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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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Pending Paycheck Fairness Act would resurrect controversial EO Survey

August 5th, 2009  |  Cynthia L. Hackerott  |  Add a Comment

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The Paycheck Fairness Act (H.R. 12, S. 182), currently pending in Congress, would require specific changes to OFCCP and EEOC enforcement activities related to gender discrimination in compensation. One proposed change of particular concern to the federal contractor community is the proposed legislation’s requirement that the OFCCP reinstate the controversial Equal Opportunity (EO) Survey. The Act would require that “not less than half of all nonconstruction contractor establishments” prepare and file the EO Survey each year and require the OFCCP to “review and utilize the responses to the survey to identify contractor establishments for further evaluation.” 

The regulatory requirement for federal contractors to file the EO Survey, put into place by the Clinton Administration, was eliminated on September 8, 2006 (71 FR 53032-53042) by the Bush Administration. The decision to eliminate the EO Survey was based in part on two studies commissioned by the OFCCP to access the validity of the EO Survey as a selection tool for compliance reviews. One of the studies failed to find a correlation between the predictive variables generated from the EO Survey and determinations of noncompliance. The second study showed that the EO Survey did not provide sufficiently useful data for enforcement targeting purposes. On October 5, 2006, at the National Employment Law Institute’s Twenty-Fourth Annual Affirmative Action Briefing in Chicago, then OFCCP Director Charles E. James, Sr. said the EO Survey “was a noble effort, but with a faulty design.”

The EO Survey was not popular among the federal contractor community, who generally found it to be unduly burdensome. The survey required contractors to report information about personnel activities, compensation and tenure data, and certain information about the contractor’s affirmative action program. Although the OFCCP’s recordkeeping regulations require contractors to maintain information that was necessary to complete the EO Survey, contractors were not required to maintain that information in the format called for by the survey instrument. Critics asserted that the data request in the EO Survey was too generalized to provide useful compliance or enforcement information. Another concern was that the EO Survey required companies to report personnel data by individual business location. Companies that monitored their employment practices on a broader basis (for example, by functions or geographic regions) complained that requiring reports to be prepared by single business location was unduly restrictive. This was particularly problematic for contractors that utilized functional affirmative action programs, rather than the traditional establishment-based affirmative action programs.

Nevertheless, civil rights groups, such as Women Employed, the National Women’s Law Center and the National Partnership for Women & Families have maintained that the EO Survey could have been a vital tool to enable the OFCCP to detect discrimination based on race and gender and target investigations or other enforcement action. “They want to eliminate this enforcement tool without ever having used it,” said Jocelyn Frye, General Counsel at the National Partnership for Women & Families in a statement issued at the time the OFCCP first proposed elimination of the EO Survey. “OFCCP has not suggested changes to improve it or offered any alternative. Instead, it is discarding an important tool that would have provided hard data on pay and job practices.”

The House passed the Paycheck Fairness Act on July 31, 2008, but the bill has not yet come to a vote in the Senate. If the Act does become law with the EO Survey resurrection provision intact, the OFCCP would be faced with the choice of using the previous, much criticized format, or developing a revised, and hopefully more utilitarian, format. Given the agency’s difficulties with its previous attempts in utilizing the EO Survey, this looks to be a monumental task.
 

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Over Governor’s veto, Hawaii passes controversial “mini-EFCA” law

August 3rd, 2009  |  David Stephanides  |  Add a Comment

>The Hawaii State Legislature has enacted legislation to certify unions as exclusive bargaining representatives without an election, or secret ballot, for employers with an annual gross revenue of $5 million or more. House Bill 952 also requires arbitration in the event a first contract is not reached within a specified period of time, and imposes civil penalties of up to $10,000 per violation for unfair labor practices. The State Legislature overrode the governor’s July 14 veto by a two-thirds vote in a Special Session held July 15.

While Hawaii has moved forward with its “mini-EFCA,” six Democratic U.S. senators friendly to labor reportedly have decided to drop the card-check provision of the Employee Free Choice Act, according to the New York Times. Card-check is a central element in the legislation, but it has proven to be a stumbling block in securing full support for the bill among Democrats. Provisions for a sharply reduced union election cycle, required union access to employer property, and a ban on captive audience meetings are some of the revisions said to be in the works; the bill’s original mandatory arbitration and heightened damages provisions remain.

Effective July 1, Hawaii employees covered by H.B. 952 will be able to skip a secret ballot election if the state’s Labor Board determines that a majority of employees have signed valid authorization cards. After a union is certified and issues a request to collectively bargain, the employer must commence bargaining within 10 days. If after 90 days the parties remain at an impasse, either may request conciliation. If after an additional 20 days the parties still cannot reach an agreement, the matter will be referred to an arbitrator whose decision is binding for two years.

Whether Hawaii will be the first of many states to move forward with EFCA-type laws remains to be seen. From a statistical standpoint, Hawaii’s move may seem unexpected since the state has the second-highest percentage of union workers in the country and nearly twice the national percentage.

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