEA cases will discuss their experiences. Finally, the Commission will issue a technical assistance document that explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims.

The meeting is open for public observation of the Commission’s deliberations. Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. 

Unfortunately, the hearing is not be webcast so its usefulness, in my opinion, is somewhat limited.

Additional information about the hearing, when available, will be posted at http://www.eeoc.gov/abouteeoc/meetings/index.html

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One of my favorite employer-side HR bloggers has another great piece out this week that I recommend you check out.  As you may have read, the World Health Organization declared an influenza pandemic on Thursday and advised governments to prepare for a long-term battle against an unstoppable new flu virus.

Jay picks up the issue from the employer's perspective. 

[T]he current swine-flu pandemic has employers concerned. Many employment lawyers have added to the hysteria by flacking doom-filled seminars on emergency preparedness and other pandemic responses.

My response? Get rid of sick days.

WHAT!?!  Yes really. 

Jay's article is insightful and, as usual, right on the money with what company's should be doing in HR management.  I encourage you to check out his article at Gruntled Employees.  

 

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 According to reports, President Obama has chosen Judge Sonia Sotomayor of a Federal Court of Appeals based in New York as his nominee for the Supreme Court.  If confirmed, she will become the Court's first Hispanic Justice.  

Judge Sotomayor as authored numerous opinions on civil rights and employment law issues.  Recently her opinion in Ricci v. DeStefano (2009) has been getting a great deal of attention as it is currently on appeal to the Supreme Court.  Ricci concerns white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. Joining an unsigned opinion of a three-judge panel of the appeals court, Judge Sotomayor upheld the rejection of a lawsuit by white firefighters, one of them Hispanic, claiming race discrimination and, as part of the full appeals court, she declined to rehear the case. The Supreme Court is currently considering the case, and Justice Anthony M. Kennedy is the likely swing vote. Among the questions in the case is whether the law should treat diversity in the work force differently from diversity in the classroom.

Related Links:

• Live video of Pres. Obama's Announcement at 10:15 a.m. ET

• NY Times Profile of Judge Sotomayor

• Wall Street Journal Profile of Judge Sotomayor

• NY Times listing of previous decisions of Judge Sotomayor

 

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The Employee Rights Advocacy Institute For Law & Policy and Public Citizen have completed a National Study of Public Attitudes on Forced Arbitration.  The release is no doubt an effort to support the Arbitration Fairness Act, which is currently in Congress.

The study is based on a major national survey on mandatory arbitration of employment and consumer claims conducted by Lake Research Partners.

The survey of 800 likely voters nationwide found that:

• A solid majority of Americans (59%) opposes forced arbitration clauses in the fine print of employment and consumer contracts, including both men and women and majorities of Democrats, independents, and Republicans.
• Similarly strong majorities (59%) support the Arbitration Fairness Act. Support for the Act also crosses traditional gender and political divides.
• Even after voters hear arguments in favor of, and opposed to, forced arbitration, opposition to the practice holds firm. Just one-third of the electorate supports the practice.
• Roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise - even if they are bound by forced arbitration terms.
• Most Americans are unaware of the rights being taken away from them. Approximately two-thirds cannot remember seeing anything about forced arbitration in either Terms of Employment or Terms of Agreement for goods and services.

Here is a link to the study materials.

Here are more materials on the current version of the Arbitration Fairness Act.

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In the event of pandemic influenza, employers will play a key role in protecting employees' health and safety as well as limiting the negative impact to the economy and society. Planning for pandemic influenza is critical. To assist you in your efforts, the Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) have developed the following checklist for large businesses. It identifies important, specific activities large businesses can do now to prepare, many of which will also help you in other types of emergencies.

The checklist -- prepared by the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention -- can be downloaded here.

 

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Firefighters from New Haven, Conn., on Wednesday exposed an enduring Supreme Court split, as the justices confronted the year's most anticipated racial discrimination case.  A case from the New Haven Fire Department poses the questions: Just what is a job-related test? How should a city evaluate applicants for leadership positions? If a city thinks a test that was used will result in a lawsuit, does it have the right to abort the promotions and order a new test?

In 2003, the New Haven Fire Department in Connecticut gave an exam meant to gauge eligibility for promotions to lieutenant and captain. Scores for Hispanics and for African-Americans ranged from 34 to 59 percent of the scores for whites. Because of the way the promotions were structured, no African-American and only one Hispanic would have won any of the 15 promotions. The question then became whether the Civil Service Board would validate the test results.

After five days of hearings, the board decided the exam was flawed and threw out the results.  White firefighters who would most likely have won the promotions if the test results would have been kept sued.

Initial reports indicate conservative justices showed sympathy for the white firefighters who did not receive the promotions. The court's liberal wing suggested that New Haven officials may have acted reasonably in determining that the test was flawed. After an hour-long oral argument, most signs hinted at a close decision later this year.

Here is a link to an initial take on what today's argument revealed.

Here is a link to Nina Totenberg's excellent NPR piece outlining the issues.

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The National Law Journal is reporting that defamation lawsuits are on the rise in the workplace.  Employees are taking on employers over the right to reputation, suing over being labeled as damaged goods after losing their jobs.

With the economy forcing so many people out of work, lawyers say the environment is ripe for defamation claims.

Employers are facing mounting pressure over how to treat departing employees, and how to explain the departure without hurting their reputations. The employers' fear is that negative or offensive information will go out the door along with the exiting employee, providing grounds for defamation claims.

And technology — including e-mails, Twitter, Facebook and blogs — is making it easier to disseminate hurtful information about employees.

 

Read the entire article from the National Law Journal.

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As of April 3, 2009, all U.S. employers are required to use a new revised Form I-9.The revised Form I-9 reflects changes made to the list of documents acceptable for Form I-9 in accordance with the Department of Homeland Security’s final rule.

Changes under the new rule:

• Requires that all documents presented during the verification process be unexpired;
• Eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards);
• Adds foreign passports containing certain machine-readable immigrant visas to List A;
• Adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

The biggest difference in the revised Form I-9 is that all documents presented during the verification process must be unexpired.

Downloads:

• Download the new Form I-9

• Download the DOL's Handbook for Employers – Instructions for Completing Form I-9

December 22, 2010 Update: Updated Link to the handbook.

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Twitter is a fantastic tool.  There is currently no better way to make an idiot out of yourself in front of a national audience for 140 characters or less. 

A recent job applicant at Cisco was offered a position that was apparently a pretty good paying job.  So, what does said job applicant do?  Well, go on Twitter and badmouth the job of course.

"Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”

Well, anyone care to hazard a guess as to whether anyone at Cisco (a tech company) follows posts about the company on Twitter?  Uh.....yeah...they do.  And it gets worse for our job applicant.  Her situation went "viral".  Someone from Cisco saw her post and responded.  This spread across Twitter like wildfire.  Internet goons with too much time on their hands traced her Twitter account to her true identity and outed her.  Blog pages went up about the incident.  She was dubbed on the net "Cisco Fatty."  People with even more time on their hands posted Youtube videos about the incident.  In short she was humiliated and, one would assume, she may not be offered the position at Cisco.

The moral of the story?  Stop, STOP, STOP thinking that electronic communications are private.  They aren't.  Whether it be email or Facebook entries, or Twitter, or whatever comes next, remember, someone is always watching.  So don't put anything down in an electronic communication unless you wouldn't mind if it was read by your mother, your spouse, and your boss.

(Update: Someone inquired about this so here is the info: I have referred to the subject of this story as "her" throughout the article b/c I know her identity.  In fact she has come out and posted about the event.  However, there as been an awful lot of piling on her for this mistake so I am choosing not to identify her or to link to anything identifying her personally.  If you care enough, you can find out who it is...but you shouldn't.)

 

Never post anything you wouldn’t say to your mom, boss and significant other.

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TrueCredit.com, whose parent company is credit reporting agency TransUnion, reports that 16% of employers surveyed use a credit report as part of their regular screening process. That’s one in six companies. (The survey polled 214 people working in human resources. The margin of error is +/- 6.8 percentage points.)

This is especially damaging news as more Americans are looking for work and their credit scores may be taking a beating.

 

Read the story at the Wall Street Journal.

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A story on PBS' news magazine "Now" really gripped me last week.   A shocking statistic—teenagers are in more danger from sexual predators at their part time jobs than through the Internet.  According to one estimate, 200,000 teenagers are assaulted at the workplace each year. It's a vastly underreported phenomenon, but some brave young women are stepping up publicly to tell their stories.

As an employment lawyer that deals with sexual harassment issues every day and as a father of two daughters myself, I found this story to be incredibly important.  Many young women that go into the workplace for the first time simply are not properly prepared to deal with sexually harassing situations.  They don't have the experience to immediately know that conduct is over the line and illegal. 

Employers need to be especially vigilant in preventing and stopping sexual harassment in the workplace when they routinely hire young people.  This issue impacts hundreds of thousands of teenagers across the country—many of whom don't know how to report workplace abuse, or to even recognize when their bosses cross the line.  While teenagers may be old enough to legally work, they are in many ways still children.  Companies that fail to make sure they are not falling prey to illegal sexual harassment at work from co-workers or supervisors will pay a heavy price at the courthouse.  At least they will if I have anything to say about it.

I encourage you to watch the entire story below. 

 

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We've added a new blog entitled Minding the Workplace to our blogroll.  The blog is authored by David Yamada, a law professor at Suffolk University Law School in Boston and founder of the New Workplace Institute, a research and education center promoting healthy, productive, and socially responsible workplaces.

David says his blog is dedicated to news and commentary about work and employment relations, as well as to discussing and sharing useful books, articles, media programs, and Internet sources about the workplace.  Dignity at work, workplace bullying, and psychologically healthy work environments are recurring themes.

From the looks of things, David's blog is off to a fine start and we welcome him and his efforts to promote dignity in the workplace. 

 

 

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Barack Obama has nominated California Democratic Rep. Hilda Solis as his labor secretary.  Solis, the daughter of two Hispanic immigrants, has been in Congress since 2000.  She has never served on the House Education and Labor Committee. She currently serves on the Select Committee on Energy Independence and Global Warming.

Solis received her degrees from California State Polytechnic University, Pomona and the University of Southern California and worked for two federal agencies in Washington, D.C. She was elected to the California State Assembly in 1992 and to the California State Senate in 1994. She was the first Hispanic woman to serve in the State Senate, and was re-elected there in 1998. She became known for her work toward environmental justice and was the recipient of the John F. Kennedy Profile in Courage Award in 2000.

Solis is well-liked by labor.  Service Employee International Union ("SEIU") President Andy Stern hailed the nomination of Solis: 

"As someone who has pounded the pavement knocking on doors for Hilda Solis in her first upset campaign in California, I can tell you firsthand that this woman is about opening doors for millions of Americans who get up and go to work each day.

From the streets of Los Angeles where she marched with the janitors who were fighting for jobs with dignity that can support a family through SEIU's Justice for Janitors campaigns, to the halls of Congress where she has been an outspoken supporter of healthcare rights for all, a livable minimum wage, and workers' right to come together for a voice on the job, Hilda Solis has never backed down from the good fight to make the American Dream available to all."

You can find Congresswoman Solis' Homepage here.  It has links to her statements and bills that she is attached to. 

The Associated Press quoted Randy Johnson, vice president for labor issues at the U.S. Chamber of Commerce, with regard to what the response of business groups would be to her nomination: "There’s a new sheriff in town, but they’ll still have to deal with the business community, and they know it.  We would hope she will continue to support programs that help educate employers about voluntary compliance with the law rather than pursue heavy-handed enforcement.”

 

Sources: AP, Wikipedia, SEIU Press Release

 

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One of the staples of practicing HR Law is reviewing and drafting employment agreements for employees and employers.  Another is reviewing or drafting separation or severance agreements.  As a result, the primary way I gage how the economy is doing is by looking at whether I'm doing more employment agreements or severance agreements.  Care to take a guess at which way the tide has been shifting over the last six months?

One of the first areas you see such a shift is in personal luxury services, such as housekeeping and nanny services.  I was just commenting earlier this week to another lawyer that my nanny employment agreement business has all but been replaced by work drafting severance agreements.  Work reviewing these documents for employees is especially somber because I know that these people (often single mothers) have no place to go when they lose their job.

Turns out I'm not the only one to have noticed this trend.  Today's Wall Street Journal has a sad article covering the same trend.  Especially poignant is the human angle to the article.  These workers often become de facto members of the family that the family, especially the children, get emotionally attached to.  One family that hired me to draft a generous severance package for the housekeeper they were being forced to lay off told me it felt like they were "firing their aunt."  

Here's a snippit from the WSJ article:

 

'Second Mom'

A stay-at-home mother whose husband is a litigation attorney, Mrs. Sirof says that Ms. Monterrosa was a "second mom to my kids." Ms. Monterrosa was there when she suffered a bout of depression and when she went on spa trips or outings to get Botox and Juvéderm injections, says Mrs. Sirof.

But a few months ago, the family decided they couldn't afford Ms. Monterrosa anymore and let her go.

Mrs. Sirof's daughters took the separation badly. They inquired incessantly about "Vita," as they called her. Normally a lively child, daughter Addie became sad and withdrawn. A doctor Mrs. Sirof consulted suggested renewed contact with Ms. Monterrosa.

. . . "I can't afford to buy my own children shoes," Ms. Monterrosa says, wringing her hands.

 

Yep, it's going to be difficult to get in the Christmas spirit this year.  I can tell.

 

Source For Quote: Wall Street Journal

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The Family Medical Leave Act has undergone major changes for the first time in its 15-year history. (We posted previously about the amendments & the Department of Labor's new regulations here.)  Some attorneys fear that these changes may cause a great deal of  confusion and litigation.

This week issued new rules for the amendments, which take effect on Jan. 16.  The new rules were a response to complaints by employers and employees alike.  Employers have long argued that workers are abusing FMLA, especially in the area of intermittent leave. Employees counter that they're unfairly being denied FMLA, and, are often retaliated against for taking it.

The new rules address many of employer's long-standing issues with the FMLA and also address under which circumstances military families can take FMLA leave.  However, some attorneys believe that the changes will still be problematic for employers.

Here is a link to the story in the National Law Journal.  $$

Here is a link to the new Department of Labor Regulations.

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While there may only be a few weeks left for the current administration, it certainly has not given up efforts to effect the country's HR laws.  Specifically, the Department of Labor is rushing its rule-making process to issue a rule making it more difficult for the government to regulate workers' exposure to toxic chemicals at work.  Here is an excerpt from a recent story in the New York Times:

The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job.

The rule, which has strong support from business groups, says that in assessing the risk from a particular substance, federal agencies should gather and analyze “industry-by-industry evidence” of employees’ exposure to it during their working lives. The proposal would, in many cases, add a step to the lengthy process of developing standards to protect workers’ health.

Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses.

If the administration manages to get the rule issued, the Obama administration will almost certainly begin efforts to repeal it as soon as they take office.  Repealing such a rule, however, can take a considerable amount of time.  In the meantime, the rule will have the force and effect of law. 

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The Wall Street Journal has an interesting piece today on the fact that the rate at which people change jobs is decreasing due to the economic downturn.  According to the article, a growing number of professionals are saying "no, thanks" to prospective employers asking them to change jobs.

Spooked by the shaky economy, 46% of U.S. middle managers polled in mid-September said switching employers in the current environment is risky. Just 13% said they were actively looking for a new job, down from 30% in 2005.

The article indicates that search firms say they are finding it harder to lure prospective candidates. In my own practice, the search firms I deal with have noticed more caution on the part of prospects.  Certainly I think employees would do well to insist on firm offers in writing with signing bonuses and/or guaranteed terms of employment with cause protection or buy-out provisions.  An oral promise and a handshake just isn't going to be enough to get quality prospects to leave their current employers in these difficult times.

 

Here is a link to the whole article. 

 

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The alleged primary purpose of performance reviews is to enlighten subordinates about what they should be doing better or differently. But too often they are used as intimidation aimed at preserving the boss's authority and power advantage. This defeats the purpose of the review and worse, harms employee morale. 

The Wall Street Journal has a good article out this week on why performance evaluations so often do not work.  First and foremost in my mind is this: Performance reviews often just are not very accurate or useful.  There are many reasons for this. 

1. First, they are subjective but they try not to be. -  I don't care how objective the HR department designed them to attempt to be, they always end up being subjective.  The fact that you have your managers rate performance on a numeric scale doesn't change this fact.  Reviews that are designed to eliminate subjectivity in an inherently subjective task actually do more harm than good.
2. Managers hate doing evaluations as much as employees hate getting them. -  Both managers and employees feel the process is reminiscent of getting a report card and therefore, somewhat demeaning.  As a result, managers put off doing evaluations until the last minute and don't really put valuable thought into the process.
3. Managers don't want to be the bad guy/gal. -  Ask any employment lawyer and they will tell you about case after case of litigation involving a company that claims the employee in question was a long term problem who was never a good performer BUT has a record of good (if not excellent) employee evaluations.  The simple fact is that not many managers relish the idea of telling their employees what they are doing wrong or possibly harming the employee's chance for a bonus or a raise.  So they glaze over problems and don't document them as they should. 
4. Who designs these things? - Possibly in an effort to address the problem in item one, above, employee reviews have become so byzantine as to be utterly useless. Categories and subcategories with numerical scales and other nonsense.  It ends up not really meaning that much frankly. 

So what is the solution?  Well the WSJ has some good recommendations regarding up and down reviews and I think those ideas would be helpful.  My own thoughts are to keep it simple.  Feedback is important but structure always isn't.  Try taking out a blank sheet of paper and simply writing a thoughtful letter to subordinates a few times a year addressing how they are doing.  Address both what they are doing well and pick one or two things that they could improve on and how you as the manager would like to help them do that. 

I know some HR types will disagree with this (and have when I have spoken on this topic) and point out that this practice could lead to many different types and levels of quality among reviews throughout the organization.  And I suppose this is true to an extent.  Although I would point out that whoever is doing the manager's review should be looking at the evaluations the manager writes and, if necessary, point out any weaknesses in this area and working with the manager on this issue if necessary. 

Furthermore, if the goal of your evaluation system has devolved into the main goal being making all evaluations look like the same shade of vanilla so that they can't ever be used against you in a legal action as evidence of disparate treatment,  just stop doing them. 

 

Here is the full WSJ article.

 

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Employee privacy in the workplace has become an increasing thorny issue over the last 10 to 15 years as the methods by which employees communicate with each other and the outside world have multiplied and become more complex.  It used to be that privacy issues at work had to do with whether an employee had an expectation of privacy in their workplace locker or on their phone conversations.  Now employers have to be concerned about blog postings, chat rooms, email, Twitter, instant messenger, etc. etc.  So where does an employees right of privacy end and an employer's right to make sure its employees are doing what they ought to be doing begin?  Your guess is as good as mine.  

A recent decision by the 9th Circuit Court of Appeals has provided a loud wake-up call to employers who wish to monitor employee communications. In Quon v. Arch Wireless Operating Co, Inc. et al., 529 F.3d 892 (9th Cir. 2008), the court held that the City of Ontario, Calif., violated the state and federal constitutional privacy rights of its police officers when it reviewed their personal text messages.

Importantly, the Court in this opinion did not find it persuasive that the company had a policy stating that electronic emails should not be considered private to be determinative.  The Court held that the policy was not specific enough under the circumstances.  Does this mean that employers should be regularly reexamining their electronic communications policies to specifically address new forms of electronic communications?  In a word, yes.

 

Read the full opinion here.

 

 

 

Source: Law.com.

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Yesterday the Supreme Court heard argument in Crawford v. Metropolitan Government of Nashville, in which the issue is whether and to what extent Title VII’s anti-retaliation provision protects employees from being fired for cooperating with an employer’s internal sexual harassment investigation.

Here is a humorous excerpt from the argument of Eric Schnapper, counsel for the employee that in addition to being funny, really gets to the heart of one of the most important issues in the case:

   JUSTICE GINSBURG:  "But why are we -- why are we spending so much time on hypotheticals that are so far from this case?  This was a person who appeared at an internal proceeding, she gave testimony, very specific testimony.  She wasn't saying: I'm against harassment.  She said: This boss harassed me.  It is about as specific as you get.  So we're dealing with a particular case of somebody who was a witness in an internal investigation.  Why do we have to reach the outer boundaries of this claim in this case?"
    MR. SCHNAPPER:  "You do not, Your Honor."
    CHIEF JUSTICE ROBERTS:  "Well, but, you know, that's why we ask hypotheticals that aren't related to the specific facts, because we're interested in how broadly the proposition you're asking for goes.  I'd still like to find out where you draw the limit.  What if the person says: Mr. Jones would never do anything like that, but if he did that would be terrible.  Now, is that actionable as opposition?"
    ***
    JUSTICE BREYER:  "Is this a real problem?  I mean, let's suppose the opposition clause protects everybody in the internal investigation who could be at all interpreted as favorable to the complainant.  It also protects everybody who could possibly be viewed as neutral.
    "Then you have a problem about what about a person who loves sexual harassment?  This is the hypothetical: he comes in, testifies: I love sexual harassment; it's wonderful, and they fire him.  Now is this a real problem?
    MR. SCHNAPPER:  "It -- it is not, Your Honor.  But -- but as the -- as the Chief Justice pointed out, I'm -- you know, I'm here to answer hypothetical questions, and I'm going to do so."
    JUSTICE GINSBURG:  "But I thought that --"
    [Laughter.]

You can read the entire transcript here.

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As promised, here is additional information regarding what each of the presidential candidates plans to do with regard to workplace and HR issues.  This information is taken directly from the candidates' respective campaign websites without any editing or alteration whatsoever.

John McCain

John McCain is calling for National Commission on Workplace Flexibility and Choice. This Commission would bring together a bi-partisan set of leaders representing workers, small and large employers, labor, and academics.  The Commission would make recommendations to the President on how modernizing our nation’s labor laws and training programs can help workers better balance the demands of their job with family life and to enable workers to more easily transition between jobs.

The Commission would examine the following issues that John McCain believes are important to workplace flexibility and choice:

• Modernizing the nation’s labor laws so that they allow for more flexible scheduling arrangements
• Ensuring that the nation’s labor laws don’t get in the way of working at home
• Promoting telework so that workers can spend less time commuting
• Making health more portable so that workers don’t lose their benefits when they switch jobs
• Ensuring that workers can choose retirement plans that best suit their needs
• Providing workers with more choice in job training assistance so that they can build the skills they need for new and better jobs

Barack Obama

Obama will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama will ensure that his labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama will also increase the minimum wage and index it to inflation to ensure it rises every year.

• Ensure Freedom to Unionize: Obama believes that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA's passage and sign it into law.
• Fight Attacks on Workers' Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB's "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
• Protect Striking Workers: Obama supports the right of workers to bargain collectively and strike if necessary. He will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
• Raise the Minimum Wage: Barack Obama will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.
• Create New Job Training Programs for Clean Technologies: The Obama plan will increase funding for federal workforce training programs and direct these programs to incorporate green technologies training, such as advanced manufacturing and weatherization training, into their efforts to help Americans find and retain stable, high-paying jobs. Obama will also create an energy-focused youth jobs program to invest in disconnected and disadvantaged youth.
• Improve Transition Assistance: To help all workers adapt to a rapidly changing economy, Obama would update the existing system of Trade Adjustment Assistance by extending it to service industries, creating flexible education accounts to help workers retrain, and providing retraining assistance for workers in sectors of the economy vulnerable to dislocation before they lose their jobs.
• End Tax Breaks for Companies that Send Jobs Overseas: Barack Obama believes that companies should not get billions of dollars in tax deductions for moving their operations overseas. Obama will also fight to ensure that public contracts are awarded to companies that are committed to American workers.
• Reward Companies that Support American Workers: Barack Obama introduced the Patriot Employer Act of 2007 with Senators Richard Durbin (D-IL) and Sherrod Brown (D-OH) to reward companies that create good jobs with good benefits for American workers. The legislation would provide a tax credit to companies that maintain or increase the number of full-time workers in America relative to those outside the US; maintain their corporate headquarters in America if it has ever been in America; pay decent wages; prepare workers for retirement; provide health insurance; and support employees who serve in the military.
• Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama will expand it to cover businesses with 25 or more employees. He will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children's academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
• Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
• Expand High-Quality Afterschool Opportunities: Obama will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve a million more children. Obama will include measures to maximize performance and effectiveness across grantees nationwide.
• Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Obama will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
• Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
• Expand Flexible Work Arrangements: Obama will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.

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Julie Ferguson Over at the Workers' Comp Insider Blog has posted the newest edition of the Calvacade of Risk.  Check it out. 

 

 

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Barack Obama recently spoke at some length regarding his views regarding labor and workplace issues.  The video of his remarks is included below.  Leave a comment and tell us what you think.

P.S. I am looking for video of McCain addressing work-related issues and will post it up as soon as I find it.   

 

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As the number of people without health insurance continues to rise, many states and Congress have begun to focus on one of the biggest causes: the growing number of small business owners and their workers who are unable to afford coverage.

Congress, in response, is considering legislation that, among other steps, would make it significantly easier for small businesses to organize insurance-buying pools. Despite bipartisan backing in both the House and Senate, it is uncertain whether the bills can be passed in this, an election year. But proponents say the legislation would almost certainly be reintroduced next term.

 

Here is the article from the New York Times.

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How Labor Day Came About

"Labor Day differs in every essential from the other holidays of the year in any country," said Samuel Gompers, founder and longtime president of the American Federation of Labor. "All other holidays are in a more or less degree connected with conflicts and battles of man's prowess over man, of strife and discord for greed and power, of glories achieved by one nation over another. Labor Day...is devoted to no man, living or dead, to no sect, race, or nation."

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity and well-being of our country.

Founder of Labor Day

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

Some records show that Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a co-founder of the American Federation of Labor, was first in suggesting a day to honor those "who from rude nature have delved and carved all the grandeur we behold."

But Peter McGuire's place in Labor Day history has not gone unchallenged. Many believe that Matthew Maguire, a machinist, not Peter McGuire, founded the holiday. Recent research seems to support the contention that Matthew Maguire, later the secretary of Local 344 of the International Association of Machinists in Paterson, N.J., proposed the holiday in 1882 while serving as secretary of the Central Labor Union in New York. What is clear is that the Central Labor Union adopted a Labor Day proposal and appointed a committee to plan a demonstration and picnic.

The First Labor Day

The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union. The Central Labor Union held its second Labor Day holiday just a year later, on September 5, l883.

In l884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a "workingmen's holiday" on that date. The idea spread with the growth of labor organizations, and in l885 Labor Day was celebrated in many industrial centers of the country.

Labor Day Legislation

Through the years the nation gave increasing emphasis to Labor Day. The first governmental recognition came through municipal ordinances passed during 1885 and 1886. From them developed the movement to secure state legislation. The first state bill was introduced into the New York legislature, but the first to become law was passed by Oregon on February 2l, l887. During the year four more states -- Colorado, Massachusetts, New Jersey, and New York -- created the Labor Day holiday by legislative enactment. By the end of the decade Connecticut, Nebraska, and Pennsylvania had followed suit. By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.
 

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A large, bipartisan group of senators signed on as co-sponsors of the ADA Amendments Act (S.3406) which was introduced August 1. The bill will strengthen the protections of the original Americans with Disabilities Act (ADA), passed in 1990.

Sens. Tom Harkin, D. Iowa, and Orrin Hatch, R. Utah, led the effort to sign on 66 senators as co-sponsors of the bill.  With so many co-sponsors, there is a good chance that the Senate leadership will bring the bill to the floor to a vote.

The House passed its version of the bill overwhelmingly (402-17) on June 25.  Thus it is possible that it will be sent to the President on veto-proof majority votes from both the House and Senate. 

In a statement, Nancy Zirkin, executive vice president of the Leadership Conference on Civil Rights, praised the bill's introduction: "The ADA Amendments Act is the most significant civil rights bill of the 110th Congress. This act will correct narrow court interpretations that have restricted ADA coverage in the workplace, and taken away coverage for people with diabetes, epilepsy, serious heart conditions, mental disabilities, and even cancer."

She noted the cooperation and bipartisan spirit under which the Congress has considered the legislation: "In this era of partisan politics, the dramatic convergence of the business, disability and broader civil rights communities is a testament to the importance of this legislation to diverse constituencies as well as the power of coalition politics."

Sandy Finucane, vice president of the Epilepsy Foundation, agreed: "The introduction of this bill, with such broad bipartisan support, is a tribute to the hard work and conviction of Sens. Hatch and Harkin, who worked tirelessly to get it done. This is a major victory for the disability community."

The bill will overturn several Supreme Court rulings which have narrowed the interpretation of the ADA and substantially limited protections for millions of Americans.

For example, the Court ruled in the 1999 case Sutton v. United Airlines that individuals are not considered disabled if they are able to manage the symptoms of their impairments with medication or assistive devices. The new bill clarifies that disability should be determined without considering "mitigating measures."

Similarly, the bill requires that people whose disabilities occur only in episodes have their disabilities assessed when their symptoms are present – important for many disorders including depression and epilepsy.

 

 

Source: David Schraub - Civilrights.org Article
August 5, 2008

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Lessons From a Hotel Lobby

We think we shape life. That’s wrong. Life shapes us. All
readers know how they first learned this. Here’s my story,
one that will help corporate counsel when it comes to decid-
ing whether to impose the equivalent of capital punishment in
employment: termination.

It was 1975. Much to my mother’s dismay, I dropped out of
college, moved to Washington, D.C., and started to work at a
large, 800-room convention hotel as a desk clerk. Working hard,
I was promoted to chief clerk (hot stuff).

D.C. was a mosaic of cultures. The bell staff was mostly Ara-
bic; when it was slow, they taught me salty language in their
native language. Jean-Paul Sartre wrote that words are like
loaded guns. I was about to find out how right he was.

It was Sunday night. The hotel was busy earlier and finally
had slowed down. It was around 11 p.m., and I got off at mid-
night. Suddenly, several guests came in, crowding around the
front desk. A gentleman from Dubuque, Iowa, was at the line’s
head, surrounded by his large family, all blocking my view of
line’s end.

As I checked them in, I handed the keys to a bellman,
Manny. He was from Jordan. I needled Manny by using my
new vocabulary to call him a pig in Arabic, which is one of the
worst words to say to an Arab.

As the family cleared away, my view finally unobstructed, I
saw three Arab gentlemen whose reservations were made by
the Lebanese embassy around the corner from the hotel. Oh
geez! Had they heard? Was I toast? Could I bribe them into
silence with an upgrade to a suite? They let on nothing. It was
a restless night.

Next shift, I came in but was told to see the assistant man-
ager before starting work. He was Lebanese. Coming into his
office, he swept his hand toward his guest chair, and I saw
spread out across his desk my personnel file, including many
complimentary letters from satisfied guests. (When anyone ever
thanked me for my assistance, I asked them to write a letter to
the hotel extolling my virtues.)

I sat. He looked at me evenly and quietly said, “Mike, I am
not going to fire you. Not now, at least. You have many good
letters. Read my memo later today. Read it, live it.”

Relieved, I went to work, focused on the Zen of checking in
guests. The memo came out:

To: Front desk staff
Re: Swearing in Arabic
Henceforth, only I will be allowed to swear in Arabic
at the front desk. Any staff violating this rule will
be terminated.

Close call. Years later, I am an employment lawyer, and I
have never forgotten what that boss taught me. I like to think
of it as principled compassion (PC). What happened to me
was one aspect of it.

Time To Reflect
PC is best understood in a Q-and-A format. Here’s a key
one: Are there any mitigating factors warranting a less severe
punishment than termination? That’s the one that saved me,
but it has various cousins, all looking to whether capital pun-
ishment is warranted. Here are others:

• What is a proportionate response to the misconduct in
question?
• Is the company focusing on just one person as the cul-
prit or should others be held accountable? Be wary of this,
because the fundamental attribution bias bends our minds to
embrace a single cause for a mishap, when in fact there are
usually several.
• Has the straying employee been properly trained for the
position?
• Were checks and balances in place to prevent the mis-
deed? Trust me, a jury will often blame the employer for not
putting these in place, on the belief that employers should
take steps to ensure that the darker angels of an employee’s
nature are cabined off.
• Is the company giving too much weight to information
that comes in first (the availability bias) and then holding fas
to its first conclusions (the confirmation bias)? Recognize
these when making decisions.
• Are there other alternatives that can achieve the com-
pany’s objectives, short of termination?

PC must not be confused with the ancient human resourc-
es maxim of “no good deed goes unpunished.” By asking
these questions, an employer arrives at the right decision.
Deciding that someone should be terminated and lacking
the backbone to do it is not performing a good deed. It is a
bad decision, often borne of a desire to avoid confrontation.
PC results in a deed that is truly good for the manager and
the employee.

How so? Let’s look at managers first. In his recent book,
“What the Gospels Meant,” Garry Wills argues that most
people incorrectly interpret one of the Beatitudes in the
Gospel of Matthew. Instead of “Happy those who are meek,
for they shall acquire the earth,” it should be “Happy those
who yield, for they shall acquire the earth.”

Wills’ big idea: Those who could be aggressive or careless
with their exercise of power but hold back and reflect before
acting are those who shall reap rewards. For employees? I
became, I think, a better employee and, I know for certain,
a more loyal one — good all around.

I went on to graduate from the Cornell University School
of Hotel Administration; graduating in the half of the class
that makes the top half possible confirmed that my skill set
was elsewhere. I lost touch with the assistant manager but
never lost touch with his lesson. I use it to this day, which
brings me to asking readers for a favor. Take a minute to
recall your lessons learned, who did the teaching and why
the lessons are important. Then take the next step: Pass
them on. A little karma can do a lot of good.


About the Author:
Michael P. Maslanka is the managing partner of Ford & Harrison
in Dallas. His e-mail address is mmaslanka@fordharrison.com.
He is board certified in labor and employment law by the Texas
Board of Legal Specialization. He writes the Texas Employment Law Letter. 

This article is reprinted with permission from the June 2, 2008 issue of In-House Texas. © 2008, Texas Lawyer.

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An Ohio jury recently awarded the largest verdict in Ohio history -- $46.7 million -- to a man who they said was wrongfully fired last year.  This is the largest employment verdict I have seen, possibly ever. 

Ronald Luri, 55, accused Republic Services Inc. of retaliation and of forging documents critical of his job performance after he refused to fire three of his employees -- all about 60 years old -- on the grounds that such actions would constitute age-discrimination.

The jury awarded Luri $3.5 million as compensation for his lost wages as general manager of Republic's Cleveland division, and $43.1 million in punitive damages as punishment for the company's treatment of Luri.

The jury also ordered Republic to pay Luri's attorneys' fees, which could run into the millions of dollars and will be determined by Judge Bridget McCafferty.

Several of the jurors said they were especially dismayed by testimony of evidence-tampering and actions taken by Luri's superiors to prevent him from obtaining new employment in the Cleveland area after his firing.

Even after Luri was fired on April 27, 2007, he didn't file the wrongful termination and retaliation lawsuit until after Republic enforced a one-year non-compete clause that prevented him from working at a local competitor.  The jurors reportedly felt that the company blocked every opportunity for the plaintiff to get another job and left with with little choice but to sue.

Reportedly, the jurors said the key piece of evidence was an email penned by the plaintiff's boss.  The Plaintiff presented a computer expert who found that Bowen had post-dated the memo and added two paragraphs critical of the Plaintiff's job performance two weeks after he filed the lawsuit.

Republic is in the process of a merger that will make it the second largest waste-collection company in the country. It employs 13,000 workers in 21 states, and had $3.2 billion in revenue last year.


Hat Tip: Ohio Employer's Law Blog

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The New York Times is reporting that the U.S. House has passed a major civil rights bill on Wednesday that would expand protections for people with disabilities and overturn several Supreme Court decisions issued in the last decade.  We previously addressed this bill here. 

The bill, which was approved 402 to 17, would make it easier for workers to prove discrimination. It would explicitly relax some stringent standards set by the court and says that disability is to be “construed broadly,” to cover more physical and mental impairments.

Perhaps the most important change contained in the bill is a fundamental change in what by definition would qualify as a protected disability.  Under the bill,  a less stringent standard, that an impairment qualifies as a disability if it “materially restricts” a major life activity like seeing, hearing, eating, walking, reading or thinking would replace the existing strict standard.

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Here is a funny for the end of the week:

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Thanks to Mike Fox of Jottings by an Employer's Lawyer for his mention of our site's new design.  It's my hope that the new layout will give visitors easier access to useful information on our site.

If you have not already done so, I would encourage you to visit Jottings and bookmark it.  It is truly one of the finest information sources for anyone working in HR.  It is one of the few sites that I check every single day.  You should too.

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Yes friends, it's time once again to issue our Questionable HR Management Award Grand Prize. As you know we periodically hand out this prestigious award to a company that has shown particularly bad HR judgment and a complete lack of common sense.

Today the award goes to Packaging Corporation of America in Counce, Tenn. for its inadvisable termination of an employee in response to said employee's election to the Mississippi State Senate. According to the Clarion Ledger, Freshman state Sen. Eric Powell learned two days after his swearing-in last week that he had been fired from his regular job. Powell, said his firing came as a result of his election as a state senator in Mississippi.

"All of a sudden, with no phone call or anything, just a letter in the mail after 11 1/2 years of service," said Powell, who is married and has three children. "That's the kind of thanks I get for hard work and loyalty. It's the kind of thing I came to the Senate on behalf of working people to fight."

Labor Prof Blog, who put me on to the story, noted that it seems pretty clear that the termination was directly related to Mr. Powell's election. This was especially boneheaded given the fact that the company initially encouraged Powell in his run for office.

Now thanks to this bizarre HR snafu, instead of having an employee in the state senate, PCA likely has:

1) a union grievance (Powell was a union member and the collective bargaining agreement specifically allows for employee leave when running for public office and only requires resignation if the office obtained is a full-time job);

2) a lawsuit (many states have statutory prohibitions on retaliation against employees for serving in public office); and

3) a state senator that is less than enamored with the company.

We therefore proudly award Packaging Corporation of America our Questionable HR Management Award! Feel free to print out the award emblem and wear it with pride.

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Just came across a good article at Law.com dealing with the implementation of new e-discovery rules that are forcing companies to turn over damning evidence that has been stored electronically.

General Counsels are pulling their hair out trying to educate their managers and others that email often lasts forever and that they should not opine as to the reason an employee was fired, etc. using email.

The article features several types of emails that cause the most trouble. Some of my favorite opening lines from emails:

"Don't put this in writing, but ... " "This is off the record," started the e-mail that in fact put it all on the record; and "We may be in breach of contract, and here's why."

And of course there are the HR-related emails:

"I can't believe she's pregnant at such an inconvenient time at work." and "we need to get rid of the dead wood."

The message is clear: Employers must continue to train and retrain employees on what is an is not appropriate subject matter for an email. And for Plaintiffs, be diligent about seeking production of emails in discovery. There's gold in them there hills.

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Women are a powerful and valuable force in today's workplace. They represent some of the best and brightest that industry has to offer, but many organizations aren't set up to properly attract and retain them. The HR World Editors have put together a list of 100 resources designed to help your organization recruit and retain talented female employees.

Source: HR World Editors

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Peter Mullison over at the Colorado Employment Law Blog has a good article on employee privacy in the workplace, or more specifically, the lack thereof. Peter discusses the Court's opinion in United States v. Barrows, a 10th Circuit Court of Appeals decision finding that an employee did not have a protected privacy interest in the child pornography files found by a co-worker on this personal computer that he brought to work.

The analysis in this case is slightly more involved because the employer in question was a government entity and therefore state action was at issue. In cases involving employees of private employers, the employee's positions would be even weaker.

Mullison points out two rules to live by:

1) Stay away from kiddie porn; and 2) Recognize that your privacy rights in the workplace are less than you might think.

Good rules.

Source: Colorado Employment Law Blog

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This is a question that I get quite often from employees: What are the limits of what I can say in the workplace? The answer is usually "Not as much as you think." Many employees are surprised to learn that, generally speaking, employees of private sector employers have no constitutional "free speech" rights in the workplace.

The Delaware News Journal has an article on the limits of free speech in the workplace that employees would do well to read if they have questions in this are.

We have previously covered instances in which employees have been fired for posting something on their blog that their employer did appreciate. With the advent of Facebook, MySpace and other social media, the problem is only becoming more acute.

Employers are wisely beginning to respond to the situation by publishing their own policies governing such communications. You can find IBM's blogging policy here. And here is Yahoo's policy as to personal blogs.

If your company does not have its own policy yet, you might give these two policies a look to get a general idea as to what an employer's expectations will likely be regarding its employee's conduct in the online world.

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The WARN Act is one of those areas that everybody needs a refresher course in now and again. Most HR officers (and frankly many HR lawyers) deal with it infrequently at best. To the rescue comes Diane M. Pfadenhauer or Strategic HR Lawyer Blog, and her article: "BEYOND THE WARN NOTICE: GETTING TO THE TIPPING POINT AND BEYOND"

I commend it to your reading.

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As more companies adopt workplace models in which employees work from home, it has become more important for managers to learn to communicate and supervise, as well as foster teamwork among employees who work remotely, without the benefit of frequent face-to-face contact in a regular office setting.

Here is a good article from the Wall Street Journal addressing the topic.

Hat tip to Home Office Lawyer Blog for the link.

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Most employers believe that if they set up an at-will system and police it vigorously they will be safe from lawsuits. However, despite almost universal acceptance of at-will relationships in the United States, employment litigation is on the rise and is now a large percentage of cases on court dockets. A recent article by Ellen Dannin gives thoughtful consideration to the at-will doctrine and whether it still serves a useful purpose.

In her article, she notes that dissatisfaction with at-will doctrine has led courts and legislatures to develop many common law contract, tort doctrines and statutory exceptions, leading to greater complexity and uncertainty. By now most bad reasons for firing workers have been made illegal, so an at-will regime is limited to firing workers for a good reason or no reason. It also seems unlikely that most employers want to fire their employees for no reason, because, by definition, this means firing good employees. Thus the so-called "at will" doctrine is reduced to one in name only. Her article asks what is the benefit to employers of this strategy. . . and what is the alternative.

Source: LaborProf Blog

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Working America blog has announced its winners in its "My Bad Boss" contest. The winner? A boss that through out an employee's leave paperwork, causing him to lose out on any pay for days missed due to cancer treatment. Now that is bad.

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There is a new federal minimum wage and with it comes a new minimum wage poster. All employers subject to the FLSA must display the poster. Fortunately, you need not go out and buy one. The Department of Labor has been kind enough to produce a printer-ready file of the required poster that you can download straight from their website.

You can get the poster here.

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Last year at this time we were covering a topic that got a great deal of attention. Women in the Workplace: Having it all or "Half of it all." Among other things, the article noted:

"Although the nation's law schools for years have been graduation classes that are almost evenly split between men and women, and although firms are absorbing new associates in numbers that largely reflect that balance, something unusual happens to most women before they begin to climb into the upper tiers of law firms. They disappear."

So, a year later. . . are we doing any better?

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Friend of mine Michael Maslanka has an excellent article this month in Texas Lawyer entitled "A Plea for Sanity: How GCs Can Help Stop the Culture of Extreme Work". I encourage everyone to read it. The dangers of overworking employees is an issue that I have spoken on and written about here before. Mike's article is an excellent description of the problem and a thoughtful look at some possible solutions.

From the article:

Employees work too hard, and that's not good for business. Tired accounting staff don't add columns A and B correctly. Exhausted executives make rash decisions. Sleep-deprived employees driving home from a late night at the office run off the road or worse. I'm not talking about work-life balance. I'm talking about working to extremes.

Simply put, there's no return on investment on exhausted employees. It's the general counsel, the adviser and counselor to the company, who's often in the best position to put the work lives of the executives, managers and employees into a context that makes sense and that creates the biggest ROI.

Don't believe that overtired employees and execs are a problem? The December 2006 issue of the Harvard Business Review has an insightful article titled "Extreme Jobs: The Dangerous Allure of the 70-Hour Work Week." In it, authors Sylvia Ann Hewlett and Carolyn Luce report that 62 percent of high-earning individuals work more than 50 hours per week, 35 percent work more than 60 hours per week and 10 percent work more than 80 hours per week.

Michael goes on to discuss some possible solutions including:

• Creating a Sleep Policy for Employees;
• Create a Policy Requiring Employees to take Vacation;
• Provide Training to Supervisors on Dealing with Exhausted Employees

This is one of those issues that is not discussed enough in HR circles because of American's sick affection for the hard-driving overworked lifestyle. Do your company a favor and email Michael's article around or, better yet, set up a meeting to consider implementing some of his excellent suggestions.

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Union membership dropped to 12% of U.S. workers last year, extending a steady decline from the 1950s when more than a third belonged to unions.

After membership had held steady at 12.5% in 2005, it declined anew last year, a decrease of more than 325,000 workers, the Bureau of Labor Statistics said.

Membership had been 20.1% in 1983, when the bureau first provided comparable numbers. About 35% of American workers were union members in the mid-1950s.

Source: LA Times

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Discontented workers, lured by promises of better salaries and more opportunities, could move in sizable numbers to new jobs this year, a national survey by Yahoo HotJobs shows. The online survey of 5,331 workers showed 45 percent planned to change jobs at some time during 2007 and only about one-third were so satisfied with their current position they were not expecting to look.

Given that this was an internet survey, the fact that internet users tend to be younger and more affluent thant the geeral public should be taken into considerationSee more coverage here.

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