(May 8 , 2008)
After more than a year as editor of That’s What She Said, Julie Elgar has accepted an in-house position with Georgia-Pacific Corporation. Succeeding her as editor of the blog will be Troy Foster, a partner in the Phoenix office of Ford & Harrison LLP.
An avid fan of The Office, Troy has previously served as a guest blogger for the site and will take over as editor starting with the May 8 episode.
"While he often means well, Michael Scott’s poor judgment and ignorance of company policy is precisely what every employer needs to avoid," said Troy Foster. "As editor of That’s What She Said, I look forward to assessing what I’m sure will be millions of dollars in damage to come."
Troy focuses his practice on defending management and individuals in discrimination and wrongful termination claims. He has defended employers, including school districts and tribal clients, against claims of sexual harassment and age, race, gender, and disability discrimination. His practice also encompasses review of and revisions to company handbooks and policies and day-to-day counseling on hiring, discipline, and termination practices.
Troy also serves as editor of Arizona Employment Law Letter.
(May 5 , 2008)
From New Jersey Employment Law Service
On May 2, 2008, Governor Jon Corzine signed the Paid Family Leave Act, making New Jersey the third state in the nation to allow employees to take up to six weeks of paid leave to care for a newborn or sick family member. Employees may start taking paid family leave as of July 1, 2009.
The Paid Family Leave Act amends New Jersey's Temporary Disability Insurance Law. Under the paid family leave amendments, employees will be eligible for two-thirds of their average weekly wage, up to $524 per week, for up to six weeks a year to care for a newborn child, a newly adopted child, or a family member with a serious health condition.
A "family member" includes an employee's child, parent, spouse, domestic partner, or civil union partner. Paid family leave isn't available for an employee's own serious health condition. In those circumstances, New Jersey's statutory temporary disability benefits may be available, provided the employee's condition qualifies.
Funding for paid family leave will come from employee wage deductions of .09 percent annually, or about 65 cents a week, commencing January 1, 2009. It is estimated that the deductions will cost employees approximately $33 a year.
Importantly, the Paid Family Leave Act doesn't provide workers with job protection. That differs from the existing New Jersey Family Leave Act (NJFLA) and the federal Family and Medical Leave Act (FMLA), which provide up to 12 weeks of job-protected but unpaid leave to workers caring for family members with a serious health condition.
In addition, the Paid Family Leave Act applies to all employers,
regardless of size, while the NJFLA applies to employers with 50 or more employees and the FMLA applies to employers with 50 or more employees who work within 75 miles of the facility where the employee is seeking leave.
So for employers with 50 or more employees, paid family leave will run concurrently with NJFLA leave and generally will run concurrently with FMLA leave for a family member. Moreover, because the NJFLA and FMLA provide job protection for more than six weeks, an employee working for an employer covered by those laws will have job protection rights during and after paid family leave.
The two states other than New Jersey with paid family leave laws are California and Washington. The California law, which has been in effect since July 2004, provides up to six weeks of paid leave to care for a family member with a serious health condition, is employee-funded, and doesn't provide job restoration rights to employees. The Washington law, which doesn't become effective until October 1,
2009, provides five weeks of paid leave to care for a family member with a serious health condition and provides job restoration rights for certain employees (those employed by companies with more than 25 employees, provided they have been employed for at least 12 months and have worked at least 1,250 hours).
New York and Massachusetts are also considering bills that would implement some form of paid family leave.
The New Jersey Department of Labor estimates that 38,000 New Jersey workers will use paid family leave each year. Employers believe that number will be much higher. For more information regarding the New Jersey Paid Family Leave Act, call (973) 966-6300 to contact one of the attorneys in Day Pitney LLP's labor and employment group.
(May 2 , 2008)
A bill to prohibit employers from using genetic information in a broad variety of employment decisions has passed its last congressional hurdle and is expected to gain President Bush's signature.
The U.S. House of Representatives voted 414-1 to pass the Genetic Information Nondiscrimination Act (GINA) on May 1, 2008. The Senate had passed the bill a week earlier by a 95-0 vote. In March, the House passed a version of the bill – more than 13 years in the making – but opponents held it up in the Senate until changes were negotiated to make it more palatable to foes who feared it would subject employers to burdensome civil rights lawsuits.
Senator Tom Coburn, R-Oklahoma, was quoted in a New York Times article as saying without the changes "we would have created a trial lawyers' bonanza." But he and other opponents were satisfied with the "firewall" negotiated into the bill that separates employer and insurance sections of the measure.
After gaining Bush's signature, the bill will prohibit employers from using genetic information in hiring, firing, or promotion decisions. Also, companies won't be able to use genetic information, such as a person's predisposition for breast cancer, sickle cell anemia, or diabetes, to make insurance or job decisions, according to a news alert from Washington, D.C., law firm Fortney & Scott, LLC.
The bill also will keep health insurance companies from using genetic information to set premiums or determine eligibility on individual policies, according to the Fortney & Scott alert. The Health Insurance Portability and Accountability Act, known as HIPAA, already prohibited the use of genetic information in group health insurance. Under GINA, insurers will be allowed to consider disease itself in decisions on enrollment and rates.
GINA will have far-reaching effects because genetic predisposition to disease is widespread, and the number of screening tests is growing. The National Human Genome Research Institute estimates that every person probably carries "half a dozen or more genetic mutations" that raise the risk of disease.
Many states already have passed genetic antidiscrimination laws, but coverage, protections, and enforcement schemes differ, according to information from the federal government's Human Genome Program.
We’ll provide full coverage on GINA once the President has signed it.
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(May 9 , 2008)
The promise of technology is that people will be able to do more things faster and more accurately. But figuring out how it can be used to help your specific needs can be a challenge. Sometimes money can be an issue, but many new technologies are now available at low or no cost.
So how does that translate to HR? Do you think your company could make better use of technology for HR? What sort of technologies are you not using that you think might be helpful? What are the biggest challenges you face in adopting new technology?
Those questions and more are part of this month’s HRhero survey on technology and HR. We’ll report the results on May 16 and you can see how other HR pros are using technology and what their challenges are.
Take the survey
(May 9 , 2008)
Earlier this year, the Wall Street Journal reported that labor political spending was about half of business spending. After the passage of the McCain-Feingold Act, which was intended to restrict business and union election spending, however business spending began to decline while labor spending continued to increase. The Journal's "gap" is misleading, in part because reported union spending understates both the actual dollars and delivered value. Read more
(May 9 , 2008)
What could be more noxious to the American soul than an assault on motherhood?So who in his right mind would take on mom? It's you, the American employer, if you believe the Equal Employment Opportunity Commission's recent charge statistics.
Read more
(May 2 , 2008)
Memorial Day, the unofficial start of summer, is just a few weeks away and many employers have started thinking about adding students to their workforce. Here are some issues to consider as those eager, money-hungry youngsters join your workplace.
Read more
(April 25 , 2008)
Recently, I met a plaintiff's lawyer during a particularly expansive mediation. He was on the opposing side, and after we were through, I had the chance to sit down with him over a beer and pick his brain. I'd gone in with the notion that he was "in it for the money." I quickly found out that he had more skin in the game than I thought.
Read more
(April 18 , 2008)
In the past year, litigation filed under the Employee Retirement Income Security Act (ERISA) has exploded, and it's quickly becoming an ever-present reality for employers. One of the most recent and fastest-growing areas of this litigation involves 401(k) fee cases. Because the suits are very new and still not well publicized, they catch many employers off-guard. There are some steps you should take, however, to ensure you aren't at risk for this emerging form of litigation.
Read more
(May 9 , 2008)
Among midlevel line managers and supervisors, the HR department often is viewed as the enemy -- standing in the way of terminations, requiring "reasonable accommodations," or conducting investigations. Therefore, good personnel officers develop strategies to provide service to company management and show that their department exists to help, not hinder, the company's operating, production, and sales components. Read more
(May 2 , 2008)
When it comes to corporate social responsibility (CSR), HR departments have a particularly crucial role to play. "When you strive to be a more responsible company, you are relying on people to make sure you stay true to your values, and HR's expertise is people," explains Marcy Scott Lynn, CSR manager at Sun Microsystems. "HR plays an important role in setting the tone and culture of an organization." Read more
(April 25, 2008)
Questions about when and how to use both personal and work-owned technology can become hugely divisive as people from several generations try to communicate and make their different ideas about productivity and office collegiality mesh. Here are just a few ways technology can become an issue in the office. Read more
(April 11 , 2008)
By now, you know that the old "sticks and stones" schoolyard adage is way off: Words can hurt you. You may be surprised to find out how few words (in this case, a 12-word phrase in an e-mail) it takes to really hurt an employer that's facing a discrimination claim. In this case, an employee sufferred complications from her pregnancy and her company's response to that inspired her to file discrimination and disability claims against it. Read more
(February 22, 2008)
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! Read more
(February 15, 2008)
The following case provides some hope for employers that find themselves continually dealing with suspicious leave requests under the Family and Medical Leave Act (FMLA). It shows that you don't have to accept a medical certification form at face value. Read more
Q. The constant political debates over immigration make me nervous because as an employer, I'm uncertain how to approach the hiring process when immigrants apply for jobs.
I'm certainly not opposed to hiring someone who isn't a U.S. citizen, and I want to offer a fair opportunity for all job applicants, but I also want to ensure that I'm complying with the law. Can you shed some light on the general regulations for employers with respect to hiring and employing noncitizens? Read more
(February 27, 2008)
When Congress amended the Family and Medical Leave Act (FMLA) to grant additional leave entitlements to certain employees with family members in the military, its heart was in the right place. After all, who can argue against that type of leave?
Unfortunately for employers, Congress didn’t seem to think things through very carefully in drafting the legislation. First, by leaving out an effective date, it ensured that the legislation would — for the most part — be effective immediately. Then, by leaving a lot of the law’s specific requirements up to the U.S. Department of Labor (DOL) to interpret and even decide, Congress ensured that there would be a gap of at least several months between the law’s effective date and the DOL’s issuance of regulations. Read on
(February 12, 2008)
After many years of promising changes to the Family and Medical Leave Act (FMLA) regulations, the U.S. Department of Labor (DOL) last week issued new proposed regulations in an attempt to address some of the most common criticisms employers have about the previously issued final FMLA regulations.
(You can view the proposed regulations at www.HRhero.com/fmla_update.pdf.)
The highlights of the new proposed regulations include provisions that:
- fine-tune procedures regarding required notices, medical and fitness-for-duty certifications, and designation of leave;
- clarify the eligibility requirements for employees who are jointly employed;
- clarify when an employee’s inability to work overtime exhausts FMLA leave;
- establish that light duty doesn’t exhaust FMLA leave;
- allow employers to deny bonuses (such as perfect attendance or hours-worked awards) to employees who don’t qualify for them because they took FMLA leave;
- allow employers to require employees to comply with the terms and conditions of their paid leave policies to substitute paid leave for FMLA leave;
- allow employees and employers to voluntarily settle claims of past FMLA violations; and
- provide very minimal clarification of the definition of a “serious health condition.”
The DOL also is proposing to fix a provision -- overturned by the U.S. Supreme Court in 2002 -- that said employers can’t deduct FMLA-qualifying absences from an employee’s FMLA leave allotment unless they designate the absences as falling under the FMLA in a timely manner.
The agency wants to replace that provision with one that says employees may have a remedy under the FMLA if they can show that the employer’s failure to designate leave interfered with, restrained, or denied the employee of his FMLA rights and the employee suffered harm as a result.
The regulations -- while modest in the broad scheme of things -- offer employers a degree of certainty and uniformity that was previously lacking because of the fact that courts across the country had reached different conclusions on many of the issues addressed.
Perhaps the biggest improvement is that the DOL has reorganized the regulations to make it easier for employers to find all of the provisions that relate to a given issue -- such as pregnancy leave. The result should be far less confusing than the current regs.
Look for a more comprehensive article about the new proposed FMLA regulations in the next issue of your State Employment Law Letter. There also will be a comprehensive article on the proposed regulations in the next issue of the FMLA Compliance Bulletin, part of the FMLA Compliance manual.
You can learn more about the proposed new regs at the March 19 audio conference, "DOL's New Proposed FMLA Regs Explained." You also can learn more about the recent changes to the FMLA regarding military service members' family members at the February 27 audio conference, "New FMLA Leave Rules for Soldiers' Relatives: What Employers Need to Know."
(February 1, 2008)
The recently enacted military family leave grants two new types of Family and Medical Leave Act (FMLA) leave to the relatives of military personnel. In short, the law requires employers to provide:
- 12 weeks of leave to employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces when they experience “any qualifying exigency,”
and
- up to 26 weeks of leave to employees who are the spouse, parent, child, or next of kin of a servicemember who incurred a serious injury or illness on active duty in the Armed Forces.
There has been some confusion regarding the effective date of these new provisions. The legislation didn’t actually include an effective date, which generally means that it became effective immediately after President Bush signed it on January 28, 2008.
However, the U.S. Department of Labor’s (DOL) website, citing to the statutory language, states, “The [first bulleted provision] also permits an employee to take FMLA leave for ‘any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) . . . ’” The DOL then interprets this language saying, “By its express terms, this provision . . . is not effective until the Secretary of Labor issues final regulations defining ‘any qualifying exigency.’ DOL is expeditiously preparing such regulations. In the interim, DOL encourages employers to provide this type of leave to qualifying employees.”
So what’s the problem?
The problem is that although the DOL has the authority to interpret the FMLA, courts have been known to disagree with its interpretations in the past. What employers don't know is whether the agency’s views as set forth on its website on the delayed effective date for the new “qualifying exigency” leave provision will be accepted by a court.
As a practical matter, most employers -- at a minimum -- need to implement immediately a compliance strategy for responding to leave requests under these new provisions, pending the DOL's issuance of final regulations. In addition to ensuring compliance, such a strategy also minimizes the risks of being on the perceived “wrong side” in a public relations situation -- and being found to have violated the new military family leave provisions.
Therefore, our advice continues to be to take the most conservative approach for employers' compliance efforts -- i.e., to assume that the new military family leave provisions were effective immediately, when enacted, and to implement compliance steps as soon as possible. The DOL will issue regulations in the future, at which time employers may need to modify their initial compliance programs based on those regulations.
For more indepth information on this change in the law, check out upcoming issues of the Employment Law Letter for your state. There also will be a comprehensive article on the new leave requirements in the next issue of the FMLA Compliance Bulletin, part of the FMLA Compliance manual. You also can learn more about the changes in the laws at the February 27 audio conference, "New FMLA Leave Rules for Soldiers' Relatives: What Employers Need to Know."
(February 27, 2008)
The U.S. Supreme Court has ruled on the definition of a “charge” of age discrimination under the Age Discrimination in Employment Act (ADEA).
Under the ADEA, an employee is required to file a “charge” with the U.S. Equal Employment Opportunity Commission (EEOC) before the dispute is escalated to court. But the term “charge” is not defined in the ADEA. Thus, the circuits have adopted various definitions, leading to extraordinary difficulty in determining when employees are entitled to file ADEA claims in court.
In this case a Federal Express courier filed an EEOC “Intake Questionnaire” and an affidavit alleging that FedEx discriminated against older couriers. The EEOC didn’t initiate its administrative proceedings in response to these documents, yet the employee filed suit, which was dismissed for failure to satisfy the ADEA charge requirement. On appeal, the Second U.S. Circuit Court of Appeals looked to EEOC regulations for guidance, determining that the intake questionnaire did serve as a “charge.”
On appeal before the Supreme Court, FedEx argued that if the EEOC didn’t treat the intake questionnaire as a charge by initiating administrative proceedings, then the court shouldn’t treat the documents as a charge, either. The Supreme Court, in a 7-2 decision, disagreed, noting that the statute only requires the employee to file a charge before filing suit, but that the employee’s right to sue doesn’t depend on the EEOC actually taking action.
For its definition of “charge,” the Court looked to EEOC internal directives, under which the documents should constitute a request for the EEOC to take remedial action on behalf of the employee. When combined with the affidavit in the FedEx case, the Supreme Court found that remedial action was requested and that a “charge” was filed.
Unfortunately, the EEOC’s failure to proceed on the documents in this case cost FedEx and the employee the benefit of an inexpensive, informal mediation process. Their sacrifice has, however, settled an important question for other employees and employers involved in future ADEA claims. FEDERAL EXPRESS CORP. v. HOLOWECKI (06-1322 Syllabus)
(February 26, 2008)
The U.S. Supreme Court has completed its review of a key Kansas age discrimination case, settling a split between federal courts on the admissibility of “me too” evidence.
“Me too” evidence is testimony by non-parties that alleges discrimination at the hands of persons who played no part in the challenged employment decision. In the present case, Ellen Mendelsohn, a 51-year-old unit manager with Sprint, alleged that the company fired her because of her age during a companywide reduction in force.
In support of her claim, Mendelsohn tried to introduce testimony from five former employees who claimed that they experienced similar treatment by other supervisors. Sprint asked the court to exclude any evidence of the company's alleged discriminatory treatment of other employees, arguing that acts committed by any supervisor other than Mendelsohn’s were irrelevant to the case. The district court agreed and excluded the evidence, but the U.S. 10th Circuit Court of Appeals overturned that decision, holding that the court abused its discretion by excluding this evidence.
The Supreme Court held that the 10th Circuit erred in its decision by assessing the relevance of the evidence itself, rather than remanding the case to the lower court. Accordingly, the Supreme Court vacated the 10th Circuit’s decision, Sprint dodged a bullet, and the evidence in question will be reviewed again by the lower court.
And the bottom line on “me too” evidence? The high court concluded that such evidence is neither per se admissible nor per se inadmissible, but that the distinct facts of each case will determine the appropriateness of such evidence. So employers can’t completely count out the cries of “me too,” but at least they won’t be automatically counted in, either. Sprint/United Management Co. v. Mendelsohn, No. 06-1221.
(February 21, 2008)
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. |
