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It became necessary to destroy EFCA in order to save it

August 17th, 2009  |  Matt Pavich  |  Add a Comment

>The proposed Employee Free Choice Act — once labor’s greatest hope for reform — has been dealt a death blow. And it was poor EFCA’s friends who delivered it.

To recap, a group of senators led by Tom Harkin (D-Iowa) has decided to remove the card-check portion that would allow workers to bypass secret-ballot elections, if a majority signs petition cards stating their intent to organize. According to the New York Times, Congress is considering replacing that provision with a measure that would require shorter and quicker elections.

The senators and their labor allies claimed that the card-check provision, which was once considered so important that the bill became known as the “card-check” bill, lacked sufficient support and would kill the overall labor reform bill. They suggested that shortening election periods and expanding union’s worksite access will curtail the ability of employers to thwart the will of those employees who desire unionization. But these hopes seem illusory, given the response of EFCA’s opponents.

Corporate lobbyists have promised to oppose fast elections, arguing that they would deny employers ample opportunity to educate employees about the downside of unionizing. They want the situation to remain status quo and, in dropping card-check, EFCA opponents have taken away their only bargaining chip. But it gets worse for labor fans.

The same interests that killed card-check are even more adamantly opposed to the arbitration provision, which would mandate arbitration if no agreement is reached after 120 days of bargaining.

Some refer to it as economic poison and other lobbyists refer to it as “an absolute nonstarter.” Newt Gingrich wrote that “EFCA’s imposed binding arbitration would irreparably wound one of the most extraordinary features in American society, the willingness to take risk to build an enterprise that generates prosperity for one’s family and community. It must never be allowed to be signed into law.”

Whew. That’s a lot of intellectual firepower being aimed at the provision. And how will labor fight back?

The suggestion here is that they can’t. In bidding adieu to card-check by completely taking it off the table, the senators deprived themselves of their one big stick. They could have wielded card-check to force acceptance of the arbitration, triple-damages, and shorter election period provisions. The bill has the most prominent supporter imaginable in President Obama and with card-check available as a bargaining chip, EFCA’s supporters could have wrested a meaningful reform bill out of the legislative gristmill.

Instead, they chose to dump card-check. Given the intense opposition to the arbitration provision, it’s entirely possible that the labor “reform” bill will merely impose treble damages against employers proven to have engaged in unfair labor practices. And unions will tell you how difficult it can be to prove unfair labor practices.

The timing of the announcement suggests that EFCA, for all intents, is a dead political issue. By dropping this pebble into the ocean that is Health Care Reform-dominated Washington, the senators ensured that the ripples from this decision won’t reach shore for a long time. By then, perhaps no one but the union rank and file will mind that labor reform was taken down by its very supporters.

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In a race for federal jobs, military spouses get a “leg up” on the competition

August 14th, 2009  |  Lucas Otto  |  Add a Comment

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Of all human powers operating on the affairs of mankind, none is
greater than that of competition.

-Henry Clay

If open competition is king, then under new guidelines issued by the Office of Personnel Management, those spouses of active-duty service members may have just had the pool of competition drained a bit. Well, maybe not exactly, but under these new rules, effective September 11, 2009, issued by the Obama administration (and first initiated by the Bush administration), federal agencies will soon be able to hire military spouses by allowing them to “bypass” traditional hiring procedures for many open federal positions.

Certainly, no one would begrudge anyone for making life easier for military spouses whose wives or husbands are serving our country. Yet, with a down economy and high unemployment, those open government jobs may have just gotten a little more difficult to get. Now to be fair, these new hiring rules merely allow eligible spouses to apply for federal jobs with the option of asking recruiters to allow them to bypass the traditional hiring process—an option most are, without a doubt, certain to avail themselves of.

However, with a growing population of unemployed, and programs already in place that provide preference to some military groups (i.e., veterans’ preference), does this program simply create a “spouses preference” that just shrinks, rather than encourages, competition for open federal jobs? Michael Maloney, head of OPM’s staffing group, denied such a preference was being created on Federal News Radio, and stated further that:

[i]t provides hiring managers with an option. They’re just another source of applicants they can consider when filling those jobs. There’s no requirement that they use this authority, or that jobs are set aside for these individuals. With respect to the issue of a “preference” or an “advantage,” a “preference” is giving points to veterans in examination, or rules that you can’t pick non-veterans before considering veterans. This isn’t that; it’s just another way to consider these individuals, and it’s completely discretionary with the agencies.

And OPM Director John Berry said in a statement that “[t]his family-friendly policy provides employment opportunities from individuals and a measure of economic stability to military families who must deal with a multitude of issues arising from one spouse serving their country [.]” Nevertheless, with nearly half a million active service members married, this could potentially create a situation where thousands of spouses could find it much easier to get a federal job. One could argue that there are already loopholes that make getting jobs easier for some than others, i.e., knowing someone or having more education, but those aren’t federally mandated situations.

Yet, when you are talking about the biggest employer in the United States making something easier, even when it is for a group as honorable as military spouses, that just makes things a little tougher for the “average Joe or Jane” who is still out there looking for a job. It’s a question of, with all these military spouses, all this unemployment, and only so many federal jobs available, will an “open competition” for some federal jobs simply be among military spouses?

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The BlackBerry affliction

August 12th, 2009  |  Lisa Milam-Perez  |  Add a Comment

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A prominent theme in the employment law e-press this week, as the healthcare reform storm raged on in townhall yelling matches across the country, is the darkening clouds gathering in the form of BlackBerry-inspired wage-hour suits. These seemingly disparate topics are not unrelated.

Back in May, the month when dreams of a two-week reprieve from the office typically begin to surface, the partner of a London law firm told his colleagues they were to be within reach by e-mail even while on vacation. An “out of office” auto-reply saying an attorney is unavailable is acceptable only in rare circumstances, he said, such as when a lawyer is on an international flight in a different time zone. The story, posted in the online ABA Journal, generated quite a stir. “A lawyer should be on-call 24/7? That’s a prescription for an alcoholic or even suicidal lawyer!,” wrote one respondent. “The good thing about being so available is that it results in premature death of the lawyer,” commented another.

The suck-it-up types were represented as well: “We all know when we sign up for BigLaw (and the paycheck that comes with it) we’ve signed a pact with the devil and we shouldn’t be all that surprised when Ol’ Scratch comes back to collect his debt. If you don’t appreciate that kind of treatment, go get another job.”

But here’s the thing: It’s not just the high-paid law firm lawyer who is expected to be at beck and call. Employees with much lower salaries and far less prestige face these demands today as well. Thus, the BlackBerry “problem.” It’s the next wave of wage-hour litigation: suits by nonexempt workers seeking pay for time spent answering BlackBerrys, responding to emails—simply being on an ever-shorter electronic leash—while ostensibly off the clock.

Certainly there is cause for concern about liability, given the growing use of these electronic devices and the ever-expanding workday. While such tasks may seem de minimis, the Department of Labor says even 10 minutes of work is substantial enough to count as compensable. The law on this issue is still developing; however, employers would be wise to follow the sage advice of counsel: Issue BlackBerrys to exempt employees only. Failing that, as to nonexempt workers:

  • Forbid the use of BlackBerrys or company email outside of normal working hours, or require a manager’s approval before doing so.
  • Require employees to promptly report time spent after hours on work-related emails or calls to ensure that time is promptly recorded and properly paid.
  • Discipline employees who don’t adhere to these policies.

And know these tips will not prevent liability for paying employees who, you have reason to know, will stay wired after hours nonetheless.

Back to healthcare reform. Employers are paring back coverage, increasing employee contributions or, increasingly, scrapping healthcare benefits altogether. Facing spiraling costs, many employers also have heeded the clarion call of “wellness.” Maybe they’ve started a lunchtime walking program. Monetary incentives for weight loss. Perhaps even issued a no-smoking edict.

But here’s something else to consider: The more time spent on leisure activities, the better a person’s health tends to be, according to research just published by CCH sister company, Lippincott Williams & Wilkins. The study found that adults with the most time spent in a variety of leisure activities had lower blood pressure, waist circumference, body mass index and cortisol measurements, all markers of good health. That’s something to ponder when you pass out the BlackBerrys—regardless of whether overtime pay will come due.

Employment attorneys often bemoan that the FLSA—with its aversion to comp time and flexible scheduling, its unwieldy definitions of who is nonexempt—is simply ill-suited to today’s 24/7, BlackBerry-buzzing world of work. But the statute’s purpose, when enacted in 1938, was to ensure working conditions deemed necessary “for health, efficiency, and general well-being of workers.” Perhaps those legislators were onto something.

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Can I get a Baby Boomer sandwich, hold the caregiver discrimination?

August 10th, 2009  |  Deborah Hammonds  |  Add a Comment

>This isn’t your regular bacon, lettuce and tomato sandwich, people … Baby Boomers have found themselves part of a new “club” called the “sandwich generation” – in the middle of caring for their parents on the top and their children on the bottom. Faced with their work responsibilities, along with eldercare and childcare duties, more of these employees are filing lawsuits asserting that they have been discriminated against because of their caregiving obligations. The Center for WorkLife Law at the University of California, which educates stakeholders on caregiver discrimination, found that such lawsuits have risen by 400 percent in the last decade. It is clear that caregiver discrimination is an emerging workplace issue, but how can employers protect themselves from these lawsuits?

The EEOC has taken steps to educate both employers and employees about this developing area of the law, first through enforcement guidance about what federal equal employment opportunity (EEO) laws may apply to caregivers, and then with a best practices document on what employers can do to avoid liability for caregiver discrimination.

Caregivers, in and of themselves, are not a protected class. No federal EEO statutes prohibit discrimination based solely on one’s caregiver status. However, employers may have legal obligations towards employees with caregiving responsibilities under the Title VII, the Pregnancy Discrimination Act, the Family and Medical Leave and the Americans with Disabilities Act. Examples of caregiver discrimination include: (1) reassigning a female employee to less-desirable projects based on the assumption that, as a new mother, she will be less committed to her job; (2) limiting a pregnant employee’s job duties based on pregnancy-related stereotypes; (3) denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver; and (4) refusing to hire a worker who is a single parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable. There are many others.

The EEOC has also issued employer best practices for employees with caregiving responsibilities. The document provides recommendations for creating workplace policies aimed at removing barriers for workers with caregiving responsibilities. Examples include personal or sick leave policies that allow employees to use leave to care for ill family members, providing flexible work arrangements and part-time opportunities with proportional compensation and benefits and creating equal opportunity policies that address unlawful discrimination against caregivers. For some employers, if they can do so in these economic times, the best defense against caregiver discrimination lawsuits is a family-friendly workplace that offers flexible work arrangements, according to the EEOC.

Employers, however, have not lost the ability to discharge, discipline, demote, not promote, transfer or reprimand employees for legitimate business reasons. This means caregivers can still be fired for not being able to perform their jobs, just like any other employee. Make sure your reason for the discharge is not discriminatory. Other essential tips from the EEOC include, providing in the policy, examples of illegal conduct and identifying a contact person for questions or complaints. In addition, because this is an emerging area of the law, the EEOC advises that employers train managers about caregiver discrimination.

While the EEOC’s advice is helpful, be careful that the workplace policy you draft does not unintentionally cause more harm than good. First and foremost, remember your workplace as a whole. A policy intended to benefit only caregivers could have the unintended consequence of discriminating against employees who are not caregivers. For example, an employer that offers flexible work arrangements, like telecommuting, only to those employees who have primary childcare responsibilities may be discriminating against its male workforce. Federal and state wage and hour laws may also have an impact on your policy. It is always a good idea to make sure to run the policy by your employment law counsel before it is disseminated to employees.

Stayed tuned with this one — it is only going to get more complicated. State and federal legislators are continuing to introduce more family-friendly workplace bills (paid sick leave, paid family leave, academic activities leave, domestic violence leave, family leave insurance) at a rapid pace. And, this issue is on the Obama Administration’s radar. During the 2008 campaign, Obama committed to supporting the EEOC guidance on caregiver discrimination.

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Lawmakers take aim at employer credit-check policies

August 7th, 2009  |  Pamela Wolf  |  Add a Comment

>The practice of running credit checks on potential employees poses a substantial threat to increasing numbers of job applicants given the harsh economic climate that has rendered so many unemployed, uninsured, facing home foreclosures, or the impossibility of meeting credit card payments, and the rising number of employers relying on credit histories to make employment decisions. How will the jobless get back to work if they’re barred from employment because of financial difficulties caused by job loss? You see the vicious cycle here.

It turns out that July 2009 was a good month for would-be employees with financial problems. On the 15th, despite the governor’s veto, the Hawaii legislature amended the state’s Fair Employment Practices Act to make it an unlawful discriminatory practice for an employer to base employment decisions on an individual’s credit history or credit report, unless the information directly relates to a bona fide occupational qualification. (H. 31, L. 2009) There are exceptions for employers that are expressly permitted or required to inquire into credit histories under federal or state law, employers that are financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution, and for managerial or supervisory employees.

Speaking to the State Senate Committee on Labor, Acting EEOC Chair Stuart J. Ishimaru explained that credit-check policies have a disparate impact based on race. Under Title VII standards, employers must be able to show that any disparate impact is justified by business necessity and that there is no less discriminatory alternative. Thus, employers must be able to “show that a credit check policy accurately measures whether applicants possess the qualifications needed for the positions from which they are excluded,” he said.

Employer credit-check policies would have much difficultly meeting this standard, according to Ishimaru. Credit histories often contain inaccuracies and errors that are serious enough to prompt denial of a loan or employment. Moreover, negative credit information may not account for circumstances that were beyond an individual’s control, such as developing a disability, divorce, death of a spouse, a family member’s illness, identity theft, or an employer’s downsizing. Finally, even if a credit report accurately reflects an individual’s credit history, “there is little, if any, evidence that credit information will generally be predictive of successful job performance,” Ishimaru, pointed out.

Recognizing similar problems, Rep. Steve Cohen (D-Tenn), on July 9, introduced a bill in the U.S. House of Representatives that would amend the Fair Credit Reporting Act to bar the use of consumer credit checks of current and prospective employees for the purpose of making employment decisions. (HR 3149). “In recent years, the number of employers using credit checks on potential employees has risen to 43%,” Cohen said in a press release. “According to a recent report, one-third of individuals making less than $45,000 a year have poor credit scores caused by the result of bankruptcies, loan delinquencies, divorce, medical problems or unemployment.”

Dubbed the “Equal Employment for All Act,” the bill has 34 cosponsors and is endorsed by many civil rights and consumer protection organizations. It has been referred to the House Committee on Financial Services.

It seems that what used to be a “protected category” problem with an adverse impact felt most strongly along racial lines is growing into a more universal problem. Employers should anticipate that credit-check policies will increasingly be on lawmakers’ radar – everyone has an interest in getting the jobless back to work.

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