Happy New Year - and New Laws!

As you're taking down the holiday decorations around your office, take a few moments to think about your successes over the past year. Relish the moment. Take it all in. Then brace yourself.

2009 is primed to be an active year for HR professionals. You may be saying, "Isn't every year active for me?" Yes, it most certainly is. So just think about what potentially awaits you if we're sending up the flare now. Consider it job security in these uncertain economic times!

It can be overwhelming to think about the changes that occurred in 2008 which are poised to take effect in 2009--FMLA, ADAAA, GINA. So let's not get overwhelmed. Instead, we'll focus on each of these one week at a time. Remember--you're not the only HR professional out there trying to get a handle on these new laws and their impact on your company. Take a deep breath, open your mind, and store your attorney's number in your speed dial for those questions that will surely arise as everyone wades through our new work environment.

This go-around, we'll focus on the ADAAA. Keep in mind--attorneys are best-guessing just like you on how this law will be implemented, interpretations of the language, and developing your best practices. Consider this entry, as well as your approach to implementation, to be a living document. Change is as much good as it is necessary under the ADAAA.

One of your biggest hurdles in embracing the new Act will be changing a mindset that has developed over the last 15 years under the ADA. No longer will the focus be on whether someone is an individual with a disability. Rather, you will now be expected to show that as the employer, you lived up to your end of the bargain by engaging in the interactive process with the employee who requests a reasonable accommodation, examining the reasonableness of the accommodation request (or developing an accommodation, depending on the case), and the effort put forth in adapting the work environment for the employee.

How do you change this ingrained philosophy? Train your managers, revisit your reasonable accommodation policy, and prop your door open for employees are some of the ways to change your ship's course.

Get in touch with your HR counsel to talk about what best practices specifically fit your organization. Use this as a dry-run for engaging in the interactive process, as you may be hesitant to follow some of the recommendations offered for a number of reasons.

And you thought taking down the decorations was exhausting work!

Happy New Year!

New FMLA Poster and Forms

The Department of Labor released the new FMLA poster (capturing the amendments from the NDAA) and the new forms. These will become effective January 16, 2009.

http://www.dol.gov/esa/whd/fmla/finalrule/FMLAPoster.pdf
http://www.dol.gov/esa/whd/forms/WH-380-E.pdf
http://www.dol.gov/esa/whd/forms/WH-380-F.pdf
http://www.dol.gov/esa/whd/fmla/finalrule/WH381.pdf
http://www.dol.gov/esa/whd/forms/WH-382.pdf
http://www.dol.gov/esa/whd/forms/WH-384.pdf
http://www.dol.gov/esa/whd/forms/WH-385.pdf

The warm fuzzies of the holiday season

Usually, our practice slows down a bit during the November/December holiday season. People are generally in a good mood, holiday bonuses (regardless of size) bring smiles to employee faces, and the overall feeling of good will toward men abounds. Employees and employers swallow their differences and cooperate in a spirit that many would like to see replicated throughout the year.

Usually.

You may note that it's been a while since this poster has appeared on the blog. It's not because I don't have anything to say (no comment from my co-workers, please). It's because I've been busy. Quite busy. Unusually busy.

Employers who normally look to the holiday season for a respite from employee strife are not experiencing such a breather this year. It's a sure sign, if you needed another one, that our economy is not in the best of health.

While it may be difficult to dole out discipline during the holidays, it will serve you well in the long run if you continue your habit of uniformly enforcing policies and procedures. And hopefully addressing one or two troublesome issues will help to keep those others off your plate, at least until the turn of the year.

Best to you for the holiday season. Check back at the first of the year for more on the HS&D L&E Blog (yes, we still need a name)!

A January Surprise!

Are you on the 'E-Verify' hook? If you have a contract for services or construction with the Federal Government, then you probably need to get to know 'E-Verify'. But even if you don't have a federal contract, you still might need to get to know 'E-Verify'. Here's why:

In an earlier blog posted on July 21, 2008, Senitria Goodman explained the computer-based E-Verify program of the U.S. Department of Homeland Security and discussed the proposed rule that makes it mandatory for any federal contractor or subcontractor to use 'E-Verify' for all employees 'assigned' to the federal contract. After a comment period on the proposed rule, a slightly revised final rule was published on November 14, 2008. Its effective date is January 15, 2009.
Basically, the new regulation states that if you provide services or goods (except goods that are 'commercially available off-the-shelf') under a contract with the U.S. government, you are required to use the 'E-Verify' program to verify whether your employees working under the federal contract are eligible to work in in the U.S. (When we talk about being 'eligible' we are talking about making certain that you are not employing someone in violation of U.S. Immigration laws; this is why you complete a Form I-9 for all of your employees.)
If you have a federal contract, you must use E-Verify on all employees assigned to work under the government contract. Furthermore, you must also use E-Verify on all new hires - whether or not they are assigned to work under the government contract.
Now, here's the fun part. All federal contractors must include language in their subcontracts that the subcontractor will use the E-Verify program under the same circumstances. By now you have probably figured out that - even if you are not a federal contractor - this means that if you do business with someone who is a federal contractor - or even another subcontractor of a federal contractor - you may also have to use the E-Verify program for your employees.

Here is the language from the regulation identifying who a 'subcontractor' is:

"Subcontractor means any supplier, distributor, vendor, or firm that furnishes supplies or services to or for a prime contractor or another subcontractor." (emphasis added)

Following this to its absurd conclusion, you might be required to use E-Verify for your employees if a product you provide ultimately ends up in the hands of a federal contractor.
Fortunately, there are some restrictions that narrow this interpretation; the subcontract must meet the following specifications:

1. The subcontract is for 'commercial or noncommercial services' or it is a construction contract;
2. The subcontract has a value of more than Three Thousand Dollars ($3,000.00); and
3. The subcontract includes work performed in the United States.

Nonetheless, if you perform a contract meeting these qualifications, you might be obligated to use the E-Verify program for your employees. The federal contractors are required to put this requirement in their contracts with their subcontractors, so read your contracts carefully - and govern yourself accordingly.

Happy New Year!

FMLA UPDATE

Below you will find links to the final Family and Medical Leave Act regulations addressing the changes arising from the National Defense Authorization Act amendments. You'll recall that the FMLA was amended to create a new class of leave (servicemember leave) and a new basis for leave (call to active duty). Note that the appendices of the final rule includes new forms to be used in accordance with the revised law.

Part I: http://www.hsdlaw.com/pages/Part%20I.pdf
Part II: http://www.hsdlaw.com/pages/Part%20II.pdf
Part III: http://www.hsdlaw.com/pages/Part%20III.pdf

If you're having any difficulty in obtaining the regulations, please contact me at lsteel@hsdlaw.com, and I will be happy to send them to you by e-mail.

Money, money, money, money

The holidays are, perhaps unnervingly, quickly approaching. For some employers, holiday time means bonus time. This time of year may also mark the end of a quarter where bonuses are routinely awarded. It's, thus, the perfect time for us to remind you about the treatment of bonuses paid to non-exempt employees under the Fair Labor Standards Act ("FLSA").

For those of you who are scratching your head, we may have some issues to deal with one-on-one. Yes, bonuses may count as compensation (and impact a non-exempt employee's regular hourly rate) under the FLSA. The question to ask becomes, "Is the bonus discretionary?" In other words, is it solely your company's call whether to pay the bonus? If the answer is yes, then you do not count the bonus toward the employee's regular hourly rate.

Now, did you announce that everyone would receive a bonus upon, say, meeting a productivity goal, or meeting a minimum number of hours without any missed time, or that everyone would receive a bonus because your company hit an economic milestone? If this answer is yes, then you must recalculate the employee's regular hourly rate for the time period covered by the bonus. Once that is done, you must determine if any overtime was paid to the employee. If the employee did have overtime during that period, you'll need to make an overtime adjustment payment based upon the increased hourly rate.

Some food for thought as we approach a season commonly associated with eating. Gobble up the turkey (get it? Gobble?), catch as much football as possible (get it? Catch?), and check out your bonus program (get. . . oh, never mind).

Happy bonusing!

Toto, I've a feeling we're not in Kansas anymore

Exactly the thought that ran through my head when I read the Hannan v. Alltel decision handed down on Halloween from the Tennessee Supreme Court. The next thought was, "Perhaps the justices are putting on their idea of a haunted house? What you see is not real, only put before you to scare your wits off."

No such luck. For those of you who are familiar with litigation, you probably recall your attorney talking to you about possibly filing a Motion for Summary Judgment. In effect, the motion asks the court to believe everything the opposing party is saying and still find for your side because the facts are insufficient to support the claim, the facts fail to support an essential part of the opposing side's claim based upon case and/or statutory law, you get the idea. You're saying to the court, "Your Honor, it does not matter to us if the story presented by the other side is true. In fact, please give the other side the benefit of the doubt. At the end of the day, the case law and the statute require that you find for us." It's a powerful tool to have on your side.

The Alltel decision works to reduce the probability that the party moving for summary judgment will be successful by, for all intents and purposes, raising the bar you must clear in order to prevail. The standard to take away from Alltel is that summary judgment will only be granted where the party asking for it can "(1) affirmatively negate an
essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element of the claim at trial." May not sound like much, but these two options will most likely change the way your attorney weighs the use of this tool in his/her litigation strategy.

The Court, in its opinion, says it is reinforcing over 10 years of precedent in this state of when summary judgment is appropriate. Perhaps, but I would venture the guess that some summary judgments granted before the Alltel opinion might not have been upheld if challenged in the post-Alltel court system. The opinion, for those of us who practice employment defense litigation, is reminiscent of something we would read out of a California state court, not the warm surroundings of Tennessee's judicial system.

So does this change the way you conduct your daily operations? No. But it is something to keep in mind next time you find yourself in the Tennessee court system. If you are in those shoes, you certainly would be wise to ask your attorney if there is some way to have your case removed to the federal court system, where the employer-friendly opinions for our Circuit remain relatively intact. . . at least for now.

[Cue Vincent Price's laugh from "Thriller"] Happy trick-or-treating!

83A? AD3A? ADTripleA? What in the world?

Many of you would argue that your lawyer's favorite soup is alphabet, because that's the only way we know to reference laws. FMLA. ADA. FLSA. USERRA. NDAA. BINGO. (Just kidding.)

By now, you've either read or heard about GINA. It appeared that GINA was going to be the biggest piece of legislation to impact employers this year. Not quite.

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act, or the ADAAA. As you can see, this acronym doesn't exactly roll off the tongue. My struggle thus far, aside from the substantive aspects of the Act, is figuring out how to reference it in my speeches and presentations. I'm still working on that.

But that is not of concern to you, as you have enough to handle with the substantive impact of the ADAAA. If you haven't heard about it, please don't consider this to be the sole source of your information. Google would probably refuse to give us enough space here to write about the ins-and-outs of the Act, much less how to address its impact on you. That said, here is a quick primer on the ADAAA:

1. It directs that the definition of "disability" should be broadly construed.
2. It no longer allows you to consider mitigating measures, such as medications, hearing aids, prosthetics, etc. that might be effectively addressing the impairment. The exception to this is that contacts and glasses may be considered when an employee's vision is impaired.
3. It provides 2 non-exhaustive lists of "major life activities" to be evaluated in the "substantially limits" context. The list includes activities such as thinking, concentrating, walking, eating and working. Unfortunately, the lists are not given in any context themselves, so it remains to be seen whether someone is substantially limited in, say, working, if they are unable to perform only one specific type of job, instead of working in general.

In the legislative history of the Act, Congress is reported as saying, "The question of whether an individual's impairment is a disability under the ADA should not require an extensive analysis."

Quizzically, the same Congress who passed GINA passed the ADAAA. Why is that puzzling? Well, consider what GINA addresses. It addresses the strides made in the medical field to identify genes and their impact on certain diseases, conditions, and likelihood of developing conditions in our lifetime. The ADAAA, by eliminating from consideration mitigation measures, such as transplants, drug research and bio-mechanical developments, refuses to acknowledge those strides in the medical field.

ADAAA becomes effective January 1, 2009, although the Equal Employment Opportunity Commission is unsure it will have published regulations addressing "substantially limits" before the turn of the year. Thus, you should be making appropriate adjustments to your policies and conducting training with your managers, supervisors, and HR specialists to best position your company to handle the changes that await.

Personal foul - 15-yard penalty - third and long

I am a Vol fan. I love them through thick and thin, and if you follow Tennessee football, you know we're in one of those thin (or maybe it's thick?) times.

I do not like losing, and I do not like to watch my teams lose. This is especially true when it appears that the tide might have been changed but for a few unnecessary actions. Case in point is the title to this blog. Again, if you follow the Vols, you probably guessed that the reference is to Arian Foster's personal foul penalty after ripping off a 9-yard run in the Vols' opening drive. That turned an easily-convertible 2nd-and-1 into a not-a-chance 3rd-and-16.

If you don't follow the Vols, you are perhaps asking, "What was the personal foul?" It was a shove of a Florida player by Foster at the end of his run. What's even worse is that Foster appeared to be retaliating against the Florida player for some antics during and immediately after Foster was tackled.

The Florida player started it.

Foster retaliated.

Only one team was penalized for its player's actions. And it wasn't the team that started the poor conduct.

It reminded me of one of the most dangerous risks for my clients. Often, it's the second "foul" that gets flagged. For many employers, the danger in discrimination charges and litigation rests not with the facts that led to the allegations, but with what happened once the allegations were made. Yes, I've blogged about it before, but it bears repeating: retaliation is the claim that sticks around even if the underlying harassment/discrimination claim is found meritless.

Let me beat the drum once more: train your managers and supervisors on the dangers of retaliation claims, and train your employees on the importance of refraining from retaliating.

“Anger is a condition in which the tongue works faster than the mind.”--Anonymous

'Sko Vols!

The Labor Day holiday means . . .

Football? Absolutely.

Leaves changing colors? Eventually.

Closer to the World Series? If you're into that.

Cooler weather for my runs? Thankfully.

But for most employers, the holiday means that time is running out to gather the data for filing your EEO-1 report. If you are a private employer and fit into one of these categories, then you are required to file your EEO-1 each year by September 30:

1. Covered by Title VII, with at least 100 employees (some exclusions may apply)
2. Covered by Title VII, with fewer than 100 employees but you are affiliated with or owned by a company when taken with your employee population would put you over the 100 employee threshold
3. Have federal contracts of at least $50,000 (including subcontracts and purchase orders) and at least 50 employees
4. Serve as a depository of Government funds in any amount
5. Are a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes.

As a reminder: your employees should be identifying themselves by the race/ethnicity codes modified in 2006 and first used with the EEO-1 last year. Additionally, you should be classifying your job groups by the Officials and Managers subsets that were modified also in 2006 and used in last year's EEO-1.

Happy counting!

Delantero! 앞! Dianteiro!

UPDATE: The LPGA has reconsidered its English-proficiency rule and withdrawn its planned implementation. Read more about it here. We'll watch for the LPGA's "revised plan" for its communications initiative and keep you informed.


Original post:
English-only rules have been pursued in several settings over the last few years. Employers who have attempted to implement those types of rules have generally been required to demonstrate that speaking English is a requirement of an employee's particular job.

Enter the LPGA. As you may have heard, the women's golf organization has implemented a rule that becomes effectively immediately but will not observe its enforcement provisions until 2009. The rule requires that LPGA tour members of at least 2 years be able to speak English "proficiently" and pass an oral evaluation. Failure to do so will result in a suspended membership.

The LPGA has explained that the rule is necessary in order to appeal to sponsors of the tour and to provide an enjoyable experience in pro-am tournaments (where professionals are expected to interact and entertain amateurs). As you might imagine, there is some push-back from the public.

Time will only tell if the rule will stand, be challenged, or resort to a non-issue. Nevertheless, it will be interesting to see how the LPGA manages this rule (assuming it is found to be enforceable) and how players (employees) respond.

Paid (sick) time off?

You've probably heard us talking about the movement to require businesses of any size to provide paid sick days for their employees. That movement appears to be gaining momentum, as twelve states now have active legislation for such leave. On the federal level, The Healthy Families Act has seen life in several sessions of Congress. Presently it is in committee for both Houses of Congress (i.e., it's in the first stages of the legislative process).

You can track your state's legislation and activity on this subject through the National Partnership for Women and Families. Regardless of your stance on paid sick time, the NPWF's website keeps tabs on the latest developments and provides easy monitoring of each state's and, in some cases, city's, status on the legislation.

FMLA amendment poster

Here is a link to the Department of Labor's poster for the Family and Medical Leave Act amendments:

http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf

No match letter? No big deal? No problem? Not sure? No kidding!

The Social Security Administration continues to produce the no-match letters employers dread receiving. You've seen it (if you haven't, knock on wood, dance on one foot, throw salt over your shoulder, or do anything else you believe continues your string of good luck)--the letter where the SSA politely informs you that a Social Security number for one of your employees as reported on Form W-2 does not match the records kept by the Social Security Administration. The letter requests you take steps to verify the information submitted by the employee and take "corrective steps" with SSA. The letter also sternly warns you not to take any adverse action based upon your receipt of the letter.

The U.S. Department of Justice's Office of Special Counsel ("OSC") recently issued guidance intended to help employers understand when the OSC may find reasonable cause that an employer discriminated against an employee during the verification process. Noteworthy is that the employee must be authorized to work in the U.S. before the OSC will consider the allegation of discrimination.

The OSC's guidance references the handling of no-match letters by employers, warning that employers who terminates before attempting to resolve the no-match issue with the employee or who treats employees differently based upon national origin or ethnicity (such as requiring more proof of authorization to work than is required of other employees) may be found to have engaged in discriminatory conduct.

The OSC guidance goes on to say that an employer who follows all of the Department of Homeland Security's safe harbor provisions and terminates due to an inability to resolve the no-match issue will not be found to have engaged in discriminatory conduct. That is, of course, assuming that the employee was treated no differently than other employees in the same or similar situations.

Interestingly, the safe harbor provisions that the OSC requires an employer to follow are still in limbo. You may recall that the original DHS "Safe-Harbor Procedures for Employers Who Receive a "No-Match" Letter" proposed rules were suspended from implementation by an injunction issued by a northern California federal district court in 2007. DHS and SSA issued a proposed modification to the proposed rules on March 26, 2008, meaning that no official "safe harbor" rule as referenced in the OSC guidance is actually in effect.

What's an employer to do? Certainly, investigate any no-match letter received. As you've heard us say before, be consistent in your methods of investigating, the time period allowed an employee to correct the situation, and the result for any employee who is unable to correct the situation. And keep your counsel on speed dial!

It's an election year? Who knew?

It is not unusual for hot button issues to become hotter button issues in an election year. It is also not unusual for Congress to make a push during the summer/early fall months to get legislation passed before it adjourns in time to make last minute election pushes for the candidates. So, it's not unusual that a few matters are facing our legislators as the session winds down.

Of particular interest to employers is legislation that easily passed the House concerning amendments to the Americans With Disabilities Act ("ADA"), H.R. 3195. The legislation attempts to address the myriad of decisions from various circuits as well as the U.S. Supreme Court. For instance, "substantially limits" would still be part of the ADA definition of "disability," although the House measure would redefine the concept as "materially restricts." Additionally, the legislation would prohibit consideration of mitigating measures (such as medication) except eyeglasses/contacts when assessing whether someone is "disabled" as defined by the Act.

Should you have a particular interest in this measure, consider contacting your Senator (as the bill now moves to the Senate for approval) and voicing your opinion. It is an election year, after all!

OMi aching thums

Technology is wonderful. We are a society of constant contact, instant responses, portable documents and all access all the time.

While e-mailing may still be the leader when it comes to non-voice messaging, texting has exploded in popularity and use in recent years. Most wireless device plans include the ability to send and receive text messages. E-mail, even when it is routed to a wireless device, is usually also hosted by and downloaded to a company server. Text messages, on the other hand, usually only appear on the employee's phone/wireless device.

Many employers who have a company property policy include the disclosure that the company has reserved the right to monitor communications, in whatever form, where and when the need arises. So that would include text messages on a company-issued wireless device, right? No, according to a recent decision from the Ninth Circuit Court of Appeals. (The Ninth Circuit includes the states of California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska and Hawaii.)

A police department had examined text messages sent by its employees to determine how much the employees should pay for personal use of the wireless device. Now, it is not uncommon for employers to allot a certain amount of the communication expense each month to employees based upon personal use of the devices. Usually, that is handled in ways that are considered non-intrusive, such as having the employee review the monthly charges for personal expenses. In this case, the department actively reviewed the actual messages in order to determine if they were work-related.

The employees filed suit, claiming invasion of privacy. Traditionally, courts have recognized that an employee has a limited expectation of privacy in the work setting, an expectation that has been extended to the use of company-issued communication devices. In this case, though, the Ninth Circuit said the employees had a reasonable expectation of privacy since the text messages were not hosted or downloaded by a company server but were instead stored by a third-party (the wireless service provider). For employers in the Ninth Circuit, they must now obtain the employee's consent or a search warrant before they view text messages or communications stored by third parties.

Thus, although the Ninth Circuit ruling may not be applicable to you because of where you are located, it does offer some insight on the distinction that may be drawn among types of wireless communications and where the privacy line lies. Additionally, it is noteworthy that the case dealt with a situation where the company was not conducting an investigation, but rather simply wanted to note the amount of personal use of text messaging. It remains to be seen whether the same conclusion would have been reached had the company had a more business-related necessity to review the text messages.

Some employers have eliminated the text messaging feature from company plans since those messages usually cannot be saved and are more difficult to monitor. Short of doing that, if you find yourself in a situation where you believe reviewing actual text messages is necessary to your business operations, tread lightly. And talk with your counsel!

TNT, hpE txtN!

E-Verify: Use It or Lose Your Federal Contract

On June 9, 2008, an Executive Order was issued by President Bush requiring that certain federal contracts contain a clause committing the contractor and certain subcontractors to use E-verify as a condition of the federal contract. E-Verify is an Internet-based system that allows an employer to verify the identity and work eligibility of new employees for purposes of Form I-9. Both federal contractors and their subcontractors will be required to enroll in E-Verify within 30 days of being awarded the federal contractor and must continue use of E-Verify throughout the duration of the contract.

The rationale behind the Executive Order is that due to Immigration and Customs Enforcement’s (ICE) increased enforcement efforts, federal projects could be jeopardized, delayed or derailed if a federal contractor’s workforce is disrupted pursuant to a worksite raid. If federal contractors use E-Verify, the government reasons that the risk of these disruptions and delays are lessened. Notably, while E-Verify does not ordinarily offer any protection from worksite enforcement raids conducted by ICE, the federal government has indicated that federal contractors that use E-Verify are much less likely to face immigration enforcement actions.

Just a word about E-Verify… It’s free, it’s fast and it’s easy…it’s also riddled with erroneous information. E-Verify uses records from the Social Security Administration (SSA) and the Department of Homeland Security (DHS) to verify the employment authorization of individuals; however, the SSA itself estimates that approximately 17.8 million of its records contain discrepancies. Further, statistics also show that E-Verify has an error rate that is between ten to fifteen percent.

Nonetheless, federal contractors as well as certain subcontractors will be required to use E-Verify to verify new employees and all employees that will directly work under the federal contract, whether they are new employees or existing employees. Interestingly, DHS has acknowledged that this is a deviation from the rule normally applicable to employers—that an employer may not re-verify employees who have already properly completed Form I-9—and has seemed to indicate that this deviation is necessary for the stability and security of federal projects.

With respect to subcontractors’ compliance with the Executive Order, federal contractors are required to “flow down” the E-Verify contract clause to certain subcontracts. Subcontracts that exceed $3,000.00 and where the subcontractor will provide commercial or noncommercial services or construction in the U.S. must contain language requiring the subcontractor to use E-Verify. Clearly, the inclusion of this language in subcontracts could have exponential effects. The government’s aim is to protect the integrity of its “supply chain” but not burden federal contractors or subcontractors with the cost of compliance, thus the $3,000.00 threshold.

At this time, we are in the middle of a comment period that will end on August 11, 2008. After the comment period ends, final regulations will be issued by DHS regarding the implementation of the Executive Order. Expect the final regulations to include harsh consequences for a contractor’s failure to use E-Verify, including fines and possible debarment.

Minimum Wage change on July 24, 2008

A quick reminder: as part of the plan to increase the minimum wage to $7.25/hour in 2009, the next incremental increase in the federal minimum wage takes effect July 24, 2008. The new wage on that date will be $6.55 per hour.

The U.S. Department of Labor's poster issued in 2007 covers the minimum wage increases through this three-stage process. You do not need to update your poster if you have the Fair Labor Standards Act poster with a date of July 24, 2007. If your minimum wage poster predates 2007, or if it does not show the three stages of the minimum wage increases, you can download the current poster for free at www.dol.gov.

Traveler Fatigue?

Are you among the many travelers who have endured the long lines at airport security checkpoints just for the opportunity to take off your shoes and empty your pockets under the suspicious glare of a security agent? Did you lose your new bottle of shampoo because it was .5 ounces over the 3 ounce limit for liquids – or was it because it was not placed inside a clear 1 quart sealable plastic bag?

Like most people in this ‘new’ age of air travel, you have probably grown accustomed to – and weary of– the new security measures implemented to safeguard national security via air travel. If you travel overseas frequently, you have probably also experienced that slight moment of anxiety when you approach the Immigration Customs and Border Patrol officer upon returning to the U.S. hoping that your Passport and customs declaration form are in proper order. But have you considered what foreign travelers encounter when they try to visit the U.S.? For our friends who arrive as citizens from other countries, the experience can be even more apprehensive.

If you are simply curious about the process foreign travelers undergo when coming to our country, I suggest that you read on; however, if you have a business colleague, manager or family member from overseas that travels to the U.S., you need to be aware of changes that affect their future travel to the U.S. Beginning August 1, 2008, many of these foreign travelers will be required to engage in another level of security.

I am frequently asked if you need a visa to get into this country. The answer, of course, is complicated, but as a general matter, the answer is: “it depends”. If you have colleagues, friends or family from certain countries who travel to the U.S. and do not intend to stay longer than 90 days, they may enter under the ‘Visa Waiver Program’ (‘VWP’). Countries such as France, Germany, Japan and The United Kingdom (and others) have entered into Memoranda of Understanding with the U.S. Department of Homeland Security to permit their citizens to enter for a limited time without having to procure a visa beforehand.

Here’s how the system works: Under present policy, the foreign traveler simply purchases her airline ticket and the air carrier submits her name into an Advance Passenger Information System (‘APIS’) database to check for any criminal or terrorist ties before giving a Boarding Pass. Once a Visa-Waiver passenger is on the plane, she is given a ‘Form I-94W’ to complete and submit to the immigration officer at the U.S. airport, along with an unexpired passport from one of the ‘Visa-waiver’ countries. At that time, the visitor undertakes a biometrics exam (fingerprint scan, etc.) under a program called ‘US-VISIT’, before being allowed entry into the U.S.

Under the new interim final rule published by the Department of Homeland Security on June 10, 2008, any foreign visitor hoping to enter the U.S. under the Visa Waiver Program must first submit an online questionnaire at https://esta.cbp.dhs.gov in advance of her travel.

Under this new program called the Electronic System for Travel Authorization, (‘ESTA’), the passenger will either be notified beforehand that authorization is ‘Granted’, that it is ‘Pending’ or that authorization is ‘Not Granted’. If she does not receive authorization, she will not be permitted to board the plane. In addition, the ESTA authorization will take the place of the I-94 card presently distributed in flight.

The good news is that there is no cost for the passenger to submit her authorization request and, once authorized, it is good for two years – or until her Passport expires – whichever first occurs. Thus, a Visa Waiver traveler will not have to submit a request each time she travels during the validity period, but she will need to update – online - any travel plans or itineraries that change for each trip.

The program becomes operational on August 1st, 2008 in English, and then it should be available in multiple languages sometime around October. It is expected to be fully implemented by January 12, 2009 – at which time every citizen from a Visa-Waiver country will be required to plan in advance of her travel to the U.S. by undergoing this preliminary screening process.

So, if you know someone who regularly comes to the U.S. on simply a passport and an I-94 card, make sure that you make them aware of these new travel regulations before making plans or appointments here in the U.S.

If you have any stories or suggestions to share about your international travel, we would love to hear them – and you can help us all make our travel a little easier.

1-2-3 Team IN

I love summer. Warm weather. Longer days. Vacation(s). The down side for me, though, is that this time of year, as with holidays, generally means that the work slows. More people are on vacation, meaning that they are less likely to do something warranting counseling (although you may be surprised how far-reaching some employee activity has become). The season is a relatively feel-good time of the year for most, meaning that complaints are few, or at least fewer than normal, and all is well.

Unfortunately, this summer is turning into a different animal. Companies that have been treading water during the economic downturn/slowdown/crisis/call-it-anything-but-a-recession-please are running out of energy. As the trickle-down effect of the economic situation continues to, well, trickle-down, we are beginning to receive calls that we haven't fielded in 8 or 9 years.

"Laura, we're looking at doing a mass lay-off in August. We need your help."

One of the thrilling facets of practicing in labor/employment for me is that I get to do mental gymnastics every day. Something new is always waiting. Facing the issues with my clients and carving out creative solutions or prompt methods of addressing the crisis give me the same rush that dealing with car salespeople gives my mom- and dad-in-law.

But this isn't the same. You can certainly look at reductions-in-force from the perspective that you're eliminating a few positions in order to save the greater number of positions. Fact is, that provides little or no consolation to the people who are holding those darkly-designated "few positions."

The maneuvers involved in preparing for and carrying out a reduction-in-force make solving a Rubik's Cube look simple. We encourage you to get a team together to map out the RIF, including internal and external members, to ensure that talents are put to the best use during this time. Do not try to solve this puzzle, or more importantly, bear this burden, alone.

1-2-3 Team OUT

Ticktickticktickticktickticktick

Do you remember the commercials for TIMEX® watches? The watches would be exposed to horrendous conditions, yet they would continue to function.

Alas, two recent court cases handed down from the U.S. Supreme Court further illustrates that retaliation cases are the TIMEX® suits of employment litigation. In one case, Cracker Barrel unsuccessfully argued that a suit filed under Section 1981 (applicable to race claims and sometimes used when a race claim would otherwise be time-barred by Title VII) could include a retaliation component to it, even though Section 1981 did not explicitly protect against retaliation or authorize a cause of action based exclusively on retaliation.

The second case involved a claim under the Age Discrimination in Employment Act by a U.S. Postal Service employee. The ADEA's anti-retaliation provision is delineated for private employers but is silent as to public employers. The Court ruled that the prohibition on retaliation applied equally to public and private employers.

As the potential for discrimination claims continue to brew in our current economic state, it would be wise to refresh your managers and supervisors on best practices to prevent retaliation. We've often talked with our clients about the imposing nature of any suit that includes a claim for retaliation. Those are the suits that usually avoid summary judgment (meaning if you want to get a definitive ruling on the merits, you're going to trial) and can be bears to defend.

So, check your watches for the last time you held anti-retaliation training. If you haven't done it in a while, well, the clock might be ticking. . . .

Would you happen to have a pen handy?

My mom is a firm believer in the reminder note. She'd scribble one before going to bed to remind herself about something I needed for school or an item to pick up at the grocery store. We always had stacks and stacks of scrap paper by the telephone in the kitchen, with the handy coffee mug stuffed with pens (some of which didn't write, but that was beside the point), just in case inspiration struck.

Years later, I find myself frequently employing Mom's reminder system. I have two different stacks of jot-able paper on my desk, another pad beside my office phone, a pad in my car (no, Mom and Chris, I don't write while driving!), a couple by the computer at home, and the ever-important magnetized one on the refrigerator. Why? Because I've found that if I don't write my thought down, I don't remember it. It's as if the thought never happened.

Okay, all my HR friends out there - you saw that one coming. Anyone who has attended a seminar where attorneys talk about HR issues knows the favorite phrase by heart: "If you don't write it down, it didn't happen." Can I get an, "Amen!"?

Attorneys can be pretty creative people, so don't think we repeat that mantra just because we don't have anything else to say. (The documentation saying, not the "Amen" saying.) It's because we've seen the scars from employment terminations, charges of discrimination, and lawsuits. Those are the rare situations where you wish you were, in fact, bleeding because the employee counseling form detailing all the shortcomings of the plaintiff gave you a paper cut. Often, though, the bleeding is from the jabs plaintiff's counsel has thrown at the employer for failing to document.

Yes, documentation takes time. Yes, employees frequently refuse to sign the counseling forms. Yes, it can be a struggle to come up with the verbiage for the forms. And yes, your attorney will love you even if you don't document. After all, defending a charge or case without documentation means that you and your attorney will probably get to spend more time together than would otherwise be necessary.

Write on!

Have you met GINA?

No? Allow me this brief introduction. GINA is the Genetic Information Nondiscrimination Act. GINA, among other things, makes it an unlawful employment practice for employers to request, require or purchase the genetic information of an employee except in limited circumstances. It also prohibits the use of an employee's genetic information in employment decisions such as hiring, firing, job assignments and promotions. GINA applies to those employers who have 15 or more employees, and employees in the Federal government, Executive Branch, and state and local governments are included.

Most of you may be thinking, "Well, I'd never have that information anyway." And that may be the case. The concerns that have been raised about GINA thus far, though, revolve around some of the broad language and yet-to-be-defined terms and concepts used in the Act. For instance, if an employee requests time off under FMLA to care for a sick parent, the employer may request additional information on the reason the employee is needed to care for that parent. If the employee discloses that she needs to take her mother to her chemotherapy and radiation treatments for her mother's breast cancer, then a potential request of genetic information by the employer just occurred. Additional questions about information disclosed as part of an employer's wellness program and information which may be gathered as part of workers' compensation investigations/litigation are also lurking.

GINA is only recently passed, meaning that it's effective date is still quite far away (November 21, 2009, or 18 months after it was enacted). The Equal Employment Opportunity Commission will be charged with enforcing GINA, meaning than an employee will have to exhaust his/her administrative avenues before seeking redress in the court system. The EEOC is currently working on the draft regulations to implement and carry out GINA. Those draft regulations must be issued no later than one year from GINA's enactment.

Thus, this should be one more item to put onto your radar screen. Hope lingers that the EEOC will be able to address some of the employment communities concerns about what it means to "inadvertently acquire" genetic information, how long an employer remains "on the hook" if it does come across genetic information, and the like. Let's keep our fingers crossed (unless you can't do that, which may be a genetic marker of some condition, so don't mention this to your employer if you can't cross your fingers, and I don't want to know either . . . ) that the regulations will shed light on what promises to be another learning opportunity for us all.

Buckle up!

Who doesn't love an OREO?

As a kid, I was a big fan of the OREO cookie. Like many people, the middle was where I focused my efforts. (Please note: I was NOT a fan of the Double Stuf OREO, where the adage "too much of a good thing" rang totally true with me.) And while it was fun to eat the cookie in separate parts, it wouldn't have been an OREO unless it had those two chocolate cookies bookending the filling. Who knew that an indulgence such as the OREO would later find its place on the blog?

Stay with me, here. Think about how you handle employee counselings, evaluations, and other opportunities for improvement in the workplace. I've mentioned before that no one really enjoys being the bad guy (despite what he/she may claim). As a result, our desire to be nice, friendly and come out with a good feeling in a situation that normally doesn't lend itself to that means that we sometimes sugarcoat the situation. That approach does not serve anyone very well. Enter the OREO.

Allow me to use my husband, once again, as an example. He's getting play in this entry because (1) he's the one who coined "OREO Approach" to me, and (2) a recent situation provides a great example for how to use the OREO Approach.

Think about starting off your opportunity with something positive: "You're doing a really good job driving the car. You've improved a lot since we got it."

Then get into the heart of the opportunity: "When driving a straight, try your best to ensure that the clutch is either in or out. Holding it somewhere between can cause a lot of unnecessary wear."

Wrap it up with another positive: "Your hair looks great today."

Yes, this can be adapted to the workplace, and you may want to stay away from any hair comments. For example: "You're doing a much better job keeping me posted on the status of your projects. I appreciate that. I need you, though, to put that same effort into the details of your work, such as proofreading your memos before giving them to me. And thank you for handling the telephone call from John Smith so professionally. That type of assistance is very valuable to me."

Too often, it's the "middle" that keeps our attention, and we forget that the "cookies" are also necessary. The same is true with our approach to counseling. We get caught up in what is wrong and can forget that we need to include what is correct and being done well. I'm just as guilty as the next. The driving scenario used above was what my husband presented to me after I lost sight of using the OREO Approach and instead focused on my desire to curb him of riding the clutch.

Think about opportunities for you to employ the OREO Approach in your worklife. And if you need to keep a bag at your desk to remind you to use it, well, that's a sacrifice you'll just have to make.

Happy dunking!

Not so fast!

My husband is an assistant soccer coach at a local high school. He and his head coach have a policy of not talking with parents immediately following a game. The gist behind this philosophy is that emotions are still running high - win or lose - and that little will be accomplished in that sensitive time period. No one involved has had an opportunity to objectively assess the situation when it follows that closely on the heels of a game. (I first thought the policy was simply to allow them time to partake in the grilled goodies that remained at the concession stand and needed to be disposed of one way or another.)

Too often, employers do not afford themselves the same breathing and regrouping room that coaches often utilize. When faced with an emotionally-charged situation, such as a counseling, a claim of harassment, or general employee unrest, employers feel that the need to react is immediate. Actually, the best course is usually to allow for a cooling-off period. Obviously, you want to hear the employee's complaint and not put him/her off, but the time to make a decision on the complaint is rarely during the same visit the employee makes to lodge the initial complaint.

The cooling off period gives all parties involved time to think, to distance themselves from the emotions that can sometimes interfere with their better judgment, and to develop a more objective opinion of the situation before them.

One option is to send the employee home while you consider the situation and form your plan of action. Despite appearances, sending employees home during an investigation is not punishment; rather, it's quite often good practice. So the next time you are faced with a situation that potentially is rife with emotions, allow yourself some breathing room and distance. It will benefit you in the long run.

Happy working, and go SoccerCats!

If your company has tightened its purse strings. . .

don't trip on them.

It's been a while since we've made a blog entry. Yes, that does mean that business is good. Generally, though, that means that our clients are facing some very challenging times. Inevitably, when economics go south, our workload goes north.

The workload during these tight times is not only heavier, but it's composition is noticeably different. Many of us on the L&E team spend time acting as "counselors-at-law"; that is, we're outside in-house counsel for our clients. We aren't necessarily getting calls because a charge of discrimination has been filed or suit papers served. Rather, our clients have everyday human resource questions and need an outsider's take and opinion on the matter.

Such is not necessarily the case in times like these. The phone calls are not as numerous. The e-mail notification window doesn't pop as frequently. But we're certainly not out enjoying quiet time. We're busily working on charges of discrimination and employment-based lawsuits that face our clients. Down economic times mean employees who are more sensitive to potential changes in the work environment.

As companies look for line items on the budget to reduce, the financial eyes inevitably hone in on training. Yet these are the times when that training--be it anti-harassment/-discrimination, leadership, managing borderline employees, and the like--is most vital. Now is the time to educate your supervisors and managers on employment laws, remind them of their responsibilities under your policies, and encourage them to consider the potentially magnified impact of their words and actions with their employees.

That's not to say that you and your supervisors stop disciplining, counseling, and enforcing your policies. But you do have more external factors that come into play when addressing those situations that at any other time would seem relatively routine.

Here's to a return to normalcy. And a vacation.

Remind Me Why We Need Immigration Reform?

Remind me why we need Immigration Reform?

The dysfunctional state of our immigration system was highlighted recently in the mad dash to the post office to file papers with the federal government. No, I am not talking about the annual ritual of filing income-tax returns on April 15; this is a more recent development that now takes place, appropriately, each April 1st.

To understand what takes place each April 1st, you must first understand a little about our immigration system.

Our federal government is properly tasked with the responsibility of maintaining our safety and economic security by controlling the entry of foreign-born persons into the U.S. The mechanism which provides the controlled entry of foreign-born persons is known as a ‘visa’. Although not everyone needs a visa to get into the U.S., (for example, persons from certain European countries wishing simply to visit the U.S. on vacation do not need a visa), if a foreign-born person wants to come to the U.S. temporarily to work, he or she will need a visa.

One of the more common visas for this purpose is known as an ‘H-1B visa’. This type of visa is set aside for persons in ‘specialty’ occupations such as engineers, physicians, software technicians, professors and computer programmers. Typically, such an employee must have at least a Bachelor’s degree to be hired by a U.S. employer.

The question you may ask is ‘do employers really need to bring in someone from outside the U.S. to fill such positions in the company?’

Evidently, the answer is ‘yes’.

Here’s why we know.

Each April 1st, overnight delivery trucks line up along the sidewalk outside the U.S. Citizenship and Immigration Services (“USCIS”) service center in St. Albans, Vermont – each truck filled with petitions for H-1B visas from around the United States. Visualize FedEx and UPS trucks vying for spots closest to the service drop-off in the early morning hours of April Fool’s Day. The situation is so overwhelming that USCIS, a department of the U.S. Department of Homeland Security, has even had to establish guidelines as to what to do with delivery trucks still sitting by the curb at 7:00 p.m. that evening – after the service center is closed. The reason St. Albans, Vermont is so popular this time of year is because it is one of only two service centers in the U.S. that adjudicates H-1B petitions.

There are about 65,000 H-1B visas available each year. There are also an additional 20,000 H-1B visas set aside for prospective employees who have a Master’s Degree or higher-level degree. However, an employer cannot file a petition for an employee’s H-1B visa more than 6 months before the date of hire. Since the allotment of H-1B visas becomes available the first day of each fiscal year, (October 1st), the first day an employer could file an H-1B petition, therefore, is six months before October 1 – which, as you may have guessed by now, is April 1st. Hence, the April Fool’s Day Rush.

But it hasn’t always been that way.

In fact, this is a very recent phenomenon brought about by a steep demand for skilled workers in a marketplace demanding advanced technological expertise and experience – coupled with a recent reduction in H-1B visas.

Around 1998, Congress recognized the increasing demand for the type of skilled workers under the H-1B visa program and increased the number of H-1B visas to 195,000 per year beginning in 2001; but after 2003, the H-1B ‘Cap’ reverted back to 65,000 – where it remains today despite a steep increase in demand for H-1B visas.

U.S. employers’ overwhelming demand for H-1B workers is evident in the filing process. For fiscal year 2007, petitions were filed beginning on April 1, 2006, but the allotment was used up before Memorial Day. The 20,000 additional visas for masters or advanced degrees lasted a few more months thereafter.

For this fiscal year, 2008, the service centers received over 150,000 regular H-1B visa petitions on the first day. Since only 65,000 were available, USCIS crafted an ad hoc lottery to randomly choose which timely-filed H-1B visa petitions it would adjudicate.

So that brings us to this year. Having a full year to consider how to handle the overwhelmed process to give U.S. employers greater access to a competitive global workforce, Congress responded to the problem by … doing nothing. U.S. employers responded by … moving many operations overseas where gambling on the lottery to get a foreign worker was not necessarily a sound business strategy.

It remains to be seen just how many petitions were filed this year. However, at least one accommodation was made: this year’s lottery will include 5 days’ worth of petitions rather than just one. Meanwhile, FedEx and UPS trucks are on their way back from St. Albans, Vermont, and around the country HR managers are sitting at desks with their fingers crossed – hoping that today they might just win the lottery.

Did you bring your metronome to work?

Keeping with the theme of spring and warmer temperatures. . . .

Workplace appearance. I can sense the uncomfortable shifting in your chair as you read those words. Employers often struggle with enforcement of a workplace dress code because it can develop into such a subjective exercise. We often spend our time talking to our employer clients about being objective in their assessment of employees; the mention of a concept that naturally encompasses subjectiveness well, naturally causes uneasiness.

Do you often find that your workplace appearance policy gets more mileage during the warmer months than the colder months? Certainly it does. And it's not just clothing that has come under scrutiny for employers. Shoes, or lack thereof, have become the bane of many HR manager's existence.

Blame it on Rainbow. Or Sanuk. Or Reef. Or any of the other popular flip-flop labels. Flops are vogue--very hip, very fashionable, and very prevalent. They've gone way beyond the standard black sole with a rubber thong style that many of us used to equate with flops. Now they come in rather dressy (loosely used) styles, and men are just as likely to sport them as women.

If you can get past the tocking sound of the flops, and if you don't work in an area that requires closed-toe shoes, then you may be weighing the implications of giving in to what you see is the inevitable--flops as an acceptable form of "dress" in the workplace. It may be an issue you are forced to address as the flop generation enters the workforce.

At the end of the day, it comes down to (say it with me, please) uniform enforcement of your policies. If you have a policy that doesn't allow for flops, then blow off the dust from that policy and be ready to use it when you hear the employee coming (because you know you will). Otherwise, think of flops as yet more confirmation that warmer temperatures are indeed here (as if the yellow film of pollen on your car didn't already remind you).

Spring is in the air

The give away could have been the warmer temperatures. The buds on the dogwoods. The leaves waving in the breezes. The longer hours of daylight. The allergy-induced sneezes around the office.

The give away could also be, though, the philanthropic opportunities that abound. When the temperatures rise, so do the number of walks and races. Many employees enjoy participating in these events, which can present a problem for employers who have non-solicitation policies. You don't want to quell the well-placed intentions of the employees. Almost everyone can find an organization to support who has one of these physical fundraisers. Yet you also know that some organizations can be more controversial than others. Controversy aside, some employees feel tapped out by the time spring gets here, what with the cookie, popcorn, candy, wrapping paper, pizza kits, stationary, and calendar sales that dominate the fall and winter months.

For some employers, the easy way to address this is to completely bar these events--no posters, no e-mails, no flyers in the kitchen, etc. Others take the approach that only employer-sponsored events can be solicited, and those are usually done indirectly (such as by e-mail or by posting something without any fanfare). Still others have a free-for-all, seeing these activities as a way to build employee friendships and cooperation.

Whatever your approach, as always, ensure that it complies with your non-solicitation policy. If you don't have one of those policies, then take care to see that you have some type of objective criteria (written or no) that provides guidance on when you do allow for solicitation and when it is prohibited.

Happy running/walking! (We have to figure out some way to work off those cookie, popcorn, candy, and pizza pounds, don't we?)

Is there a game on today?

March Madness. For many employers, that phrase often carries a double-meaning: the commonly understood reference to the onset of college basketball frenzy during the month, and the feeling that overcomes many employers because they believe they suffer in productivity because the games are a distraction at work.

No doubt, talk around the office often shifts from the latest inventory count to the latest point count; in-bound deliveries to in-bound plays; turn-around margins to turnover margins--you get the idea. How does an employer beat this game? By beating it at its own game, you might say.

A trend is slowly developing in companies to embrace the madness that is March. Some employers host March Madness lunches--where they bring in food for employees, set up TVs in break rooms, and encourage employees to spend a little more time than usual on their breaks and lunch periods to watch the games. Others allow employees to bring in snack foods for all to enjoy, set up in a common area with a television, and let employees stop in as schedules allow. Whatever the approach, employers are beginning to shrug their shoulders and say, "If you can't beat 'em. . . ." http://seattletimes.nwsource.com/html/businesstechnology/2003618663_productivity15.html

The theory is that if you don't deny the employees the ability to indulge in the games, if you openly embrace the games, then employees are less likely to sneak during work time to find out what is happening with the action.

Other companies are allowing their employees to wear clothing items showing off their school spirit on the days when their teams are playing. Employees who don't have teams in the tournament (or remaining in the tournament) are encouraged to fly their school colors nonetheless.

Are there any benefits to employers? Sure--employers find that this time of year provides a perfect setting to do something nice for their workers and show them that they mean more to the company than the number of widgets they can turn out during a shift. In a time when the economy is less than stellar, small efforts to make employees feel important and needed can go a long way toward improving employee morale and retention. And with spring fever often coming into full bloom (no pun intended) at this same time, a little mental break for the employees is often welcome.

So next time you think March Madness is getting the best of you and your company, think about flipping the script. Sometimes it's okay to have fun at work.

DING! DING! DING! And The Nomination Goes To . . .

Well, no one knows just yet. It certainly has been an exciting several months for the campaign trails of many of the candidates. That can lead to exciting discussions in the workplace, too. Co-workers asking who is getting whose vote. Debates about the debates that took place the night before. Discussions on the "true" issues and attempts to peel away "fluff" from candidate speeches. E-mails pinging between mailboxes sharing the latest YouTube clip showing a gaffe by one of the candidates. Sorry--is my political science degree showing? Yes, this is an exciting time for me, I admit it.

For some companies, the campaign season (on whatever level) sometimes leads to heated discussions--many people feel passionately about their political beliefs. It never hurts to have an idea in mind of how much, if at all, you want to foster such discussions. Some companies take a very active approach, viewing these exchanges as a way to build relationships among co-workers. Other companies would rather not have the additional emotion that can accompany an exchange of political views.

Wherever you may fall in that spectrum, take a quick look at your handbook policies (think Ethics, Professionalism, or even Non-Solicitation) to ensure they appropriately address your company's position on the matter. You should also consider talking with some of your managers/supervisors about their roles (big, small or non-existent) in the discussions, too. Remembering that employees can take political discussions very personally, the potential ripple effect when a manager engages with those whom he/she supervises or is viewed to have authority over can turn into a tidal wave rather quickly.

It's campaign season! Happy candidate hunting!

Charge It!

That's what the U.S. Supreme Court told the Equal Employment Opportunity Commission (EEOC) in an opinion handed down yesterday, Federal Express Corp. v. Holowecki, et al.

The case addressed 2 questions: (1) What is a charge under the Age Discrimination in Employment Act (ADEA)? (2) Did the former employee file documents with the EEOC sufficient to form a charge of discrimination under the ADEA?

Some brief background: The underlying suit was brought by 14 former employees who worked for FedEx as couriers. They claimed that new policies implemented by FedEx which addressed compensation and performance of couriers were discriminatory against older employees. One employee, Patricia Kennedy, filed an intake questionnaire with the EEOC along with a 6-page affidavit detailing what she alleged were the discriminatory practices. The intake questionnaire was never processed, and FedEx was never told that any type of complaint had been lodged against it.

The ADEA requires an aggrieved employee wait 60 days after filing a charge with the EEOC before filing suit in federal court. (This differs from Title VII, which requires the aggrieved employee to receive a "right to sue" letter from the EEOC before filing a lawsuit.) Kennedy filed her Intake Questionnaire on December 3, 2001 and then filed an EEOC charge form on May 30, 2002. In the interim, though, she joined in a suit filed by other aggrieved employees on April 30, 2002.

The trial court dismissed Kennedy's suit, stating she had not waited 60 days from the filing of her charge before filing suit. The district court did not treat the 12/3/01 Intake Questionnaire as a charge, but instead looked at the 5/30/02 EEOC charge form as the charge.

The appellate court reversed, stating that the 12/3/01 Intake Questionnaire could have been deemed a charge and, therefore, more than 60 days had elapsed between the filing of that and the 4/30/02 lawsuit.

FedEx asked the U.S. Supreme Court to review the dispute, claiming, among other arguments, that it never had an opportunity to address the claims made in the Intake Questionnaire and that the EEOC's failure to property administer the Intake Questionnaire should not act as a penalty against FedEx.

The Supreme Court disagreed, finding that the Intake Questionnaire and accompanying affidavit were sufficient to meet the EEOC's working definition of "charge" under the ADEA. It should be noted that the word "charge" is not defined in either the ADEA or the implementing regulations. The regulations do shed some light on the contents of a charge but fall short of giving a comprehensive definition.

At first glance, this decision may appear to be a huge boost for employees. In practice, though, the decision might not be worthy of the initial groan it has created among employment law defense counsel. First, remember that this case applies only to the ADEA setting, not to Title VII. Most ADEA charges are handled in the normal way--the employee/former employee files a Charge of Discrimination with the EEOC; the EEOC notifies the employer of the charge, the investigation ensues, and eventually a notice of right to sue letter is issued. Although ADEA plaintiffs can file suit after only 60 days has passed from the filing of the charge, most of them wait until the entire EEOC process plays out before turning to the court system.

We will watch what trends develop, if any, from this case and keep you apprised of those.

Surely you didn't think you were the only one with problem employees. . .

Those of you who know me are acutely (painfully?) aware that I love The University of Tennessee and all things Big Orange. That especially (unfortunately?) includes the football team.

The rash of arrests, missteps, mishaps, and any other word you care to associate with the more-than-I-care-to-count off-field happenings for the team has been and remains embarrassing. The latest arrest came at a time when the football program did not need any more of this kind of publicity--not that it ever needs ANY publicity like this. If you've been following these reports, you know that reporters and writers are hammering home the number of players and incidents involved in such a short period. Those same articles are also mentioning the level of discipline the players are receiving--and the perception that the severity of the punishment depends not on the act, but on the player's spot on the depth chart.

What, you might ask, does this have to do with you? It is illustrative of the importance of consistently enforcing your policies. It is an opportunity for you to see, on a magnified scale, what happens when the perception develops that the rules in the workplace are not being enforced uniformly and fairly.

Can you stop this speculation? Probably not, at least not short of opening your personnel and investigative files for all to see, and even then you'll still have your doubters. An important lesson, though, to take away from this rash of publicity is that there may come a time when you have to defend your decision to differentiate the type of punishment meted out in situations that on the surface appear to be similar. So document any reasons for deviating from the policy and/or precedents, and then be thankful that your decisions don't end up the fodder for someone's blog entry!

FMLA proposed regulations

Here are links to the proposed regulations to the Family and Medical Leave Act published today in the Federal Register.

Part 1: http://frwebgate2.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=746368460603+2+0+0&WAISaction=retrieve

Part 2: http://frwebgate2.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=746470471241+3+0+0&WAISaction=retrieve

Part 3: http://frwebgate2.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=746470471241+30+0+0&WAISaction=retrieve

WOW--That was fast!

Imagine my surprise and, admittedly, excitement, when a headline from one of my legal update services read, "DOL issues proposed FMLA regulations." Of course, what has been on my mind is the immediate application of the FMLA changes coming from the National Defense Authorization Act (see post below).

Alas, 'twas not to be. Although, again admittedly, I did get excited when I realized that the "proposed FMLA changes" meant the proposed changes to the regulations that DOL delivered to the Office of Management and Budget on January 25 (also discussed in the previous post).

So it is with great anticipation that I await for February 11--the day the proposed regulations are published in the Federal Register. Now, the Department of Labor apparently does not guard its pending publications with quite the same ferocious security as you saw with the Harry Potter installments, so there have been some "courtesy" copies of the regulations circulating among those in the labor and employment field. Preliminary review says that the regulations will touch upon changing the definition of "serious health condition" to the extent they recommend doing away with the current "objective test" and instead implement one of the six tests used by other regulatory agencies.

The proposed regulations will also make an attempt to clarify when an employer may make further inquiry into a medical certification when the certification is incomplete. In those cases, the proposed regulations recommend requiring the employer to state why the certification is incomplete and provide the employee with a specified amount of time to cure the deficiency, along with allowing the employer to make direct inquiry with the health care provider when the deficiency remains uncured. (Don't forget those HIPAA authorizations, ladies and gentlemen!)

Stay tuned--the proposed regulations should generate lots of commentary, thoughts, fans and detractors. All of us should get our FMLA fix over the next several months. (Okay, some of us more than others.)

Love for the FMLA--and it's not even Valentine's Day yet!

Seems that the Family and Medical Leave Act is getting a lot of love in the news here of late.

Expanding Leave Time
President Bush signed into law the National Defense Authorization Act for FY 2008 on January 28, 2008, soon after it was passed by both the House and Senate. The NDAA amended the FMLA to allow leave time of up to 26 weeks for a spouse, child, parent or next of kin (notice the new class of employee eligible to take leave) to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

Expanding Bases for Leave
Additionally, the FMLA is now amended to also allow an eligible employee to take leave when a parent, child, or spouse is called to active duty. More information about how and when this will apply is anticipated to come from the regulations that will be issued in response to the amendments.

You can read more about the changes to the FMLA at the Department of Labor's website: http://www.dol.gov/esa/whd/fmla/NDAA_fmla.htm.

An interesting note: the NDAA states that the changes to FMLA leave are to be effective upon enactment, so we would anticipate that the DOL will be working immediately to craft regulations and guidance for employers.


Changes to the FMLA Regulations?
The DOL also announced recently that it has presented proposed changes to the FMLA regulations, although not to the degree that most have been anticipating in the nearly 6 years since the DOL first announced its intention to work on the regulations. What was presented in the proposed revisions include proposed changes to medical certification for leave requests, waivers and notification of FMLA rights, and determining when approved leave begins. The DOL is remaining tight-lipped about specific details of the proposed regulations, apparently deciding to let the proposals speak for themselves once they are ready for publication. Read more about the proposed changes here: http://ap.google.com/article/ALeqM5il07geuyDPnjBs2yPoGDkC-6hhyAD8UCIN702

Welcome to the first HS&D L&E blog for 2008!

No, we're not going to keep the name "HS&D L&E" for our blog, despite our affinity as attorneys to always speak in "acronymese." We'll fix that in due course (the name, not the affinity for our acronyms--we wouldn't give that up for anything!). But we are excited to introduce you to this new feature of our Labor & Employment team at Hunter, Smith & Davis.

In our continual efforts to ensure our clients are aware of what's happening in the L&E world, we thought it would also be nice to provide a forum for anyone (not just clients) to ask questions and generate discussion. It will only make us better attorneys, and it will hopefully assist those of you reading the blog in meeting your legal obligations as employers.

Our first few posts will be used to introduce you to the members of our team, in addition to talking about the latest in labor and employment.

So, check back frequently, and comment to your heart's content!