Democrats Seek to Overturn Supreme Court’s Age Discrimination Ruling

Business cheered the Supreme Court’s decision in Gross v. F.B.L. Financial Services that set the bar higher for age discrimination claims by employees. Prior to Gross, employees need merely show in court that age was one factor in their adverse job decision (a firing or passing over for promotion, for instance). Now they must show that it was the main factor. Failing that proof, a trial cannot proceed.

However, as they did with the Lilly Ledbetter decision of 2007, and as legal observers predicted when Gross was decided, the Democrats are fighting back against the high court.

Congressional Democrats in the House and Senate have concocted the Protecting Older Workers Against Discrimination Act (POWADA–POW?), which re-establishes the standard that the Supreme Court rejected, that of merely showing age was a factor in the adverse job decision.

“This extremely high burden really undermines workers’ ability to hold employers accountable,” said Senator Tom Harkin, Democrat of Iowa and chairman of the Senate Health, Education, Labor and Pensions Committee during a news conference.

Harkin was joined by co-sponsors Senator Patrick J. Leahy (D.-Vt.) and Congressman George Miller (D.-Calif.).

"The same Supreme Court responsible for the backward ruling against Lilly Ledbetter has now thrown another legal barrier in front of hardworking older Americans," added Miller, chairman of the House Education and Labor Committee.

The three Democrats are also enthusiastic sponsors of the Employee Free Choice Act (EFCA), which business has denounced as undemocratic because it virtually does away with the secret ballot in unionization drives.


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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Faking a Sick Day? You’ve Got a 15% Chance of Getting Fired

About one-third of all employees who call in sick are faking it, a percentage that has held steady over the years. However, the chances of getting fired for abusing sick-day privileges are falling, down from 18 percent a year ago to 15 percent today, according to a survey by CareerBuilder.com, a jobs site.

The number of U.S. employers who check up on absent workers declined to 29 percent this year from 31 percent last year and 35 percent the year before, the research showed.

However, employers this year are turning the other cheek more than before, metaphorically speaking, because they believe stress and burnout from the challenges and aftershocks of the economic meltdown are playing a role.

Or could it be the revenge of Ferris Bueller?

More likely the latter.


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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Feds Clarify Rules on Contractor E-Verify Mandate

The E-Verify online employee status system faced two new hurdles in September. On Sept. 8, the E-Verify Contractor Rule was set to go into effect but faced last-minute court challenges, and on Sept. 31 funding for the system itself was in danger of expiring.

On the first issue, the courts sided with the United States Citizenship and Immigration Service (USCIS) in allowing the contractor mandate to go forward. On the second issue, the Senate passed a last-minute bill to fund E-Verify through Oct. 31 when a yearlong funding bill for the parent Department of Homeland Security (DHS) is expected to pass and extend E-Verify authorization indefinitely.

Since the Sept. 8 implementation of the E-Verify mandate, contractors have been seeking clarification, and over the weeks USCIS has obliged them by posting answers to common questions. Here’s what they’ve said:

Who’s affected by the rule? Any entity accepting a federal contract on or after Sept. 8, 2009, with a length of 120 days or more and a value of $100,000 or more must use E-Verify to certify its employees’ legal status to work in the United States. The same goes for subcontractors meeting the same conditions but with contract values of $3,000 or more. The rule does not apply to contracts for off-the-shelf procurement.

Which employees must be verified? The simple answer is all of them, both existing and new hires.

When do we have to enroll in E-Verify? Once you sign a federal contract, you have 30 days to enroll in E-Verify. Then you have 90 days to complete the verification process for your workforce.

What if we already have a federal contract we’re working on? Then the rule doesn’t apply. The E-Verify Contractor Rule applies only to contracts issued with the E-Verify written notification on or after Sept. 8, 2009.

What if we’re already enrolled in E-Verify? You’re fine except you must check your profile to ensure that your business is listed as a "federal contractor." If not, then update your profile to include that specification.

What does it cost to enroll in E-Verify? The system is completely free and relies on databases at the DHS and the Social Security Administration to verify legal residency status and Social Security Numbers.

 


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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Failure to Display Labor Law Posters Costs Hotel Big in Court Case

Here’s a case that hinged on the statute of limitations for employment-based lawsuits–and how failure to post a basic federal and state labor law poster cost The Claridge Hotel in Atlantic CIty big time.

Two Chinese national employees were dismissed by the hotel after one, a male chef, accused the other, a female room attendant, of sexual advances. After eventually speaking to lawyers, both filed claims of discrimination based on race and national origin–but they filed them after the 300-day statute of limitation had expired.

Crafty lawyer for said Chinese nationals, however, argued that the statute should be extended because the hotel had posted no notification of the employees’ civil rights under American law and that the two were unaware such laws even existed since they didn’t exist in their homeland.

Crafty lawyer prevailed, and judge sent the issue to jury trial, where big bucks are at stake.

The court put it this way: “An employer’s failure to post the required notices of anti-discrimination laws will equitably toll the 300-day limitations period until such time as the employee learns or reasonably should have learned of her rights through some other means.”

Moral: Get your applicable state and federal labor law posters now and keep them displayed prominently in all applicable languages.


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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Sears Hit With Largest ADA Fine Ever at $6.2 Million

Sears Holdings Inc., without admitting any wrongdoing, has settled an Americans With Disabilities Act (ADA) claim for $6.2 million, the largest single fine in history according to the enforcing agency, the Equal Employment Opportunity Commission (EEOC).

The EEOC claims the Hoffman Estates, Ill.-based retailer fired hundreds of employees who took workers’ compensation leave after being injured on the job. The lawsuit said Sears failed to offer injured workers a reasonable accommodation that would have allowed them to return to work.

According to terms of the consent decree signed by Sears, the company agrees to abide by the terms of the ADA and accordingly modify its workers’ compensation policy.

 


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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Majority of Workers Say Employers Lack H1N1 Preparations

Worse, nearly 85 percent of those surveyed by Mansfield Communications said they feel pressured to come to work even if they come down with the H1N1 swine flu because of the tough economy. Nearly 70 percent also said their employers have communicated nothing and made no preparations for a possible swine flu resurgence.

On a more positive note, 80 percent said they felt knowledgeable about what precautions to take against the influenza, but 47 percent of respondents still said they would go out into public even if they come down with the flu.

“The gap between professed knowledge and practice is alarming,” Mansfield spokesman Rob Ireland said. “Nearly half of respondents said that they would continue to engage in public activities with full knowledge of their infection. Clearly, there is much to be done to educate America’s workforce and help people act appropriately in order to contain the spread of H1N1.”

Employers should avail themselves of two influenza and pandemic flu products by Personnel Concepts that will help educate their workforces and also help establish a sound H1N1 workplace preparation plan: Our H1N1 Swine Flu Poster and our Pandemic Flu Workplace Preparedness 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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DOL Recovers $1.4 Billion in Lost Wages Over Eight Years

The Department of Labor (DOL) and its Wage and Hour Division (WHD) recovered some $1.4 billion in unpaid overtime and other wages in the eight-year period ending in 2008, and that was under the Bush administration, which has been accused of lax enforcement by the incoming Obama administration and its DOL secretary, Hilda Solis.

Accordingly, Secretary Solis has beefed up the ranks of the WHD by 250 agents, who in turn will conduct audits and inspections at workplaces where employees have reported wage abuse.

A common WHD tactic is also to target low-wage industries like car washes, day care centers, garment industry, janitorial services and the like for random inspections and interviews with employees.

In 2008 the WHD recovered more than $185 million in back wages for 228,000 employees. In addition, the agency assessed $9.9 million in civil monetary penalties and concluded 28,242 compliance actions. Expect more in all categories as the DOL beefs up enforcement under Solis, and as employees challenge their pay stubs more frequently in these trying economic times.

One of the key areas to watch as an employer is your hourly workers and conversely your classification of exempt employees. Some of your exempt employees may actually be hourly employees subject to overtime pay.

A good way to determine if you’re properly classifying your employees is to get a copy of Personnel Concepts’ comprehensive but easy-to-follow FLSA Salary Basis Compliance Kit and a copy of our FLSA Overtime Rules Compliance Kit. Get your kits today and stay away from those civil monetary penalties and back-due wages.


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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Baby Boomers Turn to Social Security When Downsized

The Social Security system has been deluged by unemployed Baby Boomers–many of whom would still be working in better times–who are signing up for retirement benefits at a record clip. Social Security applications are up 23 percent this year, and disability applications up 20 percent. As a result, the system projects deficits of $10 billion in 2010 and $9 billion in 2011.

Not to worry, however, if you’re a recipient, or thinking of becoming one soon. The Social Security fund has built up a $2.5 trillion reserve, which is expected to last until 2037.

Nearly 2.2 million people applied for Social Security retirement benefits from start of the budget year in October through July, compared with just under 1.8 million in the same period last year.

The increase in early retirements is hurting Social Security’s short-term finances, already strained from the loss of 6.9 million U.S. jobs. Social Security is funded through payroll taxes, which are down because of so many lost jobs.

 


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 Next Time Somone Requests a Religious Accommodation…

Be careful.

Here’s the official Equal Employment Opportunity Commission (EEOC) definition given at a recent training seminar:

Religion includes not only traditional organized religion, but also "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views."

Note that just about any belief, including atheism, falls easily under this definition.

Maybe the guy on the TV ad who wants to take a weekend Chinchilla Day holiday in Las Vegas cannot be denied, according to the EEOC (which enforces religious discrimination).

Meanwhile, you may want to get your hands on Personnel Concepts’ Religious Discrimination Compliance Kit to gird yourself.

 


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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HHS Interim Final Rule Provides Cover for HIPAA Breaches

They ain’t publicizing it, but it’s there: A harm threshold in the Interim Final Rule published yesterday (Sept. 23, 2009) by the Department of Health and Human Services (HHS) that lets covered entities avoid ever admitting to a private health information (PHI) breach.

The secret? Just encrypt the data. As the Interim Final Rule says, it wants to save the public from being “flooded with notifications for breaches that pose no threat."

So if a covered entity–a health care provider, insurer and the like–converts to electronic records and encrypts them, and some hacker steals five zillion records and then unencrypts them, nothing need be reported or done.

For a little background, one’s personal health information is protected from disclosure under the provisions of the Health Insurance Portability and Accountability Act (HIPAA). Provisions regarding HIPAA security included in the recent American Recovery and Reinvestment Act (ARRA) imposed breach reporting requirements and penalties for breaches and ordered HHS to implement these in a Final Rule.

ARRA, however, made no mention that encryption would be a safe harbor so that breaches need not be reported to those affected. HHS threw that in.

“The key problem is, those who breach your information are the ones who get to decide if you are harmed or not,” Deborah Peel, founder and chairwoman of the nonprofit Patient Privacy Rights, told SCMagazineUS.com the day before the interim rule was published.

“It’s shocking to see that the federal agency charged with protecting the public [HHS] is instead protecting private corporations against the embarrassment and bad press that would occur if they aren’t protecting our health records,” Peel added.

The Interim Final Rule also gives great leeway, as Peel indicates, for the covered entity to determine the level of risk that’s involved. The rule even says a lost of stolen laptop containing PHI that’s found or returned need not necessarily be reported if it’s determined the data wasn’t tampered with.

However, I don’t know about you folk, but when I go to the doctor, everything is written down and stored in a file cabinet. Are they going to be able to claim that was encrypted?

Wiggle, wiggle.


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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