A New Protected Class: The Beauty Challenged

Over at the Ohio Employer’s Law Blog, Jon Hyman has an interesting discussion on the proposal to add ugly to the protected classes under labor law and employment laws.

To wit, Hyman writes:

“Under the current state of the law, it is illegal to discharge, to refuse to hire, or otherwise to discriminate with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of: race, color, sex, religion, national origin, ancestry, age, disability, genetic information, military status, and veteran status. I am fairly confident that 2009 will add sexual orientation, and possibly gender identity, to this list.”

Now, the argument for adding ugly to the protected classes is to prevent discrimination based on looks, of course. Some, maybe most, employers prefer hiring good-looking people as they are perceived to be sharper, sexier and better, more trustworthy workers.

However, since beauty is in the eye of the beholder, how could the courts or regulatory agencies ever agree on how to define ugly so as to have a workable law?


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Paid Sick Leave: The Next Mandate?

President-elect Obama campaigned on a pledge to mandate paid sick leave at all places of work.

Here’s how the president-elect’s Web site (Change.Gov) explained this:

Half of all private sector workers have no paid sick days and the problem is worse for employees in low-paying jobs, where less than a quarter receive any paid sick days. Barack Obama and Joe Biden will require that employers provide seven paid sick days per year.

I believe sick leave is an essential component of the workplace, but I can also see how a small business might suffer if it had to add additional expenses, such as hiring a temp when someone calls in sick.

Either way, there’s an interesting pro-and-con (and neutral) debate over at Business Week.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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What Exactly Is Free Choice?

One big labor law change anticipated in the Barack administration is enactment of the so-called Employee Free Choice Act (EFCA), but like the Holy Roman Empire, which was neither holy, Roman nor an empire, does the EFCA really embody freedom and choice? For those on the business side of things–company owners and managers, et al.–the answer is no: The unions will just coerce employees into signing off on a "card check" system, and then the union–or a pro-union arbitrator–will jam a contract down the company’s throat, one that may force it to cut workers, relocate or close.

On the union side, the picture is much different: Finally, we’ll be able to organize workers without the intimidation, threats, harassments and outright firing of union reps that companies typically employ prior to a secret-ballot unionization vote, as union organizers might phrase it. I’ve read horror stories from both sides of the issue–tales of union thugs’ coercing workers into signing off on the unionization cards, and anecdotes of employers’ threatening to close if there’s a union and firing the union’s employee-organizers on trumped-up charges. So, where does this leave us?

If EFCA passes, it will obviously be much easier to get 50-percent-plus-one-employee card signings and subsequent unionization, but will it also prompt an adverse reaction from employers, such as layoffs, outsourcing, relocating and/or closing down? The National Chamber of Commerce has called the EFCA "Armageddon." EPCA probably won’t be that deleterious in its effects, but it could.

The interesting thing here is that the Wagner Act of 1935, which gave the labor unions broader rights to organize workplaces, contained provisions for both secret ballots and card checks. Unionization could be accomplished through either means, but the 1947 Taft-Hartley Act removed the card check provision.

Now card check is back to rear its ugly head–or beautiful face–once again. Can the nation’s businesses and GOP stop this dead in its tracks? Should they? Therein lies the $64,000 question. (I probably should update that to the "$64-billion question" in light of all the current bailouts, stimulus packages and whatevers.)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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ADA Amendments Act Will Greet the New Year

The Americans With Disabilities Act (ADA), originally passed in 1990, sought to open up employment in the private sector to persons with physical or mental disabilities who were otherwise perfectly capable of performing the required duties. The ADA brought to private enterprise what the 1973 Rehabilitation Act did for federal agencies and firms carrying out federal contracts.

Through the years, though, the Supreme Court kept nibbling away at the definition of disability to the point that the ADA lost almost all its teeth.

Voila–the Americans With Disabilities Amendment Act (ADAAA), signed into law this year by President Bush. The ADAAA clarifies exactly the intended definition of disability and throws in another category, “regarded as disabled.” Taken together, the two categories–disability and “regarded as disabled”–pretty much cover every human being alive.

In fact, the ADAAA basically states that employers should accept at face value an employee’s announcement of an impairment or disability that requires a reasonable accommodation. (There’s one out clause–if the accommodation involves “undue hardship” for the company and its operations, then it might not be considered “reasonable.”)

If you don’t believe me, read this definition of “regarded as disabled”: “[A]ctual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

(Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.)

My question is this: If an employee, for instance, has sleep apnea and thus is tired in the daytime, would a “reasonable accommodation” include a sleep break or two or three? A specially cushioned chair so as to be able to drift off into slumber when necessary?

I’m only half joking, but I think you get the idea that the ADAAA has significantly broadened the scope of what constitutes a disability.

Meanwhile, I’m relying on my old friends at Personnel Concepts to keep me updated on all this. In fact, the company has already issued its ADAAA Compliance Kit.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Old Approach to Health Care Reform

Recently, I wrote about a fresh, holistic approach to health care that could well serve as the basis for a real reform effort. However, more likely what will happen is the Feds will copy the Massachusetts model for health care reform–and get it all wrong.

The problem with all announced reform plans is that the reformers want to make health both more affordable and more accessible, but if you roll in another 50 million people into the ranks of the insured, the first problem is that there simply aren’t enough facilities or practitioners to handle them. So something has to give–either on the accessible side or the affordable side, or both.

Which is exactly what happened in Massachusetts–both goals got trampled under weight of the unrealistic expectations and bad modeling.

You don’t have to believe me. Fortunately, there are well-respected health care professionals who can dissect the Massachusetts mess for us. Enter Maggie Mahar, author of the 2006 book Money-Driven Medicine, and blogger at Health Beat.

I’ll provide a link to her article on Massachusetts at the end of this, but let me repeat a few points she makes.

Under the Massachusetts universal health care initiative, the percentage of uninsured in 2006 (when it was passed) fell from 6.4 to 5.7 the next year, roughly equal to the rate in the year 2000 (5.9 percent). Fewer than 500,000 Massachusetts residents are now covered who weren’t before.

Problem is, most of them can’t find a doctor and, if they’re using a state health plan, can’t afford the co-pays (20 percent) or the deductibles ($2,000 per person). That’s why use of emergency rooms is up 40 percent in Massachusetts. If you already have a doctor, the wait to see him or her has gone from an average of one month to two months since 2006–and is rising.

Plus, the plans the state offers are so expensive–about $9,000 a year for a couple in their 50s (plus the onerous co-pays and deductibles)–that tens of thousands can’t afford the policies, so the state has “exempted” 62,000 residents from the mandate to buy health insurance. Plus, the program is so costly that the state can’t afford to subsidize people who can’t pay even when they qualify under income qualification standards.

Like I said, it’s a real mess, which will soon be transplanted onto the national stage. Get ready for less (health care) for more (money).

Read Ms. Mahar’s article, “On Health Care Reform Stimulating the Economy: The Massachusetts Example.”


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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New Approach to Health Care Reform

One of the Google Alerts to which I subscribe is “health care reform,” which seems to offer the liveliest discussion of late of any topic I subscribe to.

For obvious reasons, of course, what with our incoming president putting health care on the top burner (right below economic stimulus, I would imagine).

Everyone in what I read seems focused on how to maintain the current system of private insurers and private medical practitoners while somehow incorporating another 47 million people into the ranks of the insured.

However, as students at the Harvard Business School pointed out in their blog, where are the doctors going to come from to handle these millions? They describe how, even in their home state of Massachusetts, getting everybody insured is not the same thing as getting everyone in front of a doctor. The American Medical Association (AMA), they note, paints the current physician shortage in the U.S. at between 35,000 and 40,000 practitioners.

That’s number one.

Number two is even more interesting, and it concerns the medical delivery system itself. I’d never really thought about this aspect before, until I read an article in the Anchorage Daily News. In that article, Dr. Doug Eby, a senior administrator with the Southcentral Foundation, which runs a medical center in Anchorage for native Americans, compares the current system to car repair: Come in, be diagnosed, get your fix (pill or procedure), and get out of my face until you break down again.

In reforms carried out by Southcentral at its Alaska Native Medical Center, Eby and others have changed the whole focus, so that patients are now considered “customer-owners,” and they don’t necessarily see a physician for every complaint or symptom. They see whomever is most helpful and attuned to their situation. For instance, people with diabetes (after the diagnosis by a doctor) will work with a nutritionist and perhaps a behavioral counselor or other people who can set up a diet-and-exercise program and then monitor it to ensure its success.

Also, everything is contained within the one facility, so that customer-cowners can walk from the nurse’s or doctor’s station over to the x-ray room or blood lab. Everything gets done at once.

The results have been fairly stunning. In the ten years since the Alaska Native Medical Center has adopted this new delivery system, emergency room and urgent care visits are down by 40 percent, specialist visits by 50 percent, and hospital days by 30 percent.

Efficiency and a more holistic approach seem to be paying dividends (although no one mentioned any proof that people are healthier or that the mortality rate is down).

I think Dr. Eby and his colleagues are onto something big here since a lot of what ails us we bring upon ourselves by unhealthy life choices (smoking, eating too much and too much of the wrong things, not exercising, and the list goes on).

Maybe number two–changing our approach–will mitigate number one, a shortage of doctors.

Somehow, however, I can’t see the politicians in Wsahington, D.C., being anywhere near smart enough or caring enough to consider something like this. They’ll do whatever gets them the most votes, and then drop the whole system on a bunch of bureaucrats to run.

Business as usual in the nation’s capital and in medical centers everywhere. The lines and the waits will just be longer, much longer.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Straight Out of Dickens: Labor Strife in China

You might think it was the early phase of the Industrial Revolution in Great Britain if you visited South China these days.

Guangdong Province is the manufacturing heartland of China, and its factories supply a lot of what we Americans find at Wal-Mart and many other retail stores, especially toys.

But things are getting tough in China, by many standards tougher than we have it here in the U.S.

First, under pressure from Wal-Mart and other large-scale buyers, China officially raised the minimum wage, but that didn’t stop Wal-Mart from simultaneously demanding lower costs. Profits, at least for the toymakers, sank immediately.

Then came higher fuel costs and now the recession in the U.S., and factory after factory in Guangdong began shutting down; factory hands were let go en masse, many of them migrant workers whose families back home in distant provinces depend on them for monthly cash infusions–and bare survival.

Since the beginning of 2008, some 3,600 toy factories have gone under, leaving hundreds of thousands without work, yet China still publishes an official unemployment rate of 4 percent.

Now, the workers are fighting back–literally. Dongguan, the city where the toy manufacturers are concentrated, has witnessed several episodes of laid-off workers’ occupying and trashing the factories after they’re closed. Riot police have been called in. Scenes have gotten ugly. Tensions are understandably high, as is anxiety for the future.

But since the owners of the factories often disappear into the hinterlands after closing shop, local authorities are usually powerless to collect back wages, let alone enforce severance packages. In some cases, the government–hoping to keep face–has itself coughed up the workers’ earnings.

As it stands, Chinese factory workers toil up to 80 or more hours a week (when times are good) for the princely sum of 770 yuan a month, about $118. Overtime is almost never paid.

In the States, we just witnessed the employee occupation in Chicago of Republic Windows and Doors, which was abruptly shuttered after Bank of America closed its line of credit to the firm.

The laid-off workers demanded 60 days’ wages and benefits under the WARN (Worker Adjustment and Retraining Notification) Act since that law requires firms to give 60 days’ advance warning of mass layouts (unless there is an unforeseen emergency, a gray area).

Just last night I heard that BofA was going to advance Republic a $1.2-million loan to remunerate the fired employees.

So, the employees won, evidently, but I have one question:

How is Republic going to repay BofA if it’s no longer operating the factory?

(I just learned, but I don’t know if it’s accurate, that the sum is actually $1.75 million and that it will go into a fund with money from both JPMorgan Chase and Bank of America. This would seem to indicate that it’s not a loan, but a publilc relations tactic to counter consumer and public ill will toward the banks.)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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The Immaculate Recession: Men Feel the Most Pain

I call it “The Immaculate Recession” because our current turmoil seems to be solidifying what should’ve been obvious a long ago:  We are no longer an Industrial Revolution economy; we’re the Information Age economy, and in that area, we still lead the world.

That’s why, when one surveys the pain going around in 2008, it’s illustrative that 1.1 million men have lost their jobs this year while their female counterparts are enjoying a net gain of 12,000 jobs, according to the Labor Department.

Factory jobs are disappearing, and being robotized and mechanized, while Information Age jobs are growing.  We mustn’t overlook the health care sector either.  That was the source of 400,000 new jobs for women this year alone.

Anyway, you get the drift here.  As painful and unsettling as recessions are, they exist for a reason and ultimately lead to needed social and workforce changes.

It’s like the Chinese say when they want to curse you:  “May you live in interesting times.”


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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FMLA to Get Regulatory Makeover on Jan. 16

Mostly right, I guess, given the composition of the current administration.

Much indeed has been made of Bush’s so-called “midnight regulations,” which no doubt face reversal under Obama and the Democratic Congress, but one set of regulations looks to be ensconced for a while. That would be the Final Rule issued Nov. 17, and taking effect next Jan. 16, to expand and clarify the Family and Medical Leave Act (FMLA).

Since 1993, FMLA has afforded workers with health care and family needs the option to take up to 12 weeks of unpaid leave, either consecutively or intermittently. The Final Rule keeps this option intact but shifts more of the notification and certification responsibility to the employees themselves. For the first time, it even gives employers the right to verify the health provider’s certification of the employee’s condition and treatment, but only to the extent of verifying the provider’s signature and whether he or she actually issued the certification.

Too much on that already, but the main idea is that employers, after two years of input to the Department of Labor, got what they wanted in terms of ending employee (alleged or perceived) abuse of FMLA.

The other big part of the Final Rule is that it adds two categories of leave for relatives of service members. One category affords 26 weeks of unpaid leave to tend to an injured service member (certain conditions apply, of course), and the other category provides up to 12 weeks for certain “exigencies,” for instance, to join a service member when he or she is home on leave or when he or she is preparing to be deployed.

Unions and employee advocates are naturally cheering the military component but deriding the new employee notification and certification policies.

At any rate, it will take a long time to go about changing or reversing these new regulations and clarifications, though President-elect Obama has already announced he wants to expand FMLA to employers with just 25 or more employees in a 75-mile radius (down from the current 50). He also wants to pass legislation mandating that all employers allow paid leave.

We’ll just have to wait and see as a more employee- and union-friendly administration takes over, so we can then “fly left.”


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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FMLA, Minimum Wage Law Changes Abound in 2009

I won’t even begin to get into the changes to the Family Medical Leave Act (FMLA) coming into force on Jan. 16, 2009, but as many have mentioned, the FMLA Final Rule (registered on Nov. 17) is a boon to families of service members and to employers, the latter of whom now get a better structure for dealing with FMLA requests.

More on that perhaps another time.

For now, let’s look at changes coming to the minimum wage. In addition to Puerto Rico and the District of Columbia, 25 states will be raising their minimum wages in 2009, with Washington topping the list at $8.55. Compare this to the new federal minimum wage, which kicks in July 24, of $7.25

Incredibly, the two highest minimum wage laws are in cities, and both take effect Jan. 1, 2009. San Francisco is upping its minimum to $9.79 an hour, while Santa Fe is pegging its rate at $9.92 an hour.

I’ve heard some talk (probably wishful thinking) coming from Obama supporters of upping the federal minimum wage to become a living wage (in the neighborhood of $11 or so an hour). We’ll just have to wait and see on that one.

There’s also the little matter of the Employee Free Choice Act (EFCA), which would legalize unionization of a company by “card check.” As soon as more than 50 percent of employees sign these cards, zap–here comes the union to start negotiating.

EFAC, needless to say, has many employers more than a little concerned.

Again, more on that in a future post.

For now, thanks to Ann Barnes at the Compensation Force blog for compiling the list of 25 states’ raising their minimum wage.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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