Happy $40 Million Holiday Present to Mass. Wal-Mart Employees

Nabbed again!

Wal-Mart has agreed to fork over $40 million to employees past and present at its Massachusetts outlets after settling a 2001 lawsuit over abuse of time-card data, fudging on overtime and denying employees break time.

Employees who worked at those locations from 1995 to the present will receive checks ranging from $400 to $2,500, depending on length of service.

This is pretty much a universal pattern with Wal-Mart, who’s been settling wage claims right and left these days.

Employers, be aware that audits and complaint investigations will be more prevalent under the reign of Labor Secretary Hilda Solis, the self-proclaimed "new sheriff in town," so be prepared by hewing to all wage laws.

Personnel Concepts has prepared a series of posters and compliance kits to help you adhere to the laws and regulations of the DOL. Visit our Human Resource Tools section today.


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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Jury Is In: Employment Cases On the Rise, Favor Employees

Not only are employment lawsuits on the rise, but so are victories for the employees in both court and the pocketbook.

According to Jury Verdict Research, a tracking agency, employees prevailed over employers in 61 percent of all employment trials in 2008 and walked away with a median award of $326,640, up from $204,000 just a year earlier, or a whopping 60 percent rise. Discrimination awards were up 16 percent from $208,000 to $241,119, with age discrimination being the number-one docket mover.

There’s a ray of hope for employers, however, if they can get their trials held in federal courts, where they prevailed 43 percent of the time as opposed to 37 percent in state courts. Median awards were 39 percent lower in federal courts as well.

Out-of-court settlements rose to $90,000, the highest in the decade, up 20 percent from 2007.

Data are not yet in for 2009, but expect rises in all categories in an increasingly fragile economy and with a more employee-friendly administration in Washington, D.C.

 

 


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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Overtime Rounding Off: Feds Say OK, but Amazon Accused of Cheating

The Department of Labor (DOL) permits companies to round off overtime, "provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked."

The New Jersey Department of Labor and Workforce Development disagrees with the DOL and forbids the practice in the Garden State.

Now a class action lawsuit filed in Seattle accuses Amazon of cheating in its rounding and thus avoiding paying workers what’s properly owed them–to the tune of 15 minutes of overtime for every day worked. That’s a lot of unpaid wages that Amazon could face if found liable–the suit represents some 21,000 warehouse workers.

Let’s see, 21,000 X 15 = 315,000 minutes of lost overtime per day. Say each worker averages $10 an hour, that works out to $3,150,000 per day.

Worse, employees claim Amazon’s practice of rounding off to the nearest 15 minutes has been going on for years.

Ouch!

Amazon is not the only company being accused of nefarious timekeeping. Station Casinos in Nevada is accused of rounding off starting and ending times and thus cheating workers out of pay. Workers at Michigan Bell, the telecom, claim rounding off robs them of accrued overtime pay.

With the "new sheriff in town," Labor Secretary Hilda Solis, cracking down on wage and hour violations with an added posse of 250 new field investigators, businesses are advised to keep accurate overtime records and pay accordingly.

Get a copy of Personnel Concepts’ Fair Pay Overtime Rules Kit and keep the DOL at bay by maintaining proper records and compensating accordingly.


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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Cheesecake Factory Forced into Consent Decree Over Sexual Harassment

It’s actually just one Cheesecake Factory location in Phoenix that was the subject of the Equal Employment Opportunity Commission (EEOC) lawsuit that led to a subsequent consent decree.

At that location, the EEOC charged that managers looked the other way while male kitchen staff sexually harassed male service staff, including acts such as dragging them into the refrigerator, grabbing their genitals and simulating rape.

As a result of the consent decree, that Cheesecake Factory will be monitored for two years by an outside ombudsman, and it must also pay restitution to the six harassed employees and conduct training for all employees.

Employers, allowing acts of sexual harassment to take place can lead to similar EEOC actions and even criminal charges for those directly involved. Stay on top of your workforce and snuff out harassment of any kind before it gets started. In this endeavor, Personnel Concepts’ Federal Harassment in the Workplace Program will help you establish on-site policies and procedures to prevent harassment.


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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GINA Regs May Bar Employers from Accessing Social Media

Though the Genetic Information Nondiscrimination Act (GINA) has already taken effect, the law’s regulations are still in a state of flux at the Equal Employment Opportunity Commission (EEOC) and have yet to be finalized.

One of the contentious issues that is being weighed internally and through public commentary is the right, or lack thereof, of employers to access employees’ or job applicants’ social media sites such as Facebook and MySpace.

Since GINA bars the use of genetic information in any employment or health care decision, many are worried that employers who snoop into employees’ Facebook, MySpace, LinkedIn or other social media pages might find evidence of a genetic nature, such as a family history of cancer, that could result in adverse decisions.

Public commentary, which has now been closed, is running about 50-50 in favor and against the barring of employers from viewing the social media sites of their employees or job applicants. Major business groups such as the U.S. Chamber of Commerce are in full favor of allowing the practice of using the social media for background checks, while the ACLU and FDIC have come out strongly in favor of an outright ban.

What’s interesting is that this is the first time a government agency has considered the employer practice of using the social media for background checks. Horror stories abound of people who’ve lost jobs for having posted indiscriminate party pictures and the like on their pages. If doing so can be considered discriminatory, then the affected employees can file complaints with the EEOC and eventually sue their employers.

It will be interesting to see the outcome of this debate, and with public commentary period closed, the regulations should be finalized and released soon.

Meanwhile, for both employers and health care providers and insurers, GINA is in full effect, and to help you understand your obligations and rights, Personnel Concepts has prepared a comprehensive and useful Genetic Information Nondiscrimination Compliance Kit. Get yours today.


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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Two Courts Agree that Rehabilitation Act Covers Contractors

The Ninth Circuit Court recently ruled that, unlike the Americans With Disabilities Act (ADA) which covers only those who are in an employee-employer relationship, the Rehabilitation Act is worded more loosely to cover any "otherwise qualified individual."

Thus in reviewing a lawsuit against a hospital, the court ruled in favor of an independent contractor who claimed he had been denied employment based on a disability. The hospital for its part claimed the plaintiff had no legal standing since he was not an employee, as required under the ADA.

(The Rehabilitation Act is a precursor to the ADA in protecting people with disabilities, but it applies only to those businesses that receive federal funding.)

The case in question was Fleming v. Yuma Regional Medical Center. The plaintiff, an anesthesiologist, claimed he was denied a contract because he was suffering from Sickle Cell Anemia. The hospital countered that he couldn’t sue because he was not an employee, but an independent contractor.

On Nov. 19, 2009, the Ninth Circuit Court ruled in the plaintiff’s favor and rejected the argument that the ADA restricts the scope of the Rehabilitation Act.

The Tenth Circuit Court has also interpreted matters in the same way, so in those two jurisdictions at least, the Rehabilitation Act does indeed protect independent contractors as well as employees. Since the Sixth and Eighth Circuit Courts have ruled exactly the opposite–that the ADA does restrict lawsuits under the Rehabilitation Act to employees–the logical place for the issue to be resolved is the Supreme Court, but it’s not on the docket yet.

Meanwhile, to keep up with the ADA itself, get a copy of Personnel Concepts’ ADA Amendments Act Compliance Kit and learn of how the ADA now covers virtually every employee.


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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One in Four Believes a Co-Worker Capable of Violence

In the wake of the workplace murder of Yale student Annie Le and other tales of co-worker-initiated mass violence such as that at Ft. Hood, one in every four Americans believes a co-worker he or she knows is capable of violence, according to a new Rasmussen poll.

According to the latest Rasmussen Reports national telephone survey, 26 percent of employed adults said they seriously thought that a co-worker was capable of violent acts, while 43 percent of government workers felt a fellow employee was capable of mass violence.

More pertinently from an employer’s perspective, 36 percent said their places of work lacked adequate procedures to help prevent workplace violence.

Unsure how to develop policies and procedures to thwart workplace violence? Get a copy of Personnel Concepts’ Workplace Violence Prevention Kit and start implementing your plan today.


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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DOL Pushes for Mandated Seven Paid Sick Days Minimum

Using the H1N1 pandemic as a selling point for mandating sick leave at work, Department of Labor spokespersons have been testifying in the Senate this week in support of the Healthy Families Act.

The proposed bill would require employers to let employees accrue one hour of paid sick leave for every 30 hours worked, capped at 56 hours, or seven days. The bill would also allow employers (naturally) to be more generous and offer greater paid sick leave packages.

The Healthy Families Act is currently being weighed by the Subcommittee on Children and Families in the Senate’s Health, Education, Labor and Pensions (HELP) Committee.

Deputy Secretary of Labor Seth Harris argued that many sick workers to go to work and many working parents send sick children to school because they have no paid sick leave. He said such a system poses a threat to public health, the nation’s economic future and a social system that depends heavily on people caring for themselves and their family members.

Currently, only San Francisco and the District of Columbia have paid sick leave mandates. Milwaukee voters passed one in November 2008, but instantly under legal challenge, it was later ruled unconstitutional by a judge.


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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GAO Faults OSHA for Its Injury-Illness Audits

The Government Accountability Office (GAO) has issued a report faulting the Occupational Safety and Health Administration (OSHA) for its handling of the injury-illness reports it collects each year from the nation’s businesses.

Each year OSHA audits about 250 of the injury-illness reports it receives from approximately 130,000 high-hazard work sites in the United States. The GAO audit of these audits, however, says that OSHA fails to instruct its inspectors to conduct on-site employee interviews to determine the veracity of the reports.

In addition, since the audits often take place two years after the reports have been filed, many of the affected workers have left the employ of the companies that issued the reports and thus cannot be interviewed.

Finally, the GAO found that OSHA has not updated its list of high-hazard industries since 2002 and thus doesn’t include eight such industries in its audits.

The report recommended:

OSHA inspectors must take advantage of opportunities to verify the accuracy and completeness of employer-provided records by interviewing workers who may be aware of injuries and illness that may not have been recorded by employers. It is also important that OSHA conduct its records audits as soon as possible after it collects employers’ injury and illness data to maximize the usefulness of information collected from worker interviews.

According to the accountability office, there were 4 million workplace injuries in 2007, including 5,600 fatalities. Moreover, the report says that more than a third of occupational health practitioners surveyed revealed that employers or workers pressurized them to provide insufficient medical treatment in order to hide or play down work-related injuries or illnesses.

Workers for their part, the report says, fail to report job-related injuries as they do not wish to be fired from their jobs or disciplined, also worrying about their co-workers losing rewards that are a part of safety-based incentive programs, such as bonuses or steak dinners.

The fear of increasing worker compensation costs and hurting their chances of winning contracts are a couple of reasons employers do not report workplace injuries and illnesses.


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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Bills Introduced to Extend COBRA Subsidy, Length

Two bills in the House of Representatives aim to extend the eligibility date for subsidies of COBRA health coverage through June 31, 2010. Currently, those involuntarily discharged from their jobs are eligible for a 65-percent subsidy of COBRA health care only if they are terminated by Dec. 31, 2009.

Both HR 3930 and HR 3966 embrace the new cut-off date but approach matters a bit differently. HR 3966 retains the current COBRA coverage of 18 months, while HR 3930 allows for 24 months for individuals terminated by Dec. 31, 2009 and 15 months, or until Dec. 31, 2010, for all others. Both retain the subsidy level at 65 percent.

The two bills are now under consideration in various committees of the House of Representatives.

Employers, keep your workforces informed of their rights to both COBRA and the COBRA subsidy with Personnel Concepts’ All-in-One COBRA Information Poster.


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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