From the Editor
Supreme Court expands ERISA remedies
In a case that could have far-reaching consequences for employers and employees alike, the U.S. Supreme Court ruled on Wednesday, February 20, that the Employee Retirement Income Security Act (ERISA) allows an employee to sue his employer because of a fiduciary breach that resulted in individual losses to his 401(k) plan.
James LaRue says he told his employer to change his investment allocations from mutual funds to cash and didn't find out for 10 months that it didn't follow his instructions. LaRue says that when he repeated his request, the employer again failed to do so. The result, according to LaRue, was that his plan assets were depleted by $150,000. He sued his employer under ERISA in an attempt to recover his losses.
The employer argued (and many observers believed) that ERISA provides a remedy only for fiduciary breaches that result in losses to the entire plan, not those that result in losses to an individual employee's account.
In a highly technical reading of the statute, the Court disagreed. Generally, it ruled that unlike a defined-benefit pension plan, ERISA allows employees to recover for an employer's breach of fiduciary duties with regard to a 401(k) plan regardless of whether it diminishes plan assets payable to all participants or only to one individual employee.
Many are predicting that the Court's ruling will result in a slew of meritless
litigation from employees whose 401(k) plans aren't doing as well in a shaky economy. Look for more on this ruling in an upcoming issue of your state's Employment Law Letter.
Wendi Watts
Web Editor
HR Hero Line
Webeditor@hrhero.com
HR News and Advice
Understanding the power of waivers
Excerpted from Arizona Employment Law Letter and written by attorneys at the law firm of Ford & Harrison LLP
by Jonathan Hauer
Some people are just plain trouble. Take me, for instance. I was born with two left feet and 10 thumbs. I make a bull in a china shop look graceful. I am, if you didn't catch my oh-so-subtle hints, clumsy. You can tell this just by looking at me -- and the shattered Ming dynasty vase regularly lying near my feet.
So when I showed up for my Xtreme Super ThrillTM skydiving lesson last weekend, it came as no surprise that I had to sign a waiver. The waiver listed every conceivable type of liability. I didn't even know that my jump could harm livestock, but there it was: "Xtreme Super ThrillTM LLC bears no responsibility should you land on or collide with, and subsequently harm, third-party farm animals -- including, but not limited to, llamas and geese." It turns out that landing on a llama hurts -- a lot.
As I sit here typing with my one good finger, I realize the importance of a well-written waiver to any business. And I wonder why more employers don't similarly use waivers during their hiring process. As we all know, many applicants are as litigious as I am clumsy. Why not require them to sign a waiver protecting you from some of the many legal pitfalls associated with checking their backgrounds?
A federal case in the Ninth U.S. Circuit Court of Appeals explored the benefits (and hazards) of applicant waivers.
When FMLA and holidays collide
Excerpted from Rhode Island Employment Law Letter and written by attorneys at the law firm of Little, Medeiros, Kinder, Bulman & Whitney, P.C.
A case of first impression! While those words may mean little to you, dear readers, rest assured that when the First U.S. Circuit Court of Appeals issues a decision interpreting specific provisions of the Family and Medical Leave Act (FMLA) for the first time, we leap for joy ? especially since the employer's interpretation of the law prevailed. Plus, the court's decision is practical enough to be meaningful for many of you. So if you want to know how to calculate FMLA leave for employees whose intermittent leave includes a holiday, read on!
A note for teacher
Linda Mellen began working for Boston University (BU) in 1977. In 1998, she was promoted to financial manager for BU's School of Public Health. In September 2002, Francis Drolette was hired as the School of Public Health's associate dean for administration and finance, becoming Mellen's immediate superior. They had, at best, a rocky relationship.
Did You Know...
On January 28, President Bush signed into law amendments to the Family and Medical Leave Act, which grant additional leave to employees who have family members in the military. All employers that are subject to the FMLA’s requirements (those with at least 50 employees) need to be aware of the new requirements and how to comply. Learn how to create a plan of action so your organization can come into compliance as quickly as possible by participating in the all-new HR Hero audio conference, New FMLA Leave Rules for Soldiers' Relatives: What Employers Need to Know.
Employment law attorneys well-versed in military FMLA issues will take you step-by-step through the two new categories of leave, as well as the necessary steps to comply. You'll also learn how to distinguish between the new types of FMLA leave and USERRA leave, as well as how this new leave compares to similar state laws.
Read on for more information...
Boomers redefining retirement and flexibility
Excerpted from Diversity Insight, a free ezine from HR Insight
The face of aging in the United States is changing "dramatically" and "rapidly," according to a report from the U.S. Census Bureau. Today’s older Americans are very different from their predecessors, living longer, having lower rates of disability, achieving higher levels of education, and less often living in poverty. And the Baby Boomers, the first of whom celebrated their 60th birthdays in 2006, promise to redefine further what it means to grow older in America. In addition to redefining aging in America, Baby Boomers are redefining retirement and flexibility for the American employer.
There are approximately 76 million Baby Boomers in the workforce — 64 million will be eligible to retire by 2010. Conversely, there are only 46 million Gen Xers in the workforce. It only takes simple subtraction to realize that those numbers could represent a crippling deficit in employees who have knowledge and experience specific to their industries.
Sign up for the free Diversity Insight e-zine
Managing electronic discovery in employment litigation
Excerpted from South Carolina Employment Law Letter and written by attorneys at the law firm of McNair Law Firm, P.A.
Electronic discovery, or e-discovery, is a topic that has garnered significant attention in both the legal and business communities of late. It's the process by which a party to a lawsuit requests information from the opposing party that is created, stored, maintained, or searchable in an electronic format. Although many perceive e-mail as the primary focus of e- discovery, its scope is significantly broader and is equally applicable to text, images, calendar files, databases, spreadsheets, audio files, animation, websites, computer programs, and even voice mail for telephone systems.
Read on (Subscribers only)
The Sabbath isn't always a day of rest
Excerpted from Kentucky Employment Law Letter and written by attorneys at the law firm of Greenebaum Doll & McDonald PLLC
A Jewish letter carrier failed to show that he suffered religious discrimination when his postmaster ended a 10-year practice of allowing him to avoid Saturday work, the Sixth Circuit recently decided.
Facts
Martin Tepper became a full-time letter carrier for the U.S. Postal Service (USPS) in Chagrin Falls, Ohio, in 1980 and became a Messianic Jew during the 1980s. Messianic Jews hold Sabbath each Saturday and observe Jewish holidays. The USPS operates on weekends and thus requires that a certain number of employees work on Saturdays. In 1992, Tepper requested and was granted an accommodation so that he wouldn't have to work on Saturdays or Jewish holidays.
Read on (Subscribers only)
The Word on Employment Law
Embezzling at work
Embezzlement in the workplace is nothing new. Since it is nothing new, we can sometimes become a bit lax in the enforcement of our checks and balances and in the kind of monitoring we have in place to prevent it.
How long does it take to embezzle $50 million? Apparently about 20 years. At least, that’s the allegation about an employee in the DC Office of Tax and Revenue.
Read more of John's post on employment law and HR humor
Resources for Humans: best books for HR
The Truth About Hiring the Best
A review by Michael Maslanka
Looking to pick up the latest thinking on hiring? Pick up The Truth About Hiring the Best, a quick and informative guide in “The Truth About” series. Cathy Fyock boils it down to 53 truths.
One generation’s truths are another generation’s missteps. As little as 20 years ago, HR truths encompassed not hiring those who resigned and seek to return, hiring only those who dress up for the interview, and engaging in chit chat about hobbies. Fyock’s frank counsel: A “boomerang” employee cust costs on on boarding a new person and sends a message that the grass is not so green on the fences other side; if a suit and tie is not reuired for the job being applied for why should they be required for the interview for that job; and stop, just stop taking the lazy way out by asking nonjob-related question and inviting the applicant to talk about nonjob-related information.
Read other reviews and find books picks for HR professionals
That's What She Said
A light at the end of the tunnel
Finally, the strike is officially over. And, according to the New York Times, new episodes of “The Office” will start airing on April 10. Thank God! In the meantime, there are plenty of real life cases with facts so bizarre that they rival the plots dreamed up by Hollywood writers. To get us started, check out my friend John Phillips’ recent blog entry on the Philadelphia anchorwoman who appeared on Dr. Phil; e-mailed photographs of herself in a bikini to a colleague; and allegedly slugged a cop.
Read other reviews and find books picks for HR professionals
HR IQ - Attendance
Your attendance policy is vital to your organization being able to get its work done. Therefore, keeping your employees in line with your policy must be a priority. See how you would handle various absence and tardiness situations.
Test your knowledge of how to handle attendance and tardiness issues and other challenging HR situations without getting into legal hot water with HR IQ, an interactive online quiz produced by HRHero.com.
The quizzes present you with several real-life workplace scenarios that could cause you legal trouble if you make the wrong decision. At the end of the quiz you can see how well you did and get an explanation of the correct answers.
In the HRHero.com quiz archive you can find quizzes on the Americans with Disabilities Act, researching job applicants, summer workers, bird flu precautions, and much more. New quizzes are added about once a month.