Apparently faking a cough over the phone wasn’t enough for an employee wanting to get out of work. No, a Washington man apparently wanted a little more time off and had a flair for the dramatic so he had a friend shoot him in the shoulder to avoid work and a looming drug test.  He told his boss he was hit in a drive by shooting.   No word on whether the time off has morphed into permanent time away from the job.

 

While there still seems to be some disagreement among those in the military over whether waterboarding is torture, it appears that at least one supervisor thought it could be a motivational tool.  A Utah company and its supervisor are being accused of using this technique of making someone feel as though he is drowning, to motivate sales staff.   It is alleged that a supervisor took his team outside, held an employee down, and poured water into his mouth and nose. The employee, who claims he didn’t know what type of motivational exercise he was volunteering for, has sued claiming he is now sick and depressed.   The company president suspended the supervisor for 2 weeks, indicated that the actions were against company policy, and that the employee knew what he was getting into.

 

I couldn't make this stuff up. Reality is indeed stranger than fiction.

One state government entity is getting an up-close and personal look at the challenges posed by the laws it must enforce. Ironically, the Utah Anti-discrimination and Labor Division (UALD), the state agency charged with enforcing the state’s employment discrimination laws, now has been accused of committing employment discrimination and retaliation itself.

In a lawsuit filed recently in Utah federal court, a former UALD claims investigator says she was subjected to discrimination and sexual harassment along with other female employees. She also alleges the UALD retaliated against her by terminating her employment after she registered her complaints.

According to the filed court complaint, the federal Equal Employment Opportunity Commission (EEOC) considered the matter and decided there was reasonable cause to believe that the UALD violated the law in its conduct towards the plaintiff. The case will now play out in federal court.

The United States Supreme Court has issued several decisions that will impact employers.


First, regarding an age discrimination claim, the court has ruled that a charge questionnaire filed by an employee with a civil rights agency may be enough to actually be a filed charge. This decision poses the possibility that a wider range of documents filed with such agencies, short of formal charge documents, will have to be considered by the agencies, most of which now face charge backlogs.

Second, in another age discrimination case, the Court has ruled that courts can allow, but must carefully consider whether to allow, so-called “me too” evidence, i.e. evidence of another employee who also has claimed that the employer is biased in a context unrelated to the pending lawsuit (e.g. involving other employees, other supervisors and another department of the employer).

Finally, the court has expanded the type of lawsuit that can be filed regarding retirement benefits. The Court ruled that a 401(k) plan participant may sue to recover losses allegedly caused by a plan’s failure to properly implement investment directions. The plaintiff in that case claimed that the plan’s investors had not followed his directions on how to invest his 401(k) funds and thus should be liable for the related losses.

If you receive a number of “official looking” offers to sell you government posters or scary sounding letters warning you of the dangers of being out of “poster compliance,” you are not alone. Many private firms sell government required posters. Some are quite ethical and simply provide a service by combining some of the required postings or presenting them in more attractive formats.  Others are less than ethical, by trying to appear as though they represent the government or by attempting to sell “updated” posters which really aren’t.   In any event, required posters are basically available for free through government agencies.   A good place to start your poster hunt is the Department of Labor’s website at www.dol.gov/compliance/topics/poster.htm.   At the site you will find a number of links to federal postings and even state sites.   You probably can’t stop the annoying mailings but you can smugly throw them away knowing you got your posters for free.

Who says government programs are not effective? The Occupational Safety and Health Administration (OSHA) recently released its annual enforcement statistics. Inspections and cited violations are on the rise. Employee illness and injury at the workplace is on the decline.

In fiscal 2007, OSHA conducted 39,324 total inspections, a 4.3 percent increase over its stated goal of 37,700.  Total violations of OSHA’s standards and regulations were 88,846, a 6 percent increase from fiscal 2006.  The agency cited 67,176 serious violations, a 9 percent increase from the previous year and a more than 12 percent increase over the past four years.  The number of cited repeat violations also rose, from 2,551 in FY 2006 to 2,714 in FY 2007.    

“The fact that OSHA surpassed its inspection goal for FY 2007 proves our enforcement commitment remains strong,” said Assistant Secretary of Labor for OSHA Edwin G. Foulke, Jr.  “The significant increase in citations for serious and repeat violations documents OSHA’s focus on identifying and eliminating severe hazards in the workplace.”

Fatality and injury and illness rates have continued to decline to record lows.  The injury and illness incidence rate of 4.4 per 100 employees for calendar year 2006 was the lowest that the Bureau of Labor Statistics (BLS) has ever recorded.  Workplace fatality rates hit an all-time low in calendar 2006 with 3.9 fatalities per 100,000 employees.

---

Source: SHRM

As we start a new year it’s a good time to review workplace developments of 2007 and make sure that you’ve integrated applicable ones into your policies and practices. The information that follows highlights a few selected federal developments. Remember to check your state law as well. The states were very busy in 2007. In 2008 you can expect to continue to see a lot of activity on the federal and state levels that will significantly impact the workplace. Several possibilities are discussed below. In a slight modification of an old, trite saying: nothing is certain but death, taxes, and changes in HR law.

Is another form of mandatory employee leave on the horizon?  Beginning December 13, 2007 most New York employers must give employees who work 20 hours or more at least 3 hours of leave to donate blood within any 12 month period.  Illinois requires certain employers that let employees take time off to donate blood to use up to one hour of paid leave every 56 days.

I am in the process of hiring a new staff member. Nothing new, I have hired many people over the course of my career. What is unique about this hire is that the position being filled did not fit the criteria of any previous position and existing job description at HRN. This circumstance required me to define this position by writing a new job description. This is something I have only had to do once before at another employer and it was a tedious and time consuming process. At HRN, and I hope in your organization, each job title has a detailed job description that is provided to the employee and kept on file to ensure that each staff member is aware of their responsibilities and understands their job function.

The Department of Homeland Security (DHS) has published a final rule that establishes safe harbor procedures for organizations that receive Social Security Administration (SSA) mismatch letters from the DHS that an employee isn’t authorized to work.

Human resource professionals have a never ending list of “basic and critical” issues that must be addressed and reviewed periodically to reduce litigation risks and keep things running smoothly. Of late, the following items seem to be of greater concern to our clients. How are you doing on them?

The Equal Employment Opportunity Commission (EEOC) has issued a new policy guidance dealing with the issues of how employers should treat employees who have family care responsibilities. The guidance notes the following possible problems and illegal acts by employers, "sex-based stereotyping and subjective decision making regarding working mothers; assumptions about pregnant workers; discrimination against working fathers and women of color; stereotyping based on an association with an individual with a disability; and hostile work environments affecting caregivers." The guidance offers tips to employers, employees and EEOC staff on how to deal with such issues. You can read the guidance at www.eeoc.gov/policy/docs/caregiving.html

HR Daily Advisor recently published an interesting list called the nine deadly sins of hiring. The sins are: 1) failing to plan before hiring, including failing to have in place an accurate job description for the open position; 2) using a poorly designed application that asks illegal or inappropriate questions; 3) failure to retain applications for proper periods of time; 4) allowing untrained supervisors to conduct interviews; 5) failing to ask about noncompete agreements and restrictive covenants; 6) not doing reference and application checks; 7) using no offer letter or an inadequate one; 8) insufficient employee orientation; and 9) not getting help when needed.

Caring for an aging population is growing more difficult. We are living longer. Many older Americans can no longer rely on sons and daughters for end of life care. An awful lot of baby boomers will be needing a lot of home health care in the next few years. Who will care for this rapidly growing segment of our population? Many of us who will be unable to care for ourselves as we age will be cared for by home care providers. Who are these people?

As discussed a few weeks ago, the federal hourly minimum wage increases to $5.85 on July 24, 2007. Among other things, this means employers must display updated Fair Labor Standards Act (FLSA) minimum wage posters in conspicuous places at the worksite. Not much in life is free, but these posters are...go to www.dol.gov/esa/regs/compliance/posters/flsa.htm to download one. Remember to update your posters again when the minimum wage increases to $6.55 on July 24, 2008 and to $7.25 on July 24, 2009.

Healthcare workplaces are subject to the same Americans with Disabilities requirements as anyone else. However healthcare employees are also subject to often physically demanding, mentally challenging, and risky environments. Lifting demands, the risks of airborne and bloodborne infections, shift requirements, and other potential accommodations must be considered. The EEOC has addressed by preparing one of its dandy question and answer fact sheets which is available at:

http://eeoc.gov/facts/health_care_workers.html

Various government officials testifying recently before Congress have claimed that employer misclassification of workers is costing federal, state and local governments billions of dollars in lost tax revenues each year. The witnesses have asserted that because of employer desires to save costs, the number of independent contractors has grown to almost eight percent of the workforce, or 10.3 million workers. Witnesses asserted that many of these workers should have been classified as employees.

Remember that an employer typically must comply with the employment laws of the states where its employees live and work. Many states now actively regulate the employment relationship. Here are some recent examples of new employment laws passed by states.

As the fire season gets underway across the nation, we inform you that the United States House of Representatives has passed a bill requiring employers to provide unpaid leave to workers who volunteer as fire fighters and emergency medical workers. The bill requires leave of up to fourteen days when such persons are responding to major emergencies or disasters. Employers may ask for verification of the emergency response. The legislative measure now goes to the Senate.

A couple of sentences in two employers’ employee handbooks seemed innocent enough. The first one involved confidentiality: “We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners [i.e., employees], new business efforts, customers, accounting and financial matters.”

If you haven’t been confused about the Computer Exemptions under the Fair Labor Standards Act (FLSA) you may be the only one. The FLSA exemption tests, used to determine who must be paid overtime (nonexempt) and who doesn’t (exempt employees), have confused most of us for a long time. The FLSA was passed in 1938 and has had a hard time keeping pace with the world in the last 70 years. Positions that didn’t exist in the 1930s are particularly hard to classify, with computer jobs being especially troublesome.

The “bad girls” of Hollywood still, unfortunately, consume too much media attention and will undoubtedly continue to take top billing. But a couple of compensation related developments, that could affect millions of people, actually made it into the national news. Minimum Wage. After much wrangling, the first minimum wage increase in 10 years was signed into law on May 25. The federal minimum wage, currently at $5.15/hour, will rise in 3 phases to $5.85 on July 24, 2007, to $6.55 on July 24, 2008, and to $7.25 on July 24, 2009. Pay Discrimination Claims. The U.S. Supreme Court’s May 29th decision in Ledbetter v. Goodyear also made the news. The decision provides protection for employers against pay discrimination actions that took place outside Title VII’s 180 day deadline for filing such claims.

'Tis the season for...interns...and that age old question, should you pay them or not? The United States Department of Labor (DOL) mandates that you apply a six part test to determine if intern pay is required by the Fair Labor Standards Act (FLSA). In order to avoid paying interns, you must satisfy all six of the following factors:

The Equal Employment Opportunity Commission (EEOC) has set its 2007 enforcement priorities. Employers should pay particular attention to two of these priorities. First, the EEOC says it will place a greater focus on race discrimination claims. Second, the EEOC has decided to focus on alleged systemic discrimination and major class action litigation.