Lawyer - News

The National Labor Relations Board recently issued a decision severely limiting the rights of employee union advocates to use employer email to conduct solicitations of fellow employees.  What the new decision means is that employers can safely prohibit all non-work related email solicitations by employees even if union related.  For the text of the decision follow this link to The Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194.

For more commentary by fellow Lexbloggers see:

• Michael Moore's commentary on the Pennsylvania Employment Law Blog
• Christopher Onstott's commentary on the California Labor & Employment Law Blog

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The US Department of Labor recently issued proposed revised FMLA regulations.  The new regulations, subject to a comment period, comprise well over 400 pages - sufficient to cure insomnia.  Here are few changes of note while all the dust begins to settle:

-          Serious Health Condition - Where leave involves more than three consecutive days plus two health care provider visits, the two visits must occur within 30 days of the beginning of the period of incapacity (subject to certain exceptions). 

-           ‘Periodic treatment’ is defined as requiring treatment two of more times a year.

-          Includes separate regulations for leaves as a result of treatment for pregnancy, substance abuse and adoption/foster care. 

-          Eligibility - The DOL is looking to further define a break in service to determine the eligibility for FMLA.

-          Health Care Providers - Adds Physician Assistants as recognized health care providers.

-          Amount of Leave - Addresses how an employer should handle the situation when a holiday falls during the employee’s leave.

-          Paid Leave Substitution –Proposes  two substantive changes to the current regulations regarding paid leave:

o   The DOL clarifies that "substitute" means to run concurrently with respect to Paid time off. 

o   The proposed regulations seek to remove any distinction between sick leave and vacation leave in connection with an employer policy requiring substitution.

-          Return to Work & Bonuses - Under the new regulations, an employee must meet a specific “goal” in order to be provided a bonus.  If he fails to meet that goal due to FMLA leave, he can be denied the bonus as long as individuals who were on non-FMLA leave were also denied the bonus.

-          Notice Requirements - We should be expecting a new poster soon.

-          Employer Notice to Employee – in order to designate leave as qualifying for FMLA, the employer would now have 5 days instead of two.

-          Foreseeable Leave – Employers can require employees to explain why they failed to give notice at least 30 days in advance.  And, if not an emergency, if the need for the leave is foreseeable leave, the employee should provide notice of the need the same or next day.  With respect to unforeseen leave, the regulations indicate a narrowing of this exception.

-          Medical Certification - Employee consent to contact the health care provider to verify medical certification would no longer be required and the regulations would permit an employer to contact the employee's health care provider directly without having to use a health care provider. 

For those interested in an insomnia cure, this link to the USDOL FMLA Proposed Regulations should suffice as a fine cure.

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OK, better late than never... The California Labor & Employment Law Blog has a great post summarizing new legislation taking effect in California in 2008.  The laws range from legislation as simple as an increase in the state's minimum wage to laws such as:

• A new law requiring employers with 25+ employees to grant unpaid leave to spouses or domestic partners of combatants on leave from deployment in a combat zone.
• The new San Francisco paid sick leave requirement.
• Work hours are now regulated for pharmacists
• A crackdown on Workers Compensation “Deadbeats”
• And amendments to California law dealing with discrimination.

Follow this link to the California Labor & Employment Law Blog for more information and details on this and more legislation.

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The Family & Medical Leave Act has been immediately amended to provide additional benefits to families of service members.   According to Michael Moore at the Pennsylvania Employment Law Blog,

FMLA-eligible employees will now be entitled to the following:

Caregiver Leave for an Injured Servicemember:  This benefit permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

Family Leave Due to a Call to Active Duty:   This benefit provides 12 weeks of FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”

The Department of Labor has the revised Family & Medical Leave Act available on its website.

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I recently received a media inquiry regarding Super Bowl Monday which I blogged about last year.  The premise is that there will be a loss of productivity as a result of what I'll call "Super Bowl Flu."  So this year I decided to do a little research and found that there actually was a survey conducted this year and the conclusion of the survey is that "an estimated 1.5 million U.S. adults may call in sick to work the day after the Super Bowl."

To make matters even more interesting, it is estimated that use of technoloy bandwith will surge as employees (well, at least those that actually go to work) look for game related coverage on the web.

So the next study should be this:  Let's calculate all of the people who will talk about the game on Monday, all of those who will surf the net to look for web coverage and those who will call in sick.  Then will add a calculation for lost productivity for discussions, football pools and the like which will take place prior to the game and tally that all up.  Gee, with all this loss of productivity - why don't just make it a Federal Holiday?!

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Most of the time we're worried about hackers getting into our computer system from the outside.  Here's an  interesting but scary story about a disgruntled  employee who wiped out ALL of her company's data files because she thought her boss was trying to replace her.  This spiteful act should make every HR manager and employment lawyer pause for a moment and think about data security.  Maybe it's time to review your practices?

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The EEOC recently issued a Fact Sheet on Employment Tests and Selection Procedures to Screen Applicants and Workers.   The Commission noted that there has been an increase in employment testing due in part to post 9-11 security concerns as well as concerns about workplace violence, safety, and liability. In addition the number of discrimination charges raising issues of employment testing, and exclusions based on criminal background checks, credit reports, and other selection procedures, has been increasing every year.

Some of the assessments that employers use include cognitive tests, physical ability tests, sample job tasks, medical inquiries, personality and integrity tests, criminal background checks, credit checks performance appraisals and language fluency tests.

The EEOC makes several recommendations with regard to tests and assessments, some of which are more obvious that others. Here are a few that I often see overlooked:

• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used.

• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. Many employers don't even know if this is the case.

• To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly. When was the last time you reviewed your job descriptions?

• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. I am sure your managers know very little about the legal implications of all of this and my be implementing assessments or tests with good intentions. However, they should seek guidance before doing so.

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World at Work is a professional association typically associated with compensation professionals.  It provides all sorts of resources and training for HR and Compensation professionals.  It recently made available a useful tool for planning in executive compensation.  The idea behind the Executive Rewards Questionary (no, not a typo...) is to ensure that you are designing a compensation that will be able to survive the scrutiny of a variety of stakeholders - like shareholders and the regulator environment.  It addresses such areas as:

• Stock plans
• Equity-based plans
• Short- and long-term incentive plans
• Executive perquisites
• Executive benefits
• Deferred compensation plans
• Employment agreements
• Severance agreements

Hey, even if you are not designing an executive compensation plan, it's useful from the perspective of prompting you to think about a compensation philosophy, in general.  Oh, and did I tell you it's FREE!

Hat tip to Compensation Force for bringing this to our attention.

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The US Department of Labor Wage and Hour Division reports that is has recovered a record amount in back wages due employees in 2007.  According to an article on BLR.com, the Division collected a record $220,613,703 for 341,624 workers in 2007. Since fiscal year 2000, it has recovered more than $1.25 billion for nearly two million workers and is reportedly focusing on bringing large employers into compliance.

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January is often the time that states increase their minimum wages.  While the federal minimum wage will increase in July (to $6.55/hour) several states already have minimum wages above the federal level.  To see if your state is one of them (as of January 1, 2008), this page from the Department of Labor will tell you:

Minimum Wage Laws in the States

Check the states where you do business to see if you need to make any adjustments or update your posting (often for free by checking with your particular state for an updated free poster).

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