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Can workers be required to take the H1N1 vaccine?

October 26th, 2009  |  David Stephanides

>With the H1N1 flu widespread in 46 states, and the vaccine lagging, President Obama declared the outbreak a national emergency on Saturday, October 24. The National Law Journal (via Law.com, subscription required) is reporting that more lawyers are receiving questions from employers about mandating swine flu shots for workers.

“Employers should not mandate that people get vaccinations, but they should strongly encourage it,” said Steve Biddle, who heads San Francisco-based Littler Mendelson’s recently formed H1N1 practice group. Yet, John Michels Jr., a partner in Chicago’s Baker & McKenzie, said that in private employment, “the law is pretty well established” regarding an employer’s right to mandate vaccinations. If an employer can establish the shots are job-related and a business necessity, such vaccinations can be a legitimate job qualification. However, he said, “employees may be able to challenge the newness of the H1N1 vaccine.”

Employers should not forget to review the EEOC’s guidance on pandemic preparedness in the workplace.


It’s a woman’s world? Study shows more women are working, but society’s failed to keep pace

October 23rd, 2009  |  Deborah Hammonds

>The change ain’t a-comin’, it’s here. At least according to a recent report on working women and society released by the Center for American Progress and California First Lady Maria Shriver, among others. Yes, society has changed. The question is what we do about it. The Shriver Report: A Woman’s Nation Changes Everything reviews the changes working women have caused in society and laments the fact society has not adapted as quickly or completely as needed.

According to the report, the majority of American families no longer follows the traditional male breadwinner, female homemaker model. Today, women are half of all U.S. workers and mothers are the primary breadwinners or co-breadwinners in nearly two-thirds of American families. Quite a change from a generation ago where women made up only one-third of all workers. The report points to a Rockefeller/Time nationwide poll that concluded that the “battle of the sexes” is over and has been replaced by “negotiations between the sexes” about a variety of topics including work, child care and elder care. Seems that, while men have generally accepted women working and making more money, both sexes are concerned that the changes are leaving children behind since there’s no longer a wife staying home to fulfill the traditional homemaker role.

Both sexes “agree that government and business are out of touch with the realities of how most families live and work today. Families need more flexible work schedules, comprehensive child care policies, redesigned family and medical leave, and equal pay,” according to the report that aims to spark conversation about the transformation to society and to get policymakers and political leaders to focus on the implications of those changes.

The report is comprised of essays and reports written by prominent professionals about different facets of women in the workplace and their impact on society. The first chapter, no doubt, also provides some of the “glitz.” Written by Maria Shriver, the chapter plays off her political ties with a historical look at the transformation of American women since President John F. Kennedy, her uncle, asked First Lady Eleanor Roosevelt to chair the first Commission on the Status of Women in 1961.

Among the chapters promising to be provocative are The New Breadwinners, which finds that even though “women are now half of workers and mothers are breadwinners or co-breadwinners in the majority of families, institutions have failed to catch up with this reality;” Invisible Yet Essential: Immigrant Women in America looks at the work once done primarily by unpaid wives of male breadwinners that is now being done by immigrant women (namely, child and parental care, home maintenance, food production and cleaning). Also, there’s Has a Man’s World Become a Woman’s Nation?, which finds that, while most men are on the path to accepting greater gender equality and relish the earnings women bring into the family, some still struggle with the “idea of widespread employment of women and mothers as it has made them question their very notion of masculinity.”

One chapter sure to spark interest is Family Friendly for All Families: Workers and caregivers need government policies that reflect today’s realities. This chapter explores the implications of government policy affecting workers and caregivers. The authors argue for a “reevaluation of the values and assumptions underlying the nation’s workplace policies and social insurance system” so they reflect the actual – not outdated or imagined – ways that families work and care today.

No doubt this chapter will spark more discussion on the impact of the enactment of the Lilly Ledbetter Fair Pay Act, the revision of the Family and Medical Leave Act (FMLA), and the EEOC’s decision to recognize discrimination against caregivers under Title VII and the ADA without creating a new protected category. Were these changes enough to reflect or fulfill workers’ needs for child care, elder care, etc., or were they simply the beginning of an onslaught of legislation employers will need to worry about implementing?


Inouye, defense contractors to assault victims: “Not so fast”

October 22nd, 2009  |  Matt Pavich

>Updating an earlier series of blogs, it has been reported recently that an amendment that would prevent the government from working with contractors who blocked the access of assault victims to the courts may be watered down or ripped out entirely from a larger defense appropriations bill.

According to the Huffington Post, Senator Daniel Inouye, (D-Hi), a career recipient of $294,000 from the same defense and aerospace contractors who would benefit from the Senator’s decision, is considering removing or weakening the provision offered by Sen. Al Franken (D-Minn.) and passed by the Senate 68-30.

The report says that the contractors are “putting on a full-court press on this amendment.” Why, you ask? Apparently, the contractors are concerned that the language in the Franken amendment would leave them overly exposed to lawsuits and would pose an ongoing risk that their lucrative contracts might dry up.

Rather than attempt to bridge the divide between those who believe that victims of rape should have their day in court, regardless of arbitration agreements they may have signed and those who don’t, the Senate is considering removing the Title VII claim provision, thereby preventing victims of assault or rape to bring suit against the employer who may have contributed to their assault.

What could be done to stop this? Well, very little apparently. Since Inouye chairs the committee responsible for the bill, he can simply remove the provision and no one can prevent it. So, chalk up another victory for the power of money in politics and, if you’re so inclined, spare a thought for employees who, it appears likely, will be unable to receive their day in court if they happen to be assaulted while in the employ of firms that mandate arbitration agreements.

Make no mistake, in the end, that’s what this fight is about. Employers like Halliburton will fight tooth and nail to avoid having to litigate such cases and little wonder why; it’s cheaper to arbitrate, the awards are substantially lower and the employee is still the David facing off against the Goliath, only less well-armed. If Inouye strips the provision, it appears that $294,000 goes along way towards taking the slingshot out of David’s hand.


Colorado minimum wage drops along with cost of living

October 21st, 2009  |  Connie Eyer

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In an attempt to ensure that wages of low-income workers were kept in line with the cost of living, Coloradoans voted in 2006 to be one of 10 states (the others are Arizona, Florida, Missouri, Montana, Nevada, Ohio, Oregon, Vermont and Washington) that ties its minimum wage to inflation. However, due to a decrease in the inflation rate during the first half of 2009, the Centennial State will become the first to lower its current hourly minimum—from $7.28 to $7.24—on January 1, 2010. For tipped workers in Colorado, the minimum will go from $4.26 per hour to $4.22 per hour, an amount above the federal minimum for tipped income of $2.13 an hour.

The rate is recalibrated each year based on the Denver-Boulder-Greeley Consumer Price Index, which fell 0.6 percent between the first half of 2008 and the first half of 2009. Last year, that index rose 3.9 percent, but it is now on track to record its first annual decline since its start in 1965.

As reported in the New York Times, Rich Jones, director of policy and research at the Bell Policy Center, noted that voters had approved the change because the federal minimum wage had not risen for years and Colorado’s inflation rates had remained relatively steady.

For a full-time worker, going from $7.28 to the federal hourly minimum will result in a loss of $62.40 in income during the course of a year.

Noting that “it’s not a lot of money, but for the people who are working for minimum wage, it means lot to them,” Jones said he hoped employers would focus more on maintaining goodwill with their workers rather than lowering wages because they can.

The state Division of Labor will hold a public hearing on its minimum wage order at 9:30 a.m. November 6 at its offices, 633 17th St., Suite 200 in Denver. The division is also accepting comments until November 9.


Pay-for-Performance program hits the dustbin of history

October 19th, 2009  |  Matt Pavich

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Another day and another Bush administration program goes out the window.

Congress has decided to repeal the National Security Personnel System as part of a compromise between the House and Senate in their negotiations over the Defense Department authorization bill. Under the bill, the Department of Defense would have six months to start transferring affected employees back to whatever pay system they originally fell under, with the system finally ending on January 1, 2012. The Department would also have to submit proposals for any new pay-for-performance system to Congress for approval.

In true Washington style, the bill calls for the institution of a system that would determine bonuses and other performance-based actions for all Defense employees. Of course, it doesn’t offer details on how that system might work. Don’t worry, though, federal employee unions are ready to assist. American Federation of Government Employees President John Gage, who said he was “elated” over the program’s end, said he would work with the Pentagon to create the new system.

George W. Bush’s administration strongly advocated for NSPS, and Congress approved the system for Pentagon employees in 2003. Roughly 30 percent of the Defense Department’s civilian employees now fall under NSPS jurisdiction, according to the Pentagon.

The belief was that the program would improve government efficiency. But, as is so often the case with government programs, especially those designed to increase efficiency, the devil was in the details. The kind of details found in, say, agency budgets.

Federal managers found it nearly impossible to truly link pay to performance because their personnel budget cupboards were bare. A manager with 15 employees doing excellent work might only have had money to pay five the raises they deserve.

Other employees complained that the system favored cronyism and punished competence. Some managers were accused of using the system to reward friends, while others were accused of not even knowing how to use the system.

While analysts suggest various options for the Pentagon, John Berry, the OPM director, has said he prefers a single, government-wide pay system, but acknowledges that creating such a plan could be difficult.