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.

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!

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.

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.