In a decision yesterday out of the Court of Appeals for the D.C. Circuit, the NLRB's notice posting requirement was struck down as invalid. For those of you that have been following along since the start, the NLRB issued the poster rule in August of 2011 and then repeatedly delayed enforcement of the rule as litigation popped up in several federal district courts as to the validity of the rule. The rule, in its simplest form, required employers to post a notice containing information about the ability of employees to seek union representation. Click here for more information on the rule. 

In its decision, the Court held that the rule violated an employer's right to free speech. The Court also addressed a provision in the rule related to the tolling of the statute of limitations for filing a charge based on a violation of the poster rule. This provision was also struck down as invalid. For those that like reading court decisions, this particular portion is a bit convoluted, but interesting for reasons beyond the NLRB poster. The tolling arguments touched on some Title VII and ADEA posting issues and tolling principles used by the EEOC. The Court did not specifically rule on the tolling issues beyond the NLRB poster; however, it did highlight and call into question the validity of tolling in that context as well. 

For now the poster rule looks to be on its death bed, but one never knows what appeal may arise or what another Court of Appeals might have      Continue Reading...

Immigration and Customs Enforcement (ICE) just provided employers with some troubling guidance on the pre-population of the employee information (Section 1) portion of the I-9 form. Employers with robust human resources systems that integrate the I-9 form into the mix may have reason to be concerned about this problematic new guidance.  

According to ICE, the pre-population of Section 1 is not acceptable under any circumstance. The ICE position is that the employee must complete Section 1 of the I-9 form themselves. The notion that the data placed into Section 1 originates from employee provided data carries no weight with ICE. The ICE view is that any pre-population of the I-9 form based on data input into a human resources system is unacceptable. 

Employers that continue to utilize this practice may find themselves at significant risk should ICE conduct an audit of the employer's I-9 process. This change in position is a fairly dramatic shift in ICE's position on this employer practice. It also seems to be a bit of a drastic change, considering the employee is reviewing and signing the data placed into Section 1. One can only hope ICE changes direction on this decision.

A bill was introduced last week to amend the FMLA. The proposed changes focus on expanding the family relationships covered under the law. The bill expands coverage to allow leave to care for adult children, siblings, grandchildren, grandparents, parent-in-law, and same-sex spouses or domestic partners. Stay tuned as this proposal begins its journey through Congress.

State legislatures continue to debate and pass laws restricting employer behaviors with respect to the access to employee/applicant social media accounts. 

At the present time, six states (CA, IL, MI, MD, NM, and UT)  have passed legislation on this topic and there will likely be others in time. The primary focus of the legislation to date has been to prohibit employers from requiring candidates/employees to provide passwords and access to private accounts. Most of the state efforts have not tried to prevent employers from reviewing publicly available items published via social media. 

This trend is likely to continue and employers with multi-state operations should be paying attention to these developing statutory enactments. Furthermore, even if you are in a state that doesn't prohibit you from requiring employees to show you private social media areas, you might consider whether you truly want to engage in that type of behavior. There is a pretty strong element of it just not feeling right. Those are the types of feelings jurors and other fact finders are likely to have as well. In addition, who knows what those private pages/areas are going to teach you. There are plenty of facts that you don't really want to know when considering a candidate/employee and their future with your company.

The anticipated comprehensive immigration reform bill was finally introduced in the Senate.  The bill contains provisions designed to deal with a variety of immigration related problems in the current legal framework.  The general changes in the law include:

• A path to legal status for all those currently illegally in the United States
• Enhanced border security
• Temporary worker programs for lower skilled workers
• Increased visa availability for the H-1B program
• Mandatory use of E-Verify
• A re-work of the quota system for employment based green cards to allow faster access for prioritized categories of workers
• A new merit-based visa category to allow USCIS to provide visas to special categories of individuals

The proposal put forward in the Senate has been labelled a compromise package by the sponsoring Senators.  The current thinking is the bill would be debated in the full Senate in late May or early June.  The bill covers a wide-range of areas of concern and seems to truly be a comprehensive attempt to fix a number of areas in the current law that appear to be broken.  There will almost certainly be changes made in the coming weeks as the bill makes its way through the committee process.  The early takeaway for employers seems to be improved access to foreign talent, a clean-up of the existing labor force, and the required use of E-Verify.  We will keep you posted as the bill moves forward in Washington.

The H-1B filing window opened up for FY2014 application filings on April 1st and by the end of the first week of April, the window is now closed.  USCIS will be conducting a lottery in the coming week or so to decide which applicants will be accepted and processed.  The total number of applications received exceed the H-1B by about 40,000.  This is the first year in the last several in which the H-1B quota has been reached in the initial filing window.  Stay tuned as the lottery is conducted. 

In light of Jason's post about fun final four facts, and in tribute to his participation in the WSU pep band, here is a link to a fun video created by my 8th grade daughter's middle school band.  I'm not sure if they are "playing angry" like the basketball team has been implored to do, but they are playing loudly.  Click here to see the video. 

With the arrival of April Fool's Day, baseball season is officially underway. I know for some of you with kids, baseball/softball season has been underway for quite some time.

I read an interesting blog posting yesterday talking about timeless leadership lessons from baseball. I thought I would pass along some of the more pertinent HR-related points here, although all of the nine items listed in the original posting are good tidbits to consider. Here are the HR-related points:  

• Measure everything important. Good decisions come from gathering and reviewing good data. Take advantage of your electronic information systems to track and analyze information related to employee performance. This is a key step to fielding a great team at your company.
• Team versus superstar. Make sure your team is solid from the top to the bottom of your roster. Having great employees surrounded by mediocre employees isn't nearly as effective as having good employees across the board. Make sure to focus your efforts to develop talent across the board.
• Team chemistry rules. A cohesive team is always better than a team fighting amongst itself. Sometimes you just have to make a move purely to fix the overall workplace chemistry. Ignore this issue at your own peril.

To read the full version of the article click here.  It's a short read and makes some great points about leadership.

I saw a news story last night about the AFL-CIO (union federation) and the U.S. Chamber of Commerce striking a compromise deal related to guest worker type programs. The gist of the story is that these two adversaries have reached an agreement on how to bring in temporary workers, which is expected to be a big part of any immigration reform legislation. This agreement is a big step forward in the overall effort to create a comprehensive immigration reform package. This agreement may signal a push is underway to finalize the legislative package to bring immigration reform to the top of the legislative agenda in Washington.

An OSHA reform bill titled Protecting America's Workers Act was reintroduced in the Senate. Employers should keep an eye on the progress of this bill as its goal is to increase the penalties for OSHA violations. This potential legislation comes following OSHA's own internal changes a few years ago that resulted in higher penalty amounts being levied by OSHA. In addition to the penalty changes, the proposed legislation would expand the coverage of the general duty clause and revise the way subcontractor employer relationships are viewed by OSHA. Stay tuned as this Senate bill begins its journey through the legislative process.  

Every so often we are given a gentle reminder to pay close attention to the job descriptions in place at our companies.

In a recent Americans with Disabilities Act (ADA) case from Maryland, the employer failed to obtain summary judgment because of the essential functions listed in the employee's job description. This means the plaintiff gets to present his case to the jury.

The key issue revolved around whether having a commercial drivers license was an essential function of the supervisory position held by the plaintiff. The job description listed the commercial drivers license as a preference for the supervisor, as opposed to a required item in the basic driver job description. This small difference is what led to the employer ending up in what is now a pretty tough spot. 

So make sure you look at your job descriptions and carefully weigh the use of "preferred" versus "required."

While it may not seem like it with the current weather patterns shifting back and forth from mild to cold, including a little snow, the summer season is just around the corner. And with that comes the arrival to the workforce of students looking for a bit of solid experience between school years. Sometimes this experience is paid work and sometimes it is not.  For those employers considering the unpaid internship approach, beware. Simply calling someone an intern and putting them to work for free isn't necessarily the right approach and may lead to a bill coming due later for unpaid wages.

The DOL has a six-factor test for making determinations about whether an internship meets the exclusion and can be unpaid. Those factors include:

1. Is the training similar to the training the individual would get in an educational atmosphere;
2. Is the experience for the benefit of the intern;
3. Does the intern replace a regular employee and work under close supervision;
4. Does the employer gain any immediate advantage from the training program;
5. Is the intern entitled to a job at the end of the internship; and
6. The employer and intern understand the intern will be unpaid.

If the employer can sufficiently meet all the factors listed above, then the intern can be unpaid. Employers should keep in mind, however, that this exclusion is very narrowly interpreted. For an intern to be truly unpaid, it almost needs to be a situation where the employer suffers an inconvenience and expense just to provide the program. If the      Continue Reading...

Recently, Melissa Mayer reignited the telecommuting debate when an internal Yahoo! memorandum leaked.  Starting in June, Yahoo! employees with remote working arrangements must physically report to company offices.  But, Yahoo! isn’t the only company rolling back the telecommuting red carpet.  Best Buy also announced the end of its ROWE (Results-Only Work Environment) program.  Most corporate Best Buy employees will now have to report to the company’s headquarters in Richfield, Minnesota.

The H-1B visa filing season is upon us.

Each year, USCIS approves up to 85,000 H-1B visas, which permit specialty occupation employees to travel to and work in the United States. This cap of 85,000 visas is not sufficient to meet all of the demand for applications during a given fiscal year. In the last several years, the cap has been reached at some point in the late summer or early fall.

This year the expectation is that demand for H-1B visas will return to somewhat normal levels, as the U.S. economy seems to have rebounded. What does that mean for someone interested in obtaining an H-1B visa for a potential employee? The filing window will open on April 1st for employees to start work on October 1st of 2013, and the basic assumption is that all visa slots for fiscal year 2014 will be used up in the first few days of the filing period. So if you are planning an H-1B filing, don't be late. If your application isn't ready to file for an April 1 arrival at USCIS, you might be waiting until October of 2014.

In honor of the 20^th anniversary of the FMLA, the DOL issued final rules regarding the amendments to military family leave and airline flight crew FMLA eligibility. As part of the final rules, as of March 8, 2013, employers must use updated FMLA notice and certification forms. 

The USCIS released a new version of the I-9 on March 8, 2013. Employers should begin using the new I-9 form immediately. The old version of the form can continue to be used until May 7, 2013. 

The new I-9 form contains very little in the way of new information employers are required to collect from employees. The primary difference in the new form is the inclusion of email and phone number boxes for the employees in Section 1. While the form itself doesn't designate these boxes as optional, the instructions to the new form reflect that these two boxes are not required. The employee can choose to provide the contact data or simply put N/A in those boxes. 

The real impact of the new look I-9 is the layout. Instead of cramming all the required information into one single page, the employee portion is now one page and the employer portion is now a second page. This allows the form to make it much clearer where data is to be recorded in each area of the form. This change is likely to reduce the number of I-9 forms filled out with data on the wrong line or incomplete forms. 

You can find the new form on the USCIS website in a downloadable PDF here.

Every business needs a leader.  Someone must be in charge and make the tough decisions.  The sudden resignation of Pope Benedict (read here) should serve as a reminder for your business to consider its future leaders.  From large businesses to small family owned business the issue of succession planning and leadership training is equally important.  Identifying and grooming those individuals in advance of their need to lead is key to the long-term health of your business.  If you haven't considered training plans and leadership succession in some time, spend a few minutes (or a few hours) on this task over the next month or two.  One never knows when a resignation or situation will arise to trigger your company's need to replace a leader.  Being prepared ahead of time, and having a candidate being groomed for that role, will make that sudden transition much smoother when it comes. 

I spend a lot of time either coaching youth sports or hanging out watching youth sports.  It is the nature of the beast when you have three kids at home.  Those experiences remind me that managing kids is a lot like managing employees.  The big difference is you hope employees are a bit more mature and responsible than kids.  As most of you in HR can attest, that isn't necessarily true (as a coach I have seen young players be a lot more mature than their own parents). 

Over the last several months there have been a number of times those parallels between sports teams and workplaces were very apparent.  Without naming the guilty, here are a few stray observations about youth sports that carry over to the HR realm:

1. No matter how hard you try, you can't cure a personality defect.  Individuals who are moody and grumpy (read: have bad attitudes) usually stay moody and grumpy.  It seems the more you try to draw them out of that mindset the deeper they settle in.  It's time for tough love.  Instead of slipping into the cycle of coaxing better performance from this type of person, make it simple.  Drop the attitude or find a new employer.  In other words, just get rid of the cancer -- cut it out.  If you don't it will spread to your other team members.  Plus you will have a lot more time to focus on your other employees since you won't be wasting a bunch of time on one needy prima donna.       Continue Reading...

Those of you following the national news scene closely may have noticed a flurry of excitement related to the National Labor Relations Board (NLRB) and some appointments made to the NLRB last year.  The excitement is related to recess time in Washington, and even more specifically, the Senate's recess time.  Presidents sometimes use the tactic of waiting to make appointments, which technically should be confirmed by the Senate, until after the Senate heads out for recess. 

Three of the five members of the NLRB were appointed during an alleged recess last year.  While the Senate was supposedly out in the yard playing dodge ball, the President gave away a few jobs to people the Senate likely would not have approved.  But this time around, some members of the Senate, having watched President Obama use this tactic in prior recess times, decided to linger inside and work on some homework.  As a result, the question was whether the Senate was actually in recess when the appointments were made.  

The federal appeals court for the D.C. Circuit said the Senate was not in recess, so the three appointments were invalid.  The consequence of this decision could very well be that all of the 200 plus decisions handed out by the improperly formed NLRB may be invalid as well.  In addition, there are also other decisions made by the NLRB that could be in question.  Stay tuned over the next few weeks or months as this schoolyard recess drama plays out.  If you were subject to an NLRB decision in the last year, it is probably worth revisiting the issue to see if there      Continue Reading...

The Department of Labor issued a new interpretation letter last week addressing the issue of adult children under the FMLA.

As most of you are aware, employees are not generally able to seek FMLA to care for a child over the age of 18. For an employee to be able to take leave to care for an adult child with a serious health condition, the adult child must be incapable of self-care because of a mental or physical disability. The hard part for employers is deciding whether the adult child actually clears that threshold. 

In its interpretation letter, the DOL notes that an employee is eligible for FMLA leave to care for an adult child if the adult child has a disability as defined by the ADA, is incapable of self-care due to the disability, has a serious health condition, AND is in need of care due to the serious health condition. The important point for employers to take away is the adult child needs to trigger all four of those elements. 

The interpretation letter contains a couple of examples to help employers understand how these adult-child rules will be applied. In one example, an adult child has an auto accident and is likely to clear the threshold and allow a parent to take FMLA leave. In another example, an adult child suffering from diabetes is determined not to clear the threshold for the parent to take FMLA leave.

The interpretation letter can be found here.  If you find yourself dealing with an adult child situation the letter is a good starting point.   

On a side note,      Continue Reading...

Every so often the topic of immigration reform comes to the forefront in Washington. In years past, the debate would rage for periods of time and then the effort would stall out amidst political fighting over various elements of the "reform" needed. There are a wide-ranging number of interest groups fighting for and against various types of reform. What can we expect in 2013?

Considering the last election cycle and the behaviors of certain demographic groups in that cycle, a comprehensive effort to reform the U.S. immigration system is a bit more likely. At least right at this moment. My thought on that only applies if some other hot potato social or economic agenda item does not interfere with, or take priority over, immigration issues. At this point, several things look likely, to include:

1. An amnesty-style program of some sort for those currently in the country illegally or without status;
2. Changes to the visa allocation quotas/system to allow those trying to immigrate the right way to get out of the long lines and backlogs created by a shortage of available slots;
3. The inclusion of a guest-worker type program to allow for lower-skilled workers to come to the U.S. to fill temporary needs for lesser-skilled labor; and
4. A requirement that employers verify the legal status of workers (read this to mean mandatory E-Verify for all employers).

The idea of immigration reform typically brings out vocal advocates on all sides of the equation. Stay tuned over the next six months as things heat up in Washington. Big changes could be coming for employers both in the verification      Continue Reading...

Now that 2012 has come to and end and we have all returned to the normal routine, here are a few things we might take some time to consider before moving forward into the new year and getting swallowed up in the new routine:

• Review your policy materials and make sure they are current and up to date. While you should review your policies to make sure they are in compliance with all legal requirements, this review also should be practical as well. Are your current policies working as intended or are there some that just need a different approach. A little reflection now can allow you to get these cleaned up for 2013 and help avoid the same issues you had in 2012.

• Take a few minutes to clean up any employee-file-related issues. Are the employee files complete? Have the reviews been done in accordance with your policies? Are the required items contained in the file? On a side note, its always a good idea to audit your I-9 files and make sure all is well with those forms and that any old forms that are no longer required for retention are disposed of properly.

• Evaluate your safety policies and training. Are we complying with all of the applicable OSHA requirements? Spend a few minutes self-inspecting your operations to make sure you are in compliance. Check the training requirements and conduct any annual training or refresher training that is needed.

• Does your company have any employees subject to an employment contract      Continue Reading...

Welcome to 2013.  Hopefully everyone is already working hard at sticking to their New Year's Day resolutions. Looking ahead to 2013, here are a few things to keep an eye on this year. It can be tricky predicting the future, but here are a few general themes I expect to get some extra attention in 2013 in the employment law area. For all of the HR types out there, you might spend a little extra time thinking about how these might impact your company.

• NLRB. Expect the NLRB to remain a very active agency. The NLRB has spent the last few years turning up the heat on employers in a variety of areas. At the end of the day, the NLRB is shifting the law to provide a more union-friendly playing field in representation election. In addition, the NLRB has spent a considerable amount of energy in areas that are primarily non-unionized-employer related (for example social-media issues). This trend is almost certain to continue in 2013 and beyond. Is your workplace a potential target for a union organizing drive? Are your policies over-broad in some way that interferes with protected and concerted activity? If so, some adjustments might be in order.

• Immigration Reform. An immigration reform measure of some sort is on tap for this four-year political cycle, and it may get done in 2013. President Obama put the deferred action program in place in 2012 to allow certain groups of illegals to gain work authorization and remain in the US without      Continue Reading...

The passage of Thanksgiving and the approach of Christmas means football season is winding down and basketball season is underway and gaining speed. For most of those working in a broader HR function, benefits enrollment is over (or close to over) and its time to start reflecting on the goals for the coming year. Now is also a good time to think about your workplace policies and more importantly those policies that might be in need of a tune up in 2013. Here are a few that might be worthy of placement at the top of a lot of lists:  

1. Social Media -- For most of us these two words are enough to convince us to ban Internet use for all employees whether at work or at home. While this has been an area of constant flux in 2011 and 2012, employers that ignore this issue are doomed to suffer a significant failure in the near future.  A good social media policy should account for employee behaviors via social media as well as ownership of business related social media accounts.  
2. Paid Time Off -- These policies come in a wide range of styles and types. The real task here is for employers to decide whether a historical bucket style approach (vacation, sick, etc.) is the best type of system or whether to consider implementing a single bucket PTO type of system.   Each approach has its pros and cons and there is no such thing as one size fits all. The      Continue Reading...

A news release yesterday from the Department of Labor (DOL) announcing the recovery of over a million dollars for a group of approximately 400 bank employees highlights the types of routine risks the FLSA creates for employers.

In the reported case, the employees were improperly classified as exempt employees. As a result, the employer was required to provide back pay for overtime hours worked by the group. Adding insult to injury, the press release noted the DOL collected additional overtime as a result of bonus payments made to the employees improperly classified as exempt. Once the employees were no longer exempt, the bonus payments were required to be added into the employees total compensation in order to calculate the effective hourly rate for purposes of overtime payment. 

This press release should serve as a reminder to employers to pay close attention to the classification of employees as exempt or non-exempt. A group of improperly classified employees can be a ticking time bomb within the workplace since the statute of limitations period for a FLSA claim can be as long as three years. To read the press release click here.

It's that time of year again. Thanksgiving has arrived, and Christmas is just around the corner. The holiday season brings lots of things to prepare for each year. For those of you out shopping, there were preparations for the big Black Friday sales events. Hopefully by the time you are looking at this article you have survived the crazy rush of the day and found all those awesome bargains you went out to get today. Some of you might find preparing for the holiday season to be a bit of a waste of time this year since the Mayan's have forecast the end of the world. 

What I wanted to point out today is a bit of guidance about preparing for the Black Plague of 2012. Or maybe just a simple flu bug. OSHA has a webpage with resources that have been prepared for employers to assist in dealing with a flu pandemic which can be found here. Whether this is the year of the massive global flu outbreak or not, it might be helpful to browse the information put together by OSHA just in case. There are a few items contained in OSHA's guidance that might have some more generic applications to a non-pandemic flu season such as:

1. Develop a sick-leave policy that does not penalize sick employees for staying home. The upshot here is to keep sick employees away from the workplace so the rest of the workforce isn't infected. If your sick-leave policy is already effective and in place, make      Continue Reading...

Each year OSHA publishes a listing of the most commonly cited standards during the most recent fiscal year. For fiscal year 2012 (October 2011 to September 2012) the list contains some familiar standards from the fiscal year 2011 list. In fact, the 2012 list contains the same top ten cited standards, just in a slightly different numerical ranking order. The list for fiscal year 2012 is as follows:

1. Fall Protection in the construction industry (29 C.F.R. 1926.501)
2. Hazard Communication (29 C.F.R. 1910.1200)
3. Scaffolding in the construction industry (29 C.F.R. 1926.451)
4. Respiratory Protection (29 C.F.R. 1910.134)
5. Lockout/Tagout (29 C.F.R. 1910.147)
6. Powered Industrial Trucks a/k/a Forklifts (29 C.F.R. 1910.178)
7. Ladders in the construction industry (29 C.F.R. 1926.1053)
8. Electrical Hazards - Wiring (29 C.F.R. 1910.305)
9. Machine Guarding (29 C.F.R. 1910.212)
10. Electrical Hazards - Design (29 C.F.R. 1926.303)

This list should be instructive for employers with hazards of this nature in the workplace. These are commonly violated by employers and result in the issuance of citations by OSHA. Spending a little extra time in these areas can yield dividends next time OSHA visits your workplace.  

The recent news regarding the Immigration and Customs Enforcement (ICE) actions in Wichita involving a local McDonald's franchise highlights the risk for employers with respect to employee work authorization. This arena involves a wide-ranging variety of fact patterns for employers to work through as no two cases are ever exactly alike. The key points for employers to consider are:

• I-9:  Make sure your I-9 process is being conducted properly and that your I-9 documents are being fully and accurately completed. In addition, conduct periodic audits of your completed I-9 collection to identify any shortcomings in your process and follow-up on those shortcomings to ensure the process is working as intended.
• Stray Information:  Promptly respond to all information that calls into question the work authorization of one of your employees. This can be a very tricky issue for employers since there can be varying levels of information presented which may or may not be legitimate. The source of the information should be evaluated in determining the proper response to the situation. The key point for employers on this issue is not to bury your head in the sand and ignore the information. Ignoring can lead to a very negative outcome at some point in the future.
• Social Security Problems: While somewhat like the stray information category, there are a number of ways a social security number problem can arise. Anytime the concern is generated by some sort of action by the Social Security Administration, employers would be well-served to ensure the employee corrects      Continue Reading...

As most of the free world can attest, yesterday (and last night) was election day here in the United States, which is a very serious and somber process. It is on election day that we select candidates to serve all the way from local positions up to the President of the United States. These choices can have a major impact on how government interacts with employers and their employees over the following four years. 

This election day was much different for me than those in past years. I learned a lot by looking and listening as the election process was fed back to me through the eyes and ears of my children. My high school junior and 8th grader had strong feelings about who the right candidate for the job might be for President. The problem is they did not agree. Talk about partisan politics. It's hard enough to keep the normal sibling squabbles under control without tossing politics into the equation. 

While the older siblings were entertaining at some times and irritating at others, the 2nd grader brought the political process into a whole new light for me. On election night at the dinner table I was grilled by her about whether I had voted yet. I had not done so, which seemed to be a big deal even though the polling locations were still open for another ninety minutes (I like to slip in near closing in hopes it is quieter). Not only did I get chastised for not having exercised my right      Continue Reading...

On a night when most of the kids in Wichita are going door-to-door dressed in scary costumes declaring trick or treat, the U.S. Attorney's office served up a very scary and unpleasant trick on a local Wichita business. The press release issued by the Immigration and Customs Enforcement agency (ICE) reflects that the business was charged with one felony count for knowingly accepting a fraudulent identification document.

At some point in the past, the employer was made aware of an employee with a bad social security number. The employer followed up by asking for documentation to prove the employee was authorized to work in the U.S. The employee provided a permanent-resident card, and the employer updated the employee's I-9 documentation.

ICE took the position that the employer was aware the permanent-resident card  was not legitimate because of the speed with which the employee obtained the documentation. The ICE press release indicates a plea agreement is in the works, and the company will pay out $400,000 in fines and forfeitures to the federal government as a result of the agreement. 

Read the ICE press release here.

As most of you are probably aware, the National Labor Relations Board (NLRB) has been extremely active in applying the National Labor Relations Act (NLRA) in ways that have are having a significant impact on employers without labor unions. The most well-known of these areas is in the context of social-media policies and the application of those policies in disciplinary matters. In a recently issued decision, the NLRB took on the issue of employee access to the employer's facility during off-duty hours.  

From a historical standpoint, the NLRB decisions considered restrictions for off-duty employee access acceptable, so long as the restriction was clearly communicated to the employees, limited to the interior/working areas of the employer, and applied to all employees seeking access and not just those engaging in union-related activity. This standard allowed employers to generally prohibit employee off-duty access and still allow for limited exceptions as they might arise. For example, an employer could have a policy prohibiting off-duty access that allowed for exceptions with manager approval. This would allow a supervisory employee to make a limited exception in those circumstances where off-duty access was really necessary. Under the historical approach, these limited exceptions would allow for enough flexibility to handle emergency situations and still not run afoul of being interpreted in a way that was targeting employees engaging in union activity.    

The historical approach followed by the NLRB dates back over thirty-five years and has worked sufficiently well to balance the needs of employers to secure their facilities while still allowing some flexibility when needed by employees. The current NLRB, however, in      Continue Reading...

In most cases, a discrimination claim arises following some sort of disciplinary process or performance counseling activity. In more limited cases, the external claim follows some concern raised internally with the employee being dissatisfied with the resolution reached during the internal process. In all of these situations, the employer should have conducted an internal investigation into the matter. The quality of the internal investigation will have a significant impact on the later external claim the employee files with the KHRC/EEOC.

In the case of employee misconduct, the internal investigation will provide the basis for the discipline that is ultimately issued in the matter. The documentation of the investigation will go a long way to supporting the employer's defense to a discrimination claim if the investigation was handled appropriately. The key to any investigation is to be thorough and fair as the facts and circumstances are evaluated. A good investigation includes interviews of any and all witnesses to the situation, even if the witness will provide information that is contradictory to the position the management team has taken. Trust me on this one -- it is much better to find out all the sordid details during the internal investigation than to be hit over the head with those bad facts months (or even years) after the fact during an external investigation. 

If you have worked in HR or management for more than a few days you are sure to have heard several times by now to document and then document and then document. This old employment-law adage remains true today. Maintaining documentation of your employment decisions can be the difference between being able to successfully defend a discrimination claim and losing on that claim. The typical discrimination charge filed with the KHRC/EEOC covers factual events that range anywhere from three months old to several years old. If you are anything like me, remembering where I was at two years ago today is virtually impossible let alone what happened during a three-minute conversation with a co-worker. That's where documentation comes into play.

I want to expand a bit on that concept of documenting to add in the notion that what you are really after is good documentation. Any employment decision made should be supported with documentation reflecting that action. The documentation can be simple notes written by a supervisor or a full-scale form detailing actions taken and the reasons for the action. In most cases, the documentation will be an accurate and true reflection of the events being noted and will be given much more weight two years later than a supervisor or employee's recollection of the events. That's what makes good documentation so important -- it is not subject to revisionist memory since it was created at the time of the event.

One last note: the documentation maintained in an employee's personnel file should      Continue Reading...

The new government fiscal year started on October 1st which means it is time to begin preparing and filing J-1 visa waiver applications for physicians under the Conrad 30 program.  The program is used by medical employers (hospitals, clinics, practice groups, etc.) to hire foreign physicians to work in medical provider shortage areas (HPSA or MUA) or outside of shortage areas but providing care to residents within shortage areas.  The program provides Kansas employers with a great tool to recruit physicians to these shortage areas.  For more information click here.

Earlier this week the National Labor Relations Board (NLRB) upheld a car dealership's discharge of a salesman for posting photos and comments to his Facebook page. The NLRB's decision is a welcome victory for employers after a long series of employer unfriendly pronouncements from the NLRB. Over the last year or two, the NLRB has provided employers with a series of memoranda designed to highlight the acceptable parameters for employer policies and employee discipline for social media postings. With each additional bit of guidance, an employer's ability to deal with problem social media postings appeared to become increasingly more difficult. While the NLRB should (and will) ensure that employees engaging in protected and concerted activity are not discriminated against, there have to be some boundaries to the types of comments an employee can post for the whole world to read that concern the employer.    

In this particular case, the employee salesman posted two different sets of photos and comments to his Facebook page. One set of photos and comments centered around a dealership event related to the roll out of a new luxury vehicle. The photos and comments were mocking and sarcastic in tone and focused upon the employer's decision to serve hot dogs, chips, and water at the event as opposed to something more appropriate for a luxury event like "champagne or wine". The second set of photos and comments were related to an accident that occurred during the test drive of a new vehicle and were also sarcastic and mocking in tone. Following the postings, the salesman's employment with the dealership was terminated.      Continue Reading...

If an employer has a set of policies and practices in place, educating the employees and the management team is a critical link in reducing the likelihood of a discrimination claim. The training for employees will differ somewhat from the training provided to the management team.

With respect to employees, the new-hire orientation process should contain a general overview of company policies and rules. In addition, it is always a good practice to have the employees sign an acknowledgment that they were made aware of the policies and rules in place. Beyond a general new-hire-training process, it is also helpful to conduct periodic training sessions for employees focused on non-discrimination and anti-harassment policies, as well as any specific company rules that need additional emphasis. With respect to the anti-harassment and non-discrimination training, it is important to emphasize the internal process by which complaints under those policies can be made. This internal complaint process will be helpful in that it will encourage employees to keep complaints internal and may provide the employer with the ability to assert some affirmative defenses if the employees fail to follow a complaint process.

The management team should receive the same training as non-management employees, as well as additional training on topics including the FMLA, ADA, Title VII, and the FLSA. It is important for supervisory employees to understand the employer's basic obligations and practices with respect to these various statutes. These management employees are likely to be the first employer representative to encounter a concern implicating these statutes, so they need to understand the basics to ensure they properly respond to the employee. Another key part of the      Continue Reading...

The last installment discussed a couple of important policies - EEO and anti-harassment - that all employers should have in their policy collection to help avoid discrimination claims. Beyond those two policies, employers should also have a wide-ranging variety of policies related to how employees should conduct themselves in the workplace. These various policies will cover all sorts of disciplinary and performance issues and will vary from employer to employer. While having the policies is helpful, the next key to avoiding discrimination claims is to ensure these wide-ranging policies are followed as written by the employer. If an employer policy addresses a situation, the actions taken by the employer should be consistent with the policy. And beyond being consistent with the policy, the actions taken should be consistent how the employer handled past instances of violations of the policy. An employer that deviates from the terms of its own policies or from its past practices may find it difficult to defend the employment action taken. You can be sure the employee filing the charge will claim the deviation is a result of the employee's protected classification as opposed to the employer's insistence the action was based upon the policy violation.

So remember, follow the policy as written and make sure any employment action taken is consistent with how violations have been handled in the past. A failure to do so will invite employee-discrimination claims.   

As most of you know, any of your employees (or former employees) can file a discrimination charge with the EEOC or KHRC alleging your company discriminated against them on the basis of any (or several) protected classifications under the various statutes like the ADA or Title VII. When a charge is filed, the employer will almost always be required to respond to the agency and provide a variety of supporting materials and/or materials requested by the agency. These investigations also frequently involve the agency sending an investigator to your workplace to interview witnesses (managers and co-workers of the complaining party). This process can be time consuming for employers and serve as a distraction from the normal course of business for the employer. The best defense to a discrimination charge is to exercise good preventive medicine. 

Over the next few weeks, check back for a series of posts highlighting some good preventive measures an employer can take to avoid a discrimination charge. And even if these measures don't prevent a charge, following some or all of them will make defending the charge a much easier task.

So let's get started.

The first line of defense revolves around employer policies. Every employer should implement EEO-related policies and procedures. The basic EEO policy should reinforce the employer's commitment to equal employment opportunity and to making employment-related decisions without considering protected classification information. In addition to an EEO policy, employers should also have a policy related to harassment issues. The anti-harassment policy should cover sexual harassment and other forms of harassment based on protected classifications. It is      Continue Reading...

Most of you know by now that social media websites can be dangerous in the employment context. Apparently, one of the NFL's replacement referees failed to get that memo. Over the weekend, the NFL was forced to replace a referee on a crew after learning of his posts on Facebook highlighting that he was a New Orleans Saints fan. Apparently the postings included photos of the referee in his Saints jersey at a tailgate party. The bad news for the NFL is that this referee was assigned to call the Saints game on Sunday. Nothing like being placed in a position to officiate your team's game. As of today, the NFL has not terminated the referee for this potential bias. Hopefully, the NFL is smart enough to realize this conflict of interest goes beyond just a game involving the Saints, as his decisions in another game could easily benefit the Saints. I would assume the NFL will piece all this together and take appropriate action. Stay tuned to see if this social media dust up includes some further employment action and whether that action leads to some other legal process. 

The EEOC published a draft version of its Strategic Enforcement Plan last week. Of particular note for employers is the priorities section of the document, which identifies the areas in which the EEOC will place special emphasis in the future. Some of the areas of emphasis will include:

• Hiring Discrimination: The gist of this effort is to target employers with hiring practices that discriminate. While this seems easy enough to understand, keep in mind that a neutral policy or practice that has an adverse impact on a protected classification is just as much a problem as a policy that directly discriminates.
• Immigrants and Migrant Workers: The EEOC views this segment of the population as vulnerable and exploited and intends to pay special attention to the treatment of these groups.
• Pregnancy Accommodation: The EEOC seems to believe that pregnant women are placed on unpaid leave when other employees are provided accommodations and will be paying special attention to this concern.

There are some other areas of emphasis that shouldn't come as a surprise (like ADA enforcement). You can review the full document here. To see the priorities scroll down to Section III of the document.

Hopefully everyone enjoyed their Labor Day holiday. Over the years, Labor Day has been viewed as the last gasp of the summer "fun" season.  While taking this last summer holiday to enjoy some travel or family time is a great idea, the roots of Labor Day can actually be traced to labor unions. Labor Day was established in the late 1800s and early 1900s as a holiday to celebrate the contributions of the our country's workers and was initially proposed by organized labor unions. Click here for the history of Labor Day.

The Labor Day holiday should serve as a reminder to union-free employers that organized labor is still working hard to represent the employees at their companies. Your management team should spend some quality time on a regular basis communicating with your employees and listening to their concerns. This is a great way to ensure your company remains union-free. If management fails to establish a rapport and good working relationship with their employees, this opens the door for people outside the company to have those conversations. I'm sure most of you would prefer the good working relationship start within the company as opposed to outside the company. 

So now that you have made the most of your holiday weekend courtesy of the labor movement, get back to work building those internal relationships. 

The 10th Circuit Court of Appeals (the federal appellate court responsible for Kansas and other midwestern states) decided a case involving leave as an accommodation under the Americans with Disabilities Act (ADA).  In the case, the employer provided significant amounts of leave time for a disabled employee over a several-year period. After providing leave as an accommodation, the employer eventually discharged the employee because of the uncertainty surrounding her return to work. In its decision, the 10th Circuit confirmed that an employer is not required to provide an indefinite leave of absence as an accommodation under the ADA. In addition, the court referenced the reasonableness of a leave of absence, mentioning that a leave of four months is reasonable and that a leave of six months may not be reasonable. Employers can utilize these guideposts in assessing whether to provide an employee a leave of absence as an accommodation for a disability.  

Finally, congratulations to Jim Oliver, Bud Cowan, and Tara Eberline of Foulston Siefkin's Overland Park office for their successful defense of the defendant in this particular case. To read the opinion in its entirety click here.  

As most of you are aware, the NLRB has been very active with respect to employer policies and their impact on the rights of employees under the NLRA. The most widely publicized of those policy-related forays are the NLRB's various decisions and memoranda regarding employer social media policies. In a recent decision, the NLRB weighed in on employer requirements of confidentiality with respect to internal employer investigations. The NLRB noted that a blanket prohibition on employee interaction with co-workers was a violation of the employees' right to engage in collective activity. With its decision, the NLRB noted that in some circumstances a confidentiality requirement may be crucial to the investigation to protect witnesses or preserve evidence; however, a blanket confidentiality requirement was not acceptable.

If you use such a blanket approach to workplace investigations, you might want to consider whether such a restriction is important to the overall investigation. If not, requiring the employee to keep quiet might very well lead you into a fight with the NLRB.

The use of pre-employment testing by employers has become more common in recent times. In most cases, the testing is conducted by outside vendors offering these types of services to multiple groups of employers. While these tests seem to be a good idea to most employers, it is important to make sure they pass muster with the various administrative agencies at the federal and state level.

In a recent example of a test gone wrong, the OFCCP took issue with an employer's written testing program. The test had an adverse impact on minority applicants and failed to meet the EEOC's Uniform Guidelines on Employee Selection Procedures.  In this recent case, the OFCCP reached a $550,000 settlement with the employer. Click here for the OFCCP press release.

While having the OFCCP involved might suggest this is only an issue for written tests and government contractors, don't be misled. This is only an OFCCP issue because the problem was uncovered by an OFCCP audit of the employer. The EEOC's requirements in this area apply to all employers. In addition, the selection guidelines apply to all types of pre-employment testing, ranging from written testing to skills testing to strength-and-agility testing.

If your company conducts these types of tests, it is important to ensure there is not an adverse impact on a specific class of individuals. If there is an adverse impact, the employer can still defend the testing measure if the employer can show the test is an accurate predictor of a candidate's ability to perform a job. This is where      Continue Reading...

Last month a bill was introduced in the U.S. Senate to provide a limited federal cause of action for employer use in protecting a company's trade secrets from misappropriation. The Protecting American Trade Secrets and Innovation Act of 2012 was introduced and referred to the Senate Committee on the Judiciary.

The goal of the bill is to provide a federal cause of action to employers attempting to file litigation to protect a company's trade secrets. As currently structured, the new legislation would provide this cause of action under a limited set of circumstances. The current option for an employer is to bring claims in state courts with the underlying law varying significantly from state to state. This variance in state law can create complications and sometimes make it difficult for companies to effectively defend their confidential information. 

Stay tuned as this bill makes its way through the legislative process.

To track the legislation, click here.

The recent uproar over employers demanding access to a prospective employee's Facebook account has now resulted in state laws prohibiting the practice in Illinois and Maryland.  For employers with employees in those states, it is now unlawful to demand an employee provide passwords or any other means of access to the employee's various social-media accounts.  If your company requires access to an employee's social-media accounts, stay tuned as this is likely to spread to additional states in the near future. 

I read an interesting article highlighting the statistics for claims filed under the FLSA over the last twenty years.  This year, FLSA claims reached a record high and we still have four months left in the year.  The statistics show claims for 2011 at 7,006 for the year and this year we are already at 7,064 claims.  By the time the numbers are all in, the claims filed in 2012 will dramatically exceed the numbers historically. 

While employers can't do much to stem the growing number of claims, they can be sure they are complying with the FLSA rules.  For most employers, the key risk areas involve the payment of overtime and proper classification of exempt employees.  Spending a little time this fall to make sure your company is in compliance may be time well spent considering the extra attention being paid to FLSA issues by the Department of Labor and the plaintiff's lawyers.

OSHA recently established a website section devoted to providing construction-industry employers with fall-protection information.  Statistics show that falls are the most likely cause of on-the-job fatalities in the industry, and OSHA is making a concerted effort to reduce the number of fall-related incidents in the industry.

For employers, this new outreach website provides a single location with links to a wide variety of educational materials on the topic.  This includes short summaries of the various regulations related to fall-protection issues, as well as materials that can be used to train employees on these various concerns.  The OSHA fall-protection website section can be found here.

Over the last several months the Penn State/Sandusky story has taken numerous twists and turns.  For the most part, the final chapter has been written on most of the participants.  The main perpetrator, Sandusky, has been convicted on a significant number of criminal offenses and will spend the rest of his life in jail.  Penn State has been hit with significant NCAA penalties and is defending itself from a range of civil claims.  The once revered head coach, Joe Paterno, has died and his reputation destroyed. 

While most employers don't expect to deal with employee issues as horrible as those Penn State has been faced with, there are some lessons that can be learned from Penn State's fall. 

1. Make sure your organization has a process by which complaints of wrongdoing can be made.  This process should include multiple avenues for an employee to bring a complaint forward.
2. No matter how loved and adored a leader in an organization may be, the leader should not be above reproach.  Any allegations made must be investigated and taken seriously. 
3. If that investigation determines an allegation has merit, take action to protect the victim in the situation.  Ensure the victim is aware of the actions/investigation and are on notice to bring future concerns to the employer.
4. Protect complaining parties and/or witnesses from all forms of retaliation.  This includes making sure employees are aware of these protections so they are comfortable bringing forward any concerns in the first place.
5. Do not sweep any wrongdoing under the      Continue Reading...

One of the more confusing work authorization scenarios I see clients dealing with relates to when a foreign student is authorized to work in the United States.  The default rule is that a student in the U.S. with an F visa (the typical one used by students) is not permitted to work.  Students typically gain the ability to work in limited ways.  A student may gain work authorization via a curricular practical training program (CPT) or via an optional practical training program (OPT).  These programs differ quite a bit.  A student working via CPT will have the ability to work for a limited period of time and for a specific employer as part of a school sponsored training program.  A student working via OPT will have an employment authorization document (EAD) which will allow a much longer period of employment with no specific employer restrictions.  If your company employs a foreign student, make sure you carefully evaluate whether the individual has proper work authorization documents to work for your company and ensure you carefully note the expiration of that work authorization.   

As most of you are painfully aware, it is incredibly hot outside.  This week the temperatures will continue to exceed 100 degrees.  While most of us understand that the intense heat poses a health risk, it is probably safe to say that we don't fully appreciate just how dangerous the heat can be.  Each spring OSHA issues press releases highlighting the dangers of working in the heat; however, there are no specific safety standards related to avoiding heat injuries.  This does not mean that your company won't receive a citation should heat related injuries occur in your workplace.

OSHA typically issues citations to employers when the employer violates some specific written safety standard established by regulation.  In addition to these written standards, OSHA may rely on the general duty clause within the OSH Act to issue citations.  The general duty clause requires employers to maintain a workplace free of recognized hazards.  In a recent decision, an OSHA citation alleging an employer violation of the general duty clause following an employee heat injury was upheld by an administrative law judge.  In the particular case, an employee died from a heat stroke.  The supervisor's failure to recognize the obvious symptoms of the heat injury resulted in OSHA's issuance of the citation.

The simple message to other employers is to ensure your workforce is adequately trained with respect to heat injuries and to apply as many safety measures as possible to avoid the onset of a heat injury.  A failure to do so may expose your workers to serious injury and your company to significant penalties. 

The first of several HR Box Lunch Workshops is set to begin.  There is still time to get signed up to attend the sessions.  Click here for more information on the upcoming sessions and click here to sign up.  Hope to see you there.

What better time to consider the issue of immigration than on the eve of the 4th of July.  As our nation of immigrants gathers together to celebrate the birth of our nation, the issue of immigration reform should continue to garner attention over the next year.  In the last month, the U.S. Supreme Court upheld the central piece of the controversial Arizona immigration statute and the Obama White House announced an intention not to enforce deportation against a selected group of young illegal aliens.  Both events have sparked significant interest in the issue around the country and should fuel a continued debate over immigration reform.  While the Supreme Court's upholding of the "show me your papers" provision seemed to garner more attention, the enforcement suspension is likely to result in a much larger impact to employers and illegal aliens.  The Department of Homeland Security (DHS) will provide more detail in the coming weeks regarding President Obama's announcement, but the short version is that a status called deferred action will be conferred on those who meet the limited eligibility criteria set forth by DHS.  Once that status is granted, those individuals will be able to apply for and receive work authorization documents.  As DHS publishes the program criteria, there is bound to be a significant amount of attention paid to this issue.  This upcoming debate may provide some momentum for a more comprehensive set of immigration reforms.  For more information on the enforcement suspension click here.

OSHA recently announced a national emphasis program that targets nursing homes and residential care facilities.  The program is being implemented due to the higher than average injury and illness rates within the industry.  Employers falling within the covered NAICS Codes (used to be SIC Codes) should expect to see a visit from OSHA in the coming year.  For more information on the OSHA emphasis program click here. 

Most employers with drug-and-alcohol-testing policies require employees suffering a workplace injury to be tested for drugs or alcohol.  It is common for these post-injury tests to be conducted at the same time the employee receives medical attention for the injury.  These types of testing requirements make sense and are generally a sound practice.  The key for employers is ensuring these policies are implemented in an effective yet responsible manner. 

From the category of its-too-crazy-to-be-made-up, a lawsuit on this topic was recently filed in Dallas.  In that case, an employee suffered a workplace injury after falling from an undisclosed height.  The employer had a practice of drug testing employees injured on the job and allegedly required a drug test.  The minor problem in this case -- the employer is alleged to have left the unconscious worker lying on the floor for two hours waiting on the drug test to be administered.  The employer then called 911, and the employee was taken by the paramedics to a hospital, where the employee later died.  The plaintiffs allege the long delay in receiving treatment led to the employee's death.  Click here for the story.

Keep in mind now that, as with any lawsuit, the initial claims made by the plaintiff are not always accurate, and in this case I hope that is exactly the situation.  For those of you that require a drug test following a workplace injury, make sure you always look first to the employee's health and safety before focusing on the testing procedure.

Imagine you hire a company to perform a service or conduct a function of your business you have chosen to outsource.  As a result, the contractor company sends its employees to your facility to perform those tasks.  Now imagine an employee of the contractor engaging in union organizing activities while on your property.  Can you have the contractor company remove its employee from your property? 

It's a simple question; however, the answer isn't so simple.  The safe assumption to start with is that you cannot ask the company you contracted with to remove one of its employees when the employee engages in protected activity.  In a recent decision, the National Labor Relations Board (NLRB) required a company to reverse its demand to a contractor company to remove an employee engaging in union-organizing activity on its property.  In addition to being required to allow the contractor-company employee on its property, the employer was also required to make payment to the contractor employee for any losses suffered by the requirement  to remove the contractor employee from the employer's property.  

This general theme should cause employers to pause and consider carefully the identity of their contractors and the number of non-employees granted access to their facilities.  While this recent case makes it clear that an instruction to a contractor to remove contractor employee(s) engaging in protected activity is unlawful, there may very well be circumstances that would allow for the removal of the contractor employee(s).  Should a similar situation arise at your workplace, it is advisable to think carefully before requiring a contractor to      Continue Reading...

In a recent decision, the Court of Appeals for the D.C. Circuit provided some clarity with respect to the statute of limitations contained within the Occupational Safety and Health Act.  Most of us believe that when a statute states any claim, or in this case any citation, must be made within six months of the event, what it really means is there is a six-month cutoff.  OSHA took a little different approach by issuing a series of citations to an employer for failing to keep adequate records over a several-year period.  When the employer pointed out the six-month statute of limitations, OSHA's response was that the violation remained ongoing due to the employer's failure to make the record.  After multiple levels of proceedings where OSHA's continuing-violation theory was accepted as valid, the case arrived at the D.C. Circuit Court of Appeals where it was promptly rejected by the Court.  For now, six months really does mean six months again.

The IRS issued Notice 2012-40 yesterday (click here for the notice), providing a number of important clarifications regarding the $2,500 cap on health FSA contributions that applies beginning in 2013.  The most surprising development is the IRS's interpretation that the cap applies on a plan-year basis, rather than a calendar-year basis.  This is important for employers with fiscal-year plans.  They will be able to wait until the first plan year beginning after December 31, 2012, to implement the cap, rather than using the transition rule or early implementation of the cap to ensure contributions during the 2013 calendar year do not exceed the cap, as was previously thought necessary.

Other key guidance points include:

• Clarification that unspent amounts carried over during a grace period will not count against the cap for the plan year in which the grace period occurs.
• Confirmation that the cap only applies to employee salary-reduction contributions to a health FSA.  Employer contributions (e.g., flex credits) and salary-reduction contributions to dependent-care FSAs do not count, nor do amounts credited to HSAs or HRAs.

In addition to interpretive guidance, the Notice provides a limited correction rule that will allow fixing some good-faith mistakes.  If a mistaken election to contribute more than $2,500 to a health FSA in a year is properly corrected, the error will not jeopardize the plan's status as a qualifying cafeteria plan. 

Of academic interest, the Notice also requests comments on the use-it-or-lose-it rule.  The implication is that the $2,500 cap may be low enough that concerns about excessive use of      Continue Reading...

As if two ugly faces on this blog weren't bad enough, beginning in June you'll see three.

Jason Lacey is joining the Kansas Employment Law Blog to contribute content on employee benefits and related issues. Consistent with the theme of the blog, his posts will primarily focus on employer-related aspects of new developments and other considerations in employee benefits.

Jason is a partner with Foulston Siefkin LLP in Wichita. He is a hopeless fly fisherman and a worse golfer, so he wisely spends most of his time thinking about federal laws that most people love to hate - ERISA, HIPAA, COBRA, the Internal Revenue Code, and the like. He has two young daughters, who have convinced him that sleep and a full head of hair are overrated.

The Department of Labor (DOL) recently posted a new set of FAQs (click to here to read the FAQ) to its website providing additional guidance on the requirement under health care reform to give health plan participants a four page uniform summary of benefits and coverage (SBC).  Some highlights include:

• A new electronic-distribution safe harbor that specifically allows for distribution of the SBC with online enrollment materials.
• A transition rule for arrangements that are partly insured and partly self-funded (e.g., an insured high deductible plan with integrated self-insured HRA) that allows using two or more partial SBCs for the first year of applicability.
• A non-enforcement rule for expatriate coverage during the first year of applicability, effectively suspending the requirement to provide an SBC for expatriate coverage during the first year.
• Assurance that penalties will not be imposed during the first year of applicability on employers "that are working diligently and in good faith to comply" with the rules.

The detailed requirements for preparation and distribution of the SBC are described in final regulations issued by the IRS, DOL, and HHS earlier this year.  (Click here to see the final regulation.)  The requirement to distribute an SBC generally applies to the first open enrollment period beginning on or after September 23, 2012.

Memorial Day is rapidly approaching.  Many of you may have plans to take a few days off and enjoy the official start to the summer vacation season.  Popular escapes include a wide variety of outdoor activities like camping and lake trips.  For those of you with kids playing sports, Memorial Day is also a popular time for tournaments.  With all of these recreational activities on our minds, let's not lose sight of the purpose for the Memorial Day holiday.  Memorial Day was originally established as a day of remembrance for those who died in service to the nation (read more here). 

In this spirit, it is a good time for employers to consider their obligations under USERRA, the federal law that protects returning service members as they re-enter the workforce following their military service.  USERRA protects veterans from discriminatory treatment and provides a variety of re-employment related protections.  For a quick review check out this summary of USERRA's protections.  The DOL has published a lengthy handbook related to USERRA, which can be found here.

No matter what your tradition, have a great and safe holiday weekend.

Facebook's pre-IPO regulatory filings (click here) with the Securities and Exchange Commission (SEC) highlight a common issue with equity compensation programs -- the tax bill can be very large and trigger a burdensome withholding obligation.  Facebook reports that its employees and contractors hold about 378.5 million restricted stock units (RSUs).  Each RSU represents a right to receive one share of Facebook stock when the RSU vests.  The RSUs will vest approximately six months after the IPO.  Facebook is estimating a median IPO price of $36 per share.  If that valuation holds up, the RSU holders will vest in equity compensation worth approximately $13.6 billion.  Assuming a combined state and federal tax rate of 40%, that will produce a tax bill of about $5.5 billion.

A big tax bill can be a nice problem to have; however, employers are required to withhold taxes with respect to equity compensation as it vests, and the IRS wants to be paid in cash, not shares.  So where does the money come from?  In Facebook's case, it looks like they are planning to use a good chunk of the money they will receive from selling shares to the public in the IPO for business purposes; however, Facebook will likely hold back a percentage of the shares each employee would receive upon vesting of the RSUs and then use some of the cash from the IPO to make the required tax payments.  This is sometimes referred to as "netting down" the shares the employees receive.  It is convenient for employees, but requires the      Continue Reading...

The NLRB's new quick election rule (also dubbed the ambush election rule), which took effect at the end of April, has quickly been shelved.  Yesterday, a federal district court ruled the election rule was improperly put into effect because the NLRB lacked a quorum to take action.  For the NLRB to take action, three members are required.  In this particular instance, only two members took action on the finalization of the rule, according to the court.  This lack of a quorum invalidates the rule.  Shortly after the ruling was issued, the NLRB announced it would suspend application of the rule until further notice.

While the ruling is a victory for employer groups, it may be a short-lived victory.  The court failed to address any of the substantive arguments brought by the employer groups and simply invalidated the rule based upon the lack of a quorum.  This procedural defect can be easily remedied by the NLRB since there is now a full NLRB complement following the recess appointments.  For now, all of the election petitions filed going forward and any of the election petitions filed under the new rule will utilize the old process in effect prior to the rule change.  Stay tuned for the NLRB's next announcement on this issue.

The NLRB's announcement of the rule suspension can be found here.

As part of the insurance-market reforms enacted by the Patient Protection and Affordable Care Act (PPACA), insurance carriers are required to spend a minimum percentage of premiums (generally 85%) on medical care and quality improvement.  If this percentage -- the "medical loss ratio" -- is not satisfied, premiums must be returned to the policyholder to the extent necessary to reach the required percentage.

A recent report by the Kaiser Family Foundation (read here) estimates that under this rule, carriers nationwide will be rebating as much as $1.3 billion in total premiums collected during 2011.  Of that, employer-sponsored plans are expected to receive approximately $900 million, and at least some rebates are expected in every state except Hawaii.

When a rebate is received with respect to an ERISA-covered plan, care must be taken to determine whether some portion of the rebate is a "plan asset".  If so, it must be treated in a manner that complies with the ERISA fiduciary obligations that apply to handling plan assets.  The Department of Labor (DOL) has provided some specific guidance on this issue (read here).  The guidance instructs that the rebate generally must be allocated between the employer and the plan participants.  The portion allocable to the participants is a plan asset and must either be returned to the participants or used exclusively for their benefit.

The facts of each arrangement must be considered, but a rebate generally will be allocated between the employer and the plan participants based on their relative contributions to the premiums      Continue Reading...

Recent IRS regulations provide guidance to employers and insurers on the calculation and payment of a new fee on health plans.  The fee is part of health care reform and will be used to fund the Patient Centered Outcomes Research Institute.  The first fee payments will be due by July 31, 2013, and relate to plan years ending on or after October 1, 2012. 

Employers are responsible for calculating and paying this fee with respect to any self-insured health plans they sponsor.  Insured plans are subject to the fee also, although the insurance carrier is responsible for calculating and paying the fee.  The fee is $1 (increasing to $2 in the second year), multiplied by the average number of lives covered under the plan during the year. 

A key issue in calculating the fee is determining the average number of lives covered by a plan during a year.  (Covered lives include not only covered employees, but also spouses, dependent children, COBRA beneficiaries, retirees, and any other persons with coverage under the plan.)  The regulations give employers four options for calculating this number.  Two of the options involve counting the actual number of covered lives under the plan as of certain dates during the plan year.  A third option uses a formula based on "snapshots" of the number of employees in the plan at various points during the plan year, and the fourth option uses a formula based on the number of participants shown on the Form 5500 for the plan.

The fee applies to all self-insured      Continue Reading...

The effort in the Senate to prevent the implementation of the NLRB's new set of election rules failed yesterday.  By all appearances, the new election rules will take effect on April 30th.  These rules are designed to fast-track union representation elections.  This change should increase the election victory rate for unions resulting in more employee groups becoming union represented. 

What does all this really mean for employers?  The simple message is that employers that wish to remain union-free should consider educating their workforce on the topic before the employer becomes aware of a union's presence.  The time-line currently in place is already short.  The new rule will slice several weeks off of the existing schedule.  The practical effect of the change is that once a representation petition is filed, it will be almost too late for an employer to effectively respond with educational information to fully inform employees.  As they say, an ounce of prevention is worth a pound of cure.  This will be more true than ever once the fast-track election rules take effect next week. 

In a recent press release the U.S. Department of Labor announced child labor penalties against a chain retailer for allowing employees under the age of 18 to perform certain tasks the DOL has determined to be hazardous.  You might wonder what terrible tasks the employer required the minor employees to perform.  Was it handling hazardous chemicals?  Or maybe operating dangerous cutting equipment?  Not a chance.  It was nothing along those lines. 

Like many companies, this retailer had a trash and box compactor in the back of the store, and the minor employees were operating it.  Unfortunately, the DOL's Hazardous Occupation Order No. 12 generally prohibits employees under the age of 18 from operating, loading, or unloading paper balers or trash compactors.  These simple violations led to the assessment of a $12,000 civil penalty against the employer.

The lesson to be learned from this case is to be careful in how you utilize your youth employees.  DOL has issued specific regulations regarding the types of job duties employers under the age of 18, and under the age of 16, may perform.  As you can tell from this particular instance, those restrictions are not always intuitive, and what may seem like a routine function to you might be a hazardous task to the DOL. 

The NLRB's new election rule (click here to read the 12/05/2011 blog post discussing this rule), which essentially accelerates the election process, is set to take effect on April 30th.  This new rule dramatically favors unions, as it provides very little time for employers to inform employees once a representation petition is filed.  Some have labeled the rule the "ambush election rule" because it significantly shortens the current election process, which is already fairly short.  

The election rule is now under attack in the U.S. Senate by way of a proposed resolution pursuant to the Congressional Review Act.  The resolution of disapproval should be debated in the Senate this week and if approved by Congress would result in the implementation of the NLRB's election rule being blocked.  Stay tuned for further developments on this issue.

To read the press release click here.

Late yesterday the Circuit Court of Appeals for the District of Columbia (the federal appellate court over DC) issued an emergency injunction blocking the National Labor Relations Board from implementing its poster requirement, which was scheduled to take effect on April 30, 2012.  These regulations would require private-sector employers to post an official Board-drafted notice informing employees of their rights under the National Labor Relations Act, including the right to join or support a union.  Several business organizations had joined together last fall to file a lawsuit to block the poster requirement on the basis that the Board had exceeded its statutory authority in issuing the underlying regulations.  Last month the federal district judge in the District of Columbia had struck down several aspects of the Board's regulations, but upheld the poster requirement.  Both sides appealed the judge's decision and those appeals led to the DC Circuit's ruling.

While the injunction does not necessarily impact the entire country, the NLRB has decided not to enforce the rule while the issue is resolved.  The NLRB's temporary suspension of the rule's implementation gives employers a temporary reprieve from the posting requirement.

Of note, the DC Circuit did not address the substance of the NLRB's regulations; rather, it simply ordered the injunction to keep the notice from going into effect while the appeal is being addressed.  The timing of when the DC Circuit will further address the substance of the NLRB's regulations is not yet known. 

The current administration's pro-labor stance has not given private employers much to smile about over the last couple of years.  Last week, however, a federal judge in South Carolina provided employers with some much needed good news on this front.  In a lawsuit brought by the U.S. and South Carolina Chambers of Commerce against the National Labor Relations Board (NLRB), the judge ruled that the NLRB lacked the statutory authority to issue the regulations that require employers to post a notice informing their employees of their rights under the National Labor Relations Act.  This ruling comes on the  heels of a federal judge in the District of Columbia determining last month in a separate lawsuit that the NLRB had the authority to issue the notice requirement. 

In the South Carolina case, the court, analyzing the language of the National Labor Relations Act, determined that while the statute gives the Board the authority to issue rules to carry out the provisions of the Act, the Board's actions in requiring the posting of a notice went too far.  The court was mindful of the fact that the statute does not contain an express notice requirement, which is contrary to a number of other prominent employment laws, such as the Fair Labor Standards Act and anti-discrimination laws such as Title VII and the ADA.  The lack of any express statutory authority was noteworthy given the law's 75-year history and the fact that Congress has amended the act on a number of occasions.  The court found      Continue Reading...

As most of you are probably aware, social media policies and practices established by employers have been the focus of the National Labor Relations Board (NLRB).  It seems, though, that some employer interview and hiring practices have drawn quite a bit of negative attention as of late from the mainstream media and various politicians across the country.  At the end of March a series of news media stories received national attention (and some news talk show debate airtime).  These stories were focused on employers requiring applicants to provide them with their social media login/password information so the interviewer could review the applicant's non-public profile information.  Another twist of the same general concept is for the applicant to be required to log in and allow the interviewer the opportunity to review that private information on the spot.

While not illegal as of yet, this tactic takes the review of an applicant's social media presence to a whole new level.  There are a number of risks associated with reviewing social media sites (even if the information is public) as part of the hiring process.  Employers may uncover information as part of the social media inquiry that it doesn't really want to know or consider in the hiring process.  Taking this inquiry to the level of requiring an applicant to open up private information to the interviewer adds on a layer of additional risk.  Each employer has to balance the risks of reviewing the social media information with the value of the information and its relevance to      Continue Reading...

In yet another example of White House politics driving the employment ship, the U.S. Department of Labor (DOL) recently rescinded regulations that had been proposed to clarify the fluctuating hours method of calculating overtime.  This method, also known as fixed-pay-for-fluctuating-hours, is a lawful method under the Fair Labor Standards Act of paying non-exempt employees whose hours fluctuate from week-to-week a fixed salary that is meant to be the employee's straight-time wages for all their working time.  When the employee works overtime (i.e. more than 40 hours in a week), the overtime premium is calculated at half-time rates rather than the traditional time-and-a-half.  The regulations proposed under the Bush Administration were intended to clarify that additional forms of compensation, such as production bonuses, commissions, on-call pay, or shift premiums, were permissible under the fluctuating hours method as long as they were included in the employee's regular rate for purposes of overtime calculations. 

Desiring to make the fluctuating hours payment method less attractive for employers, the current administration rescinded the proposed language regarding bonuses and other forms of additional compensation.  The DOL explained its decision by stating that providing an employee with additional forms of compensation was inconsistent with paying the employee a "fixed salary."  The DOL went on to state that, except for overtime premiums, providing any other forms of additional compensation would invalidate the fluctuating hours payment method.  Presumably in that case the DOL would take the position that the employee would be entitled to overtime calculated at the full time-and-a-half.

Although not addressed by the DOL's      Continue Reading...

Who would've thought March madness would provide an opportunity to comment on immigration law and harassment issues? 

During yesterday's first round tournament game, a Kansas State player was fouled and went to the free throw line to shoot two free throws.  Like any good crowd, the Southern Mississippi fans tried to get in his head to cause him to miss the free throw.  The problem is they whipped out the "Where's your green card?  Where's your green card?" chant because the Kansas State player is Hispanic.  The player is actually from Puerto Rico and grew up in Miami.  And he is a U.S. citizen, just as surely as the misguided Southern Miss students who originated the chant. 

While the idea on the basketball court is to create a hostile environment for your opponents, it isn't likely that a "Where's your green card?" chant is something Southern Miss administrators wanted to hear.  This type of behavior is never acceptable, whether at a sporting event or in the workplace.  These types of comments are becoming more commonplace, particularly as the various state legislatures debate and/or enact legislation relating to immigration and worker documentation.  And it's comments like these that employers dread.  Imagine if employees in your workplace were treating Hispanic co-workers in this manner.  In the case of the basketball game, Southern Miss will take some disciplinary actions against its students and that is likely to be the end of it.  In the workplace, those kinds of comments may lead to an EEOC charge and maybe even a slam dunk.  

For those who want to see the video click here.  You'll have to turn up      Continue Reading...

In a recent decision (Gray v. Powers, No. 10-208080 (5th Cir. 2/29/2012)), a federal appellate court determined that an individual's status as an owner of business was not enough by itself to justify individual liability for the business' FLSA violations.  In that case, the plaintiff raised class-wide overtime claims against his former employer, which had gone out of business.  Finding the business' well dry, the plaintiff sought individual liability against one of the members of the limited liability company (LLC) that had run the business.  The court found that the member did not exercise actual operational control over the business.  He did not exercise authority with respect to the hiring or firing of the plaintiff or other employees.  Likewise, he did not exercise control over the employee's work schedules, wages, or other terms and conditions of employment.  Finally, the court found he was not involved in the maintenance of the company's employee records. 

The court's decision is not remarkable by itself, but it highlights the potential for individual liability that exists under the FLSA.  Like corporate shareholders, LLC members are generally protected from personal liability for the actions of the company.  However, when the owner, or any manager for that matter, has an active hand in the management of the business, especially with respect to the wages or working conditions of subordinate employees, individual liability becomes a potential risk.

The H-1B visa filing period for fiscal year 2013, which begins on October 1, 2012, will open on April 2, 2012.  Employers may begin requesting H-1B visas on behalf of qualified foreign individuals who intend to start work on October 1, 2012.  In the last few years, the H-1B quota for the fiscal year has remained unused through the late fall or early winter.  Historically, the H-1B quota for the fiscal year was exhausted by the applications filed in the early April filing window.  While the usage rate for FY2013 H-1B visas is hard to predict, employers would be wise to consider filing any needed H-1B applications in April to avoid ending up with no ability to access an H-1B visa later in the year due to the annual quota being hit. 

The NLRB posting rule has been the subject of much delay and scrutiny.  The rule is currently set to go into effect on April 30, 2012, following a number of delays in its implementation as previously discussed in our blog.  For a summary of the requirement as issued by the NLRB click here.   At the end of last week, a federal court (in one of the pending cases challenging the validity of the rule) issued a decision upholding the core posting element of the rule and invalidating other portions of the rule extending the statute of limitations for filing unfair labor practice charges and establishing the failure to post the notice as an unfair labor practice.  The short version of the judge's decision is that the NLRB's establishment of the posting requirement is within the authority of the NLRB and is permissible.  Stay tuned, however, as there is another federal court challenge pending in another jurisdiction, and that court could reach a different conclusion on the issue.  In the meantime, employers should be prepared to comply with the posting requirement as the April 30th deadline approaches. 

As most of you have probably followed, the ADA was amended a couple of years ago to expand the definintion of disability.  The EEOC issued regulations in the spring of 2011 designed to add some additional clarity regarding the ADA Amendments Act.  One of the items we flagged at that time was the EEOC's anticipated hostility towards employer policy materials containing an automatic termination provision for employees absent a specific length of time. 

As predicted, the EEOC has successfully brought actions against employers with policies of this nature.  Employers still utilizing a policy with automatic termination provisions would be wise to review and amend those policy materials in light of the EEOC's stance.  The key for employers is to make sure the policy provides for an interactive accommodation process to occur rather than a leave of absence length triggering an automatic outcome.  As long as an employer evaluates each employee situation on a case-by-case basis, the risk of an ADA violation drops dramatically (assuming the employer properly accounts for the ADA requirements).  Employers with an automatic termination trigger can expect that the EEOC is likely to deem any termination based on the trigger as a violation of the ADA.

Over the last year, the issue of social media usage by employees and responses from employers has been fairly heavily discussed and debated.  This discussion has primarily been related to discipline/termination matters.  For one, the NLRB has put employer social media policies under the microscope and issued clarifying information about a variety of policy examples.  Employers can expect those policy language debates and its impact on employee discipline to continue throughout 2012.  

The next breaking wave of social media disputes may be focusing on ownership of social media accounts created and utilized by employees in the course of conducting an employer's business.  Imagine your business setting up a Twitter account designed to communicate with your customer base and building a significant following over a period of a year or two.  What happens when the employee responsible for the company's social media presence resigns and takes the account with her by simply changing the login and password information?  One can imagine the employer might file suit to recover the account and the significant base of followers.  How these disputes play out remains to be seen.  There are currently cases pending in the Northern District of California (Twitter) and the Eastern District of Pennsylvania (LinkedIn) involving disputes of this nature.   

Employers should stay tuned as those cases work toward resolution in 2012 or 2013.  In the meantime, employers should consider adding language to their social media policies or employment contracts to reflect the employer as the owner of the social media accounts created on the employer's behalf by its employees.  This will put employers in the best position      Continue Reading...

So first off, there is almost no connection between the love we might express on Valentine's Day and I-9 forms.  If any of you say I-9 form and love in the same breath, your sanity will surely be questioned; however, if we talk about throwing out old I-9 forms, we might be able to insert I-9 and love into the same sentence.  If you are not destroying I-9 forms for former employees, it is time to consider your I-9 retention practices.

As all of you know, employers are required to complete and maintain I-9 forms and supporting documents for each employee.  In conducting audits and visiting with HR teams, the issue of maintaining (retaining I-9 forms) is an area where employers tend to err.  It seems that a lot of employers maintain I-9 forms forever when there is no requirement to do so.  The I-9 retention rules are fairly straight forward.  An employer is required to retain an I-9 form for any current employee.  Employers are also required to maintain I-9 forms for a minimum of three years.  Once the employee terminates employment with the company, the I-9 must be retained for at least one year following termination.  While a little convoluted, the rule is fairly simple.  The I-9 must be retained for at least three years and for at least one year following an employee's termination of employment.  Here are a couple of examples to help clarify:

Employee 1 starts work on August 1, 2007 and remains employed today.  Since the employee is a current employee we continue to retain the      Continue Reading...

In the fall of 2011, the U.S. Department of Labor issued a set of proposed regulatory changes impacting the use of child labor in agricultural settings.  (See our blog post of 10/21/2011 for more information.)  Part of those proposed regulations focused on the parental exemption to the child labor rules.  After receiving comments from agricutural industry representatives and getting some Congressional attention, the DOL now intends to re-propose the regulation as it relates to the parental exemption.  One can expect the DOL to take into account the comments received in this upcoming revised proposal.  For further reading click here.

The Department of Labor (DOL) issued an unoffical set of proposed changes to the FMLA regulations earlier this week.  The proposed changes primarily focus on the military family leave provisions.  The proposed changes will eventually be published in the Federal Register and will seek comments from interested parties.  The DOL's stated goal is to add clarity for employers with respect to the military leave provisions of the FMLA.  The DOL describes the highlights of the proposal as follows:

• Extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty; 
• Creation of a flexible definition for the serious injury or illness of a veteran;
• Addition of a provision to cover serious injuries or illnesses that are an aggravation of a pre-existing condition if it occurs during military service;
• Inclusion of regular armed forces members under the military leave provisions (as compared to National Guard and Reserve);
• Creation of a foreign deployment requirement for qualifying exigency leave.

Stay tuned as the discussion of these proposed revisions to the regulation will gain steam in the coming months.  Once the DOL finalizes these proposed changes, employers will need to update their FMLA policies.  For access to the DOL page containing links to the information the DOL intends to publish in the federal register click here.

For those employers subject to the requirement, the deadline for posting the OSHA Form 300A is coming right up.  The OSHA Form 300A is the summary of job-related injuries and illnesses for the prior year.  The summary is required to be posted from February 1st through April 30th and must be located in the location where all other employment-related notices are posted by the employer.  For further information on OSHA recordkeeping requirements click here.

Are your employees happy?  In the not too distant past that was a question most HR professionals cared a lot about.  Remember when employee retention was a big concern?  In today's employment environment, this topic seems to have fallen off the radar screen.  With unemployment still hovering at a level most would consider too high, the happiness of the workforce seems to be a forgotten concept.  The conventional wisdom is that employees aren't likely to job hop when jobs seem a bit hard to find.  While all this might be true, employers would be wise to keep employee morale in mind.  As we are all painfully aware, the economy runs in cycles.  Who knows how far away the next cycle of low unemployment and tight labor markets might be.  In addition to employee retention, employee morale is tied to employee productivity.  Keeping employees satisfied and working hard is the key to any employer's success.

It seems that employers in Wichita might be keeping an eye on this particular issue.  In a survey released by careerbliss.com, Wichita was tabbed as the 6th happiest city for work in the U.S.  Our neighbors in Kansas City managed to end up ranked 16th on the list of unhappiest cities for work in the U.S.  Click here to see more of the survey information. 

Late last year, the Federal Motor Carrier Safety Administration ("FMCSA") and the Pipeline and Hazardous Materials Safety Administration ("PHMSA") established rules related to cell phone usage by motor carriers on interstate highways and carriers of hazardous materials on interstate highways.  These new rules went into effect on January 3, 2012.  The new rules, among other things, restrict the use of hand-held mobile phones by drivers of commercial motor vehicles and make employers liable if they encourage or allow hand-held mobile phone use.  Employers should be mindful of the FMCSA's and PHMSA's approach making employers responsible for the actions of their drivers in those cases where the employees use a hand-held phone while performing their duties, carrying out company business, or otherwise acting on the employer's behalf when the violation occurs.  The fine for these violations can be as high as $11,000 per incident.

It goes without saying that this new rule will be difficult for employers to implement and enforce due to the high number of employees carrying their own personal mobile phones.  Employers can protect themselves somewhat by following a few basic precautions.  First, while not a fail-safe remedy, employers should implement a written policy prohibiting hand-held mobile phone use.  The written policy should clearly spell out prohibited behaviors, list the consequences for engaging in the behavior (and don't forget to enforce the policy), and provide employees with some incentive to comply with the policy.  As part of the implementation of the policy, employers should engage in a series of communications with their      Continue Reading...

The U.S. Supreme Court issued a decision yesterday in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case involving the application of the ministerial exception.  The short version of the facts is a religious school terminated the employment of a school teacher classified as a "called" teacher and she filed a complaint with the EEOC alleging disability discrimination prohibited by the ADA.  The Supreme Court reiterated the validity of the ministerial exception and noted that it bars employment discrimination suits brought on behalf of a minister challenging a church's decision to terminate the minister's employment.  While it is certainly notable that the Supreme Court validated the ministerial exception, institutions relying on the use of the ministerial exception should keep in mind that it will not apply as a blanket covering all employees or employment decisions of a religious institution.   

With the notion that cold weather is on its way, OSHA recently established a web page and issued guidance to employers with the goal of protecting workers during winter storms and from the cold.   For those employers with groups of employees that may become involved in winter storm cleanup efforts or might simply work outside in the elements, a review and implementation of some of OSHA's recommendations and suggestions will go a long way to help avoid citations related to exposing your workers to cold weather related risks.  You can find OSHA's guidance and a link to the web page here. 

We would like to wish all of our readers a happy holiday season.  Take a few days off and get ready as 2012 is just around the corner.  You will need to enter 2012 rested and ready as the pace of change being pushed out from the federal regulatory agencies is bound to pick up as the new year gets underway.  If you haven't already thought about your New Year's resolutions, then get busy because that deadline is rapidly approaching. 

The U.S. Department of Labor (DOL) continues its efforts to combat the misclassification of employees as independent contractors.  Last week, the DOL entered into a partnership agreement with the state of Colorado.  This agreement expands the number of states cooperating with the DOL to eleven, including our neighbors to the east and west (Missouri and Colorado).  Stay tuned as the DOL continues to turn up the heat on independent contractor classification issues.  To keep tabs on the DOL's efforts click here.

The National Labor Relations Board (NLRB) continues to remain active as the year winds down.  Late last week, the NLRB approved a resolution directing the amendment of the regulations governing the representation election process.  The resolution will result in a final rule being established and published in the coming months.  The general theme of the amendments is to change the current procedures with the goal of "reducing unnecessary litigation in election cases."  The NLRB's proposed amendments support this goal by limiting the scope of the issues during a pre-election hearing, limiting the filing of post-hearing briefs in these types of matters, and restructuring the post-hearing appeals process.  For a more detailed explanation of the six proposed amendments click here.

While the amendments are directed at procedural matters, the end outcome will be to shorten the path from an election petition to an election.  A shorter period between the filing of the union's petition and the election itself is a positive outcome for unions, as the shorter the time period, the more likely the union is to win a representation election.  Employers should pay careful attention to efforts by the NLRB to reduce the election process time.  As changes like this become law, employers will need to be more proactive in order to remain union-free.  The use of various preventative measures in advance of a union organizing effort will become more critical than ever for employers in this new streamlined environment. 

The USCIS announced that the H-1B cap for fiscal year 2012 was reached last week.  This means no more H-1B visas will be available for employer use until October 1, 2012, when fiscal year 2013 visas become available.  The filing period for the 2013 fiscal year H-1B  visas will begin on April 1, 2012.  In the meantime, employers that had been considering the use of an H-1B visa should begin evaluating other immigration options.

These numbers may signal a rebound in hiring of the professional employees this visa category represents.  Last year the H-1B cap was not reached at the end of January.  This upswing in hiring of H-1B visa candidates is a heads up to those planning to hire H-1B candidates next year.  If your company has a need to hire H-1B candidates, it is advisable to be prepared to take action on those hiring plans with an H-1B application filing in April 2012.  Prior to the economic downturn, the norm was for all H-1B slots for a fiscal year to be allotted during the initial wave of filings in April.  We may be returning to that type of environment for H-1B visa applications.    

For the text of the USCIS press release click here.   

With a title like this one you may be wondering if thoughts of turkey have gotten the best of me.  You might also wonder how a good safety record can be bad.  As with all good tales about employment law cases, the devil is in the details--in this case literally.  So here goes. 

It seems an employer had quite a run of work days without an accident or injury.  Most of you are probably thinking that's great news for the employer, and I would agree.  As with a lot of employer safety programs, this employer proudly displayed the number of days without an incident.  This display was done via a safety calendar and by the employees wearing stickers designating the number of days without incident.  So far so good.  As the number of days without incident continued to increase, it would seem like cause to celebrate.  And for most employees it was a positive thing.  But for one employee, concern and dread began to settle in.  As the number continued to grow and rolled over 600 days without incident, our worried employee began to highlight the impending doom of getting to 666 days without incident.  As the number continued to inch higher, the employee notified the employer that wearing 666--the "mark of the beast"--was forbidden by his religious belief. 

And this is where the real problem with this great safety record began.  As luck (good or bad, you be the judge) might have it, no safety incidents occurred and day 666 arrived.  The employee, in an attempt to avoid being condemned to hell, asked to be excused from wearing a sticker bearing the mark of the beast.  Rather than accommodate the employee, the employer      Continue Reading...

The process for obtaining a permanent resident card (green card) can be a time consuming process filled with years of waiting in line for a spot under the currently limited quotas.  The waiting time varies depending on (1) the category under which the individual is eligible for permanent residence and (2) the individual's home country.  Federal lawmakers recently introduced a bill called The Fairness for Highly Skilled Immigrants Act.  The bill is designed to increase the quotas for a variety of categories.  This would allow persons currently waiting in lines lasting years to move through the process more quickly.  It would also allow future applicants for permanent residence in the United States to acutally obtain permanent residence in a timely fashion.  Stay tuned as this bill is sure to be debated and discussed in the coming months.

Happy Veteran's Day to all those who served.  For employers, Veteran's Day is a great time to reflect on your employment policies and practices to ensure compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The basic gist is that individuals returning to an employer after engaging in military service are entitled to reemployment as if the individual had never left employment.  In addition, USERRA provides those individuals with some protection of their benefits and compensation levels during this time of military leave.  

For more reading on the topic check out this Department of Labor Fact Sheet on USERRA issues.

Immigration and Customs Enforcement (ICE) is continuing to issue Notices of Inspection (NOI) to employers across the country.  These ICE NOIs require employers to provide I-9 forms and various payroll related information to ICE.  The increase in these type of inspections being conducted by ICE is significant.  Over the last three to four years, the number of inspections has more than tripled.  For employers getting a NOI, it can be a costly experience.  While some of the inspections may be being conducted on a random basis, the more likely sceenario is that ICE has targeted the employer based on tips, complaints, or leads developed from a variety of sources. 

Employers should respond carefully upon receiving an NOI from ICE.  The real preventative medicine for employers is to conduct an audit of your existing I-9 documents as well as review your I-9 completion practices to ensure the documentation is all in order.  In addition, employers should consider the pros and cons of signing up to participate in the E-Verify system as part of the employer's comprehensive compliance strategy.

All of us have experienced an employee evaluation at some point in our lives.  For those of you lucky enough to get to evaluate others in your workplace, this posting may be of some assistance.  We will skip over all the discussion of forms and processes and focus today on the actual work of evaluating (those other things are very important, so promise to think about them later).

For those of you with kids in school, their lives are full of evaluations.  On the academic front, most of you received report cards recently and attended a parent-teacher conference to hear all about the good and bad.  On the athletic front, your kids may be trying out for school sports teams or club teams in their sports of interest.  One common thread in those athletic teams is that coaches are trying to pull together the best mix of talent to form a team.  In theory, this is what your employee evaluation process is all about (and your hiring process).  Just like with a sports team, you are constantly working on developing your employees and increasing their skills or correcting their weaknesses to strengthen your business and build a good workplace team.  Here are some things to consider with respect to how you evaluate your employees:

• Evaluate the performance in the position and not the person.  It doesn't matter how much you like or dislike the person on a personal level as you conduct your evaluation.  What matters is how the person performs in the assigned role and how that person helps the team succeed.
• Review      Continue Reading...

In the last several months the National Labor Relations Board (NLRB) has been hard at work issuing new decisions, guidance, and rules/regulations for employers to follow.  The simple theme for all of these efforts at the NLRB is to assist unions and make it easier for unions to organize groups of employees.  These changes have not gone unnoticed by employers.  In some instances, employers have resisted the NLRB's efforts.  For example, the NLRB's posting notice requirement was met wtih a lawsuit challenging its implementation (read here) which has delayed the implementation of the rule in the short term (read here).  

These employer efforts have now led to the introduction of legislation in Congress designed to overturn or check the NLRB's advances.  In addition to the notice posting requirement discussed above, the NLRB has proposed a new set of election rules designed to dramatically accelerate the union election process and issued a decision (read here about Specialty Healthcare) restricting the ability of employers to challenge the scope of the employee group being organized by the union.  Each of these changes provides a significant edge to a union attempting to organize a group of employees.  These two events prompted introduction of the Workforce Democracy and Fairness Act (H.R. 3094), which is designed to overturn the proposed election rule and the NLRB's decision in Specialty Healthcare.  In addition to this direct approach to overturning the NLRB's recent activity, some lawmakers have also threatened to slash funding tp the NLRB as part of the recently proposed federal budget.  Stay tuned for further developments as Congress and the NLRB battle over the landscape of the union organizing process.  

The H-1B visa, the one most commonly used by employers to bring specialized workers to the United States on a temporary basis, is subject to an annual cap/quota.  The annual counting period tracks the federal fiscal year schedule and runs from October to September.  Employers may apply for employee start dates up to six months in advance of the date.  In a nutshell, employers can start seeking numbers against the fiscal year cap starting in October as early as April 1.  For example, employers could request an H-1B visa on behalf of an employee on April 1, 2011, with a starting date of October 1, 2012 (part of fiscal year 2012).  After six months of usage, approximately 20,000 numbers remain available.  If this year follows the pattern of last year, the remaining numbers under the cap are likely to be used up around the end of December to the end of January time frame. 

Here is the link to the cap counting page on the USCIS website.

Citing a desire to allow additional time for enhanced education and outreach to employers, especially those who operate small and medium-sized businesses, the National Labor Relations Board (NLRB) announced recently that it has postponed the implemenation date for its recently announced rule requiring the posting of a notice of the rights provided under the National Labor Relations Act (NLRA).  This is the second time the posting date has been pushed back.  Initially the deadline to post the noticed had been November 14, 2011, but the NLRB pushed that date back to January 31, 2012.

Despite strong pushback from the manufacturing industry and other employer groups, as well as at least one lawsuit challenging the NLRB's authority to issue the notice, the NLRB made no changes to the substance of the notice, which can be downloaded for free from the NLRB's website here.  The NLRB's website also provides answers to many of the frequently asked questions which can be found here.  Stay tuned for more details as the NLRB works toward the new implementation date.

The National Labor Relations Board (NLRB) announced today that it is postponing the implementation deadline for posting the new notice from November 14, 2011, to January 31, 2012.  The NLRB stated that the reason for the delay is to allow "for enhanced education and outreach to employers, particularly those that operates small to medium-sized businesses."  The substance of the poster remains unchanged.

In an effort to assist employers with trenching safety concerns, OSHA issued a set of educational materials for employers to use with their employees.  These materials provide a very basic overview of trenching safety.  While they are a nice tool for employers to utilize in their training programs, they are not a replacement for a competent compliance person and an in-depth trenching safety program.  The press release with the links to the training aids can be found here.

Over the summer, OSHA proposed a revision to the current incident reporting rules.  At the present time, employers must report all fatalities or events leading to the hospitalization of three or more employees to OSHA within eight hours of the incident.  The proposed revisions would require the reporting of all fatalities and any employee hospitalization (one or more) within eight hours of the incident.  In addition, the proposed revisions would require the reporting of any amputation within twenty-four hours of the incident.  For purposes of the proposed rule, an amputation would be defined as "the traumatic loss of a limb or other external body part, including a fingertip."  The definition of an amputation requires the loss of some bone matter. 

The comment period for these proposed revisions to the incident reporting rule has been extended through October 28, 2011, to allow OSHA to gather more information from concerned entities.  Stay tuned as OSHA is likely to issue a final rule in the months following the closure of the comment period.

Last week a new bill made its way out of the House Judiciary Committee in Washington and now is in a position to come before the House as a whole.  The bill, titled the Legal Workforce Act of 2011 (HR 2885), would require all employers to participate in the E-Verify system.  Currently, participation is mandatory only for certain federal contractors and employers located in states with mandatory E-Verify state law provisions.  While the bill still has a long journey ahead of it before becoming a law, it is something employers should be considering as they decide whether to voluntarily opt in to using the E-Verify system.  As usual, the political rhetoric in Washington surrounding immigration-related topics is heated.  The difference this go-around is the weak economy and the commentary about ridding the workforce of illegal aliens being a jobs package for unemployed Americans.  Stay tuned as the debate moves towards the full House in the near future.  To catch a glimpse of the political commentary click here for the press release issued by the bill's sponsor. 

One of the things I commonly find myself talking about with clients is training.  There are a wide range of reasons in the employment law context to provide training to your employees.  For those focused on safety related issues, the OSHA standards contain a variety of standards that require employees to be trained with respect to a particular hazard.  Providing this training ensures compliance with those various OSHA standards.  For those focused on general employee issues, providing training with respect to your organization's HR policies is a key component in managing the workforce.  More specifically, training your employees about the organization's harassment policy is a key cornerstone to defending harassment claims. 

For all of you Chiefs fans out there (disclaimer: I am not one), this past weekend provided a reminder of another type of training that might be important.  The season-ending knee injury to running back Jamaal Charles leaves the Chiefs without much of an option for the position.  Don't let your organization suffer this same fate if one of your key performers becomes unable to work (whether by illness, injury, or resignation).  A little cross-training now can save you a lot of trouble later if this should become an issue.

Cell phones and driving are rumored to be a bad combination.  As you may recall, last fall OSHA published an initiative related to texting and driving.  See our blog entry here.  Today served as a reminder to me of why OSHA has undertaken this initiative.  Nothing like an SUV wandering all over the road and slightly off the road while its driver operates a smart phone to serve as such a reminder.  Thankfully, the SUV was driving only about 25 mph in a 40 mph zone since the driver's foot was also distracted by the smart phone usage and unable to maintain speed.  For those of you who have seen exactly this scene play out on the road, remember to make sure your organization has a policy in place regarding the usage of cell phones while driving (or operating heavy machinery).  And if you have a policy in place, think about how you might enforce such a policy.  A policy without enforcement is like having no policy at all.  The life you save just might be your own (or mine). 

The Department of Labor (DOL) announced a plan to update the hazardous occupation orders with respect to agriculture-related jobs.  This proposed update will restrict young workers from performing certain jobs in agricultural businesses.  A few of the proposed changes include the prevention of workers under the age of eighteen from working in grain elevators, feed lots, and stockyard type environments, as well as preventing workers under sixteen from operating power-driven equipment.  For more about the restricitons and further details on the proposed updates click here.   

There have been a number of actions taken by the NLRB in 2011 that have been blog worthy.  For those that have followed along closely, the overwhelming theme of the NRLB's decisions and actions has been extremely pro-union.  Each of the decisions along the way makes it harder for employers to manage their workforce and to avoid unionization should a labor union become interested in representing their employees.  In a decision a few days ago, Specialty Healthcare and Rehabilitation Center of Mobile, the NLRB altered the rules with respect to which employees can be included in a bargaining unit.  The NLRB held that once a union petitions for a specific bargaining unit, for an employer to add other employees to the requested unit it must be demonstrated that they share an "overwhelming community of interest" with the requested unit.  What is new with this decision is the addition of the qualifier "overwhleming."  The requirement to show an "overwhelming" community of interest, in a practical sense, means that employers may struggle mightily to alter the unit of employees the union targets with a petition.  While this may sound like a non-issue for those who have not dealt with union organizing efforts, it may prove to be one of the most significant pro-union decisions issued by the NLRB.  The practical application of this concept is that unions may now choose small subsets of employees within an employer as a target for unionization, and the employer may be powerless to add other similar employees into the election process.  This ability to      Continue Reading...

Over the past year, the National Labor Relations Board (NLRB) has reviewed a number of cases involving employer social media policies and/or employment terminations related to employee misconduct via a social media outlet.  While the NLRB has decided a few of those cases in favor of the employer, the overall trend has not been positive for employers.  Based on the NLRB's decisions to date, here are a few observations that can help employers stay out of the NLRB's cross-hairs.  

• Employee termination decisions should be carefully considered to ensure the employee is not engaged in some sort of activity that is protected by the National Labor Relations Act (NLRA).  The NLRA protects the rights of employees to engage in concerted activity that relates to the terms and conditions of employment.  Given the NLRB's current expansive reading of these rights, if your employee is complaining on Facebook about something that happened at work, and the discussion involves co-workers, you may want to tread lightly.  Considering the fine lines at play in this area, employers would be wise to consult with legal counsel before moving forward with an employment termination related to a social media post.

• If you have a social media policy, pull it out and think about it some more.  Odds are that the current NLRB will find something wrong with it.  Look carefully to make sure the policy is not overly broad.  If the policy heavily restricts employee usage of social media and discourages employees from engaging in concerted activity, it probably is not going to pass muster with      Continue Reading...

In the midst of what has turned out to be one of the hottest summer seasons in a long time, OSHA has released a mobile phone app to assist employers and employees with the prevention of heat injuries.  The app utilizes weather data to calculate the heat index for the user's location, and then assigns a risk level for the type of heat conditions.  The tool also allows the user to review the various protective measures an employer may want to employ for that particular level of risk.  While the issuance is a bit late to be of much help this summer, it may be useful in future summer seasons.  It also signals the Department of Labor's (DOL) commitment to the usage/issuance of mobile phone applications that support the regulatory agenda of the various agencies within DOL.  For more information or to download the current version of the app click here.

Earlier this summer several federal government agencies announced an initiative targeting immigration services scams.  While this initiative makes reference to protecting innocent and unsuspecting immigrants, the same can be said for some employers.  These immigration services sometimes convince employers they are capable of solving their work authorization problems for some of their employees.  In most circumstances, the employer tries to help these employees and can be duped by these scam artists just like individual immigrants.  If your company is approached by a service promising to provide you with "legal" workers, remember the old adage:  If it sounds too good to be true, it probably isn't true.  If this happens in  your workplace, you should consult your own legal counsel to ensure you are not unwittingly being put into a risky position. For text of the news release click here.

The I-9 form has become a routine part of the hiring process.  Most employers don't give much thought to the I-9 once the hiring process is completed.  The form is filled out and promptly tossed into the I-9 file, never to be seen again (unless the government visits).  If this describes your company, you might consider changing that practice.  It is a good idea to conduct an audit of your own I-9 documents on a periodic basis to ensure your company is in compliance.   The penalty for failing to properly comply with the I-9 requirements ranges anywhere from $110 to $1,100 per violation.  This can add up extremely fast.  Here are a few things to consider as you review your company's I-9 documents:

1.  Did the employee completely fill out the top section of the form?  Make sure each line is completed and that the employee signed and dated the document.

2.  Are the entries in the document section fully completed?  Make sure each of the lines is completed to the fullest extent possible.  One common error in this part of the I-9 is the failure to list the issuing authority for the document.

3.  Are you properly utilizing List A, B, and C documents?  Remember -- List A is enough by itself.  If you use documents from List B or List C, they are used as a package.  Your form should either have one document in List A or a document in List B and C together. 

4.  Consistency check the documents against the      Continue Reading...

The EEOC recently held a public meeting to discuss the issue of employer usage of arrest and conviction records in making employment decisions.  This meeting may signal a renewed interest in the issue on the part of the EEOC.  With the easy access to information via the internet, the use of criminal background checks is more prevalent which may be the motivation behind the EEOC's public discussion.  

The general EEOC position is that the use of arrest records and/or convictions to take an adverse action without further consideration of the circumstances involved is inappropriate.  In situations where the arrest/conviction is related to activity tied to the job, the use of an arrest record as the basis for adverse action can be justified by an employer.  Stay tuned for further EEOC activity on this topic.

To see the press release regarding the public meeting click here.  For a summary of the EEOC's existing policy guidance on the use of arrest records click here.

Employer deductions from employee paychecks are simple and effective ways for an employer to collect money owed to them by an employee.  While an easy means to collect an obligation from an employee, these deductions are also an easy means for an employer to run afoul of the Kansas Wage Payment Act (KWPA) or the Fair Labor Standards Act (FLSA).  So if you plan to make a deduction consider these general thoughts:

1.  Make sure your deduction does not take the employee below minimum wage. 

2.  A deduction for something that is not for the benefit of the employee (and the Kansas Department of Labor has a very restrictive view of this concept) is going to violate the KWPA.

3.  Deductions where the source of the obligation/debt is really a routine business expense of the employer is generally problematic. 

Generally speaking, it is always better for an employer to bill/invoice an employee and receive the payment required directly from the employee rather than making a deduction.  The consequence under the KWPA for making an improper deduction can be a penalty equal to the amount deducted in addition to returning the amount withheld.      

ICE (Immigration and Customs Enforcement) recently announced the start of another large scale effort to conduct I-9 audits across the country.  The most recent announcement indicated ICE would conduct over 1,000 audits in the later part of this summer which is similar to a large wave of audits conducted in February of this year.  This most recent wave signals a continuation of the strong commitment made by President Obama to ensure employers were in compliance with the I-9 requirements.  Employers should expect to see an increasing number of these types of audits as ICE has established a new centralized inspection center to allow for the processing of higher volumes of audits than in the past.  If you haven't done so lately, now would be a good time to self-audit your own I-9 collection to best position your company should you end up on the list of lucky employers being audited.

Those of you that have grappled with OSHA recordkeeping requirements fear no more.  OSHA just released a new interactive tool to assist employers with recordkeeping compliance issues.  The tool requires an employer to answer a series of questions about the employee and the particular incident in question.  The process assists the employer in determining whether the injury/incident is recordable under the OSHA regulations.  The press release can be found here and the interactive tool can be found here.

The Department of Labor is currently hiring.  While this is good news for recent college graduates looking for work, this may not be such good news for employers.  The DOL is continuing to focus its resources on enforcement of the Fair Labor Standards Act (FLSA).  This focus can mean only one thing for employers -- an increased likelihood of a wage and hour audit.  The local DOL office in Wichita, which covers most of Kansas, has added several new investigators in recent months and is currently hiring yet another.  These recent hires are just now starting to get out of their office and into employers' offices.  These additional investigators likely will result in increased enforcement activity going forward.  In the short-term, employers should consider self-auditing their pay practices, with the guidance of legal counsel under the attorney-client privilege, to ensure compliance with the FLSA prior to getting a visit from the DOL.

At the Foulston Siefkin LLP employment law seminar Vaughn Burkholder, Tara Eberline and Teresa Shulda discussed some common scenarios that human resources managers may be confronted with from time to time.  In response to numerous requests to see the videos again, we bring you a hopping-mad Easter Bunny as he deals with a payroll-related concern.  Will the complaining bunny get the carrot or the stick?  Click here to look in on the conversation.

Most employers understand the implications of sexual harassment in the workplace and have policies prohibiting inappropriate behavior.  Those same employers usually have a reporting mechanism embedded within those anti-harassment policies.  Both of these procedures are prudent.  So what should an employer do when a complaint arrives via the procedure established?  The answer is simple - go out and investigate and respond to the complaint.  Too often employers enact policies and procedures and then fail to implement them.  The cost of failure can be high in terms of monetary value and the lost time and energy in dealing with agency complaints and/or lawsuits that could arise down the road.  One employer recently learned the lesson of follow-up the hard way.  The allegations made by the plaintiff in Alford v. Aaron Rents, Inc. are extreme and the response by the company to the intial complaint appeared to be non-existent.  The takeaway from this $95,000,000 verdict against the employer is to always follow-up, investigate, and take action on complaints.  Otherwise the cost could be as extreme as the facts in this case. 

For the details click here for the story published in the St. Louis Post Dispatch.

The Occupational Safety and Health Administration issued additional guidance for residential construction employers with respect to the newly changed fall protection requirements.  OSHA will use a three month phase in period during which they will issue "warning" materials to employers not in compliance with the newly heightened standards.  This warning will only be utilized for employers fully complying with the old requirements should they fall short of compliance with the new requirements. 

Click here to see the OSHA press release.

At the Foulston Siefkin LLP employment law seminar Vaughn Burkholder, Tara Eberline and Teresa Shulda discussed some common scenarios that a Human Resrouce Director may be confronted with from time to time.  We have had a number of requests to see the cartoon videos used to facilitate the discussion.  In this installment, Frank Manager meets with Human Resources to discuss the potential termination of Robert.  Click here to look in on our patient HR Director as the discussion unfolds. 

Earlier this month at the Foulston Siefkin LLP employment law seminar, Jeff Hurt provided insights into a variety of issues that can arise under the Fair Labor Standards Act (FLSA).  Items discussed during the session included: 

• The Department of Labor's (DOL) "We Can Help" initiative, which is designed to make employees more aware of their rights and how to file complaints if they believe those rights are violated.

• The DOL, along with taxing agencies at the federal and state level, are looking to recover lost tax revenues by more closely evaluating independent contractor classifications.

• The implementation of new regulations related to "tipped" employees and employees being compensated with a fixed salary for fluctuating hours.

• The likely increase in retaliation claims under the FLSA following a recent U.S. Supreme Court ruling.

With the DOL's new enforcement efforts, it makes even more sense for employers to conduct a self-audit under the direction of legal counsel to ensure compliance and to manage the various risk factors. 

Social media (Facebook, Twitter, MySpace, etc.) issues have made for interesting news so far this year.  The National Labor Relations Board (NLRB), which has weighed in on social media handbook policy related issues, recently issued a complaint against a non-profit agency after five employees were discharged from their employment. 

The trouble started when an employee posted a message on her personal Facebook page related to the agency's shortcomings in serving its clients and naming a co-worker.  In response to the posting, several of the employee's co-workers engaged in a discussion about staffing levels and workloads at the agency via comments to the initial Facebook posting.  When the employer discovered the discussion, all five employees involved were discharged for the comments.  The employer says the postings harassed the named employee.  

As you might guess, the NLRB took issue with the discharges since the group discussion related to working conditions.  The NLRB's position is the five employees were engaged in concerted activity related to the terms and conditions of their employment, and such activity is protected from interference (read discharge) by the employer. 

This complaint is yet another attempt by the NLRB to weigh in on social media issues.  The NLRB is aggressively policing employer social media policies to ensure they are not overly broad and restrictive.  This complaint furthers that effort by attempting to prohibit employee discipline/discharge for employees discussing workplace concerns via social media.  As we all saw throughout the Middle East, social media sites can provide an easy means for individuals to spread messages to a widespread and mainly anonymous audience.  The NLRB's efforts in early      Continue Reading...

The Department of Labor recently issued a set of new regulations covering a variety of wage-and-hour topics.  Click here to read a summary of the new regulations. 

Earlier this week at the Foulston Siefkin LLP employment law seminar, David Rogers and Teresa Shulda provided employers with an overview of the entire litigation process from demand letter through the administrative process and into a jury trial.  The presentation highlighted how HR professionals are typically involved at each stage of the process.  The session concluded with a discussion of a scenario demonstrating some pitfalls for HR.  Some lessons learned include:

• The things HR professionals do and say early on in a case can make a huge difference in the outcome;
• Following the company's policies is key to defending an employment-related claim;
• Taining HR and Management on the company's policies is critical;
• Employers need to develop a document preservation process ("litigation hold") and implement the process when a claim is made; and
• Be cautious when responding to EEOC or state agency inquiries--providing inconsistent or invalid reasons for an employment decision can make it next to impossible to get the case dismissed without a trial. 

President Obama raised the issue of immigration reform during a recent speech in El Paso.  While no specific legislation has been introduced, the White House continues to highlight a set of goals for comprehensive immigration reform.  The general approach includes:

• A path to citizenship for illegals currently in the country (requiring a penalty, tax payments, and English proficiency);
• Provision of legal status for individuals who graduate from U.S. colleges if they chose to remain and start a business; and
• The ability for illegals brought to the U.S. as children to remain as citizens and receive educational opportunities.

Stay tuned as the discussion on immigration reform continues across the country.  This is a hot-button issue with politicians (and voters) at both the federal and state levels across the nation. 

Summer is right around the corner.  For most of us, the arrival of warmer weather presents opportunities for fun in the sun.  There are, however, a significant number of workers that must work in what are sure to be extreme heat conditions.  For those employers exposing their employees to these conditions, it is important to take a few mintues to consider workplace safety issues presented by the heat.  Now is the time to make sure your employees are properly trained and properly protected from this hazard.  Employers that fail to address this concern may end up with a general duty clause citation from OSHA should a heat incident occur.  For more information check out OSHA's heat illness prevent page here.

A few weeks ago, the Social Security Administration (SSA) issued its first batch of no-match letters to employers with the expectation that more letters will be sent out in the near future.  These were the first no-match letters to go out to employers since 2007.  The lack of letters over the last few years was the result of ongoing litigation related to the issuance of the no-match regulations that were ultimately withdrawn.  With an end to the litigation, the SSA no-match letters return. 

For those new to HR, the no-match letter is a tool used by the SSA to try and resolve discrepancies when an individual's name and social security number don't match.  The intendend purpose of the letter is for employers and employees to become aware of the problem and resolve it by correcting workplace records or working with the SSA. 

For employers receiving these letters, it is important to handle them with some care.  The receipt of a no-match letter is not intended in any way to signal to an employer that an employee is not authorized to work in the United States.  The no-match letter should set in motion a series of steps designed to confirm employer data being reported to SSA and/or the sending of an employee to visit the local SSA office to resolve any discrepancies.  The bottom line is that employers must balance between taking a course of action that is too aggressive yet ensuring the potential concerns raised by a no-match situation are not simply ignored. 

Information published by the Department of Justice on this topic can      Continue Reading...

Businesses may assume that once they hire a subcontractor to handle a specific task or project, all obligations or concerns regarding the subcontractor's employees are not their problem.  While this sounds good, this is absolutely incorrect.  There are a number of areas in which a business can be held responsible for the actions or inactions of its subcontractor.  One particular issue that is not well-known is responsibility for a subcontractor's unpaid wages under the Kansas Wage Payment Act (KWPA).  The KWPA places secondary responsiblity for unpaid wages on the entity hiring the subcontractor in the event the subcontractor fails to pay its employees.  The most-common application of this statutory rule is on a construction project where a general contractor hires a variety of subcontractors to perform smaller portions of the work.  If one of these subcontractors fails to pay its employees, the employees may make a claim against the general contractor for their unpaid wages.  While a construction industry example is easy to see, there are numerous other scenarios where a business enters into a contract to perform a service and subcontracts various parts of that obligation.  These types of arrangements would also fall within the scope of this provision in the KWPA.  For the specific statute click here.  

The Department of Labor (DOL) recently penalized the Prince George's County school system for its failure to properly pay H-1B workers.  In the case of an H-1B worker, the employer must pay the employee at least the prevailing wage amount established for the position.  The prevailing wage system is designed to ensure that foreign labor is not used to lower the U.S. wage base in a given occupation.  While the announcement is unclear, the problematic issue for the school is likely to have been the requirement the H-1B worker pay some or all of the fees for the preparation of the H-1B application packages. 

Generally speaking, it can be permissible for the employer to require an employee to pay the legal fees associated with any H-1B filing so long as these costs do not effectively lower the employee's wage rate below the prevailing wage rate.  For purposes of compliance, H-1B employers should view the prevailing wage as the minimum wage for an H-1B employee.  In addition to the prevailing wage floor, employers with H-1B employees should also be mindful of how the H-1B employee's compensation compares to his/her peers in the job classification.  Dropping below one of these floors can create a backpay liability issue for an H-1B employer.  In addition to the attorneys' fees concerns, there is also a government filing fee cost associated with the H-1B program.  While a payment of the attorneys' fees amount can be permissible, employers are not permitted to require the employee to pay the government filing fees associated with the H-1B application process.  

For the      Continue Reading...

A new pilot program has been added to the E-Verify system to allow individuals to check themselves and correct any problems that might prevent them from being verified.  This feature is currently only available to individuals in Arizona, Colorado, the District of Columbia, Idaho, Mississippi, and Virginia.  It is expected this self-check feature will be expanded and rolled out to individuals living in other states.  The addition of this capability seems to be an attempt to remedy the concern that the E-Verify system is prone to error and may cost authorized workers a job opportunity as workers will be able to check their own data and correct any problems prior to applying for employment.  

What does this mean for Kansas employers?  In the short-term, not much.  In the long-term, this appears to be one more step down the path to an eventual national requirement for all employers to use the E-Verify system.  One of the historical concerns with E-Verify is the potential error rate.  With the implementation of state laws in several states mandating use of E-Verify and the federal contractor requirement, the scope of participating employers has grown considerably.  This self-check option is a great way to address any concerns about employee fear of errors in the system.  When it is all said and done, don't be surprised if you start to hear talk of all employers being required to use E-Verify as part of the I-9 process. 

As I wrote last week, the interaction of the ADA obligation to provide a reasonable accommodation and the employer's leave of absence policy can be tricky.  Beyond reviewing policies to make sure there are no ADA time bombs in your policy manual, it also makes sense to spend some time thinking about how to handle potential ADA issues and accommodations before the situation arises.  The key to the ADA accommodation process isn't necessarily the end outcome as much as it is the interactive process between the employer and the employee.  It is important that a trained HR person is involved with any employee situation where ADA issues could be involved.  In fact, it makes sense for an employer to assign all accommodation and return to work issues to a centralized HR person (or team) due to the potential complexity of the issues that may be involved.  This focal person (or team) will want to ensure a good interactive accommodation process is used in each of these cases.  As the employer works through the process with the employee, it is important to keep good notes of the options discussed.  These discussions may result in the identification of an accommodation that resolves any concerns or may result in being unable to find a reasonable accommodation.  Either way, the documentation of the interactive process, including any offered accommodation and the employee's response, will be valuable if the employee later claims the employer failed to provide a reasonable accommodation.  

For more information on the ADA and various accommodation issues click here.

As most of you know, the ADA was amended a couple years ago making it easier for individuals to qualify for protection due to the expanded definition of a disability.  One danger area for employers is dealing with individuals needing a leave of absence or additional leave as it relates to a situation that may be defined as a disability under the ADA.  This can arise after FMLA leave has been used and expires, or for those non-FMLA employers/situations at the end of a standard leave of absence.  It is at this juncture that employers sometimes find themselves in dangerous waters.  What should an employer do at the end of an approved leave of absence (FMLA or otherwise) when the employee isn't quite ready to return to work?  Does the employee have some expected return date that is just a few days or weeks away?  Is the return a bit more uncertain?  How employers resolve this issue can be the difference between smooth exit and an EEOC complaint/lawsuit.  While just how much leave is a reasonable accommodation under the ADA can be unclear, it is clear that accommodating an indefinite or uncertain return to work date is not required.    

In addition to having sometimes murky factual information, some employers have a leave policy with an automatic employment termination provision that triggers at a certain point.  For example, if an employee has been on leave for six months, his or her employment is automatically terminated.  The EEOC is focusing some negative attention on this type of leave of absence policy and taking the position that such a clause violates the ADA.  Given this scrutiny, it's probably a good idea to review your leave of absence      Continue Reading...

A few weeks ago I wrote about spending some time reviewing your record retention policies and making sure your current files were properly managed (a/k/a throw out some stuff).  Another good task for the spring season is to check your internal posters to make sure you have the current versions in place and have all the required items hanging on the wall.  The posting requirements are driven by both state and federal law, so it is important to make sure you are in compliance with both.  The Department of Labor website provides employers with access to free posters for use in the workplace along with a simple tool to assist you in deciding which posters are necessary.  Click here for the Department of Labor website.  For employers in Kansas click here for access to links to posters required under state law. 

What do you do when your former employee uses your company as an employment reference?  Is it your company policy to say nothing?  Or is there no policy in existence?  It isn't very helpful for your former employees if you say nothing.  And in most cases, you would like to provide a reference to help them along.  It becomes a bit more problematic when the reference request is for a former employee that had issues.  If you provide a negative reference, you might find yourself the target of a defamation or retaliation claim.  It is always a good idea to have a consistent approach to providing references and to assist with that goal -- having a policy is ideal.  In Kansas, there is a statute providing immunity to employers who provide references within the scope of the statute.  A policy centralizing employment references to the HR group and tracking the terms of the statute is one of the better ways to ensure your company is following a consistent approach as well as avoiding potential litigation traps.  The provisions of the reference statute can be found here.

The filing period for H-1B visa applications counting against fiscal year 2012 (October 2011 - September 2012) opens on April 1, 2011.  These applications can be for individuals intending to start work on October 1, 2011.  While October is seven months away, it is important for employers intending to take advantage of the H-1B visa program to think ahead.  The economic downturn over the last few years has left H-1B visa numbers available to employers through the December/January time period of a given year.  With the uptick in hiring that is starting to occur, it is likely we will return to the prior scenario where H-1B numbers for the entire fiscal year are alloted during the April filing period.  That isn't likely to occur this year, but it also isn't likely that H-1B visas will be fully available throughout the fiscal year.  In fact, it is more likely the cap will be reached earlier in this upcoming cycle.  So start planning ahead if you intend to utilize the H-1B program during the 2012 fiscal year. 

Hardcore football fans know that the NFL combine, which precedes the draft, just took place.  If you have never heard of the combine, it is an annual event that takes place over a very long weekend (about 5 days) where the top prospects from college football are tested, measured, and interviewed.  Think of it as a massive job fair with candidate interviews, written tests, running, jumping, catching, throwing, kicking, and other agility tests.  If you want to see a 6'6 325 pound man run amazingly fast and weave around cones, this event is for you.  While your business isn't likely to engage in this type of testing, most employers do like the idea of conducting pre-employment testing to make sure prospective employees are a good fit.  While this seems like a great idea, keep in mind that the EEOC isn't nearly as excited about this process as the average employer.  If your business conducts any form of testing, keep in mind the EEOC has published a set of guidelines related to the testing.  If the testing process in any way discriminates or has a discriminatory impact, your business may find itself at odds with the EEOC.  It is important for employers to visit with counsel prior to implementing any testing programs to ensure they fully understand the risks associated with the testing.  Click here for a short EEOC summary on pre-employment testing.

Winter is fading.  We are about to turn the calendar to March and spring is just around the corner.  And with the arrival of spring comes spring cleaning.  In that spirit, take a few minutes to think about your record retention policies.  Are you keeping things too long?  Or are you tossing out important items too soon?  Every business has different issues and concerns with respect to record retention.  If you have a record retention policy, spend some time making sure you have trimmed back your collection of documents to comply with your own policies.  If you don't have a policy, think about what your policy needs to be and get started pulling one together.  And, if you have a policy that hasn't been updated in years, you probably should get out the red pen and see if any revisions or needed.  Finally, if you have pending legal matters (charges, complaints, investigations, and/or lawsuits), remember to comply with all document retention requirements applicable to those matters. 

On this most sacred of holidays devoted to love, take time to ponder your company's harassment policy.  Is it current and up-to-date?  How about your harassment training program?  Has it been ignored during the last couple of years during the economic downturn?  If so, it might be time to review and update that policy and pull the employees together for a training session on harassment in the workplace.  As most of you in HR know, love in the workplace can lead to plenty of troubling issues.  With Valentine's Day as the excuse, co-workers may be handing out candy, cards, gifts, and an occasional inappropriate advance in the office.  So for all you HR types reading this blog, get out of your office or cubicle and keep an eye on things.  If you're lucky, you might just be able to get a piece or two of candy as you make the rounds.  As an added bonus, if your company has a wellness plan you can confiscate all those chocolates in the name of eating healthy.  Just don't forget to send some my way.   

The National Labor Relations Act (NLRA) is the federal law most employers relate to unionization or to union-represented employees.  On occasion, the NLRA and its application bleed over into workplaces without union representation present.  For example, an employer policy prohibiting employees from discussing pay rates violates the NLRA regardless of whether employees in the workplace are union-represented.  In a recent skirmish, the National Labor Relations Board (NLRB), the government agency responsible for enforcing the NLRA, issued a complaint against an employer following the termination of an employee for violation of an internet/social media policy.  The employee had made complaints about her supervisor and responded to co-worker questions/comments on Facebook.  The NLRB's complaint was set for hearing before an administrative law judge, but yesterday the NLRB and employer reached a settlement. 

This settlement leaves unanswered the question of how the NLRA will be interpreted and enforced in the future.  The NLRB's filing of the complaint clearly signals a move by the federal government to extend protections to employees who complain via Facebook (or other social media outlets) about workplace issues and concerns.  Employers should be mindful of this development and stay tuned for further action on the part of the NLRB with respect to employee discipline for these types of violations.  For more information click here to read the NLRB press release.

A manager walks into your office and declares that the time has come to part ways with an employee.  As you work through the termination process, a beancounter in Accounting informs you the employee owes the Company $500.  After asking a few more questions, you learn part of the money owed is for Company products the individual bought on credit, and another part is for reimbursement for a training session the Company paid for.  Accounting suggests you just take the debt from the employee's final paycheck.  While this might seem like a clean and simple solution, it could create problems for you under the Fair Labor Standards Act (FLSA) and/or the Kansas Wage Payment Act (KWPA). 

The reconciling of the books on the final paycheck is a very common mistake made by Kansas employers.  This simple step of deducting money for obligations owed to the employer directly from an employee's paycheck seems fair and simple.  The problem is the FLSA and the KWPA--and the government agencies that enforce them--don't necessarily agree with that concept.  The KWPA prohibits employers from deducting money from an employee's paycheck unless the deduction accrues to the benefit of the employee.  You can be assured that the collection of a debt by the employer won't be viewed as a deduction for the benefit of an employee.  Anytime you find yourself tempted to hold money directly from an employee's paycheck, it would be wise to consult with your attorney to ensure the propriety of the action.  Finally, even if a deduction does not violate the KWPA, keep in mind that there      Continue Reading...

The USCIS announced late yesterday that the H-1B cap for fiscal year 2011 was reached on January 26th.  As a result, there is no further availablility for employers to obtain H-1B visas for foreign workers with employment start dates before Ocotober 1, 2011 (the start of fiscal year 2012) if the application must be counted under the cap.  For the remainder of the fiscal year, only cap-exempt H-1B applications may be filed for new H-1B visa applicants.  In addition, individuals with a cap-counted H-1B may still change employers because they have already been counted.  For those employers looking towards the fall, the fiscal year 2012 filing season begins on April 1, 2011, for employees starting work after October 1, 2011. 

Hope all of our readers had a happy and safe holiday season.  The bad news is that it's time to get back to work and get started into 2011.  With the turn of the calendar, many of us make resolutions for the new year.  For those of you who have yet to come up with something, here are a few ideas:

• "In 2011 I am going to focus on making sure the company does a better job of documenting personnel issues."
• "I will conduct a random audit of employee personnel files to make sure we are doing a good job keeping records in the appropriate spots."
• "I-9 audit.  Yes, I will do one and look at all our I-9 files."
• "Our company will do a better job with performance evaluations this year.  I will review and coach the management team so all our employees get a timely evaluation with meaningful feedback."
• "I will review our FLSA compliance to make sure we are properly classifying our employees as exempt or non-exempt and not allowing employees to work off the clock."

While this list isn't exhaustive, it should give you a few fun things to choose from.  So pick out a resolution and get started.  If all else fails, you can always resolve to hit the gym every day with all the other post-New Year's Day gym rats. 

In 1999, OSHA issued an interim enforcement policy providing residential construction with alternative measures for complying with the fall protection requirements applicable to all other construction situations.  OSHA is now eliminating this interim policy, which means employers in the residential construction arena will need to comply with the fall protection standards set out in 29 CFR 1926.500 et seq.  OSHA plans to begin enforcment activity pursuant to this change after June 16, 2011.  This grace period will allow employers a window of time to ensure compliance with the more-stringent fall protection standards.

For the full text of OSHA's directive click here.

After blogging about training earlier this week, I had an opportunity last night to watch what might have been one of the better training sessions I've seen in some time.  To protect the innocent and hide the identity of all involved (other than me), I will only divulge that the training session was youth-sports-related.  As a parent, I have done more than my share of coaching kids' sports.  I have also had the opportunity to see plenty of other youth coaches at work.  The topic being taught last night was how to hit a softball.  I've seen dozens of other coaches present the same general information to groups of kids.  What differed between the session last night and all the others was the approach used for the teaching.  Here are the key things I saw that might be helpful in providing training to others:

1. Break down the task being taught into each of its core component steps.  Isolate each one and teach it thoroughly before moving on to the next step in the process.
2. Stop along the way to explain what you are telling the audience.  If you use terminology, make sure they understand those terms and how they apply to your topic.
3. Engage your group and obtain feedback.  This will allow you to evaluate whether you are effectively conveying your points to your audience.
4. Once you have isolated and taught the individualized steps, roll it all up into one package and present the process from start to finish.  Summarize what you have taught them      Continue Reading...

Every employer approaches the issue of training from a slightly different perspective; however, all employers share the same end goal.  The goal is to bring in new employees and provide them with the required skills to perform the tasks the employer needs completed.  Sometimes the goal is to improve the skills of existing employees to allow them to be more efficient or to perform new tasks.  At the end of the day, the approaches utilized by the individual providing the training will dramatically impact the overall effectiveness of the training.  Here are a few thoughts that might make your training programs more valuable:

• Make sure your trainer understands the audience.  The content and/or delivery of the training should be tailored to fit the attendees' knowledge level and ability to learn. 
• Cheaper isn't always better.  It may be more cost-efficient to deliver training to the desktop via computer-based tools.  The real question is whether the target audience actually absorbs the training delivered.  No amount of cost reduction in the training delivery method is worth sacrificing the actual learning objective.
• Location, location, location.  Removing your employees from their normal work areas and the distractions that accompany it will likely improve the quality of your training outcome.  Avoiding the distractions of day-to-day work operations allows the employees to focus on learning whatever it is you want them taught.
• Atmosphere, atmosphere, atmosphere.  The environment will dramatically impact the quality of the training.  Make sure it isn't too hot, too cold, or too crowded, or too anything.  In my former life,      Continue Reading...

The EEOC recently released its annual performance and accountability report. While this report does not contain detailed charge statistics, it does contain summary overview material. Here are a few highlights from the report:

• The EEOC added new staff during 2009 and 2010. These new employees are enabling the EEOC to process more charges on an annual basis, thus reducing the EEOC backlog of pending cases.
• During 2010, the EEOC received 99,922 charges, a significant increase over the 93,277 filed in 2009.
• The EEOC recovered $319.3 million through the administrative process in 2010, up from the $294.1 million for 2009.
• The litigation arm of the EEOC filed 251 new lawsuits against employers in 2010.

All of these data points reflect a more-aggressive EEOC. The additional funding in the last two years has allowed the agency to increase staffing, thus increasing the agency's capabilities. Employers should expect more of the same over the next few years as the newly hired staff and enhanced budget allow the EEOC to continue these trends.The performance report can be reviewed in full here: http://www.eeoc.gov/eeoc/plan/2010par.cfm

The topic of religion in the workplace always provides a danger for employers.  In our post-9/11 world, we have continued to see tensions run high with respect to the Muslim faith.  Our continuing wars in Afghanistan and Iraq have caused these tensions to remain and build over the years.  With the recent outcry over the proposed Islamic mosque near the site of the former twin towers in New York City, this issue has been tossed onto the front of the newscycle.  From an employer perspective, religion is a topic best left for outside the workplace.  While this makes for a great philosophical approach, our employees are all human, and an employer expectation of a religion-free workplace is naive.  With the holiday season around the corner, there is no better time to ponder methods how to avoid religious discrimination and maintain civility and respect for all.  

Here are a few quick thoughts:

1.  Make sure you have in place a well-publicized and consistently applied anti-harassment policy.  The policy should contain a clear and concise complaint process.  If you haven't trained your workforce on anti-harassment issues in the past year, consider having a short training session to refresh the topic.

2.  If complaints are made, investigate them promptly and thoroughly.  If you find a problem, take steps to stop the conduct.  Even minor conduct that isn't unlawful can pile up until you reach a point the overall package of conduct is unlawful.

3.  Even if there is no complaint, intervene if you become aware of possible policy      Continue Reading...

OSHA has announced a new emphasis to protect the safety of workers in the grain-handling industry in Kansas.  Employers in this industry should expect an investigative effort by OSHA focused on their operations in the coming months.  The time to prepare for a potential OSHA inspection is now, not when the OSHA inspector arrives at your doorstep.  For more information on the emphasis and a recent letter from OSHA to grain industry employers, hit the links below. 

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=18657

http://www.osha.gov/asst-sec/Grain_letter.html

In the spirit of Veteran’s Day, we thought a brief summary of the Uniformed Services Employment and Reemployment Rights Act, or USERRA for short, would be appropriate.

Once again the social media beast rears its head in the employment arena.  Just when we thought controlling employee use of Facebook, Twitter, MySpace, and other blogs during working time was the worst concern, the National Labor Relations Board (NLRB) has entered the fray.  In a recent filing, the NLRB took issue with the firing of an employee due to a series of Facebook postings related to the employee's supervisor. 

It all started with a customer complaint about the employee.  The employee's supervisor asked the employee to prepare an incident report regarding the complaint.  The employee requested a union representative be present for the meeting, and the supervisor allegedly responded by threatening the employee with discipline.  The employee then went home that afternoon and posted a series of negative comments about the supervisor on Facebook, triggering a series of co-worker comments, and then even more negative comments from the employee.  Not surprisingly, the employee was discharged a few weeks later. 

The employee turned to the NLRB and filed an unfair labor practice charge.  The NLRB's investigation found the Facebook postings to be protected activity under the National Labor Relations Act (NLRA).  The NLRB also focused its inquiry on the company policies prohibiting employees from making negative comments about the company or its management in internet postings.  The NLRB found that this policy unlawfully violated employees' rights under the NLRA. 

This complaint is set for hearing in early 2011.  All employers should stay tuned to this matter.  Keep in mind that all employers are covered by the NLRA regardless of whether a unionized workforce exists at      Continue Reading...

The H-1B visa, the one most commonly used by employers to bring specialized workers to the United States on a temporary basis, is subject to an annual cap/quota.  The annual counting period tracks the federal fiscal year schedule and runs from October to September.  Employers may apply for employee start dates up to six months in advance of the date.  In a nutshell, employers can start seeking numbers against the fiscal year cap starting in October as early as April 1.  For example, employers could request an H-1B visa on behalf of an employee on April 1, 2010, with a starting date of October 1, 2010 (part of fiscal year 2011).  After seven months of usage, approximately 20,000 numbers remain available.  If this year follows the pattern of last year, the remaining numbers under the cap are likely to be used up around the end of December to the end of January time frame. 

Here is the link to the cap counting page on the USCIS website.

It seems that everywhere I go this time of year I run into tables set up for the sole purposes of making sure I have taken a flu shot.  Every retailer now seems to operate its own medical clinc for sole purpose of charging us for one of these fun flu shots.  This reminds me of the oncoming winter season and the increased level of employee absences for illness or family illness-related reasons.  So whether you take a flu shot or not, the flu season is on the doorstep.  Here are a few thougths for the season:

1.  React early to an attendance problem.  Don't allow an employee to miss work on multiple occasions before applying your attendance policy to the situation.

2.  Make sure you have a good understanding of what is driving the absence.  Is there an illness issue for the employee or is it a family member concern?  Is this the type of condition that might trigger an FMLA leave situation if you are covered by the FMLA? 

3.  If there is an FMLA leave situation at play, designate the leave and get it counted against the employees FMLA leave allowance.  And make sure any discipline process is reviewed and withdrawn.  You don't want to issue discipline for time off that is protected by the FMLA.

4.  If there isn't an FMLA situation or a concern under the ADA, issue any discipline required by the attendance policy without delay.  Don't get caught up in the story or the particluar situation. 

Dealing with employee attendance concerns in a prompt      Continue Reading...

Distractions in the workplace can be deadly.  Employees can injure not only themselves, but also co-workers, or even a customer or other innocent bystander.  Most employers have work place safety rules designed to eliminate (or at least reduce) workplace accidents.  With all that said, one area where employers (and the general public) seem to struggle is in eliminating distractions from vehicles. 

The Occupational Safety and Health Administration (OSHA) is charged with ensuring workplace safety for employees.  In a recently announced initiative, OSHA is now focused on making sure texting while driving for work is eliminated.  OSHA's initiative joins a long list of states enacting laws to prohibit texting while driving as well as several other federal government initiatives to restrict federal employees and commercial vehicle drivers from texting while behind the wheel.  In its open letter to employers, OSHA states that employers have a legal obligation to have a "clear, unequivocal and enforced policy against the hazard of texting while driving."  OSHA's position on the issue is very clear.  Employers should pay heed to this October 4, 2010, announcement and ensure texting while driving for company business is eliminated. 

For those employers with a good policy prohibiting distracted driving, you should already be in compliance with OSHA's policy initiative.  If you have not adopted a distracted driving policy, now would be a good time to draft and implement one.  A good distracted driving policy prohibits texting, emailing, and/or the use of a hand-held phone while driving.  It is important to make sure your written policy is in place and well-communicated to your      Continue Reading...

The U.S. Citizen and Immigration Services (USCIS) recently announced an increase in filing fees for a wide range of application types.  Of particular note to employers, the filing fees for several employment-based applications are scheduled to increase (I-140, I-485, I-129, and I-907). 

For the complete list of changes you can access the fact sheet at USCIS's website found here.  

What does a crazy parent have to do with the FMLA?  Seems like a fair question to ask.  As a parent, most days I come away feeling a bit crazy. 

Instead of pondering the merits of crazy parents, or parents driven crazy, let's ponder the Department of Labor Wage and Hour Division's (DOL/WHD) recent Interpretation of the in loco parentis language contained within the FMLA regulations.  This recent pronouncement from the DOL/WHD appears to expand the group of employees who are able to claim parent status for purposes of taking FMLA to care for a child.  The regulations explain that individuals "who are 'in loco parentis' include those with day-to-day responsibilities to care for and financially support a child."  The new DOL/WHD interpretation softens this requirement by stating an employee qualifies as a parent by showing either day-to-day care or financial support so long as the employee intends to assume parental responsibility.  The practical implication of this interpretation is to further expand the group of individuals able to assert leave rights as the parent of a child.  Be mindful of this interpretative expansion as you receive FMLA requests related to the care of a child. 

You can find the text of the interpretation at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm

As most of you are aware, the EEOC is charged with enforcing the federal anti-discrimination statutes that impact most employers.  The primary vehicle utilized to bring an allegation of discrimination under those statutes is for an applicant, employee, and/or former employee to file a charge of discrimination with the EEOC.  The filing of a charge typically triggers an investigative phase and the issuance of some sort of finding by the EEOC.  The EEOC tracks and makes public the statistical data for any given year.  A review of the statistics can be informative in viewing the big picture of where the risks lie for employers.  In looking at the 2009 data (the most recent available), the following points merit mention:

1.  Claims of discrimination filed in 2009 are even or slightly higher than those filed in 2008 and remain at much higher levels than 2007 filings.  When reviewing the raw data, remember that a charge can consist of multiple claims of discrimination which must be counted as a separate claim. 

2.  Race, gender, and age based claims declined in 2009 as compared to 2008. While these traditional areas of discrimination claims seems to have stagnated over the last two years, the overall numbers of claims in these areas make up a significant volume of claims filed with the EEOC.

3.  National origin, religion, disability, and retaliation claims are all up as compared to 2008.  Claims of national origin and religious discrimination don't account for many claims overall, but these are both areas that have experienced considerable and rapid growth in the number of claims filed      Continue Reading...

A series of changes to the penalty calculation process used by OSHA will take effect next week.  These changes appear to be designed to increase the penalty amount assessed against employers.  OSHA is accomplishing this overall penalty increase by modifying the administration of the penalty structure currently in place.  These changes include increasing threshold for employer eligibility to receive a penalty reduction, by modifying the application of any discounts, and by increasing the penalty amounts. 

Modified Penalty Structure

• The minimum possible penalty was increased to $500 for any serious violation.
• A new penalty modifier of an additional 10% is now added for employers with a prior serious, willful, or repeat violation in the prior five year period.
• A violation can now be the basis for a repeat citation for five years instead of three years.
• OSHA will increase the penalty thresholds under its gravity based penalty model to range from $3,000 to $7,000 instead of the current $2,000 to $5,000.

Increased Eligibility Threshold

• The good history reduction for employers will now require a clean history of five years to qualify for the discount as opposed to the prior rule of three years.
• The discount for employer size will be reduced to a maximum discount of 40% as opposed to the prior maximum discount of 60%.
• OSHA eliminated some of the elements of the good faith reduction.

Changes to Application of Discounts

• OSHA is modifying the method by which discounts are applied to the total proposed penalty.  Under the current method, OSHA adds up the total reduction percentage and applies it to the citation(s) in the aggregate.  The      Continue Reading...

Did you know that providing break time and a private location for new mothers to express their breast milk is now a requirement under wage and hour law?  For the most part, employers we have worked with in the past have been sensitive to the needs of new mothers upon their return to work.  Now the federal government is mandating employer action in this area. If you have over fifty employees, the additional break time requirement applies to your company.  For those employers with less than fifty employees, the break time requirement applies unless you are able to show it is an undue hardship for your company to provide the additional break time.  For pratical purposes, even small employers (under fifty employees) should assume the requirements will apply to them.

The amendments to the wage and hour laws require employers to provide this additional break time to any employee that is not exempt from overtime.  The additional break time does not need to be compensated time unless the employer provides other employees with compensated break time for other purposes.  This could be problematic for an employer that allows multiple breaks for smoking and/or bathroom visits that are compensable. 

In addition to providing the additional break time, employers are required to make available a private space where employees will not be intruded upon by the public or a co-worker while expressing breast milk.  The rule specifically states that a bathroom is not considered an acceptable location for purposes of complying with the requirement. 

The short      Continue Reading...

A federal judge in Arizona blocked the implementation of several key provisions of Arizona's controversial new immigration law.  This temporary blockage allows for more hearings and legal arguments to take place in the coming months by delaying (and maybe eliminating) the Arizona law. 

One thing I noticed in the days leading up to the effective date of the Arizona law last week was the increase in rallies and demonstrations.  With these demonstrations, the public and political attention paid to immigration issues is bound to grow. At the end of the day, the blockage (or non-blockage if it turns out that way down the road) isn't really the issue.  The Arizona law brings to the forefront the issue of immigration reform versus illegal immigration.  There is a growing perception the federal government is unable or unwilling to act to prevent illegal immigration.  At the same time, the country's economic struggles have resulted in more negative attention on employers and more calls for stronger employer sanctions for those employing illegal workers. 

The anti-immigrant messages focused on the loss of jobs for U.S. citizens has a tendency to catch the attention of local and state politicians.  As a result, there have been attempts in by a number of state legislatures to pass varying forms of immigration-related state laws.  Most of these efforts have been met with court challenges, like this most recent version in Arizona.  At the root of the legal wrangling is whether federal law preempts any attempts by the states to enact laws in this area. 

At the end of the day, the state legislatures and      Continue Reading...

The Department of Homeland Security (DHS) recently issued a final rule making a number of minor revisions to the regulations governing the I-9 process used by employers to document newly hired employees' eligibility to work in the United States.  The issuance of the final rule incorporates with some slight modifications the provisions of an interim rule issued in 2006.  The highlights are as follows:

1.  A language clarification was added to make clear that employers have three business days to complete the I-9 process as opposed to three calendar days.

2.  The interim rule allowed employers to use either a paper or electronic retention system and the the final rules allows paper, electronic, or some combination of a paper and electronic system.

3.  The final rule allows employers to maintain a separate I-9 file or to store I-9 documents within the files containing the employees' other personnel documents.

4.  The final rule relaxed the audit trail requirements for electronic storage systems requiring only an audit trail for record creation, modification, or deletion.  In essence, a viewing of the I-9 document does not need to be recorded by the electronic storage system.

5.  The interim rule required employers to provide employees with a printed receipt showing the record each time it is modified.  This requirement was relaxed to allow employers to only provide a printed receipt upon the request of an employee.

While the final rule made a few other changes, the ones listed above are the high points.  For those interested in reading the final rule, it can be found      Continue Reading...

One of the new realities for employers is the increased risk of a visit from an investigator working for the government.  These visits can come at any time, without warning, and may be conducted by any number of government agencies.  The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection.  While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider.  The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door.  Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

• Plan ahead:  The time to develop a game plan for an inspection is well in advance of the actual investigator's visit.  Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights.  The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
• Communicate the Plan:  Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive.  There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy. 
• Have a Core Team:  A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator.  This group should be intimately familiar with the response strategy and      Continue Reading...

A common message delivered to supervisors is to document, document, and document.  The importance of keeping good records cannot be said enough.  The records maintained by supervisors are critical to employers in defending claims asserted by employees.  The notes/records made at the time tell the story at a time when the facts and circumstances are all clear and unvarnished by bias or the passage of time.  Not only do these records help supervisors remember what happened at the time, they are the most accurate record of the events.  The challenge, however, is to make sure those documents are prepared in the first place.  Supervisors are busy dealing with the stress of operating the business at the same time they are managing scores of employees (all with personnel issues and concerns).  Here are some ideas to help those supervisors:

Have A System -- Supervisors with a system are always going to be more successful in this area than those who rely on chance to get the events documented.  It doesn't matter how the system operates as long as the events get documented and retained.  Your system needs to be one that works with your style of leadership and organization.  Here are a few techniques:

• Employee Folders -- Maintain a file for each employee and drop copies of all notes and/or disciplinary documents relating to the employee into the folder.  Make sure the storage location for the files is secure.
• Notebook -- Use a notebook/journal and make notes of all employee issues in the notebook.       Continue Reading...

The United States Citizenship and Immigration Services (USCIS) has revised and updated the E-Verify interface used by employers to electronically validate the employment authorization of newly hired employees.  The revisions are designed to improve the user experience with the E-Verify system by streamlining functions and simplifying terms.  For more information on the redesign of E-Verify go to http://www.uscis.gov/e-verify_redesign.

E-Verify is the online verification system designed by USCIS to permit employers to verify employment authorization materials provided by newly hired employees.  For most employers, the use of the E-Verify system is purely voluntary.  For those employers that are government contractors (or subcontractors of government contractors), the use of E-Verify may be mandatory under the terms of the specific contracts.

This installment of Tips & Tactics passes along some information related to employee evaluations. 

Periodic -- Employers should establish an evaluation process to ensure employees receive periodic feedback regarding the employee's performance.  There is no magic to the period to utilize; however, keep in mind this is sometimes the only time an employee gets feedback from a supervisor regarding job performance.

Ongoing -- Even though the evaluation process may only require an "annual" evaluation, supervisors should provide regular feedback during the evaluation period.  In other words, supervisors should not save up all the constructive criticism (or praise) for the once a year sitdown with the employee.  Take a few minutes to discuss concerns or to handout praise at the time of the event.  Supervisors should make a note of these meetings to assist with completing any formal evaluation documents at the end of the evaluation period.

Honest -- The evaluations need to be accurate even if that means you might hurt someone's feelings.  Performance will never improve if the employee isn't made aware of the deficiencies and given constructive guidance on how to improve in those areas.  Too often supervisors have a tendency avoid the negatives and focus only on the positives.  Not only does this hinder the employee's ability to improve, it also makes for bad evidence later when we terminate an employment relationship due to poor performance that was never documented in the evaluation process. 

Interactive -- Use the evaluation process to engage the employee with respect to the employees goals and objectives.  This is a good time to      Continue Reading...

On a regular basis I will be posting a Tips & Tactics entry covering a wide range of practical employment law issues.  This opening Tips & Tactics column passes along some information related to employee discipline sessions.

Investigate -- Prior to initiating any disciplinary action, the supervisory team should ensure they have all the facts.  While investigations can be a topic of their own, the basic idea is to get the when, where, why, what, and who information all sorted out before making any final decisions.

Be Consistent -- Make sure the disciplinary action being proposed in the current situation is consistent with past disciplinary actions for similar situations.  If this is a matter of first impression make sure you set the disciplinary consequence at the proper level for future situations that may arise.  One suggestion in setting the discipline level for matters of first impression is to set the discipline level as if the employee involved is one of your best employees.  This will help you avoid setting an improper consequence you will be forced to live with later because of your focus on the current situation.

Corrective Action -- The general purpose of disciplinary action is to correct or remedy a deficiency in the employee's performance.  Take the time to provide concrete examples of the behavior being corrected along with a plan of action to assist the employee in correcting the behavior.

Confidentiality -- The disciplinary history for an employee is not for public release to the employee's co-workers.  Make sure the disciplinary meeting and      Continue Reading...