Monday, December 21, 2009

The Christmas party--a ghost of Christmas past?

Does your company still host a Christmas party? I hear more clients asking about what type of backlash they think it would cause to cancel the Christmas party. My first question is always: "Is this about the money?" The answer is usually yes, but probably not why you would think. It is about the money, but not because the company doesn't have it to spend. Rather, it's about redirecting the use of those funds. For example, some companies now make donations in honor of their employees to charities (usually selected by a vote of the employees) in whatever amount has been budgeted for a Christmas party.

For some companies, donating instead of partying also makes sense because employee attendance has wained. That, in and of itself, creates an opportunity for self-exploration, but not something that we'll talk about in this post. For other companies, the donation means the likelihood of poor and unprofessional behavior is reduced, as well. Again, fertile ground for a post that will finds its way here inevitably.

Finally, some companies are doing away with parties because of economic times. And perhaps it isn't a moratorium, but rather reducing the flare, length, menu, etc of the party. In other words, it is scaled down to match the economic times.

So think about it--not having a party doesn't mean you've gone all Scrooge on your employees. And it will give them yet another reason to be proud to work for your company.

Cheers, and happy holidays!

Thursday, November 19, 2009

A different kind of education, courtesy of Univ. of Kansas

Kansas' head football coach, Mark Mangino, is under investigation by the Athletic Director for alleged verbally and physically abusive behavior. According to some former players, it wasn't unusual for Mangino to use personal matters that had been disclosed in confidence to teammates when ridiculing a player in front of the team. He also allegedly poked a player in the chest recently during practice, allegedly not the first time he touched a player.

Why is this coming to light now, if according to Mangino, he hasn't changed the way he coaches his players or the approach he and his coaching staff uses with the players? After starting the season 5-0 and since losing the next 5 games, some would argue that this is discontent among the players over the direction of the program. Similar to other working environments, perhaps things get overlooked when all is going well and expectations are exceeded than when it looks like you might be headed downward.

A former player in the article, along with Mangino, rests on the notions that Mangino isn't doing anything differently than he has during his tenure as a coach, and he's not doing anything that other coaches in the Big 12 conference aren't doing. Certainly, having context is necessary whenever actions are reviewed--context both at your workplace and in your industry. But as well all know, breaking the same policy multiple times doesn't make one's actions acceptable. Not to say that Mangino has broken any policies; just observing that if his defense is resting on, "This is how I've always done it," and "I'm not any different than the other coaches in this conference," he may be in for a rocky road.

This type of investigation gives HR professionals the opportunity to see what it takes to spark an investigation and how outsiders (of both company- and team-ilk) impact the investigation. No doubt, some PR and HR tips will be gleaned before this matter is considered closed.

Tuesday, November 10, 2009

New EEO Poster

The EEOC has issued both a supplement and a replacement poster to cover employer's obligations under the Genetic Information Non-Discrimination Act. You can find both here:

When providing hand sanitizer isn't enough

Not surprisingly, a measure has been introduced, this time in the House of Representatives, that would require employers (with at least 15 employees) to provide 5 paid sick days when an employee shows symptoms of a contagious illness or has been in contact with someone who has a contagious illness.

This law, if passed as presently written, would sunset 2 years from the date of passage. Thus, it's not the permanent fixture of paid sick leave that has been trumpeted in the past by members of Congress. Interestingly, a violation of the law would be equivalent to violating the Fair Labor Standards Act. Thus, treble damages and attorneys' fees would be available.

With the focus on health care reform, it is very possible that this measure slips under the radar and passes without much fanfare. The sponsor has dubbed it the Emergency Influenza Containment Act, categorizing it as a way to control the H1N1 pandemic.

For anyone who enacted policies in response to the outbreak, you should closely monitor this Act so as not to find yourself painted into a corner if it passes.

Monday, October 26, 2009

Deja vu all over again?

Workplace romances. Now that you've uttered your collective groans, here's another story to put in the "See, I told you so" category.

ESPN announced last night that its baseball analyst Steve Phillips was no longer employed with the network. Why? Phillips admitted last Wednesday that he had an affair with a production assistant at ESPN. This apparently was not the first act of indiscretion in the workplace by Phillips, whose last (publicized, anyway) one resulted in a sexual harassment claim and pre-suit settlement.

No new advice comes out of this story; it serves as a very public reminder of why workplace romances are a volatile lot and should be taken very seriously, even if consensual.

Thursday, October 22, 2009

The EEOC recently released its proposed regulations for the ADA Amendments Act of 2008. The regulations were designed to better define the provisions of the Amendments and better refine Congress’s intent in amending the ADA. In fact, the drafters of the proposed regulations made sure that we were aware that they were charged with enacting Congress’s intent that the term “disability” be broadly construed (if they mentioned it once, they mentioned it 20 times!!).

True to their task, the EEOC has broadly defined what qualifies as a disability. In fact, the proposed regulations, at this point, do not leave much question as to whether a disability exists. The list of major life activities is so extensive that almost any ailment could substantially limit one of those activities (for instance, concentrating is now considered a major life activity – who doesn’t suffer from the occasional lapse in that!). Also of note is the change which no longer allows ameliorative mitigating factors such as medication or other devices -- except eyeglasses and contact lenses -- in determining whether an activity of daily life is affected. It also important to recognize that the proposed regulations only require an ailment to substantially limit one major life activity and it does not matter whether it limits others.

Ultimately, we wish the committee spent a little bit more time letting us know what would be considered an “undue hardship” for the employer. We know that whether an ailment is a disability will be broadly construed, but there’s just not much guidance on what to do with that. For instance, the proposed regulations specifically list epilepsy as a disability, but no guidance is given on how to accommodate the disability or what would be considered an undue hardship for an employer trying to accommodate an epileptic.

Regardless, there'll be much more to come on these regulations. Stay tuned for more!

Friday, October 16, 2009

Match Point!

As many HR professionals already know, there may be many reasons why an employer might receive a 'No-Match' letter from the Social Security Administration. When filing a new employee's W-2 form, sometimes a typographical error is made - or perhaps the employee recently changed her name and the SSN does not 'match' the person identified in the W-2 form. Maybe the database is erroneous.

As immigration has come under increased scrutiny, the federal government has taken the position that it might be evidence that an employer has knowingly hired an illegal alien. (It is, of course, against the law to knowingly hire an illegal alien.)

A mismatched social security number may be proof that a document has been forged or an SSN stolen. Accordingly, in 2007 and 2008, a federal rule was amended to, in effect, create a presumption that receipt of a 'No-Match' letter was notice to the employer that an employee was unauthorized to work in the U.S. - unless an employer took certain steps to prove that an employee was not an illegal alien (called a 'safe harbor').

Before the rule took effect, an injunction was granted by a Federal Court preventing the implementation of the 'No-Match' amended rule.

Then, last Wednesday the Obama adminstration rescinded the 'No-Match' amended rule. Effective November 6, 2009, an employer will not be obligated to follow the 'safe harbor' steps to avoid the presumption of having knowingly hired an illegal alien.

That being said, the receipt of a 'No-Match' letter from the Social Security Administration is still something that should be dealt with cautiously - because it still might mean that you have unwittingly hired an illegal alien.

Friday, October 9, 2009

HR Expo 2009 a success

Thanks to all the team members who gave of their talents in yesterday's HR Expo! Michael Eastridge scared everyone with his immigration presentation. He also made a distinguished Your Honor in the closing session Mock Trial, which included our other team members: Michael Lattier , who deserves an Oscar nod for his portrayal of the misunderstood, alleged harasser; R. Lee McVey II who proved himself as defense counsel to be an expert thrower of shadows; Christopher D. Owens, whose pocket square never moved while he ferociously pursued his case on behalf of his client and revealed he may have missed his calling as a TV broadcaster; and Ellen Pollock, our alleged victim both in trial character and in real life, as she had to put up with the antics of the rest of us in getting ready for this. And one last thank you to the team for letting me play the HR person who embodied almost every "thou shalt not" that we coach to our clients.

We're here to help. Now, show me your I-9s

Immigration enforcement is increasing and the focus has shifted from employees to employers.

If you haven't already, consider keeping your I-9s in a location separate from the employee personnel files. That will make it easier to pull them in the event you are faced with an audit.

Also consider having an I-9 audit conducted internally--either through your own HR staff or with the assistance of your counsel. It's much better for you to find the errors than to wait for USCIS to find them.

Tell me where it hurts. . .

If you're an HR professional, your response to this invite might be the longest it's been in a while. Your budgets have been trimmed, maybe training has been reduced, demands on you have changed and increased, and your head is on a swivel as you try to keep up with the talks about pending federal and state legislation impacting your company.

On top of those aches and pains, you now are entering flu season. You may have noticed a trend in your company that employees are coming to work sick on days they would normally stay home. It seems to be a common reaction in times when job security is low or weak. This trend may have some others in your company worried--you notice more cans of Lysol around the office, pumps of antibacterial hand gel are around every corner, and was that a mask you just saw on the receptionist?

You know what's coming next: the knock on your door by a latex-gloved manager who asks you if the company shouldn't put out a policy on coming to work sick, or maybe an edict telling people they have to stay home when they're under the weather? The media attention over this flu season is quite impressive, and that has undoubtedly raised the cough antennas on a lot of your employees.

Check your current policies first to see if any of them address the concerns that are surely headed for your door faster than the next story about H1N1. Give due consideration as well to whether you could enforce a new policy if you were so inclined to write one--how long is long enough? do you need a RTW from the doc? can you require proof of non-contagiousness and, if so, what is it? should you require a flu vaccination--or can you?

You should also be prepared for inquiries about reasonable accommodations--maybe someone has a history of a weakened immune system--what to do with that person if his co-workers are keeping Kleenex in business right now?

It's going to be an interesting season for all of us. Now excuse me while I turn on my air purifier.

Thursday, September 17, 2009

Strike while the iron is hot--UPDATED

And here are the proposed regulations:

We must be on an ADAAA kick this week! Word is that the proposed regulations for the ADAAA changes to substantially limited in a major life activity have been voted upon and should be published in the next 1 or 2 days. These are proposed regulations, which means a comment period will follow before the final regulations are implemented. Once the proposed regulations are available, we'll post them here for downloading.

Tuesday, September 15, 2009

Hot off the press!

Okay, sort of.

A 7th Circuit (Indiana, Illinois, Wisconsin) Court of Appeals handed down an Americans With Disabilities Act decision that may provide us with a glimpse of how the judiciary will approach the Americans With Disabilities Act Amendments Act of 2008. The claim arose under the ADA, but the Court opined that the outcome would not have changed under the ADAAA.

In the case (Winsley v. Cook County Department of Health), the plaintiff was unable to drive after being involved in a car accident. She was diagnosed with suffering from post-traumatic stress disorder. Problem? The plaintiff was a nurse who was required as part of her job to drive to/from patients' houses. She was placed on restrictions to only drive to/from work, and the employer insisted that it could not accommodate such rigid restrictions. The plaintiff resigned and then sued under the ADA.

The 7th Circuit performed its analysis under the ADA, finding that driving was not a major life activity and, thus, Winsley was not entitled to the protections of the ADA. The Court went further, though, to state that its decision most likely would not have changed under the ADAAA. Noting that the statutory major life activities of the ADAAA are fundamental to one's every day existence, the Court stated that even the average person would consider him-/herself to be "limited in a material way" if rendered unable to perform one of those activities. Driving--well, that's a different story.

The Court noted that driving is not a right, and that many individuals choose not to drive and do not consider their quality of life diminished. Additionally, driving is one of those activities where performance can be dictated by where one resides, unlike the major life activities listed in the text of the ADAAA.

It remains to be seen whether the other circuits would hold as the 7th Circuit. And, of course, we all await the first opinion interpreting the ADAAA.

Until then, happy navigating!

Wednesday, August 26, 2009

I'll have the jumbo shrimp, please!

Oxymorons make me laugh. I can't help it. Jumbo shrimp. Authentic replicate. Instant classic. Compassionate attorney. Wait. . .

The newest one to add to the list, though, may not be a laughing matter. Mandatory flexibility. Heard about it? Congress has, and is working on implementing a law which would require employers to engage in discussions with employees with requests are received to alter work schedules, work locations and work hours. The law would put a framework together for this interaction, complete with deadlines for the employer to follow and requiring a written reason if an employee's request is denied.

Is this another attempt at a solution looking for a problem, a la GINA? I doubt any of you would close your door to an employee seeking to make a request. You may not grant it, but you would at least listen to the reasoning before making a decision.

So we shall wait and see what is in store for mandatory flexibility. It appears to be a definite maybe that it will pass.

Happy stretching!

Friday, August 21, 2009


As Laura reported in her recent blog on July 21, 2009, it appears that the ‘No-Match’ rules may never see the light of day.

The history of this rulemaking effort can be dizzying, but here’s an attempt to reveal the significance of this decision by the Obama administration to eliminate the confusion:

First, we all know that federal law prohibits the knowing employment of a foreign individual who is not authorized to work in the U.S. If, when hiring any new employee, the employer sends in a W-2 with a SSN that does not match the Social Security Administration’s records, the SSA will send back a letter notifying the employer that the records do not match. In August 2007, a proposed regulation from the Department of Homeland Security implied that simply receiving one of these ‘No-Match’ letters from the SSA could be constructive knowledge that the employer had hired an undocumented worker.

Now there may be many reasons why there is no ‘match’ in SSNs, including typographical errors and name changes, but under the regulations, an employer receiving a ‘No-Match’ letter had to immediately undertake a number of procedures to prove that it had not knowingly hired an undocumented worker (known as ‘safe-harbor’ procedures).
The same month that the final rule was issued, suit was filed in a California federal court to prevent enforcement of the rule. The Department of Homeland Security took the opportunity to revise the rule, but the revised rules did nothing to change the ‘safe harbor’ procedures. A preliminary injunction was granted by the court and the rule has yet to be enforced.

On August 19, 2009 the Department of Homeland Security issued a proposed a new rule rescinding the previous rule and reinstating the language of the rule as it existed before 2007. Comments on this proposed rule will be accepted until September 18, 2009. Expect the new rule to be published shortly thereafter.

So where does that leave us now? Stay tuned for more ideas… (See Laura’s July 21, 2009 blog for a hint).

Tuesday, August 4, 2009

EEO-1 Survey

Just a reminder: if you are subject to EEO-1 filings, your deadline to file is September 30, 2009. You can use any payroll period between July and September as the data for your filing.

Sunday, July 26, 2009

You have reached your destination!

Just a quick reminder that the minimum wage under Fair Labor Standards Act reached its final destination, for now, of $7.25 per hour. You may recall that the minimum wage was set to be increased in three phases a couple of years ago. This last increase, effective July 24, 2009, marks the final installment in that amendment.

A new poster is available for downloading here.

If you currently have the poster which shows the three increases in minimum wage, you can continue to use that version as well.

Tuesday, July 21, 2009

No match no more. . . maybe

President Obama's administration recently announced that it intended to rescind the No-Match regulations which the Department of Homeland Security under President Bush had sought unsuccessfully to implement. Rather than focus on individuals, it appears that the DHS will turn its efforts to utilizing the E-Verify system for employers with federal contracts and subcontracts. But the No-Match regulations are not toast yet--the Senate has attempted to make rescission more difficult by proposing a bill that would prohibit the use of federal funds to eliminate the regulations.

Employers should continue to use best practices when hiring. If you have a reliable and strong system in place now, you will be better positioned to respond to whatever regulations might be waiting.

Happy hiring!

Tuesday, July 7, 2009

"Govern yourself accordingly..."

This is a familiar phrase typically used by attorneys when putting a party on 'notice' that his or her legal rights are about to be affected by an upcoming event or legal proceeding.

This seems to be an appropriate phrase in light of a recent announcement by the U.S. Department of Homeland Security on its effort to stem the tide of illegal immigration. In a News Release by the DHS dated July 1, 2009, U.S. Immigration and Customs Enforcement - ("ICE" - the immigration enforcement arm of the U.S. Department of Homeland Security) - announced the launch of a new initiative to significantly increase the number of audits it will perform on employer’s records. An ICE audit will scrutinize whether an employer has properly documented its employees' authorization to work in the U.S.

[This documentation is reflected on your 'I-9 Form'. Generally, every employer is required to properly complete an I-9 Form for each employee. Failure to properly complete the form may result in significant fines and penalties. If you have not conducted a 'self-audit' of your I-9 Forms recently, we can help.]

Just how significant does ‘significant’ mean? In one day, (July 2nd), ICE issued Notices of Inspection to 652 businesses around the country. By comparison, only 503 Notices were issued for the entire 2008 fiscal year!

This is announced as a new “first step in ICE’s long-term strategy to address and deter illegal employment” by reducing the demand for undocumented workers. This shift in focus means that ICE is re-directing its resources to be more vigilant in its audits and investigation of U.S. employers.

ICE has sent a warning message to all employers that they will be watching more closely than ever for proper documentation of your employees. ICE has put you on notice. Govern yourselves accordingly….

Wednesday, July 1, 2009

Have we met before?

A familiar face is back on the legislative block. The Employment Non-Discrimination Act (ENDA) is once again making its way through the House of Representatives. This time, though, the bipartisan support for the law is greater than before. When it was last introduced in 2007, it passed the house after being watered-down and then stalled in the Senate.

The Act, as currently written, would prohibit sexual orientation or gender identity discrimination in the workplace. It does not go so far as to require companies to extend employee benefits to partners of employees, and military and religious exemptions are present.

Stay tuned--we surely haven't heard the last on this one.

Tuesday, June 16, 2009

Federal paid leave bill

The U.S. House passed a bill allowing federal employees 4 weeks of paid parental leave, in substitution for some of the unpaid leave available under the Family and Medical Leave Act. This is similar to a measure which passed the house last year but did not make much headway in the Senate after President Bush threatened to veto such a proposal.

The bill is still quite a ways off from becoming law, and it would not apply, at least not right now, to private sector employees. It is worth watching, though, as groups who have been championing paid leave in the private sector may use momentum from this movement to push forward in theirs.

Stay tuned. . . .

Monday, June 15, 2009

This way to the buffet

People love buffets. Maybe it's the variety, maybe it's the bottomless nature of them--I don't know. But buffets can draw a crowd.

I am a creature of habit, so I frequently go to the same spots in a buffet and get my "usual" meal. Then when my husband comes back to the table with something that looks appetizing but isn't on my plate, the inevitable, "Where did you get that?" comes out of my mouth. Then I'll go back (using a clean plate, of course) and get a little, too. And I feel like I've gotten even more value from the buffet just because something new to me was available.

Some of you may be struggling with the seemingly unending purse tightening in your organization. You are thankful that your talent still wants to be "your" talent, and you perhaps wish you could reward them in some way. You know, though, that the usual raises are out of the question. So what to do?

Go visit another part of the buffet line that you normally don't. Our habits have been to reward with money, but in these economic times, we should look at rewarding in other ways. For example, get a team organized for a local charity road race. Usually the participants pay their own entry fee, but they get to sign up as a team instead of as one--they get to belong to something. Maybe you splurge for team t-shirts (you may be surprised how inexpensive they are), or maybe you arrange a time for everyone to get together and decorate shirts to show they all belong to the same group. The time commitment is relatively small, and you're helping a good cause while also encouraging your employees to have fun.

These times call for creativity, but you don't have to be the sole source of the creativeness. Look around for opportunities to promote teamwork and reward your employees, no matter how small you think the reward might be.

And, of course, use a clean plate for those return trips!

Monday, June 8, 2009

Tweeted? Friended? MySpaced?

Feels as though I need a dictionary for my dictionary now that so many words are taking on new, techno-based meanings.

You have heard about the Twitter explosion over the last year. You probably have a Facebook page. You may even have a MySpace page, DIGG account, or bookmarks on Delicious. If you have those connections, your employees, most of them, anyway, probably do as well.

The social media push may have you examining your handbook for policy update needs. Your electronic media policy may be so broad that you're already covered. If you're not, though, hold tight before crafting an entirely separate policy. A tack-on to a computer/equipment use policy can address any privacy expectations (there are very few legitimate ones in the workplace). A sentence to your anti-harassment/-discrimination policy can cover the social media outlets.

In short, keep it short. No need to add another page to your handbook over sites meant to break communication down into 140 words or less.

Wednesday, May 6, 2009

4th and long for team EFCA

The Employee Free Choice Act ("EFCA") is proving to be the ultimate pigskin in a game of political football! Two years ago, with President Bush promising a veto if EFCA ever landed on his desk, members of the House of Representatives (which passed the bill) and of the Senate (which didn't pass the bill) could proclaim their support of EFCA with absolutely no fear the bill would actually become law. Many elected officials in both Houses of Congress who supported the bill received funding from and the backing of Big Labor in being re-elected. Of particular note in this category of clever politicians is Mark Pryor, Democrat Senator from Arkansas. Senator Pryor was a co-sponsor of EFCA last time around, along with then-Senator, now President, Barack Obama. Senator Pryor continued to voice his support for EFCA during the 2008 election cycle, which helped him avoid any serious challengers and to enjoy union support and dollars. Now, with a fresh six-year term under his belt, Senator Pryor has assumed a more moderate position. And he is in good company.

President Obama, unlike his predecessor, has pledged to sign EFCA into law if it is approved by the House of Representatives and the Senate. This fact, along with a slowed economy, has made for rougher sailing for EFCA in 2009 than it faced in 2007.

The aspect of EFCA considered most offensive is the elimination of the secret-ballot election. As bad (or worse) to employers is the arbitration provision that would allow an arbitrator to impose a collective bargaining agreement for a two year period for the parties. The latter would effectively put an end to over 80 years of labor law in which the parties were left to their own devices when drafting a labor contract.

EFCA once seemed like a sure thing, with the Senate posing a potential obstacle to passage of the law. Now, some have gone so far as to declare it dead for the current session of Congress. We believe the unions will huddle up and emerge with a fourth quarter strategy designed to put them in a position to score a few points in this game of political football. We see compromise on the horizon that will win over key figures such as Senator Arlen Specter (R - Pa.). Because if EFCA is passed in some form, even a weaker version than hoped, it can be amended later if need be . . . particularly if the political winds continue to blow in the Democrats' favor!


For those of you who have health benefits plans subject to COBRA, here is a new poster from the Department of Labor detailing information on the premium reduction resulting from the American Recovery and Reinvestment Act:

Wednesday, April 22, 2009

The warranty must have expired on my crystal ball, because it's not working

With the news today of the death/suicide of Freddie Mac's interim CFO David Kellermann, and the anticipated ripple this is expected to have, brace yourselves for more uneasiness in the workforce. The fragile economic conditions right now are primed for quick reaction to any semblance of trouble. Speculation is sure to abound on blogs, Facebook, Twitter, LinkedIn and the abundance of other communication connections that the suicide was surely linked to some dark, lurking secret at the already-scarred financial giant. Rumblings in the news lead to wrinkled and furrowed brows in the workplace.

We would all like to think that the reductions-in-force and reduced schedules are behind us; that the company has been trimmed as lean as it can be; and that we've surely found the bottom. I certainly hope so. Consider taking a moment to take the temperature of your employees. If you have a chance to assuage some of the fears of your workers, take it.

By no means do we suggest you make promises of job security, salary continuation and the like. Those who are "in the know" at work can often forget that you are among the minority. You and your management team have been living and breathing budgets, watching expenditures like a hawk, and exercising more fiscal responsibility than you ever thought you would have to. If these items have consumed you, it is natural for you to assume that they have consumed everyone else. In fact, your employees may only see the duck swimming on the surface and not notice the feet furiously paddling underneath. So throw them a mask, invite them into your world, at least for a glimpse, and hear them out. They may be dwelling on matters that you can eliminate as a concern.

None of us have the crystal ball necessary to predict when we'll return to some sense of normalcy. It may be that we are as normal as we are ever going to be. Regardless, those in leadership should take this opportunity to embrace your workforces and open the communication lines. We'll all be better for it.

Wednesday, March 25, 2009


Well, if only OFCCP audits were as much fun as one of my all-time favorite game shows. Nanny and I would keep our own score at home, frequently winning the Showcase Showdown over whatever contestant the network could throw at us!

But I digress. It is probably cruel to liken a compliance review letter to winning a contestant call-out. For those of you subject to Executive Order 11246 (and you know who you are!), the Office of Federal Contractor Compliance recently issued its list of supply and service contractors who are being considered for a compliance audit in the upcoming year. Unfortunately, you probably will not find out if you made the list until your establishment receives a letter from the regional OFCCP office notifying you that you have been selected for an audit.

If you receive one of the Corporate Scheduling Announcement Letters, you generally will have 30 days to submit your current Affirmative Action Plan to the OFCCP office listed in the letter. If you have been subjected to an audit within the last two years, if you have a Functional Affirmative Action Plan agreement with the OFCCP, or if you meet a few other criteria specified by the OFCCP here, then you may be excused from an evaluation.

Should you be doing anything? Not unless you receive one of the letters--besides, of course, ensuring that your plan is up to date. You may want to alert the chief officers at your various establishments (including corporate headquarters), and anyone identified as your EEO Coordinator, to be on the lookout for one of the CSALs.

I'll stay on 89 cents, Bob.

Monday, March 23, 2009

Time flies. . . .

but I probably won't complete that familiar phrase with its familiar ending.

It has been almost a month since the last blog post. My apologies. Sometimes things come up outside of work that demand your attention, so those less time-sensitive tasks that you would pick up here and there (such as maintaining the blog) tend to suffer.

The world around me has been moving at a frenetic pace, one where I find that I'm hanging on by the ever-whitening tips of my fingers. That makes work a nice outlet. It makes it an even better one when I know that I come to work not just with co-workers, but friends and confidants who have concern for me.

This environment is not one unique to Hunter, Smith & Davis. My clients are geniuses at promoting these types of relationships. They've managed to maintain enough caution that, in most situations, the line doesn't get blurred. Doing so helps diffuse problems when it comes time to counsel, discipline, evaluate, etc.

So in these difficult times, these uncertain times, knowing that friends are both inside and outside the office can bring some comfort (and boost morale at the office). Think about ways you can engender a feeling of camaraderie at your workplace--you may find yourself pleasantly surprised at the benefits that come with it!

Tuesday, February 24, 2009

Are you sure this fuss isn't just over a set of golf clubs?

For HR professionals, all the discussion threads about COBRA probably make you wish that the golf company by the same name was simply unveiling a new, state-of-the-art line of rescue woods. Alas, not so (well, maybe Cobra is doing something like that, but that's not the point of this entry).

The economic stimulus package known as the American Recovery and Reinvestment Act of 2009 ("ARRA") brings much hope with it that jobs will be stabilized and the economy rejuvenated. For those of you in HR, it would appear that you have yet another layer of job security. The ARRA means changes to our methodologies if we want to avail ourselves of the carrots dangling from the sticks. When those methods are "adjusted," it almost always means a wave of new rules for HR professionals and the laws within which they work.

COBRA is significantly impacted by the ARRA:
1. A COBRA subsidy is now available, where the government provides 65% for continuation coverage premiums for up to 9 months (in your best commercial narrator voice: certain exclusions may apply).

2. But we know that "free" money from the government isn't really free, right? Correct! (in your best Alex Trebec impersonation). The subsidy actually comes from the employer's pocket, to be paid upfront. The employer then is allowed to deduct the 65% figure from the Social Security and Medicare taxes paid.

3. Pull out those personnel records, because the COBRA subsidy is backdated to September 1, 2008. That means that you should quickly refresh your memory on who has experienced a COBRA-qualifying event from September 1, 2008 and. . . .

4. Letters/notices should be sent to those who qualify for the subsidy. Your plan administrator should handle this step for you, but you should get in touch with said administrator to ensure that nothing is needed from you, especially if you have changed insurance carriers since September 1, 2008.

5. While you're furiously scribbling down notes on the ARRA, jot down this action item: amend group health plan documents to show that the ARRA COBRA changes have been adopted and incorporated.

6. Remember that "some exclusions may apply" caveat? One exclusion is for health care flexible spending accounts--those are not eligible for the subsidy.

7. The retroactive nature of the ARRA does not mean that subsidies will reach back that far. Rather, those who fall within this time frame are to be given another opportunity elect COBRA. The subsidy will become effective on the first COBRA continuation period after the enactment of the ARRA. For most of you, that would mean March 1, 2009.

You should work with your plan administrator to identify those individuals who may be eligible for the subsidy payment and calculate the premium payment now required under ARRA.

Isn't it nice to be needed?

Wednesday, February 4, 2009

New Child Labor Law Poster in Tennessee

Tennessee has issued a revised child labor law poster. If you employee individuals who are 17 and under, this poster must be displayed in your Tennessee locations with your other required posters. (If you're saying, "What required posters?", then we have more to talk about than just the new poster.)

Here is a link for the revised child labor poster:

As a reminder, if you have Spanish-speaking employees, some of your federal and state law posters are available in that language and should be displayed. If you need assistance in locating those or determining which ones you need, please contact us.

Happy posting!

Friday, January 30, 2009

A taste of what's to come?

President Obama did not disappoint his supporters with his first enacted legislation, the Lilly Ledbetter Fair Pay Act. You may recall that Ms. Ledbetter filed an EEOC charge of discrimination alleging unfair pay practices against her then-employer, Goodyear Tire & Rubber. She alleged that she had been paid less than her male counterparts for performing essentially the same work. Her case made it to the United States Supreme Court, which ruled that Ms. Ledbetter's unfair pay claims were all time-barred except those which arose 180 days prior to her filing of her charge of discrimination (180 days is the time period for filing in Alabama).

As you have probably guessed, the Ledbetter Fair Pay Act changes all of that. Retroactive to May 28, 2007, the law now allows for the statute of limitations period to begin again each time wages, benefits or other compensation is paid and is the result of a discriminatory decision or practice. In other words, the tolling period for unfair pay practice claims may now run the entire length of the employment relationship. Granted, the law only allows for recovery for the two years prior to the discriminatory practice, but it means that decisions (and the decisionmakers) from many, many years prior may be called into question, leaving employers with the task of recreating the environment at that time in its efforts to defend its pay practices.

Consideration will also need to be given to recordkeeping practices. It does not appear that the Act will change the payroll record requirements as set out in the Fair Labor Standards Act, but employers may be well-served to revisit their retention policies considering how far back they may be expected to go in defense of an unfair pay claim.

Undoubtedly, there is more to come. Stay tuned!

Sunday, January 18, 2009

I need to take some time off. . .

As a human resource executive, you've heard these words before. And if you're covered by the Family and Medical Leave Act, you undoubtedly listen to the request with a heightened awareness for whether the requested leave will be potentially FMLA-qualifying.

The Final Rule for the FMLA as amended by the National Defense Authorization Act, became effective January 16, 2009. The Rule provides additional explanation and examples for the new type of leave (covered servicemember leave) and new basis for leave (call to duty leave) available under the FMLA. The Rule also provides definitions for the "qualifying exigency" mentioned in the FMLA as amended.

The entire new Rule will be of interest to HR executives, and you are encouraged to talk with your counsel about how the Rule impacts your present practice and policy for FMLA leave. Of note for purposes of this entry, though, is the explanatory section in the Final Rule addressing "qualifying exigency" (where leave requested is for a call to duty).

Many of you have been trained to recognize the key words and situations where FMLA may be applicable. You will want to add the qualifying exigency situations to that knowledge bank, as situations which were previously chalked up to personal leave may now find themselves as FMLA-qualifying when the situation arises due to a call to duty of the employee's spouse, son, daughter or parent.

For example, the Final Rule discusses several scenarios of "military events and related activities" that now entitle an eligible employee to take call to duty leave. These include family support and informational briefings, to arrange and tend to childcare and school activities (including parent-teacher conferences), enrollment in a new school or day care, to attend counseling sessions with the covered servicemember, to make legal and financial arrangements in preparation for the servicemember's deployment, and to take time off when the covered servicemember is granted a brief leave from the deployment.

It is important to also note that the "qualifying exigency" section includes a catch-all provision allowing leave "[t]o address other events which arise out of the covered military member's active duty or call to active duty." This catch-all provision will only apply in situations where the employer and employee agree that the "other events" are related to the covered servicemember's call to duty/active duty and agree to the timing and duration of the leave.

A good rule of thumb is to always ask whether the employee who needs time off has a covered servicemember that is a spouse, parent or child. If that is the case, pick up the phone and talk with your attorney about whether the reason for the leave might be FMLA-qualifying.