HIRE is Expiring, but tax credits are still available

Although the HIRE Act is set to sunset on December 31, 2010, employers should remember that tracking a qualified employee's wages goes beyond December 31, 2010.

Under the Act, employers are eligible to seek two types of credits:

1. The payroll tax exemption: the employer does not pay its 6.2 percent share of Social Security tax on wages paid to qualifying employees during the period of March 19, 2010-December 31, 2010.

2. The new hire retention credit: for each qualified employee you retain for at least 52 consecutive weeks, the employer is eligible for a business tax credit of 6.2 percent of wages paid to the qualified employee during that 52 week period (up to $1000).

You can read more about the HIRE Act in our post from April.

NLRB To Consider Rule Requiring Employers to Post Notice Informing Employees of Rights

The National Labor Relations Board announced on Tuesday that it is considering adoption of a rule that would require employers covered by the National Labor Relations Act to post a notice informing employees of their rights to form, join, and assist labor unions. If the rule is implemented, the required notice would mirror the notice that federal contractors must post pursuant to an Executive Order issued by President Obama and implemented by Department of Labor regulations earlier this year. The Notice prepared by the Department of Labor was criticized by business and employer groups as going too far to promote union membership as opposed to merely informing employees of their rights under the Act.

For years, the Board has avoided the formal rule-making procedure in favor of adopting rules in reported Board decisions. The Board’s announcement today that it intends to participate in rule-making is a significant departure from its prior practice. This rule-making is likely a reflection of the Board’s current make-up, which many believe is decidedly pro-union.

The public will have 60-days to comment on the Board’s proposed rule. The Board’s press release can be accessed here: http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2806.pdf

We will continue to monitor the Board’s proposed rule as it progresses through the administrative rule-making process.

"S" is for silver (not tinsel) and succession

I read an interesting article on Knowledge@Wharton concerning "The Silver Tsunami"--older workers who were once feared to be exiting the workplace so quickly that the labor force coming behind wouldn't be able to supplant them. Those older workers are now staying in the workforce longer due to dwindling retirement options, and the article discusses the benefits of capitalizing on the industry knowledge these employees have to offer.

When coupled with a report from the Society for Human Resource Management dwelling on the lack of succession planning in companies, it seems like the perfect time to capture the willingness of older workers to stay, or come, out of retirement. For many employers who don't have a succession plan in place, one would think that keeping people who want to be in their organizations would be a high priority. Additionally, if the opportunity to bring back someone with institutional knowledge presents itself, a company without a strong succession plan would be wise to consider opening the fold.

Most employers would like to consider themselves desirable to workers--and workers have indicated a strong pull for being in an environment where training and progression are opportunities, not concepts alone. Although budget strings remain tight, investing in a succession plan that recognizes your current human capital and focuses on how to get the most value from it would not be time wasted. Current economics point to some shaky times remaining--and a succession plan not only benefits the business but also can instill confidence in your employees that you see a future for the company and they are part of it. Finally, we all hope that we can retire one day, and those ahead of us on the age scale are no different. Eventually, the Silver Tsunami will leave the labor force--and where will that leave you?

Unsuccessful Cloture Vote for Dems on Paycheck Fairness Act

Democrats attempted to overcome a Republican filibuster on the Paycheck Fairness Act by calling for a cloture vote today. Democrats were two votes short of the required 60 votes to achieve cloture (which would place a time limit on debate about the Act). The roll call vote showed that 58 Democrats voted in favor of cloture, while 40 Republicans and 1 Democrat (Nelson, of Nebraska) voted against cloture. One Republican, Sen. Lisa Murkowski, was not present for the vote as she continues to await the poll results in Alaska from her mid-term election challenge by Joe Miller.

With Republicans gaining 6 Senate seats in the November 2010 elections, the likelihood of seeing the Act up for vote again in its present form is unlikely. Democrats may attempt some concessions, much like what was attempted unsuccessfully to gain passage of the Employee Free Choice Act, to get this matter for vote prior to January, 2011. However, with the inability to overcome a Republican filibuster and elections completed for the next two years, little incentive exists for Republicans to cooperate in bringing this matter to a vote.

GINA: At least it comes with its own warning language

The final rule for implementation of the Genetic Information Nondiscrimination Act (GINA) published this week by the Equal Employment Opportunity Commission. While much of the talk about GINA has been that it is not likely to have a great impact on employers (the law has been likened to a solution looking for a problem), it is important to note that GINA will impact the manner in which health care certifications are obtained under the Family and Medical Leave Act (FMLA).

GINA prohibits the gathering, requesting, requiring, or acquisition of genetic information (as defined by Section 1635.3(c) of the final rule) unless an exception applies. One exception is where the information is inadvertently (that's an important term) received as the result of a lawful request for medical information--such as when an employer requests completion of a health care provider certification form for purposes of evaluating the granting of FMLA leave.

However, an employer who receives genetic information by way of an FMLA leave request does not automatically get to avail itself of this safe harbor provision. According to the final rule, receipt of genetic information through a lawful request for medical information is only "inadvertent" if the individual and/or health care provider is told:

• not to provide genetic information
• in a communication that is in writing or verbal (where the employer does not typically make requests for medical information in writing)

The final rule provides suggested language that can either be incorporated into a cover letter provided to the employee at the time FMLA leave is discussed or that can be included on the employer's FMLA certification forms. That language is as follows:

The Genetic Information and Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic information' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

It is worth noting that this warning (or something similar) is mandatory in all cases where a covered entity (such as an employer) is requesting a health care provider to conduct a medical examination on the covered entity's behalf.

Before making a blanket change to all your FMLA certification forms, keep this in mind: in some situations, such as where an employee is requesting leave to care for a seriously ill family member, it may be necessary for the health care certification form to disclose genetic information. According to the preamble to the final rule, this type of disclosure is not inadvertent, but it is considered an exception to GINA's prohibitions. In other words, if you are providing FMLA paperwork under this circumstance, the warning listed above is not necessary.

On this Veterans Day, an FMLA refresher

As we honor our past and present servicemembers today, we thought it appropriate to revisit this post from 2009 concerning FMLA rights of this important part of our population:

http://laboremploymenthsd.blogspot.com/2009/01/i-need-to-take-some-time-off.html

A simple "thank you" is inadequate to convey our indebtedness to our military. We should endeavor to honor you not only today, but every day, for the gifts we have been given due to your sacrifices.

U.S. DOL: Tackling Crowd Management

Wouldn’t it be nice if your customers were tripping over themselves to get into your place of business to buy your merchandise or services? Not so, says the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”). In light of stories from previous years when employees or customers were trampled when the store opened, OSHA has encouraged 14 major retail companies to take precautions to prevent injuries during “Black Friday” and the holiday season's other major sales periods. OSHA sent a letter and fact sheet related to "Crowd Management Safety Tips for Retailers" to the CEOs at those 14 companies. You can access the safety tips here: https://www.osha.gov/OshDoc/data_General_Facts/Crowd_Control.html. According to a DOL news release, Assistant Secretary for OSHA Dr. David Michaels said that "Crowd-related injuries during special retail sales and promotional events have increased during recent years.” Dr. Michaels also said "Many of these incidents can be prevented by adopting a crowd management plan, and this fact sheet provides retail employers with guidelines for avoiding injuries during the holiday shopping season." For a copy of the letter sent to the CEOs and a list of the companies they represent, visit http://www.osha.gov/ooc/blackfridayletter.pdf.

6th Cir: Must be disabled to pursue a discrimination claim under portion of ADA

The 6th Circuit Court of Appeals (Michigan, Ohio, Kentucky, Tennessee) ruled yesterday that employees challenging an employer's drug testing policy on the basis that it discriminates against those with a disability must, in fact, have a disability to pursue such a claim. In Bates et al v. Dura Automotive Systems, the Court found that employees who were terminated because they consumed drugs containing substances prohibited under Dura's drug testing policy were not "disabled" under the meaning of a particular section of the Americans With Disabilities Act. The section cited by the employees stated that it was discriminatory for a "covered entity" to use qualification standards, employment tests, or screening criteria that eliminated individuals with disabilities unless it was for a job-related and business necessity reason.

In finding for the employer on this specific issue of law, the Court held that an employee who was not first found to be disabled could not bring a claim under that section of the ADA. (Keep in mind that other sections of the ADA do protect individuals who are presumed to have a disability and/or associated with someone who has or is presumed to have a disability.) Accordingly, Dura's drug testing policy that prohibited substances commonly found in drugs such as Xanax, Lortab and Oxycodone was not instituted or carried out in violation of the ADA.

While this seems like a triumph for employers, it is important to note that the case was filed prior to the passage of the Americans with Disabilities Act Amendments Act of 2008. The opinion in Dura focused on the language of the old ADA and the construction given to that language, noting in particular that to limit the application of the section at issue to "only cover disabled individuals is not an absurd construction or inconsistent with the intent of the statute." Since Congress was clear in enacting the Amendments that the ADA should be given the broadest construction possible, it is likely that a different result would have been achieved under the Amendments; the employees stand a greater chance of being deemed "disabled" under the Amendments. (Courts had held that the Amendments were not to be applied retroactively.)

Employers who have not revisited their drug-testing policies since the enactment of the Amendments would be wise to do so. An employer such as Dura could have still prevailed if it would have been able to show that the substances prohibited were out of business necessity and job-related.

Read the full opinion here.

Severe weather policies: not just for winter any more

We've had a run of bad weather in our area over the last few days. I listened to a friend recount the multiple ways he tried to get to work one morning this week, only to be thwarted each time by a tree across the road he was trying to take. He eventually made it to his office after 1 1/2 hours of driving around (normal drive time is 5 minutes) and taking quite the circuitous route.

Most of our clients have severe/inclement weather policies. It is rare for them to be invoked in seasons other than winter. That could mean that the wording in the policy might lead one to believe that it is only meant for winter conditions (i.e., if schools are on a snow schedule, if the temperature drops below ___ degrees, if you are not comfortable driving in snowy conditions, etc.).

As is often the case, we learn how to improve a policy when confronted with a situation that wasn't necessarily anticipated when the policy was written. Same here. Check your severe weather policy, and be sure it's doing the job for you.

(Yes, these boots do the job for me, except mine are orange with cream polka dots--shocking, I know.)

Does no more free checking mean no more direct deposit?

A recent article from the Associated Press details how free checking may be going by the wayside as financial institutions look for ways to cope with governmental limitations on fees. I will be watching this development to see how it impacts me personally. Businesses should be watching to see how it impacts payroll practices.

In some states, employers are allowed to require employees to participate in direct deposit. The applicable statutes may include caveats that the requirement can only be used where free checking is available to employees. Employers who avail themselves of direct deposit should check with their counsel to see if an alternative payroll method must be offered if free checking is no longer available.

Maintaining perspective: we can learn from our clients, too

As an attorney, I do my best to educate clients: best practices, the impact of recent cases on their businesses, managing borderline employees, you get the idea. It can be easy to lose sight that I have a relationship with my clients--that is, I'm on a two-way street, and I can learn from them, too.

One client recently lost its President and General Manager. He was the type of leader who was larger than life yet so very approachable. He preached a mantra to his employees that they wholeheartedly embraced . . . because he practiced it, too. Exceed expectations.

Two simple, everyday words that managed to perfectly describe his management and business style. He wanted his employees to provide the best customer service by going beyond what the customer anticipated receiving. He also wanted his employees to be the best co-workers by going beyond what a job description might capture. When it came time to cater to the customer, no one had a job title. It was everyone's responsibility to do whatever was necessary to ensure the customer had an unforgettable, in a positive way, experience. In working to serve the customers, you would find him right beside those who would have fit into a rectangle under him on an organizational chart--not that he would have ever dreamed of illustrating anyone's "position" at the company in such a manner.

Managerial styles are as unique as those who carry them out. Here, though, we have advice that can be tailored to whatever style fits us as individuals.

My client's leader may not be present to guide those employees any longer, but they will never be lost. They know what they are supposed to do--exceed expectations.

Optional and IRS--not a pairing you hear everyday

You may recall that under the health care reform legislation, health care benefits provided by employers are subject to reporting on an employee's W-2 beginning in 2011.

On Tuesday, the IRS announced that it was delaying implementation of that reporting requirement, making it optional in 2011. You can read the notice and the IRS' reasoning behind this move here.

Additionally, the IRS has issued a DRAFT of its proposed modified Form W-2; Box 12 on the form is where the IRS has provided for valuation of health care benefits. Employers and interest groups are invited to comment on the form before the final version is issued.

This suspension of a component of health care reform is not entirely surprising. Many employers continue to maintain a "wait-and-see" posture while mid-term elections are held--the impact on the current health care reform legislation could be substantial if a new wave of politicians make Washington home in the coming months.

Stay tuned. . . .

Come and knock on our door. . .

As I read this latest article from SHRM this morning, the theme from "Three's Company" popped into my head. Yes, indeed, we've been waiting for you.

Seems as though federal governmental agencies may be sharing information to determine who will receive or has received ICE audit notices. According to the article, companies which found themselves the subject of an investigation or audit from another agency--mostly related to the employment of immigrants--also received a heads-up that ICE would be coming to inspect their Form I-9s.

As we recommended (okay, whined) earlier here, the time to look at your Form I-9s for compliance issues is long before you even think you might be getting an audit letter. And if you do find yourself on the mailing list of any government agency, please engage counsel as soon as you receive the letter and before you provide anything in response to the notice.

No hiding behind the veil

I just read an article by Kara Shea in the Tennessee Employment Law Letter concerning individual liability that exists for Family and Medical Leave Act and Fair Labor Standards Act claims. The definition of "employer" for determining liability under those acts is broader than what most CEOs, CFOs, HR managers and the like are used to seeing. It's worth a read and then an examination of your leave and pay policies.

ICE means business

Just ask Abercrombie & Fitch:

http://www.laborlawyers.com/shownews.aspx?Abercrombie-Fitch-Fined-1-Million-After-I-9-Audit&Ref=list&Type=9871&Show=13290

No Southern Belle; Just a Bell Tolling

Look, y'all: it's been a loooong day, which means that my attempts to keep my southern drawl in check fell by the wayside many hours ago. That also means that this won't be a big discussion entry. Just a couple of simple pleas:

PLEASE train your staff on properly completing Form I-9.

PLEASE have them read through the instructions and go over each section block by block.

PLEASE "error-up" some sample forms and have your staff find the miscues.

PLEASE follow-up with your staff to see if any situations have arisen which weren't addressed in training (you know they have).

And PLEASE do self-audits. Better you catch the mess-ups before ICE (yes, that acronym is two syllables long by this point in my day).

I need a Pal's sweet tea.

All's Fair, Free or Equal in. . .

the title of just about every piece of legislation dealing with employment right now. The latest to be added to this roll call is the Fair Playing Field Act of 2010. This would remove safe harbor provisions currently available to employers who have unintentionally misclassified employees as independent contractors. Additionally, the bill as written would require employers who routinely use independent contractors to supply those contractors with a written statement telling them what employment protection laws do NOT apply to them, as well as informing them of their right to have their independent contractor status reviewed by the Internal Revenue Service.

It's a bill worth watching, along with the Paycheck Fairness Act/Fair Pay Act, the Employee Free Choice Act, and the Workplace Free Sodas So Everyone Has Equal Energy and Can Compete Fairly Act. Okay, so the last one isn't real. . . yet.

Is it a surprise that unions haven't re-emerged like predicted under this administration? If these types of laws keep getting introduced, unions have an argument that the administration which was supposed to breathe life into them is actually drowning them out.

You thought an arm and a leg were expensive? You were right!

From our very own Michael L. Forrester:

Employers are occasionally faced with the issue in workers’ compensation cases of what body part is affected in a work injury, and what difference it makes when it’s time to determine the amount of any permanent disability award. And the Employer and the injured Employee may be on opposite sides of the proverbial fence when confronting the extent of any medical impairment. A recent Tennessee Supreme Court Workers’ Compensation Panel decision emphasizes the point.

In Schering Plough v Plumley, the employee’s foot was run over by a forktruck at work, and after months of treatment, he was returned to his regular job without restrictions but he did have a permanent medical impairment as a result of the injury. The issue for the Court was, which body part sustained the disability? Remember, when an employee is able to return to work for the same employer, at the same or greater pay, Tennessee law may “cap” the employee’s permanent disability award. The law now provides that the “cap” applies not only to “whole body” injury cases, but also to arm and leg injury cases. The employee and his attorney in Plumley contended that his injury should be confined to his foot because the employee’s permanent disability award could not be capped by the Court. Not surprisingly, the employer contended the injury affected the range of motion in the ankle and thus should be capped as a leg claim.


The Court determined that since the injury affected the ankle, and the employee had consistent pain in his lower leg and he sometimes limped from the injury, the injury went beyond the foot and the permanent disability award should be to the leg; thus the employee’s permanent disability award was “capped” since he had returned to his job. The Supreme Court has also determined that this same analysis applies in the event of a work-related hand injury.

So, we encourage employers to prompt the treating doctor to be specific in their medical assessments and their “body parts” analysis. It matters.

Chilly Forecast Ahead

It appears that ICE is on its way this season. Immigration & Customs Enforcement ('ICE') - the division of the U.S. Department of Homeland Security responsible for Employer compliance with immigration laws- announced several days ago that it was preparing to send out Five Hundred (500) new Notices of Inspection to companies within the next week.

Typically, a Notice of Inspection will require an employer to provide access to its I-9 Forms to make sure that the Forms are properly completed and that its employees are eligible to work in the U.S. (Fines for improperly completed I-9s may range from $110 - $1,100 per violation).

By comparison, ICE sent out only 503 Inspections for the entire year of 2008.

This increased vigilance by ICE is a continuing trend in immigration enforcement that has been escalating for the past 18 months. One effect of this increased pressure on Employers is that there has been a decline in illegal immigration - but it requires all employers, (whether or not you employ a foreign national), to make sure that all of your Form I-9s are in proper order before ICE makes its arrival at your door.

Happy Autumn!

Earning its keep?

The EEOC has been busy, busy, busy! Three suits filed this month just on the Americans With Disabilities Act (as amended): http://www.eeoc.gov/eeoc/newsroom/release/9-9-10a.cfm?goback=%2Egde_147609_member_29930620

Halloween? It's not even October

Rumors are flying that the Paycheck Fairness Act will be taken up by the Senate in the very near future. The Obama Administration made it no secret that the Act is at the top of its agenda. This is concerning, given the Administration's desire to make a strong showing as mid-term elections approach. Should you contact your Senator concerning his/her vote on the PFA? Consider:

• Two store managers are hired at the same time; one is male, one is female. The jobs are offered at $40,000. The male demands  $45,000 while the female takes the offer as presented.
• Current law: The pay discrepancy can be defended by demonstrating that the difference is based upon something other than gender. In this case, it was a demand of one of the candidates.
• Proposed PFA: If the company acquiesces to the male's demands but doesn't give the female the same increase--even though she didn't demand/negotiate it--the company could only defend a PFA challenge by the female if it demonstrates that no discrimination is present (which could also necessitate a showing that no pay discrimination was present at the male's prior workplace), that paying the increased salary is job-related, and that the increased salary is consistent with "business necessity."

It remains to be seen whether the Administration can carry enough momentum into the legislature to have this Act passed. Further, it's possible that any version which does clear both bodies differs from what is presently proposed. Regardless, we are sticking with our mantra--be wary of any Act which includes "fairness," "equal," or "fair" in it--because it usually isn't for employers.

How "Hannan" Continues Its Role as a Gift That Keeps On Giving

The Hannan case from 2008 changed the way our state courts in Tennessee approach summary judgment. In essence, Hannan made it much more difficult, for example, for employers to get summary judgment in employment discrimination cases based upon state law.

A recent Tennessee Supreme Court decision all but eliminated the ability to have a case summarily dismissed (that is, without a trial) when the claim is based upon common law retaliatory discharge. In Gossett v. Tractor Supply Company, Inc., the Court held that an employer must offer evidence that disproves the employee's claim that the discharge was motivated by retaliation. This is a swing in methodology from the Court's previous use of the U.S. Supreme Court burden-shifting posture: if an employee demonstrates a reasonable jury could conclude retaliation occurred, the employer has an opportunity to refute that presumption by demonstrating a legitimate business reason existed for the discharge. Notable is that in the U.S. Supreme Court body of law, employers can have "mixed motives" in discharging employees without being liable for a violation of the law. Cases brought under state law in Tennessee are now no longer eligible for the mixed motive consideration.

In the end, it doesn't change the cautions we extend to employers concerning retaliation cases. We warned about the difficulty in getting rid of them once they appeared in court. Now we have the court language to back it up.

Bath time? Hold on while I ignore you.

"Facts do not cease to exist because they are ignored." - Aldous Huxley

My miniature Schnauzer Tempo was my pet growing up. She was full of personality, and she was opinionated. She thought she should make the decisions on who is to be allowed into the house. Tempo also thought that it was within her control to say who or what could hang out in her backyard. She thought she should decide when it was time for her bath, and that decision would have been never.

Tempo would watch intently as Mom gathered the dog towels from under the sink. She would quietly step into the kitchen while Mom looked for the pet shampoo and brush. As soon as Mom closed the cabinet door, Tempo turned and ran to the couch in the den, quickly hopping onto it and settling into the far corner with her back turned to Mom. Tempo believed, every time she was due a bath, that if she would ignore the facts by turning her back on the situation, the bath wouldn't happen.

 We all see this approach in the workplace--I've used the "ostrich-head-in-the-sand" analogy numerous times in my presentations and training sessions with managers. But as we know, ignoring the situation does not make it go away. No matter how many times Tempo huddled in the corner, she always ended up getting a bath. She tried to ignore the facts, and they never went away.

Managers have an affirmative responsibility to acknowledge the facts--ignoring them will inevitably lead to bad results for employers. The employee who continually shows up late? The discord in a department because one person refuses to be a team player and pull her weight? Repeated mistakes by an assistant that are growing in severity? All facts that can not and should not be ignored. The bath is coming, just like Tempo experienced, even if you ignore facts. You might not come out smelling as good as she did, though.

Neither "A" in "ADA" means "assume"

So, that whole discussion by the EEOC on the importance of interacting with your employees who request or might need a disability before taking action?

Or the post from 2008 on the changing mindset for employers thanks to the amendments to the Americans with Disabilities Act?

We were serious. And so is the EEOC, who filed suit on behalf of an employee who was offered a job, showed up for the first day of work, and had the employment offer rescinded once a member of management noticed the employee was missing some fingers.

What do you mean, "The pants don't fit?"

Before you groan: this is not a post about dieting. Or exercising. Or any of those good health habits we all should work to incorporate into our lives.

This post is about fit.

If you walk into a clothing store and see that all the jeans are the same size--not yours--do you stick around and try them on? Do you stay and look through the store to see if it does have jeans in your size?

You find display of shoes that is a style you've been coveting for some time. But every pair you pick up is the same size--again, not yours. Are you a little bummed, perhaps a little unhappy, that the buyers for the store do not have enough foresight to purchase those shoes in other sizes? After all, the store just lost your potential sale, right?

All of us have experienced the occasion where we need a different size from what we had been wearing. Sometimes we find ourselves in that position even though we'd been the same size for years (decades? Okay, maybe not).

Why, then, do companies today still insist on having employees fit into the same mold simply because they share a job title or position description?

I just read a post concerning the continuing compensation inequity between genders. The post presents some interesting potential causes for the disparity and reminds me of some similar issues employers face today. Of course, compensation is important in the working world (and water is wet--sorry for stating the obvious). A bigger question rearing its head is the dissatisfaction some employees have with their one-size-fits-all positions.

This isn't about addressing accommodation needs for qualified individuals with disabilities, or making adjustments when employees need time off under a state or federal leave act. No, what companies are facing are requests such as the following:

My spouse has been transferred to a facility about two hours away. I enjoy working here, and I'd like to explore the possibility of telecommuting 2 or 3 days per week and being in the office the other days.

How would your company respond? If this is a position where presence is essential (think receptionist or support staff), you might not have a lot of room to move. The more difficult dilemma is where your company is facing this for the first time, and the immediate reaction is, "Well, we've never done that before, so there's no way this would work." Before some of you scoff at the archaic nature of this reaction, realize that it does take place. Often.

Are you missing out on potential good employees because your storefront gives the appearance that you only carry one size of shoes, jeans, compensation or job structure?

Dancing with--your employees?

I just finished reading a blog post by HR Bartender asking whether our society has lost our empathetic side and what we can do to work toward getting it back.

I met with a client today to discuss the dismissal of two charges of discrimination we defended on its behalf, charges which arose because the employee believed she was treated "unfairly" in a couple of situations. As the agency investigation revealed, this client went far beyond the call of duty in dealing with the employee's issues. The employee was simply dissatisfied with the result.

I think HR Bartender is on to something--we probably have lost our ability to empathize, in part because of the moving parts on both sides of the situation that faced my client. The phrase "no good deed goes unpunished" was uttered from the lips of my client representatives on more than one occasion. In this situation, the employee had lost the ability to empathize with the employer. Yes, you read that sentence correctly. Continuing on that line of thought--the employer, having been rewarded with two charges of discrimination after doing more than it was legally obligated to do, might not respond in such an above-and-beyond way next go-around. You might say my client is losing the desire to empathize.

Those of us on the management side are all too familiar with the employee rights-employer obligations dance steps. If empathy is waning, will we soon find ourselves paired with partners who don't have formal instruction in the dance, where "rights" and "wants" are interchangeable with obligations in the minds of those partners?

The issue is not necessarily squarely rested on the shoulders of the employees. Think about how managers and supervisors are expected to handle situations (remember our talk about how that can diffuse potential lawsuits? If not, go here and here and here.). If they are unable to muster any empathy for the situation, is that a good thing? Nay nay.

Let's all work toward finding our empathy button--so you can push it when necessary (and have it reciprocated).

Looking out for Number One can get you. . .

Word just came out that the Tennessee Titans are suing Lane Kiffin and the University of Southern California for intentional interference with contract/inducement to breach contract over the hiring this weekend of former Titans coach Kennedy Pola by Southern Cal. The allegations are that Kiffin contacted Pola, knowing he was under contract with the Titans, and discussed potential employment at USC with him. Pola's contract states that he is not to entertain any other employment opportunities without first receiving written permission from the Titans. Kiffin also did not extend a courtesy call to Titans head coach Jeff Fisher, a misstep that infuriated Fisher.

Undoubtedly this isn't the first time that a team has hired a coach away from another team--right? You read about this all the time in sports. Why don't you see more of these lawsuits? Without having the benefit of reading the complaint, we can surmise a few things that apply in most employment settings:

1. Kiffin has not made many friends in the coaching world. Thus, he may not get the same benefit of the doubt that others would be extended if they hadn't followed the contract language to a "T", either. The moral: if you make fast enemies, expect them to likewise act fast when you cross them (i.e., treat people nicely, people!).

2. Kiffin is a USC guy, and Fisher is a USC guy. In other words, Fisher expected better treatment from a member of his "family" than he might otherwise. The moral: relationships matter. If you have a common tie to someone, it can act both as a lifesaver and an anchor (i.e., if you have a good relationship with a fellow HR'er at another organization, think before you poach).

3. Kiffin hired Pola less than a week before training camp is to start for the Titans. The moral: timing is everything--you already knew that. You can make a bad situation so much worse by your timing (i.e., watch those calendars!).

4. Kiffin seems to have thumbed his nose at the Titans and Fisher. After Pola was hired, Fisher let it be known that he was not happy with the way in which Kififn handled the situation. We don't know if Kiffin apologized to Fisher in their phone call, but it doesn't sound like it. Kiffin's statement was that Fisher now had a better understanding of the timeline of events, and that the timing wasn't perfect for "all" parties. In other words, the timing was perfect for USC, and that's all that mattered. The moral: if you can show some respect for the impact on the other party, that goes a long way to diffuse a potentially dynamite-laden situation. If you don't, well, kaboom.

What other lessons do you see from this situation? It will be interesting to watch how this unfolds, and how we can all learn from it.

Summer intern feedback--from all sides

Summer intern programs are a great way to get quality work for a good bargain (see our post about the new DOL regulations on paying interns here). It's also an opportunity to hone your management skills, methods of providing constructive counseling, and test-driving some of your less experienced managers in roles of responsibility. Yes, for all intents and purposes, your summer intern program can be your managerial guinea pig.

When you're sending out calendar invites for the summer interns' exit interviews, don't forget to schedule a time with your own people about the experience. This an opportunity to improve the summer intern experience for the next class, and this is also an opportunity to develop, applaud and, perhaps, correct supervisory tendencies of your employees. You can also use the post-intern feedback to see if having an intern program is right for your company. Just like evaluations, one size does not fit all, and you don't have to do it because everyone else is.

Check out this article from Entrepreneur magazine for more discussion on slotting an intern in your organization.

Just the EEOC?

It’s easy to underestimate the importance of responding to a charge of discrimination filed with an administrative agency like the EEOC. After all, the EEOC doesn’t have the authority to award damages or assess fines against employers. To get any money from the employer, the employee or former employee will have to file a lawsuit, and the employer can just defend the lawsuit when and if it comes. Right? It’s true that the EEOC doesn’t have the authority to award damages or assess fines. But the employer’s response to an EEOC charge is the foundation for the later defense of the lawsuit. What is said, or not said, in response to a charge filed with the EEOC can have a significant impact on the outcome of a lawsuit. A recent decision from the Court of Appeals re-emphasizes this point.

In Jones v. National American University, 8th Cir., No. 09-3007, 6/23/10, the court affirmed a jury verdict in favor of an employee’s age discrimination claim. In that case, the reasons the employer gave for the employee’s termination in response to the EEOC charge were different from the reasons proffered by the employer at trial. The Court held that the different reasons given by the employer at different times was evidence that the employer’s reasons were a mere pretext for age discrimination.

Although this principle does not represent a sea change in the law, it comes on the heels of the EEOC’s announcement that it is hiring more investigators and intends to be more aggressive than it has been in the past 10 years. According to Jacqueline Berrien, the EEOC chair, the EEOC has been bolstered by substantial budget increases in fiscal years 2009 and 2010, and is hiring additional staff, including frontline investigators and lawyers.

In this environment, when employers are more likely to encounter aggressive enforcement from administrative agencies, it is vital to remember the importance of responding appropriately to administrative charges of discrimination as the foundation for the employer’s defense to discrimination claims.

English-only can be rule in Tennessee workplaces

Gov. Bredesen made Tennessee the first state that will allow employers to enact "English-only" policies where a "legitimate business reason" to do so exists:
http://www.tennessean.com/article/20100624/NEWS01/6240326/Bredesen+signs+English-in-workplace+bill?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+StatelineorgRss-Tennessee+(Stateline.org+RSS+-+Tennessee)

Times That Try Employers' Souls--Part II!

We're doing our annual Labor & Employment seminar again for those of you who might have missed it earlier this month. The seminar will be held on Tuesday, June 29, 2010 in Duffield, Virginia at the Crooked Road Technology Center. Contact any member of the Labor and Employment Team or msizemore@hsdlaw.com for more information or to register.

Topics that we will cover include a legislative update for 2010, social networking in the employment setting, union avoidance, top 10 ways to manage in litigious times, and an immigration update.

Evaluating your evaluations

Deep sigh. No, the title isn't another example of the circular logic attorneys sometimes (okay, more than that) use.

It's a legit charge: if you do employee evaluations, how are they working for you? Better yet--are you even doing employee evaluations?

At our annual Labor & Employment Law Seminar yesterday, the team presented a Top 10 list of "don'ts" for managers/supervisors in these particularly litigious times. One of those is disregarding the importance of employee evaluations if you are using them. Often, evaluations are presented at the same time an employee is given a raise. Because the employee will be receiving more money, even if it's just a cost of living increase, employers can feel the pressure to present nothing less than an average evaluation--even when the employee deserves less than that rating.

What some employers are finding, though, is that in years where raises aren't an option, the evaluations are becoming more reflective of actual performance. Gone is the need some supervisors feel to "justify" an increase in pay, even when that increase is only due to a COLA. This shift in evaluative approaches is giving pause to some employers, encouraging them to re-think when, how and whether to do evaluations.

Remember: you don't need a form called, "evaluation" to have a useful record of an employee's performance. Documentation of meetings with your employees, counselings, and interactions can create just as clear, if not clearer, picture of the employee's role in your organization.

WHAT ELSE WAS IN THE 2,000+ PAGE HEALTHCARE BILL?

Nearly everyone in the country has heard about the sweeping healthcare legislation that passed recently in Washington, D.C. But how many employers are aware that included in the voluminous bill was a provision amending the Fair Labor Standards Act (FLSA)? In fact, one section of the healthcare bill amended the FLSA to require that certain covered employers provide breaks and private space for employees who are new mothers for purposes of expressing breast milk. The new law became effective on March 23, 2010, the day the President signed it.

The new rest break requirement applies to employers who are covered by the FLSA and employ at least 50 employees. Employers who are covered by the FLSA and who have fewer than 50 employees are not required to provide breaks and space “if such requirements would impose an undue hardship by causing the employer significant difficulty or expenses when considered in relation to the size, financial resources, nature or structure of the employer’s business.” The phrase “undue hardship” seems to be analogous to the “undue hardship” analysis that excuses an employer from providing a reasonable accommodation to a disabled employee under the Americans with Disabilities Act (ADA). As we have seen with the ADA, determining whether something is an “undue hardship” is a fact intensive inquiry and it is difficult to draw any bright-line rules. Accordingly, employers with less than 50 employees should consult with their legal counsel before denying breaks to employees on the basis that doing so would be an “undue hardship.”

Unfortunately for employers, the law does not provide any specifics on what employers are required to do. The amendment requires covered employers to provide nursing employees with “reasonable break time” to express breast milk “each time” the employee needs to do so. What is a “reasonable” amount of time is anyone’s guess and will vary from individual to individual. With respect to providing “space”, the law requires that covered employers provide “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.” Employers have complied with this requirement in variety of ways short of constructing an entirely new room. Employers may designate an unused office or screen off an unused portion of a larger room. Despite the vagueness of other parts of the law, it is clear that the breaks are unpaid.

Since the law went into effect when it was signed on March 23, 2010, employers who have not already done so should consider taking appropriate actions to ensure that they comply with the new requirements. First, employers should determine whether the law applies to their company and which employees are covered. If the employer is covered and has eligible employees, the company should locate and designate a separate, private space (other than a bathroom) that employees can use for purposes of expressing breast milk. Additionally, employers should develop policies and procedures to accommodate nursing mothers and consider including these policies in the company’s Employee Handbook. Employers should also train supervisors and managers on the requirements of the new law and ensure that they know how to handle a question or request for accommodation from a nursing employee. Finally, given lack of specifics in the law, employers are encouraged to obtain advice from their employment counsel on how to comply with this law given the company’s unique circumstances. Members of Hunter Smith & Davis’s labor and employment team are available to provide such guidance if you have questions.

Standards for interns? (Hold your jokes, please)

As the summer months are quickly approaching, companies are making final arrangements for those employees and interns who will grace the halls for the few months of summer breaks from high school, colleges and graduate schools. Some schools require students to complete internships, and those are commonly unpaid positions. Well, perhaps until now.

In case you haven't heard, the US Department of Labor issued a fact sheet on the standards it will apply in determining whether an intern must be paid. Probably the most difficult standard will be whether the employer "derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded."

Some may chuckle, thinking that your current employees can frequently impede operations. But seriously--when evaluating an internship program, many employers try to make the experience as "real life" as possible, meaning that the intern is involved in day-to-day operations and experiences as if he/she worked at the company. Fruits of those labors, then, could naturally be seen as advantages to the company.

If you have unpaid internships at your company, you would be well-served to review the fact sheet and discuss your specific program with your counsel.

Good luck, and happy hiring, er, internship-ing.

UPDATED: If You're Hiring, Are You HIRE-ing?

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Here is the link to the form prepared by the IRS for employers to use in claiming the tax exemption.
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For you employers out there who are filling out your workforce, this is a gentle reminder to check into whether you can avail yourselves of the tax benefits under the Hiring Incentives to Restore Employment (HIRE) Act.

Employers who make a qualified hire between February 3, 2010 and January 1, 2011 are eligible to receive a 6.2 percent payroll tax exemption (equivalent to the Social Security tax on that employee's wages). The employee will still get full Social Security credit for the wages earned.

As with most incentives, restrictions do apply. If you've made hires or are preparing to do so, check with your counsel to see if your hires qualify as HIREs.

Ask Not For Whom The Whistle Blows . . .

That whistle you hear may not mean the end of the work day has arrived.

In the past two decades numerous states and the federal government have passed laws prohibiting employers from discharging employees for “blowing the whistle” on certain matters at work. Although these laws have been on the books for several years, it can still be difficult to differentiate between simple employee complaints and true “whistleblowing” that can land an employer in hot water. A recent $1 million dollar judgment issued against a Tennessee employer by the Occupational Health and Safety Administration (“OSHA”) re-emphasizes the importance of understanding this difference and the numerous state and federal whistleblower laws in general.

Last month, OSHA ordered Tennessee Commerce Bank in Nashville to reinstate a former corporate officer and pay more than $1 million in back pay, compensatory damages, interest, attorney fees, and other relief. The employee filed a complaint with OSHA after he was placed on administrative leave and then fired. The employee’s complaint alleged that the Bank placed him on leave and then fired him because he raised concerns about internal controls, employee accounts, insider trading, and other issues at the Bank. The employee first raised these issues to the Bank’s audit committee and later to the FDIC and the Tennessee Department of Financial institutions. OSHA investigated the employee’s complaint and found that the Bank had discharged the employee in violation of the whistleblower provisions of the Sarbanes-Oxley Act of 2002 (“SOX”). The Bank indicated that it would appeal OSHA’s decision.

Despite the outcome of the appeal, this case serves as an important reminder that retaliating against a “whistle blower” can expose an employer to as much liability as discharging an employee based on his or her race, gender, or age. And often times, this liability is much more difficult to identify than determining whether an employee is covered by other non-discrimination statutes.

Given the scope and ambiguity still present in the whistleblower laws, it is vitally important for employers to be aware of the parameters of state and federal laws prohibiting retaliation against whistleblowers. If you have any questions about a particular situation, feel free to contact us.

When TMI becomes TMI4TW

I just read several posts on Facebook by an acquaintance speaking to a recent medical procedure she had.

Right below that was a posting by a friend who was asking for prayers for a family member who had "taken a turn for the worse".

Scrolling a little more led to the discovery that another friend was pregnant and experiencing complications from it.

Finally, I had a post by someone who was insulted that he had to sign the book at the drugstore when he picked up his prescription for Cymbalta.

I, like many of you, shake my head at some of the discussions people hold publicly (via Facebook, Twitter, on mobile phones while walking through the mall). I could find humor amongst the not-so-newfound-openness more easily because none of these posts were by co-workers or my employees.

But what if they had been?

These entries are all reminders as to why I do not friend, follow or otherwise social network with co-workers. Let's face it--I'm on these sites to keep up with people whom I don't see on a regular basis or talk to as frequently as I would like. I can walk down the hall, dial an extension, or (if I'm sore from a long run) zip an e-mail to a co-worker to find out what is happening if I am so inclined.

Who would have thought that e-mail now feels like one of the safest ways to interact?

(TMI4TW = TMI for the workplace)

Obama Fills Two of Three Vacant Positions On NLRB With Recess Appointments

One of a President’s most effective tools to change labor law to his liking without passing legislation is by appointing members to the National Labor Relations Board who support his view of the National Labor Relations Act. The National Labor Relations Act (the federal law that governs labor law in the private sector) provides for a five-member Board with each member serving a 5-year term. As the terms expire, the President nominates replacements, which must be approved by the Senate before they are seated on the Board. By tradition, three of the members are from the same political party as the President in the White House.

Since January 2008, the Board has been operating with only two of its five allotted members. President Obama nominated three replacements after taking office, but none had been confirmed by the Senate.

One of the replacements Obama nominated, Craig Becker, was highly controversial. Becker was serving as associate general counsel for the Service Employees International Union (SEIU) and the AFL-CIO, one of the most aggressive unions in lobbying for legislation, including the Employee Free Choice Act. The President of the SEIU, Andy Stern, has been in the news for being the most frequent visitor to the Obama White house.

Much of the controversy over Becker stems from two of his law review articles. Becker has expressed the view that employers should have only very restricted, if any, role in union elections. He believes that employers have no legitimate interests in union organizing. Because of this, and other, controversial positions, Becker’s nomination was hotly contested in the Senate. Many employers and employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, were concerned that Becker would try to implement provisions of the Employee Free Choice Act through Board decisions since the EFCA had bogged down in Congress. Many Senators shared these concerns about Becker’s pro-labor bias and refused to approve his nomination. The Senate agreed to pass on Obama’s other two less controversial nominations (one Democrat and one Republican), but the Senate Democrats insisted that the nominees be considered as a package. Therefore, the nominees were never confirmed by the Senate.

Now that the healthcare reform bill has passed and Congress is in recess, Obama took the opportunity to make two recess appointments to the Board. Recess appointments do not require approval from the Senate. Last Saturday (March 27th), Obama announced the recess appointments of Craig Becker and Mark Gaston Pearce, the two Democrat nominees. Obama did not nominate Brian Hayes, his Republican nominee, for a recess appointment. Accordingly, the Obama Labor Board currently consists of four members: three Democrats and one Republican.

Following the announcement of the recess appointments, pro-labor groups were expectably pleased. One such group, American Rights at Work, congratulated President Obama and asked its members to send him electronic “thank you notes.” According to the group's email distribution, President Obama “used his executive power to held the NLRB tackle its backlog of critical cases, making ‘recess appointments’ when Congress left town.” The email also quoted Obama as saying “I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”

Some commentators suspected that the two-member Board consisting of one Democrat (Liebman) and one Republican (Schaumber) were deciding only the “easy” cases – the ones they could agree on – while leaving the more significant, and more contested cases until the Board had at least a three-member quorum. Now that the Board has its three-member quorum, it will likely start deciding those more significant and contested cases. With a strong pro-union majority, it is reasonable to expect decisions that will heavily favor organized labor.

We will continue to monitor the recess appointments and the Board’s activity with its new pro-union majority. If you have any questions about the Board decisions we see coming down the pike and how they could affect your business operations, please don’t hesitate to contact us.

COBRA, ARRA and IT

A rash of calls recently from clients with a common question brings about this post.

If you have an employee who does not return to work after a leave of absence, and that employee is considered terminated from employment when that occurs, then the employee is entitled, according to the U.S. Department of Labor, to elect the COBRA premium subsidy as provided by the ARRA.

And yes, IRS Notice 2009-27 does state, "An involuntary termination means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services." While the "willing and able to continue performing services" appears to conflict with a situation facing an employee who does not return from a leave of absence, nonetheless, the employee is an assistance eligible individual.

[UPDATED] A gentle reminder. . .

Hey, where have you been? Okay, okay--it's more like where have we been. Sorry for the lack of posts in the month of February.

This is a quickie: remember that if you are not covered by federal COBRA (20 or more employees), you may still have obligations under your respective state's "mini-COBRA" law. For example, in Tennessee, employees can get three months of health insurance continuation if their employer is not covered by federal COBRA.

One other quickie: the federal COBRA subsidy that was in effect under the American Recovery and Reinvestment Act expired on February 28, 2010. The President and Congress have implemented a stop-gap measure extending the subsidy to March 31, 2010--the Temporary Extension Act of 2010.

Speaking of giving . . .

The U.S. Department of Labor requested $117 billion for its fiscal year 2010 budget. Most of the money is to be used for unemployment insurance funds and job restructuring initiatives, but it shouldn't be overlooked what the DOL is requesting for its own staff: more than 350 new hires, including 177 investigators and enforcement staff. The DOL will emphasize hiring bilingual staff members "to better communicate with employees in the changing workplace."

The allocation request breaks down to half a billion for OSHA, and $244 million for Wage & Hour (with funding earmarked for 90 new investigators in that division), with $25 million of that for a Misclassification Initiative aimed at looking more closely into whether an individual is an employee incorrectly classified (hence, the name) as an independent contractor.

One carrot for States: a $50 million State Paid Leave Fund to "encourage" states to apply for competitive grants to launch paid-leave programs and offset start-up costs.

A time for giving

Recent natural disasters have caused several clients to revisit their non-solicitation policies--particularly when the policies are an absolute ban on soliciting for causes. With the continued, albeit greatly diminished, life of the Employee Free Choice Act, by no means are we encouraging anyone to eliminate the policy altogether.

Yet in times when the devastation in Haiti is front and center on the news and websites; when the snow storms in the Midwest have left so many without power; the rock and mud slides and various disasters on the West coast have left many homeless; it is a natural instinct for those of us with so much to ask, "What can I do?"

We caution our clients about making exceptions to their policies. When an exception is real and easily defined, though, then bending the policy a bit becomes more easily explained should the exception be challenged in the future. Likewise, some clients are considering implementing new policies on a temporary basis, such as a temporary leave of absence policy for those employees who want to travel for relief efforts on their own time and money. If you are one of those businesses that is either recovering from the economic downturn or found yourself fortunate to not be hit in the gut, you may be considering even sponsoring a relief team for any number of charitable causes.

Whatever your situation, document. If you make an exception, delineate the who, what, when, where and why. If you allow for the leave of absence, be clear on your expectations. For example, if there are times of the year/production cycle when you just can't allow the absenteeism, let the employees know that upfront.

And if you simply want to open the break rooms, e-mail and intranet for solicitation of worthy causes, well, lather, rinse, repeat: document, delineate the exception, and be clear on your expectations.

Down, set. . . wait, wait just a minute.

Sports can provide some of the best HR analogies. Take for example the NFL playoffs and the contemplated future of two of the games iron horses: Kurt Warner of the Arizona Cardinals and Brett Favre of the Minnesota Vikings.

At the conclusion of the last several seasons, much of the buzz with these two gentlemen centers on whether they will retire. The question gets asked in the press conference immediately following the game that ends the season for them, and the QBs consistently give a "I'm not sure what I want to do right now" response as they flex their appendages with huge ice bags taped to them and grimace from the internal bleeding they have surely suffered at the hands of opposing defenses. And when pressed to give a more definite answer, again usually during that same press conference, Warner and Favre have more recently said they probably won't be back.

Of course, if they stuck with that decision, then this blog entry wouldn't have any use. What those players realize, and what we teach our HR clients to practice, is that decisions with an emotional tilt to them shouldn't be made in haste. More importantly, they shouldn't be made in close time to the event that spurned the need for a decision.

When our clients encounter an HR decision that will have a reverberating effect, we encourage them to take a few steps back before deciding on the proper course. Thinking with a clearer head and cooler emotions will often place the event in perspective and even create opportunities for alternative courses that might be more appropriate. If my husband, a head coach, has one golden rule for his players and parents, it is that his door is always open except immediately after a game. You put so much time, energy and emotion into that setting that level-headedness often takes a back seat to knee-jerk reactions. Creating space from the event is the best way to ensure HR is making a decision based on the facts and not the heart.

Unlike sports, you luckily have unlimited time outs. Use them to your advantage.

Holiday expansion

Most of us think of the holidays as a time to celebrate, be with the ones we love, and, unfortunately, put on a few pounds. This year, thanks to our Executive and Legislative Branches, any waistline gain wasn't the only expansion going on.

On December 19, 2009, President Obama signed a bill that allows the COBRA premium subsidy law to continue beyond its original sunset date of December 31, 2009. In the course of passing this extension, provisions were also added which expands the group of Assistant-Eligible Individuals ("AEIs").

Some highlights:

• The subsidy period is increased from 9 to 15 months
• A qualifying event for the subsidy is now covered by the period of September 1, 2008 through February 28, 2010.
• If a former employee is now an AEI due to this amendment, that former employee has a transition period.
• If you have an AEI who (1) did not timely make a COBRA premium payment prior to the passing of this amendment or (2) paid a full premium when now it could be a subsidized premium, you must give that AEI a notice of the new law. This notice is to be issued within the first 60 days of the AEI's transition period.
• If you have a former employee who became an AEI after October 31, 2009, you must provide that former employee with the new notice.

The amendments include other provisions which will be of interest to employers. Employers should consider contacting their third-party administrators or legal counsel to discuss how the amendments might impact them.