We've heard a great deal lately about the gas prices, the economy, sub-prime mortgages and the like - all bad.  I suspect we've also seen the level of stress at work increase as employees carry over the stress from their personal lives into the workplace.  As gas nears $4.00/gallon here in New York, everyone is beginning to tabulate the cost of going everywhere - $10.00 round trip to work, $5.00 to the mall, etc.  Doesn't appear to be much relief in sight in the near future. So, hold onto your hats as things unravel a bit at work!

Worker's Bring Economic Stress into the Office

Yes, just when you think you've seen it all.....  The Word On Employment Law Blog points to an article reporting that as part of  motivational training session, a company engaged in waterboarding of a participant in order "to demonstrate to the employees that they should work as hard as the employee being waterboarded was working to breathe." 

For new on this story - see this Washington Post article on the progress of the legal case so far.

And, what were they thinking???

The EEOC recently issued proposed regulations addressing disparate impact claims under the ADEA.  The proposed rule addresses the Supreme Court ruling in Smith v. City of Jackson 544 U.S. 228 which held that recovery is available under the ADEA not only for disparate treatment or intentional discrimination but also unintentional claims or disparate treatment.

The announcement of the rule is available here in the Federal Register.  Comments must be made on or before May 30, 2008.

The Department of Labor has available a poster reflecting the recent changes to the law affecting military personnel.  It's meant to be temporary and a supplement to the existing poster.  It's available on the DOL website:

National Defense Authorization Act / FMLA Poster

This press release notes that charges filed with the EEOC are up over 9% from 2006 to 2007 - this single largest annual increase since 1993.  Yikes!

The Supreme Court recently ruled that when a complainant completes and intake questionnaire with the EEOC and the EEOC does nothing with it, it does not preclude the complainant from then bringing a claim of discrimination in Federal District Court.  In Federal Express v. Holowecki, the claimant went to the EEOC and completed the EEOC's intake questionnaire.  The EEOC did not issue a charge of discrimination and provide it to the employer.  Thus, the employer was unaware of the claim.  Next thing.... the employer was being sued in Federal Court as the claimant was able to successfully circumvent the EEOC's internal process.

Here's a good point raised by John Hyman of the Ohio Employer's Law Blog:

"My problem with this ruling is that Fed Ex never had any meaningful way to respond to the Intake Questionnaire. That form was never sent to it, and it had no notice that a proceeding had even been initiated until after the actual charge was filed 6 months hence. Thus, an employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit."

The Second Circuit Court of Appeals ruled recently that an employee who works overtime must be paid for those hours even though he/she may have been prohibited from working overtime.  There are many who already operate consistent with this ruling, so this may not be something new for all of you.  In the case of Chao v. Gotham Registery, an employment agency refused to pay for overtime for temporary nurses unless the overtime was approved in advance by the agency.  Thus, when the employees actually worked overtime without approval, they were not paid for those hours.  The Court held that the company's overtime practices violated the Fair Labor Standards Act.

Moral of the story - if your employees work overtime without permission, pay them and then address the matter as a discipline issue.

Thanks to the Connecticut Employment Law Blog for a comprehensive summary of the case.

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

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. 

-     

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.

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.

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?!

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?

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.

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

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