March 2008 Archives

Are Today's Wellness Programs Running Out of Steam?

Posted by Molly DiBiancaOn March 31, 2008In: Wellness, Health, and Safety

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Today's headline from Fox news says, "Despite Perceived Effectiveness, Most Employees Who Participate in Wellness Programs Do Not Stay Committed.". The survey, conducted by Guardian Life Insurance Company North America, reports the following statistic:

Nearly half of employees who have participated in wellness programs in the past three years admit that their commitment trails off after just a few years

Wellness programs have been all the rage for the past several years. Employers have been advocating a healthy lifestyle for their workforces by implementing a whole host of rewards programs. Employees are encouraged to get healthy by giving up tobacco, keeping their cholesterol in check, exercise, and eat right.

And, how, pray tell, do employers make this healthy magic happen? With a wave of the magic wand called "cash," of course! Employees who participate in their employer's wellness program are often rewarded with cash prizes, reduced health insurance premiums, or, maybe, just the satisfaction of a healthier lifestyle.

And what's in it for employers? For one, the hope of healthy employees who cost less in insurance premiums. You know the saying, "an ounce of prevention," . . .. Some subscribe to the theory that healthier employees are more productive employees who make more money for their employers and cost their employers less. Go figure!!

Treadmill-Desk In One
Why whistle while you work when you can walk? Another invention for the healthy-office initiative.


So why, according to the survey, aren't employees sticking with it? Could it be that money really doesn't motivate? Could it be that a healthy lifestyle requires more effort than the average American worker is willing to give it?

The Safe-Harbor Rule for No-Match Letters: Part 3 of 3

Posted by Teresa A. CheekOn March 31, 2008In: Hiring

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This is the third in a series of posts about the new Safe-Harbor rule issued by the Department of Homeland Security. For the 1st and 2nd posts in the series, go here and here.

What’s An I-9 Form?
The I-9 form is used to enforce the part of IRCA that prohibits employment of non-work-authorized aliens. All U.S. citizens, all lawful permanent resident aliens, all refugees and all asylees are allowed to work in the U.S. by virtue of their status. There are also some other categories of immigrants who are legally permitted to work here. All employers are required to prepare an I-9 form for each new employee to show that the employer has examined documents that demonstrate that the employee is legally authorized to work in the U.S. Employers are supposed to accept the documents only if they appear to be genuine (not counterfeit) and to relate to the person who provided them. Most U.S. citizens meet the document requirement by showing a driver’s license and a social security number card, but on the back of the I-9 form there are lists of other documents that can be used to prove identification and authorization to work.

Back To The Safe Harbor Rule
Under the new rule, if the employee has not provided corrected SSN information by the 90th day and the employee had relied on an SSN card as proof of work authorization, the employee must provide some other evidence of work authorization. The employee may not use documents that include the disputed SSN. The employee may not rely on an application for replacement work authorization documents, either. The employee also may not use non-photo identification.

What If The Employee Can’t Provide Acceptable Documents?
The employer has to either fire the employee or put itself at risk of prosecution for knowingly employing illegal aliens.

Is This Rule In Effect Now?
The rule was supposed to go into effect in September, but the AFL-CIO, the ACLU, the National Immigration Law Center and others filed a lawsuit [(AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. 07-CV-4472 CRB)] in the U.S. District Court of the Northern District of California to prevent the government from enforcing the rule. On August 31, 2007, the court issued a temporary restraining order preventing DHS and the SSA from implementing the rule. The SSA had planned to send about 140,000 no-match letters containing a DHS insert that would affect about 8 million workers to employers. The order stopped the SSA from sending those letters, so currently there are no pending no-match letters for employers to deal with.

What Is The Current Status Of The Regulations?
Implementation is on hold pending new rulemaking. DHS has just published a “supplemental proposed rule” in which it addresses problems the court identified. One problem was that DHS had stated that employers that complied with the rule would not get into trouble for citizenship status discrimination, even though OSC, not DHS, is the agency charged with enforcing IRCA’s citizenship status discrimination provisions. Another issue was DHS’s failure to explain and justify the change from its prior position on what social security number mismatches imply. Finally, DHS had failed to make a “regulatory flexibility analysis.”

DHS has not changed any of the provisions of the original rule. After the notice of the “supplemental proposed rule” is published in the Federal Register, there will be a 60-day period for the public to submit comments, and then DHS will review the comments, consider revising the rule, and then issue a final rule. It seems likely that the final rule will be the same as the rule published in August 2007.

Will The Safe Harbor Rule Be Mandatory?
DHS says it will be voluntary, but the court disagreed, noting that employers that receive a no-match letter must follow the rules to avoid being accused of knowingly employing illegal immigrants. At least employers who follow the rule will not have to worry about being accused of discrimination -- the OSC has just issued a statement assuring employers that if they follow the rule in a careful, uniform manner, it will not find reasonable cause to believe that they have terminated employees because of their citizenship status. You can read the entire OSC statement here.

Bottom Line
This rule may provide some temporary relief to employers caught between a rock and a hard place trying to comply with competing laws, but I predict that it will ultimately result in a decrease in counterfeit SSN cards with made-up SSNs and an increase counterfeit SSN cards using stolen identities to avoid getting caught up in the no-match net. The government currently has no useful mechanisms in place to deal with identity theft that I know of but will end up having to create them. I see universal fingerprints or retinal scans on the horizon.

Getting the Jump on No-Match Letters and Suspicious Document Notices

Posted by Teresa A. CheekOn March 31, 2008In: Hiring

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Last week I posted a couple of items about the Department of Homeland Security’s (DHS) “Safe-Harbor Rule,” which gives employers a method for avoiding prosecution for intentionally employing undocumented workers who have been listed in “no-match letters.” As you know if you read those items, the latest batch of “no-match letters” from the Social Security Administration (SSA) is on hold for an indefinite period. In the meantime, if you have received a no-match letter in the past, or suspect that you might be getting one in the future, is there anything you can do now to minimize future problems?

The answer to that question is yes. Employers now have two methods for finding out the extent of their no-match problem and of weeding out undocumented workers. One is the SSA’s Social Security Number Verification System (SSNVS), and the other is DHS’s “E-Verify” program. Both are free web-based programs.

The SSA program simply looks for mismatches between its records and your, the employer’s, records, and can be used for your entire workforce at any time. If you find a mismatch between your records and the SSA’s records as a result of using the SSNVS, the SSA tells you to check with the employee to find out whether you have the correct information in your records, and to resubmit the inquiry if you find an error. If that doesn’t end the problem, the SSNVS Handbook gives the following caution:


• A mismatch is not a basis, in and of itself, for you to take any adverse action against an employee, such as laying off, suspending, firing or discriminating.

• Company policy should be applied consistently to all workers.

• Any employer that uses the failure of the information to match SSA records to take inappropriate adverse action against a worker may violate State or Federal law.

• The information you receive from SSNVS does not make any statement regarding a worker's immigration status.

What the SSA program really does, then, is give you an opportunity to reduce the number of clerical errors in your payroll database. It also will give you an idea of whether you might be of interest to DHS, since DHS is now using SSN mismatches as a method for identifying employers with a high number of undocumented workers. If you find out that you have at least 10 unresolved mismatches and those mismatches constitute at least 0.5% of your workforce, you should take additional steps now to avoid possible future liability. At least one of those steps should be signing up for the DHS E-Verify program.

E-Verify is a free Web-based system that electronically verifies the employment eligibility of newly hired employees, and can be used for new hires only. To use E-Verify, first the employer must register as a participant and sign a “Memorandum of Understanding” (MOU) that will outline the responsibilities of the employer, the SSA and DHS. Your employees who administer the program will be trained in how to use it.

E-Verify works by allowing you to electronically submit employee information taken from the Form I-9. That information is then compared to the more than 425 million records in SSA's database and the more than 60 million records in DHS immigration databases. Results are returned in seconds.

According DHS, E-Verify is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. They claim that it will virtually eliminate Social Security mismatch letters, improves the accuracy of wage and tax reporting, protect jobs for authorized U.S. workers, and help U.S. employers maintain a legal workforce.

Once you are registered for E-Verify, you start the process after an individual accepts an offer of employment and after you and the employee complete the Form I-9. Under the terms of the MOU, the employer must initiate the query no later than the end of three business days after the new hire's actual start date. If there is no problem, the confirmation should come through in seconds, according to the DHS/SSA website. If there is a tentative “nonconfirmation,” the employer prints out the tentative nonconfirmation notice generated by the E-Verify program and gives a copy to the employee. The employer also checks its input to make sure it did not make an error in submitting information to the system.

The employee decides whether to contest the tentative nonconfirmation and tells the employer his or her decision. If the employee decides not to contest the tentative nonconfirmation, the employer treats the employee as non-work-authorized and terminates employment.

If the employee decides to contest the nonconfirmation, the employer gives the employee a referral letter and tells the employee to visit the local SSA office, if the nonconfirmation was from the SSA, or to call the DHS toll-free hotline, if the nonconfirmation was from the DHS or when the employer finds a non-match between a non-citizen and a document generated by the E-Verify system for that employee. The employee has to follow up with SSA or DHS within 8 federal government business days. On the tenth business day, the employer queries the system to find out whether the SSA or DHS have issued a confirmation or a final nonconfirmation. If there is a final nonconfirmation, the employee should be terminated.

An employee should not face any adverse employment consequences based upon an employer's use of E-Verify unless a query results in a final non-confirmation. The biggest downside of the E-Verify program is the lengthy list of responsibilities (15 items) that the employer must agree to take on. You can get more information about E-Verify on the DHS website here.

University of Hawaii Sued for Sexual-Orientation Discrimination

Posted by Molly DiBiancaOn March 30, 2008In: Family Responsibilities (FRD), Sexual Orientation

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Earlier this month, USA Today reported that a University of Hawaii student had filed suit against the public university for housing dicrimination. He alleged that, although he and his partner had been granted permission previously to live in the university-subsidized family housing, that permission had been revoked because the state did not recognize same-sex marriage. The couple, therefore, did not meet the criteria necessary to qualify for family housing.

Laws that protect againt housing discrimination and employment discrimination are often passed in the same bill. But Hawaii is not one of the states that has set up its laws this way. Hawaii state law prohibits discrimination in employment decisions based on sexual orientation. It does not have a parallel law for housing discrimination, though.

As you may know, Delaware has neither. But it has not been for lack of trying. Senate Bill #141 has been proposed and passed in the State House of Representatives for several years in a row. It has been tabled each time and housed in the drawer of a legislator until it is proposed again the following year. The bill would amend the titles of the Delaware Code that deal with Employment Discrimination, Public Housing and Public Works, Equal Accommodations, and Insurance. In each of those areas, it is unlawful to use race, religion, national origin, gender, age, or other protected characteristics as the basis for granting or denying access to, for example, public housing or government contracts.

Currently, 17 states and the District of Columbia include sexual orientation in their list of protected classes for the purposes of employment discrimination. In Delaware and Pennsylvania, public employers may not consider sexual orientation but there is no equivalent law for private employers. And neither Delaware nor Pennsylvania is one of the 15 states (including D.C.) that prohibit sexual orientation in its housing laws. Both Maryland and New Jersey are included among the states that prohibit consideration of sexual orientation both in housing and employment.

Compliance Alert: Family and Medical Leave Act Poster Insert

Posted by Molly DiBiancaOn March 30, 2008In: Cases of Note, Family Medical Leave, National Defense Authorization Act (NDAA)

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whd logo Now that President Bush has signed into law the National Defense Authorization Act (NDAA), which amends the Family and Medical Leave Act (FMLA), employers must update their FMLA postings.

Under the FMLA, all covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.

A copy of the standard FMLA poster prepared by the Department (WH 1420) is available for posting in the workplace at the DOL's website. The poster is also available in Spanish.

The DOL has also published a single-page insert poster, which includes the NDAA amendment. The insert is also available at the DOL's website. It's available here for download and use.

Interest Arbitration Expanded To Delaware School Districts

Posted by William W. BowserOn March 28, 2008In: Public Sector

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Governor Minner has signed House Bill 283 into law.

This bill amends the Delaware Public School Employment Relations Act. As a result, interest arbitration will now be used to resolve impasses in collective bargaining between Delaware public school districts and their organized employees. Binding interest arbitration replaces non-binding “fact finding.”

Under binding interest arbitration, an arbitrator determines the final terms and conditions of employment by selecting one of the parties’ “last, best, and final” offers. This process has been used in negotiations involving other Delaware public entities for several years.

The arbitrator looks at seven factors in determining whether to accept the employer’s or the union’s offer:

(1) The interests and welfare of the public.

(2) Comparison of the wages, salaries, benefits, hours and conditions of employment of the employees with other employees performing the same or similar services or requiring similar skills under similar working conditions in the same community and in comparable communities and with other employees generally in the same community and in comparable communities.

(3) The overall compensation presently received by the employees.

(4) Stipulations of the parties.

(5) The lawful authority of the public school employer.

(6) The financial ability of the public school employer based on existing revenues, to meet the costs of any proposed settlements

(7) Such other factors which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, binding interest arbitration or otherwise

With the exception of paragraph (6) of above, no single factor in subsection, shall be dispositive.

More Than Hollywood Taking Note of the “Baby Bump” -- Pregnancy Discrimination Claims on The Rise

Posted by Adria B. MartinelliOn March 27, 2008In: Newsworthy, Pregnancy (Title VII)

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Page D1 of today’s Wall Street Journal reports that:

A spike to record levels in pregnancy-discrimination complaints to regulators suggests more women are speaking up about suspected workplace bias.

Pregnancy-bias complaints recorded by the Equal Employment Opportunity Commission surged 14% last year to 5,587, up 40% from a decade ago and the biggest annual increase in 13 years.

And that "may be only the tip of the iceberg," an EEOC spokesman says. The agency also received 20,400 pregnancy-bias inquiries at its call center last year, the center's first full year of operation; that doesn't include thousands more walk-ins asking about the same topic at fair-employment offices. An advocacy group, 9to5, National Association of Working Women, also is seeing an increase in pregnancy-bias calls on its hotline.

I have seen a huge surge in pregnancy discrimination claims in my practice as well. The WSJ attributes the groundswell to “both changing demographics and a new activism among mothers.” Employees’ awareness of the law in this area may have been further heightened by the EEOC’s Guidance on Discrimination of Workers with Caregiving Responsibilities, issued in May of 2007. The EEOC’s guidance devoted considerable attention to pregnancy discrimination claims.

I will be speaking on pregnancy discrimination at several upcoming seminars. Click on the links to learn more about opportunities to learn on this important topic: Pregnancy in the Workplace: Manage FMLA, ADA, and PDA Issues Audioconference on April 8 - learn about pregnancy discrimination from the comfort of your own desk! The Advanced Employment Issues Symposium on September 25-26 in Las Vegas, and October 16-17 in Nashville, TN offer additional opportunities to learn more about pregnancy discrimination.

Bullies In the Workplace is Water-Cooler Talk on Good Morning America

Posted by Molly DiBiancaOn March 27, 2008In: Jerks at Work

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Workplace bullying

This week, on Good Morning America, a feature segment ran about Bullying In the Workplace. The forums on the GMA website, where viewers can post comments about the show's topic. There was an overwhelming response to the Bullying segment. So much response, in fact, that Tory Johnson, GMA's Workplace Contributor, was invited back the next day to continue the discussion.

On Tuesday, the topic focused on how to spot a bully at work. On Wednesday, the discussion was aimed on how to handle a bully if you are being targeted. Both episodes were spot on. One of the best points I heard Ms. Johnson make was:

Document, document, document.

On Wednesday's episode, Tory Johnson talked about documentation of the bullying as a survival strategy. Of course, in the world of the employment lawyer, nothing could be more true. One reason documentation can be so important is for your mental health. When you are on the receiving end of workplace bullying, you are likely to experience a great deal of self-doubt.

Bullying usually comes in passive-agressive forms. A roll of the eyes, a deep sigh, a whispered comment, or a mumbled expression of exasperation can all seem very normal when taken in isolation. Sure, most of us occassionally give in to the daily frustrations and take those feelings out on our co-workers and colleagues.

That's why it's not uncommon for targets of bullying to get push-back if they do report the behavior. Likely, they'll get a response of, "Oh, that's just her personality," or, "He didn't mean it, he was having a really tough day," or, my personal favorite, "She's like that with everyone."****

Why don't HR professionals and managers seem so determined not to believe that there is bullying on in their working environment? Because they're people. People don't like to get involved in personality conflicts. Inevitably, the manager will be on the "bad side" of at least one of the fighting employees. And let's face it, nobody likes to be unpopular.

Documentation helps with both problems. First, by having a written record of the conduct, you won't question yourself about the validity of your feelings. When it's all set out on paper with dates and details, that chronology makes it clear that it is not just a series of isolated incidents, but a regular barrage of assaultive conduct.

Second, that documented chronology will force superiors to see the same picture that you've been seeing. To say to a manager, "Sarah is hurting my feelings," might be effective--but it's highly unlikely. But what if you said to that same manager, "Sarah has spent the last several weeks making inappropriate comments directed towards me. She has also spread untrue rumors to my co-workers about me, which has negatively affected my professional reputation. (Or, how about, "defamatory" instead of untrue?! Even better!!) When your manager wants examples of that behavior, you'll have them.

And if the manager still doesn't bite, that's ok. Keep documenting. If for no other reason but to prevent that question, "Am I just being oversensitive?"

[****A sidenote on that last one: Employers, please, please, please, do not EVER use this as an "excuse" for an employee's socially unacceptable behavior. If you would not want the comment made to your mother or to your spouse, then it should not be said in the workplace. Although it sure can feel like it sometimes, the workplace is NOT a battle zone. Save your combat gear for that Nintendo Wii.]

The "Safe-Harbor" Rule for No-Match Letters: Part 2 of 3

Posted by Teresa A. CheekOn March 27, 2008In: Hiring

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The Department of Homeland Security ("DHS"), has issued new procedures for employers who receive "no-match" letters. In Part 1 of this post, I talked about the state of the law before the new "Safe-Harbor" rule was issued. In this post, I'll discuss the potential impact of the Safe-Harbor rule and why it is so important for employers.

Why Do Employers Need A Safe Harbor?
Over the past 2 or 3 years, DHS has developed evidence that most cases of social security number mismatches involve undocumented workers. However, in the text of its mismatch letters and on its website, the SSA cautions employers not to take any adverse action against employees based on a mismatch issue because there could be many innocent reasons for a mismatch. Another branch of the government, the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), also cautioned employers not to take action against employees based on SSN mismatch issues because OSC might interpret such action as discrimination in violation of the anti-discrimination provisions of Immigration Reform and Control Act of 1986 (“IRCA”).

Nevertheless, in the past 2 years, Immigration and Customs Enforcement (“ICE”), has been raiding employers that received no-match letters. ICE has even arrested and criminally prosecuted individual managers, accusing them of recruiting, harboring and knowingly employing illegal aliens. For example, in April 2007, DHS raided 40 plants in 26 states of a company called IFCO, apprehending 1,187 undocumented workers. DHS also arrested a plant manager and a regional manager on charges of conspiring to transport, harbor, and encourage undocumented workers to reside in the United States. The penalty for conviction is up to 10 years in prison. DHS intends to increase the fines for knowingly employing illegal aliens by 25%. Right now the fines are $2500 for a first offense and up to $10,000 for repeat offenses.

The number of criminal prosecutions for knowing employment of undocumented workers is rising and that will continue. There were 716 criminal arrests in fiscal year 2006, and the number increased in fiscal year 2007. In 1999 there were only 24 arrests.

What Does The New Rule Say To Do?
The first step the employer takes is to check its records for typos and similar errors. If any errors are discovered, the employer contacts the SSA to make sure that the correct name and social security number match the SSA records. Employers have 30 days from receipt of the no-match letter to take this step.

The next step is to ask the employees on the list about the discrepancies. If the employee says the information in the employer’s records is incorrect, the employer corrects its records and contacts the SSA to make sure the corrected information matches its records.

If the employee says the information in the employer’s records is correct, the employer has 30 days to ask the employee to contact the SSA about the discrepancy. The employee has 90 days from the date of receipt of the no-match letter to provide new information to resolve the discrepancy. If the employee does not provide new information, the employee has three days from the 90th day to provide new documentation that will enable the employer to prepare a new I-9 form as if the employee were a new hire.

Reservist sues Delaware State Police for Military Service Discrimination

Posted by Scott A. HoltOn March 27, 2008In: Race (Title VII), Uniformed Services (USERRA)

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USERRA Reemployment Rights

The latest headlines of the local newspaper, the News Journal underscore what is becoming the latest trend in employment lawsuits: military service discrimination.

On Wednesday, March 26, an Army lieutenant colonel serving in in Baghdad filed a federal lawsuit alleging he was fired from the Delaware State Police in violation of state and federal laws that protect military reservists from discrimination and retaliation because of their military service.

45-year-old Lt. Col. Keith W. Janowski claims that he encountered harassment, discrimination and retaliation because of his duties and obligations "as a citizen-soldier in the U.S. Army Reserve" during his 16 years on the state police force. He also alleges that after his return from active duty in 2003, he asked for retraining in civilian searches but was denied. He was fired in 2005 for conducting a improper search and exercising poor judgment, allegedly because he missed a pack of cigarettes during a search of a person.

This lawsuit supports the national statistics that more and more military personnel are excercising their rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). As those employees return from active duty, employers face extensive and often confusing obligations imposed under USERRA. The law was enacted in 1994 to encourage civilian military service by attempting to eliminate the disadvantages employees face when called into service. The law governs employer's responsibilities to employees during periods of military leave and upon return to employment.

Unlike many employment laws, USERRA applies to all employers, public and private, regardless of size. It requires you to grant unpaid leaves of absence for employees called into military service. Employees may elect to use accrued vacation pay, annual leave, or other accrued paid leave during military leave, but you may not require them to use it during that time. Upon returning from military service, USERRA grants eligible employees the right to reemployment.

Eligibility for Reemployment

Eligibility for reemployment under USERRA requires employees to meet the following criteria:

1. Notice. Employees must provide employers with advance notice of their military service obligation. The notice may be verbal or written and may be provided by a military officer. Many employers request that employees provide copies of induction documents, training notices, or other military orders. The advance notice requirement is waived if military necessity makes advance notice impossible or unreasonable.

2. Exclusions. Reemployment rights are available for absences of up to five years of cumulative military service. Many of the most common categories of military service for employees don't count toward that five-year limitation period. For example, military service during a time of war or national emergency is exempt from the five-year period. President Bush declared a state of national emergency following the September 11, 2001, attacks and authorized mobilization of military troops.

3. More Exclusions. Military service in support of Operation Iraqi Freedom and Operation Enduring Freedom isn't counted toward USERRA's limitation period. Another exception you must be familiar with is the annual and weekend training required for National Guard members and reservists.

4. Disqualifying Discharges. Reemployment rights under USERRA don't extend to an individual with a disqualifying discharge from military service. A disqualifying service discharge means (1) a separation from service with a dishonorable or bad-conduct discharge, (2) a separation from service under "other than honorable" conditions, (3) dismissal of a commissioned officer by court martial or presidential order, and (4) a "dropped from the rolls" separation caused by an absence without authority or civil imprisonment.

5. Reapplication Period. To maintain reemployment rights, an employee must report to work or apply for reemployment within a specific period of time determined by the length of military service. A written application for reemployment is unnecessary; an employee is required to inform his employer that the period of military service has been fulfilled. If the military leave is less than 31 days, the employee must return to work eight hours after returning home from completion of military service at the beginning of the first full regularly scheduled work period. For military leaves of absence between 31 and 180 days, the employee must submit an application to the employer within 14 days following the completion of military service. For leaves in excess of 180 days, the employee must apply for reemployment within 90 days of completing military service.

6. Inability to Return to Work. USERRA extends those time limits for up to two years if an employee is unable to return to work because of a service-related illness or injury. Any employee failing to report to work or reapply for employment within the appropriate time frames is subject to the employer's policies regarding any unexcused absence from work.

Employer duties to reemploy

At the conclusion of military service, an employee is generally entitled to reemployment to the position she would have held or attained but for the period of military service. In that respect, USERRA is contrary to the concept of employment "at will" and affects your personnel decisions during the period of active military service. Not surprisingly, failure to reinstate a former employee following a period of military service is one of the most common complaints under USERRA.

Employees serving less than 91 days of military service must be reemployed in a position they would have attained but for the period of military service, provided they're qualified for the position. If an employee isn't qualified for the position after you have made reasonable efforts to qualify her, you must return her to the position held before military service.

Employees absent for military service longer than 90 days must be reemployed in the position they would have attained or in a position of comparable seniority, status, and pay, provided they're qualified to perform the job. If a returning employee isn't qualified for the position, you must make reasonable efforts to qualify her for the position. If those efforts fail, you must return her to the position held before military service or a position of comparable seniority, status, and pay.

If you're reemploying an employee with a disability incurred or aggravated during military service, you must make additional efforts. First, you must make reasonable efforts to accommodate the employee's disability so she may become qualified for the position she would have attained if continuously employed. If she isn't qualified despite your reasonable accommodation efforts, she must be placed in a position of equivalent seniority, status, and pay as long as she's qualified for the position or can become qualified for the position through your reasonable efforts. Last, if the employee doesn't qualify for the equivalent position, she must be employed in a position that "most nearly approximates" the equivalent position in seniority, status, and pay.

Exceptions to reemployment rights

There are limited exceptions to the obligation to reemploy employees returning from military service. Reemployment isn't required when doing so would be impossible or unreasonable, such as when a reduction in force during the leave period has eliminated the employee's position.

Discharge protections

Once reemployed, USERRA affords returning servicemen and servicewomen protection from discharge without cause. The extent of that protection is based on the length of military service. Individuals reemployed after 181 days or more of military leave may not be fired without cause for a period of one year after reemployment. Individuals reemployed after 30 to 180 days of military service may not be fired without cause for six months after reemployment. There's no protection against discharge without cause for individuals serving less than 30 days.

Discrimination and retaliation protections

USERRA prohibits you from discriminating against persons with past or present military obligations when making decisions relating to hiring, promotion, reemployment, termination, and employment benefits. You're prohibited from retaliating against individuals who file complaints or exercise any right under USERRA.

Employee benefits

Under USERRA, employees on military leave are entitled to the same benefits provided to employees on other leaves of absence. For example, if you provide employees on Family and Medical Leave Act leave with continued health, life, or disability insurance or allow employees to continue to accrue vacation benefits, employees on military leave must be afforded the same benefits.

The commencement of military leave is a COBRA-qualifying event, and continued health insurance coverage is available to employees at their expense. On December 10, 2004, President Bush signed the VBIA into law, which expanded the continuation period for military families from 18 months to 24 months. The extended continuation period is effective for continuation elections made on or after December 10, 2004. If you haven't already done so, you should revise your health plan administration to reflect the extended continuation period available for employees entering military service.

Retirement/pension benefits

USERRA contains expanded pension rights for eligible employees. Periods of military service may not be treated as a break in service for an employer-sponsored pension plan. For vesting and accrual purposes, the military service period is considered service with an employer. You're required to make any pension contributions for employees returning from military service you would have made if they hadn't been on military leave.

If you sponsor a "contributory" plan that offers benefits only when the employee makes contributions, returning employees must be given three times the military service period, not to exceed five years, to make up any missed contributions. You're obligated to make matching contributions consistent with the amount contributed by the employee.

VBIA: notice of USERRA rights and duties

In addition to extending the health insurance continuation period from 18 to 24 months, the VBIA also requires you to notify present and returning employees of "the rights, benefits, and obligations of such persons and such employers" under USERRA. The notice requirement became effective on March 10, 2005, and can be met by posting a notice in the location other workplace notices are customarily hung. The U.S. Department of Labor's Veterans Employment and Training Service (VETS) has created a poster that contains the notices required under the VBIA. A color copy of the poster, suitable for printing, is available at no charge on the department's website.

USERRA technical assistance also is available from VETS, which can be accessed by calling (866) 4-USA-DOL or by visiting its website. at An interactive USERRA advisor is available online here.

School District’s Background Check Takes a Shot

Posted by Maribeth L. MinellaOn March 26, 2008In: Background Checks, Public Sector

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The parents in the group might need to sit down for this story. . .

In a bizarre and frightening incident, a middle school girls’ softball coach at the Seaford School District apparently injected one of the girls on his team with an adrenaline-filled Epi Pen--not to save her life by combating an allergic reaction—but apparently in retaliation for lackadaisical play on the field.

The girl’s family is now suing the school district for failing to properly and thoroughly verify the coach’s background.

Hiring is one of the most important decisions any employer can make. A failure to carefully screen employees can not only result in adding underperformers to your workforce, it can result in exposure to theft, violence, and legal liability.

This recent incident in Seaford underscores the importance of a thorough and productive background check. But how do you get real, useful information in a world where many employers are advised to divulge only “name, rank, and serial number” of their former employees?

Tips for Conducting An Effective Background Check:

1. Get a release - the best way is to reduce the fear of a lawsuit. Get a release of liability from the applicant whose references you are checking, and provide it to the employer. Common sense dictates that the chance of a lawsuit will be substantially reduced when the potential plaintiff has already authorized the release and discussion of employment-related information.

2. Inform of Delaware’s reference check law - you should also tell your contacts about Delaware's reference check law, which gives former, current, and prospective employers immunity from a lawsuit for providing references in "good faith." Better yet, give them a copy of the law to review and provide to their legal counsel.

3. Say the password - most experienced HR professionals you contact will be just as frustrated as you are about the inability to get information about prospective employees. As a result, you might want to give them the opportunity to help you out and still sleep at night. Try asking whether the applicant is "eligible for rehire." A negative answer might be just what you need to steer clear of an individual.

4. Find a secret source - another way to get information is to go directly to the applicant's supervisor. That person will have the most information and will be more likely to provide it than the HR department. Of course, you want to prevent such a maneuver against your company, so make sure you constantly remind your own supervisors about your policies on background checks and that all inquiries should go through HR.

5. Go public - your high-school principal was right when he warned you that your youthful transgressions would be "on your permanent record." Criminal arrest and conviction records are a matter of public record. They are not only public but also easy to get, at least for offenses committed in Delaware. A visit to the prothonotary (clerk) in the state courthouse located in Wilmington, Dover, or Georgetown can get you free access to an applicant's arrest and conviction record free of charge.

6. Visit cyberspace - another source of information is the Internet. Search engines like Google can scour the Internet for websites, newspaper articles, and postings by applicants. Similar checks on social networking sites like MySpace and Facebook can provide useful information as well. Use of such searches is becoming common. A 2006 survey by indicated that 26 percent of hiring managers have used the Internet to collect information on applicants. Half of those managers said they had accessed personal information on social networking sites.

City Fights Retaliation Claim at Trial

Posted by William W. BowserOn March 26, 2008In: Race (Title VII), Retaliation

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Yesterday, the local newspaper, The News Journal reported on an employment discrimination case that is currently in trial in the federal District Court in Wilmington, Delaware.

The plaintiff in the case is a 19-year veteran of the Wilmington Police Department who claims he was improperly demoted in retaliation for reporting offensive comments made by a supervisor. According to the officer’s attorney, he was demoted and denied transfers after he reported that another officer said that "all Puerto Ricans have low riders and fuzzy dice hanging from their mirrors" and that "all Puerto Ricans and Mexicans are alike."

The City of Wilmington, the named defendant in the case, alleges that the comment was taken out of context and that the demotion and denials of transfers were the result of the officer’s poor work performance.

Retaliation claims like this are clearly on the rise. According to EEOC data, retaliation claims have increased by approximately 100% during the period 1992-2006! (Link to a previous post on the rapid increase of charges filed with the EEOC here). Indeed, retaliation claims now comprise 30% of the total charges filed.

What steps can an employer take to miminimize the risks of retaliation claims?

First, it's important to have a policy prohibiting retaliation your harassment and discrimination policies.

Second, make clear in your policies that suspected retaliation must be reported and provide employees several avenues through which they can do that.

Third, make sure all supervisors and managers know that it's unlawful to retaliate against employees for protected activity, which includes formal charges of discrimination as well as internal complaints about harassment or discrimination.

Fourth, if you receive complaints about unlawful activity or are charged with discrimination, protect the source of those complaints as much as possible. One of the best defenses to a retaliation claim is that the person who supposedly retaliated wasn't even aware of the charge or complaint in the first place. Of course, in many situations, the employee's immediate supervisor must be told about a complaint so an adequate investigation can be conducted.

Fifth, treat the complaining employee as if nothing has changed. Remember, however, that filing a charge or internal complaint doesn't insulate the employee from future disciplinary action

The "Safe-Harbor" Rule for No-Match Letters: Part 1 of 3

Posted by Teresa A. CheekOn March 26, 2008In: Hiring

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Even split into two posts, this is still a long entry, but it’s better than reading the even longer document ( (44 pages!) on this issue.

Employers & Illegal Immigrants
The U.S. Department of Homeland Security (“DHS”) is the agency that issues "no-match" letters. If you’re an employer and you have never received a “no-match” letter from the Social Security Administration (“SSA”), consider yourself lucky and read on anyway. If you have gotten one or more of these letters, or if you suspect that at least 0.5% of your workforce consists of undocumented workers, read on.

In June 2006, DHS issued a notice that it intended to issue a rule designed to interfere with the ability of illegal immigrants to get jobs in America. Currently there are between 11 and 12 million illegal immigrants living in the U.S., and about 8 million illegal immigrants working here. Agriculture, service and construction are the industries that are believed to have the highest number of undocumented workers, but any company that has received mismatch letters from the SSA or a DHS “notice of suspect document” in the past should be paying close attention to this safe-harbor rule, issued by DHS in August 2007.

The rule is called "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter."

What’s A No-Match Letter?
Employers file W-2 reports with the IRS every year reporting their employees’ wages and withholdings. The reports include employees’ names and social security numbers (“SSNs”). The Social Security Administration (“SSA”) issues SSNs and has a database of the numbers, and the name and earnings associated with each number. Each year, the SSA sends letters to employers who have at least 10 employees whose names and social security numbers don’t match the names and numbers in the SSA’s database, if the mismatches constitute more than 0.5% of the W-2s in the employer’s annual wage report.

That letter is called a “no-match” letter.

What Was The No-Match Process Before The New Rule?
Action by the employer to correct mismatches was voluntary. In the no-match letters, the SSA simply asked the employer to check its own records for accuracy and report back if it found the reason for the problem. If the employer did not find a discrepancy in its own records, the employer was advised to tell the employee that there was a problem and encourage the employee to go to the social security administration to get the problem corrected.

Stay tuned for more. Part 2 will address what the safe-harbor procedure provides and why it's so important to you.

The Nosy Employee Strikes Again

Posted by Maribeth L. MinellaOn March 25, 2008In:

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The Los Angeles Times recently reported that more than two dozen UCLA Medical Center employees are in the hot seat for illegally accessing Britney Spears’ medical records. The breaches reportedly occurred when Spears was admitted in January.

While the employees were unable to access the troubled pop star’s psychiatric records, they did snoop through records from her previous visits to the facility (including records from when she gave birth to one of her sons). At least 13 employees, none of whom are doctors, will be fired, while 12 others, including several doctors, will be disciplined.

It seems the nosy employee has struck again.

How to Curb the Curiosity?

There is no doubt that privacy can be hard to maintain in the workplace. Have you ever watched Jim or Dwight try to make sales calls on The Office? It seems that nobody’s personal or professional life is protected. Nosy employees love to be a part of everyone’s business, and they love to spread their knowledge down the gossip super-highway. Let’s face it, those UCLA Medical Center employees were not trying to view Spears’ medical records as a part of their continuing medical education.

Here are a few tips to curb curiosity in the workplace and increase your employees productivity.

1. Don’t Tell. Teach your employees to be close-lipped. My mom always said, if you want something to stay secret, then don’t tell…anyone. So, don’t. Also, the juvenile “I’ll tell you, but don’t tell anyone else,” never works. Bottom line, keep it to yourself.

2. Air the Laundry. If you have a secret, let it out. A nosy employee loves secrets. What fun is spreading gossip if it’s not supposed to be kept secret? This is particularly important with respect to big business announcements like promotions, demotions, and relocations. Get out in front of the potential rumor and ensure accurate information is spread.

3. Stand Up for Yourself. Have you ever watched two cowboys stare each other down? Good. Now tell your employees to do that to their nosy colleagues. Just kidding, we all know it’s better to take the high road here. Instead of staring, simply instruct your employees to reply to the Nosy Employee that the subject matter is personal and none of their business. Sure, the Nosy Employee will go elsewhere, but if the source is practicing Tip Number 1, there should be nothing to talk about.

4. Turn the Tables. Teach your employees to reply with a witty (but not juvenile or rude) response, like: “Why are you asking? What have you heard?” Then, refer to Tips Numbers 1, 2, and 3.

Privacy is an important issue for everyone. If your employees feel secure about their business, whether professional or personal, then it’s likely that they will be less distracted and more likely to, well, work.

H-1B Filing Date For FY2009 Is Approaching

Posted by Michael P. StaffordOn March 25, 2008In: Immigration

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On April 1, 2008, the United States Citizenship and Immigration Service (USCIS) will begin accepting petitions from employers for H-1B visas for fiscal year 2009. Unfortunately for employers, the H-1B visa category has a yearly maximum of merely 65,000 visas. This limit is also known as the H-1B cap.

Last spring, the H-1B cap was reached on the very first day of filings. USCIS will not accept any additional petitions after the cap is reached. Therefore, employers seeking visas should move quickly to complete and submit form I-129 and the necessary supporting paperwork. (Click here for the forms page on the USICS website)

New Rule on the Use of Multiple Petitions
As part of the gear-up for April 1, USCIS published an interim rule in the Federal Register dealing with the number of petitions that can be filed per employee. The rule was issued on March 19, 2008 and prohibits employers from filing multiple H-1B petitions for the same employee.

Do You Feel Lucky
You might need some luck. The interim rule sets out the process for how petitions that are received after the cap has been hit. USCIS will use a lottery system. A random selection process will determine that it has received enough petitions to reach the cap within the first five business days.

Interpreting Delaware Corporate Law to As a Remedy for Unconscious Discrimination

Posted by Molly DiBiancaOn March 25, 2008In: Discrimination & Harassment

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The wise sages at the Workplace Professors Blog, (link to the site here), have posted an excerpt from an article-in progess by Franita Tolson (law clerk to Seventh Circuit Judge Ann Claire Williams).

The theoy of the paper rests on how the courts' involvement is needed to remedy unconscious discrimination. The article, The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary, is availale on SSSN as an abstract. Here's an excerpt from the abstract:

Unconscious discrimination is actionable under Title VII ..., but scholars [agree] that court regulation of it has failed. Contrary to the alternatives suggested in the literature, placing the burden on the firm to regulate discrimination ex ante is more likely to minimize unconscious, discriminatory behavior, at least more so than tinkering with the ex post remedies available for those few violations that can be proven through Title VII. [T]his article proposes alternative mechanisms for addressing unconscious discrimination that account for its peculiar nature, mainly firm-based remedies that will be more successful than the courts have been in addressing this problem. The difficulty comes in incentivizing the Delaware courts [can incentive] ... firms to address unconscious discrimination ... [via] the duties of care and loyalty, corporate norms, and economic pressure from corporate giants like Wal-Mart.

Hat tip to the Workplace Profs Blog

The U.S. SEC Has a Cool New Tool: Who Would Have Thought?

Posted by Molly DiBiancaOn March 23, 2008In: Internet Resources

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You may find this hard to believe but I am about to use the words "S.E.C." and "cool" in the same sentence. It's true. The U.S. Securities & Exchange Commission has an interesting (read: cool) new online tool. It's Executive Pay Finder allows you to search SEC filings to find out how much and in what form the nation's top executives are being compensated. There are currently 500 companies included in the database. The SEC explains the tool:

This interactive tool is designed to illustrate some of the ways that interactive data can improve the quality and usability of executive compensation disclosure. It relies on interactive data tags that were applied by the Commission to the summary executive compensation disclosure in the public filings of 500 large companies for 2006.

The tool allows you to search for a specific company, by revenue, or even by industry. And that's just the tip of the iceberg for its search capabilities. Once you find the company or companies that interest you, the tool actually gives you the capability to compile them into a single table for comparison purposes and then, you can even send your data to a Microsoft Excel Spreadsheet, create charts and graphs, Oh my!!!

For those of you who may be working on a compensation audit or getting ready to revamp your pay structure, this tool may provide some helpful insight. For the rest of us, it's just plain interesting cool!

"CAUTION: Contents are Hot" . . . and so are Class Action Wage Claims

Posted by Molly DiBiancaOn March 23, 2008In: Fair Labor Standards Act (FLSA)

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Starbucks Baristas

Oh, Starbucks! Why is it that everyone always seems to be picking on you?!

This time, it seems that some baristas don't like to share.

On Thursday, March 20, a California Superior Court judge in San Diego awarded a class of 100,000 baristas an astounding $105 million in unpaid tips. Now that's a LOT of quarters tossed in the metal milk frother, eh?

The suit was initiated by Jou Chau, a college student who worked at a San Diego Starbucks location in 2003-2004. He filed the suit that was later converted into a class action.

The claim alleges that supervisors wrongfully shared in the employees' tips. California law permits tip pooling--where everyone tosses their tips in the pool and then the tips are divided evenly among all who contributed. But pooling wasn't the problem. California law prohibits restaurant owners or their "agents" from sharing in the pool. "Agents" has generally been interpreted as managers and supervisors.

Like the counter employees, ("baristas" as they're known to most), shift supervisors at Starbucks make coffee and serve customers. They do the same work as the beloved baristas but they are also responsible for setting work schedules and managing employees.

Fair or Unfair?

So why can't they share in the reward? To some, this line might seem a bit attenuated. The purpose of the division between supervisor and employee is a reasonable one. Owners and managers who don't have to slave away with the employees who deal directly with the public shouldn't be able to swoop in at the end of the shift just to take their "share" of the booty. In that context, the law seems perfectly fair.

But in the Starbucks scenario, the fairness seems to fade some. If the dividing line between "supervisor" and "employee" is little more than who makes the weekly schedules and who has the pleasure of taking customer complaints, it doesn't seem strikingly unfair that they should share in the tip pool. Afterall, their expert frothing skills likely helped earn some of the tips.

Wider Implications

Starbucks, the Seattle-based coffee chain, said it would appeal the decision, which it described as "fundamentally unfair and beyond all common sense and reason." But if the appeal is unsuccessful, the implications of the decision could have real impact on the day-to-day operations of stores. Starbucks would likely have to stop using supervisors for double-duty--they could either do supervisory duties or employee duties, but not both.

Given the size of the stores, does it really seem practical to have a supervisor assigned to every shift who hangs out in the office while the baristas sweat it out at the espresso machine? Probably not. But why would supervisors do the work required of the baristas and not be eligible for the same rewards? And don't forget the cost! An added employee would be needed to cover the work that the supervisor can no longer perform.

But the real question on the minds of coffee lovers across the nation is, "Will this mean a price hike for our morning cup?" Now that is a serious implication, for sure!!

The N.Y. Times reported this story on Friday, March 21. And the Starbucks Union (IWW Starbucks Workers Union) has a different viewpoint, which you can read about here.

[Hat tip to the Class Action Defense Blog]

More on the ADA Restoration Act

Posted by Teresa A. CheekOn March 21, 2008In: Disabilities (ADA)

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The Society for Human Resource Management (SHRM), having come under attack by nonprofits such as The Epilepsy Foundation for its opposition to the ADA Restoration Act, has issued a statement explaining its position. In its statement, SHRM says that it supports the purpose of the ADA but is concerned that the proposed bills would expand the definition of “disability” so much that it would cover people with temporary, minor physical or mental impairments like headaches, skin irritations and sprained ankles.

Good point. Having to “reasonably accommodate” people with temporary mental or physical impairments does not seem to be what the ADA was ever intended to do.

SHRM is also worried about the provision that would shift the burden to employers to prove that an individual with a disability was not qualified for a position. Currently, the employee must prove that he or she is an “otherwise qualified individual with a disability.” SHRM says the proposed provision would hinder rather than help efforts to employ more individuals with disabilities (the SHRM statement does not explain why, however). Clearly, it is a benefit to employers not to bear the burden of proof on any legal issue.

Changes on the Horizon: FMLA Update Part 1

Posted by Molly DiBiancaOn March 21, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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Four little letters that strike terror in the hearts of HR Managers around the country. And it's not for want of trying. Employers want to comply--they really do. But the FMLA doesn't make it easy. Enacted with good intentions, the statute and its enforcement regulations have become one of the biggest employer complaints. Business groups have been calling for a substantial revision of the "FMLA Regs" for some time. The Regs have made compliance cumbersome and difficult to truly understand. Unfortunately, they have also enabled the statute to be grossly misused by not-so-well-intended employees.

On February 8th, the Department of Labor took a major step towards an answer to the cries of employers and business-protection organizations by publishing new proposed regulations. Getting here has been a long time in the making. In 1996 and again in 2001, the DOL published studies on how the FMLA was being administered. Several decisions from the Supreme Court and countless lower court rulings have also had a great impact on how the Regs have been interpreted. And, in 2006, the DOL posted a Request for Information (RFI), in response to which it received 15,000 public comments, which were summarized in the DOL's June 2007 Report on the RFI.

The Notice of Proposed Rulemaking (NPRM) is intended to be the culmination of these sources of comment and feedback.

At this stage of the rulemaking process, the proposed Regs are open for comment until April 11, 2008. Comments can be made online through the Federal eRulemaking Portal. After the commenting period closes, the DOL will review the comments and, at some point, publish new regulations.

Employers are encouraged to post their comments to the proposed regs as we work towards a clarified and improved set of FMLA rules.

X-treme Employee Loyalty

Posted by Molly DiBiancaOn March 21, 2008In: Employee Engagement

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Powerball Winners Return to WorkHow loyal are your employees? Really, how loyal? How about $276 million dollars worth of loyalty?

Apparently, the Tax Office at the Monogalia County Sheriff's Department in Charleston, West Virginia is doing something right because that is exactly how loyal their employees are. Eight employees of the Tax office claimed a winning Powerball ticket worth $276.3 million on Tuesday, having seen their numbers selected during the Saturday night drawing. But that was only after they reported to work on Monday, business as usual.

The "Lucky Eight" range in length of service at the Tax Office from 1 yr to 35 years. But they all went back to work, though Linda Fominko, who bought the winning ticket, said that they weren't necessarily going to work forever and some may consider retiring early. But not right away she said, "Who knows, down the line, in a few months or a year?"

After taxes, each woman will take home $11.9 million. Yet each of them felt passionately enough about the work that they do and about the community that they believe relies on them, to return to work on Monday morning. Obviously, these individuals are pretty level-headed to reserve the major celebrations for after they check in with financial planners, attorneys, and the like. But level-headed or not, their extreme loyalty to their work must say something about their working environment and, likely, their employer.

What are you doing to ensure employee loyalty? Do you think any of your employees would return to work post-Powerball victory? What is it about your workplace that your employees love and what can be made better?

Local Violence & Workplace Violence: Keeping It Safe

Posted by Molly DiBiancaOn March 21, 2008In: Workplace Violence

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Robbery at Jake's Hamburgers

On Tuesday evening, two thieves wearing dark clothing and gloves, walked in to the popular local burger joint, Jake's Hamburgers, on Ogletown Road. The robbers implied that they were armed and demanded the contents of the cash register's contents. They fled with the money but did not take anything from the patrons or employees.

Experts in workplace safety would say that the employee who complied with the robbers' request did the right thing. Employers can't ensure that violence never comes to their workplace. But what employers can do is to help employees be prepared if it ever does.

Here are a few ways to help keep your workplace safe:

1. Conduct an "audit. Assess the risk of the physical lay-out of your work environment. Consider access to the property, lighting, security guards, surveillance, etc. Ask whether any of these measures are in place and, if so, whether they are effective. If they are not currently part of your safety plan, consider whether they should be.

2. Speak Up. If you have reason to think that there is a potential safety risk, don't keep it to yourself. In the case of domestic violence, or other scenario where one employee is at particular risk for harm, communicate the nature of the danger to the employee. If it is an employee who may pose a potential threat, be sure to take necessary steps but on a need-to-know basis, being sure not to provide any private or medical information about the employee making the threat.

3. Keep Open the Lines of Communication. Require all employes to report all incidents or threats, no matter how slight. Contact local law enforcement about any incidents. And investigate all incidents and threats, even when you receive information from an anonymous source.

4. Train Managers & Employees. Get expert help on designing the training program. Teach yourworkforce how to spot warning signs and who to call or contact. Make sure there is a plan for "off hours" such as evenings and weekends.

5. Implement a No-Tolerance Policy. Respond immediately and seriously to any threat of violence, including intimidation and harassment. You may not be able to control the world outside your workplace but you must do everything possible to keep your employees safe while at work.

OSHA has published workplace violence guidelines that focus on preventing workplace violence in healthcare and social service operations. It has developed guidelines that apply to the late-night retail store industry. The guidelines are focused on assisting places like Jake's where employees have the extra risk of direct access with the public. The Recommendations for Workplace Violene Prevention Program in Late-Night Retail Establishments can be found here. And the Health Care Guidelines can be found here.

Don’t Get Burned By an English-Only Rule

Posted by William W. BowserOn March 20, 2008In: National Origin (Title VII), Race (Title VII)

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A trip to the Tri-State area is not complete without trying a cheesesteak. While a great cheesesteak can be found at dozens of places in Delaware, South Philadelphia is, and always will be, the place to go for those needing a fix of this world-famous culinary delight.

One of the most popular eateries has been involved in a sizzling hot dispute over whether it could require its customers to order in English. Geno’s Steaks received national attention when it put up a sign reading,

"This is America. When ordering please speak English."

The Philadelphia Commission on Human Relations promptly filed a discrimination complaint against the shop. But yesterday, it ruled that there was "insufficient evidence" to pursue the case.

While it may be okay for a steak shop to require orders in English, Delaware employers should move much slower in requiring their employees to speak only English in the workplace.

The EEOC has been very aggressive in challenging such rules and has achieved large settlement awards from employers who could not justify that such rules were absolutely necessary.

• In 2001, a Texas university agreed to pay $2.4 million to settle claims that the EEOC filed on behalf of 18 Hispanic housekeepers who were allegedly ordered to speak only English on the job ― even during breaks ― although some didn't speak English.

• In 2003, a Colorado casino paid $1.5 million to settle a national origin discrimination suit that the agency filed on behalf of a class of Hispanic employees claiming verbal harassment and the improper application of English- only rules.

• In 2006, a New York hospital paid $200,000 to settle a national origin discrimination suit that the agency filed for a class of Hispanic housekeeping employees who were subjected to English-only rules without any business justification. One manager reportedly told the employees, "This is America. Speak English."
Under the EEOC’s guidelines, "An English- only rule may be used if it is needed to promote the safe or efficient operation of the employer's business."

The EEOC's compliance manual suggests the following examples of situations in which business necessity would justify an English-only rule:

• for communications with customers, coworkers, and supervisors who speak English but not the employee's native language;

• during emergencies or other situations in which workers must speak a common language for safety reasons;

• on cooperative work assignments that need a common language for efficiency and productivity; and

• when a supervisor who speaks English but not the employee's native language needs to monitor the individual's performance if his job duties require communication with coworkers or customers

Must-Have Employment Documents For Small Companies

Posted by Teresa A. CheekOn March 19, 2008In:

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Every time we undertake the defense of a discrimination charge or lawsuit filed by a current or former employee, one of the first things we do is ask our client for a copy of every piece of paper, e-mail message and computer file they can find that has to do with their relationship with the employee. What makes us the happiest is when our client sends us documents that we can use to demonstrate to the government, the court, or the jury that the company has adopted basic employment policies, has been conscientious in the hiring process, has monitored the employee’s performance, and, if there were conduct issues, has taken steps to correct them.

Employers, no matter how small, that do not keep basic employment records will face a greater challenge in defending claims by employees than those who do. In Delaware, employers who have as few as four employees can be sued in state court for discrimination!

Even if you don’t have a Human Resources Department and feel that you are too busy to fool around with what you might think of as useless and time-consuming paperwork, you will do yourself a big favor if you use, at the very minimum, the following:

1. An employment application

2. An employee handbook

3. Performance evaluations

4. Disciplinary action forms

You should also keep in mind that certain documents are legally mandated, including I-9 forms, state and federal employment law posters, and tax documents such as W-4 forms. I would also recommend that you make a photocopy of each employee’s social security number card to avoid problems with mismatched social security numbers. Using these basic documents will help you avoid liability for discrimination, hiring illegal aliens, and hiring employees who harm others, and may help you reduce the number of successful claims for unemployment compensation benefits.

Obama Brings Topic of Race To the Forefront – Is Your Workplace Ready to Handle It?

Posted by Adria B. MartinelliOn March 19, 2008In: Race (Title VII)

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Sen. Barack Obama’s speech on race yesterday opened up many discussions on this sensitive topic, and the workplace is not insulated from this dialogue. As a result of Obama’s speech, race relations may well be a topic at your water cooler as we speak.

For many reasons, now is a good time for all employers to audit their EEO practices. In addition to avoiding costly lawsuits, employers risk losing talented employees due to workplace bias. According to the 2007 Corporate Leavers Survey, over 2 million managers and professionals leave their jobs every year solely due to workplace bias.

To avoid these significant risks, ensure your workplace has the following basics covered:

1. Policies: do you have a written EEO policy? Does it include all the protected categories including those unique to your state? (In Delaware, marital status and genetic information are protected.)

2. Complaint Channels: do you provide clear complaint channels so that employees know where to go should they perceive they’re being harassed or discriminated against on the basis of their race?

3. Training: training has to be mandatory and should include training on discrimination or harassment based on any protected category. Most larger companies conduct training on sexual harassment, but not other types of discrimination. Your written policies are worthless if no one has read or understands them. Consider separate training on diversity.

4. Reporting Requirements: make sure you comply with any reporting requirements – for example, filing EEO-1 forms depending on the size and status of your company.

5. Commitment from the top: obviously, you can be successful at none of the above without a commitment from the highest level of leadership. We recommend that the President, Executive Director, or highest level executive available introduce any training to demonstrate the corporate commitment.

With these basics in place, hopefully Barack’s speech will generate only positive and constructive dialogue in your office!

Impact of Tough Times for Public Employers to be Discussed at Annual Seminar

Posted by William W. BowserOn March 19, 2008In: Seminars, Past

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Yesterday, Delaware’s two largest public employers indicated that they were facing fiscal challenges. Governor Ruth Ann Minner announced a hiring freeze to address a $126 million dollar budget shortfall. New Castle County Executive Chris Coons announced a budget proposal requiring the use of $17.2 million dollars of its cash reserves.

The State and the County and other governments are feeling the effects of a softening economy. Since personnel wages and benefits costs make up a large part of their budgets, it is clear that public employees will be asked to make sacrifices as governments struggle to balance their budgets.

Sheldon Sandler and I will be discussing the state of public labor relations in Delaware at our Department’s upcoming Annual Seminar on April 16th. Hope to see you there.

Going Green at Work

Posted by William W. BowserOn March 18, 2008In: Going Green

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Over the last year, I have been trying to “go green.” I switched to Compact Fluorescent (CFL) light bulbs, recycle most everything I can, and started using cotton shopping bags. Heck, I even constructed a yard waste composter!

Once I get to work, however, I am far paler shade of green. I use Styrofoam cups for my coffee, print out every draft motion or brief, and leave my computer on 24/7.

With Earth Day coming up on April 22nd, I have been thinking about ways to change some habits at the office. has the following 10 tips on greening the office here. The Sierra Club has a top 10 list here. has a list of 10 ways to save paper at work here.

Have you thought about or started a green office program for your office?

Don't Let the ADA Restoration Act Fly Below Your Radar

Posted by Teresa A. CheekOn March 18, 2008In: Disabilities (ADA)

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An article in the latest issue of the CCH Workweek publication caught my attention. The article mentioned the "ADA Restoration Act" (H.R. 3195/S.1881). The Restoration Act of 2007 was introduced last July and currently is under consideration in Congress. The House Committee on Education and Labor held hearings on the bill on January 28 and 29, 2008.

The Proposed Changes

The Restoration Act would amend the ADA by deleting the current requirement that, to constitute a disability under the ADA, a physical or mental impairment must “substantially limit” the individual’s ability to perform “one or more major life activities.”

The new definition of disability would be a “physical or mental impairment,” period. And, in addition, the individual’s ability to mitigate the effects of a disability through medication or otherwise would become irrelevant.

All in Favor?

Advocates argue that the revision is necessary because the courts have taken such a narrow view of the ADA that its purpose of preventing and remedying disability discrimination has been virtually destroyed.

The U.S. Chamber of Commerce, the U.S. Department of Justice and the Society for Human Resource Management all oppose the bills, according to the American Association of People with Disabilities website.

The ADA Restoration Act may be flying under the radar due the recent changes to the FMLA but don't underestimate the impact the proposed law could have.

"But Everyone Pays Like This!!!"

Posted by Molly DiBiancaOn March 18, 2008In: Fair Labor Standards Act (FLSA)

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Paycheck StubWage and Hour laws, such as the Fair Labor Standards Act (FLSA), present some of the most challenging hurdles for employers. The FLSA and its state and federal counterparts carry extraordinary penalties and, if an employee successfully brings suit to collect unpaid wages, employers are left holding the tab for the wage amount, multiplied twice, and the plaintiff's attorney's fees. This makes a claim for unpaid overtime a huge risk for employers and an even bigger attraction for plaintiffs' lawyers.

So why don't employers "just" abide by the laws and avoid these risks? Well, I suppose for a lot of reasons. One that we hear quite often is that, "everyone" in their industry pays this way!! And they're likely telling the truth. Often industries develop certain wage payment practices especially suited for the unique way in which their employees work. Some companies, for example, are highly seasonal and tend to employ a great deal of teens during summer months. To avoid the paperwork nightmare for employee benefits, they pay the young people on a "per diem" rate.

Or, what about the salon industry? Stylists' earnings are based partially on service-based commissions, partially on product-based commissions, as well as a flat hourly rate. But then, just to make it more complicated, many salons historically have required stylists to reimburse the business for the products that they use. Sort of like the typical office worker reimbursing their employers for each pencil they use to perform their jobs. As you can probably imagine, these unique pay arrangements can create major wage payment nightmares if the Department of Labor becomes involved.

And still, when an employer calls us to seek counsel on an employment matter and learns of the great perils of their payroll system, they just do not want to believe us. It is not uncommon for them to resist a payroll restructuring. In part because change can be difficult, time- and resource-consuming, and, well, just because the idea of change puts most of us on high alert, even if just temporarily.

But another, very common, reason for the push-back we get from otherwise loyal and trusting clients? "Because everybody pays like this!!" It can be difficult to change your payroll habits, certainly. But think of yourself as a trendsetter. Or, better yet, think of yourself laughing all the way to the bank as competitors get stuck with serious fines, penalties, and civil suits. Then call your employment counsel and have them conduct an audit of your compensation structure.

EXTRA: For those of you just dying to know more about overtime calculations, take a look at the Department of Labor's handy Overtime Calculator. You answer a series of uncomplicated but unexpectedly detailed questions and, voila! The Calculator pops out the amount of overtime owed, if any, to the employee. It is a great tool (and free), thanks to Uncle Sam, so take advantage of it next time you're pondering the world of wage payment.

There's No Hiding from Your Own Bad Habits

Posted by Molly DiBiancaOn March 18, 2008In: Off-Duty Conduct

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Obesity and Your JobThe topic of off-duty conduct has been unavoidable recently.

First there was the wave of large companies who stopped hiring smokers or charged higher health care premiums to employees. Sure enough, this trend resulted in a lawsuit challenging the legality of making employment decisions based on what candidates and employees do outside of work. The conditional-employee sued Scotts when his conditional job offer was revoked when he tested positive for nicotine. (Scotts doesn't hire smokers).

Next came a wave of talk about GINA, the Genetic Information Nondiscrimination Act, proposed to prohibit employers from basing employment decisions based on genetic information. It would also put limits on the amount of detail employer about an employee's family medical history and other private data.

And don't forget the internet! Employees who post on blogs, in chat rooms, or on social network sites like MySpace and FaceBook have a lot to stay. What are employers to do when their employees (current or former) are giving away trade secrets or other confidential information? And what about the bitter employee with lots of complaining to do and an unlimited audience ready to listen.

What's next? Well, if you ask Governor Spitzer, he might have his own opinionson this topic. His "off-duty conduct" has resulted in his resignation and a great deal of commentary for morning news shows and late night comics alike. Some may argue that the difference between smoking and engaging prostitutes is legality. Smoking, at least for now, is a legal activity. You can pick up a pack of cigarettes at any corner convenience store. Not so with prostitutes. They can be picked up, true, but it is unlawful to do so. Yet, both activities will land you in a similar position--unemployed.

So where should employers draw the line? That's a question for another day. Some critics claim that weight will be the "new tobacco." Will employers, who face rapidly increasing health care costs, next turn to overweight employees and make them an offer they cannot refuse--lose weight or lose your job. Or will the same objective be attempted through higher health care premiums?

And will they charge by the pound?

Barry M. Willoughby, our Section Chair, commented on this issue last week in the Wilmington News Journal.

FMLA Amendment: National Defense Authorization Act

Posted by Molly DiBiancaOn March 15, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). One section of the NDAA is an amendment to the Family and Medical Leave Act of 1993 (FMLA). The NDAA became effective immediately following the President's signature. The Department of Labor (DOL) has not issued regulations, though. Until they do, the DOL announced that it will not look to enforce the Act so long as employers are complying "in good faith."

And what exactly is "good faith" mean in this context? A likely starting point are the FMLA regulations. The two Acts are similar in purpose--both dealing with protected leave. By using the FMLA standards for notice and certification requirements, employers have a solid starting point for applying the NDAA.

And just what does the NDAA provide? There are similarities and differences between the two:

1. Like the FMLA, the NDAA provides for protected leave.

2. But the FMLA's provisions are expanded to include a “spouse, son, daughter, parent, or next of kin” of a "member of the Armed Forces."

3. Instead of the 12 weeks' leave provided by the FMLA, the NDAA guarantees employees can take up to 26 workweeks of leave.

4. And, though not a tremendously signficant expansion, the NDAA does not borrow the FMLA's "serious-medical-condition" language. Instead, the NDAA can be employed to care for a military family member, "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.”

As complicated as the FMLA has been in application, there is now another element with similar-but-different requirements. HR Professionals should be sure to keep up with these changes as the new law continues to develop.

EEOC Announces Record-Breaking Number of Charges Filed

Posted by Molly DiBiancaOn March 15, 2008In: EEOC Suits & Settlements

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On March 5, 2008, the U.S. Equal Employment Opportunity Commission (EEOC) issued its annual Enforcement and Litigation Statistics for 2007 FY. The results were nothing to cheer about--especially for employers.

Number of Charges Filed

The EEOC received a total of 82,792 private sector discrimination charge filings last fiscal year. This is the highest volume of incoming charges since 2002. It is also the largest annual increase (9%) since the early 1990s.

Financial Recovery
These charges resulted in $345 million recovered by the Commission on behalf of claimants. This is a 6% increase from 2006FY

Types of Discrimination Alleged
According to the EEOC's FY 2007 data, allegations of discrimination based on race, retaliation, and sex were the most frequently filed charges. These statistics are consistent with results from recent years.
But one statistic that has changed, although not surprisingly so, is in the retaliation category. Last year, for the first time, retaliation was the second highest charge category (behind race), surpassing sex-based charges. Historically, race has been the most frequently filed charge since the EEOC became operational in 1965.

Pregnancy- and gender-based claims, which includes sexual harassment also continued its climb upward. During FY 2007, pregnancy charges surged to a record high level of 5,587. This was a 14% increase from last year. Sexual harassment filings increased for the first time in seven years, numbering 12,510 - up 4%.

Another interesting factoid: a record 16% of sexual harassment charges were filed by men, up from 9% in the early 1990s.

And, so what?
What do the statistics mean to employers? They mean that discrimination issues are not going away on their own. Employers need to take these statistics seriously when planning for their new fiscal year. It means that supervisors and managers who work directly on the front line need to be properly trained in the laws that put your company at risk.

The Cost of Bully Legislation

Posted by Molly DiBiancaOn March 15, 2008In: Jerks at Work

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There is a general agreement among commentators that Workplace Bullying is an undesirable workplace behavior that affects the bottom line. Bob Sutton's book, The "No A**hole Rule", was tremendously popular among the B-School types and HR professionals alike.

There has been a recent flood of proposed legislation that would make bully behavior unlawful. And, of course, laws that restrict are laws that have remedies. The legislation, thus far unsuccessful, would provide another basis for employment litigation.

At some point, there must be a cost-benefit analysis by legislators and advocates. Workplace bullying is bad for business. It leads to increased absenteeism and turnover rates, and is tied to reduced productivity and teamwork. The costs of recruiting and training, managing "problem employees,"
and trying to rally the affected employees' support. These are all costs that the business must bear when it permits bullying to go on in the workplace.

But what is the cost of increased employment litigation to businesses? Any employer that has earned its stripes in the courtroom knows that the cost is no small burden. Litigation is expensive. More expensive than the direct and indirect impact of bullying?

Great question! At some point, those who are advocating for this new legislation should stop to have a look.

Not that I am an advocate of bullying, of course. But I do think that the recent movement against bullying will serve only to help prevent it. Part of prevention is knowledge. Now that employers are becomming more aware of the costs of bullying, the market will likely work to eradicate it far better additional legislation.

June 3: Hold Off on Layoffs: Furloughs, Salary Freezes, and Other Labor-Cost Cutters

Posted by Molly DiBiancaOn March 15, 2008In: Reduction in Force (RIF), Seminars, Past

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Layoffs are not the only option for employers who want to cut labor costs.  There are a number of alternatives to layoffs that employers can consider before implementing mandatory reductions in force. I'll be discussing these alternatives in an audio conference on June 3.  image Here are the details:

Learn how furloughs and other layoff alternatives can actually minimize your organization's risk of facing a wage and hour lawsuit and reduce costs. 

  • How mandatory furloughs are structured and how to use them to reduce your organization's legal risks
  • The problems with layoffs: Understanding the real costs of layoffs and why they cost employers money in the long run
  • When -- and how -- salary reductions can stave off a RIF
  • The pros and cons of using hiring freezes and attritions to alter recruitment programs
  • How other layoff alternatives work, such as sabbaticals and shortened workweeks
  • When it makes sense to convert full-time employees to contractors
  • How to avoid discrimination claims arising from the temporary reassignment or transfer of employees
  • Wage and hour challenges associated with telecommuters, including unique expenses, overtime challenges, worktime verification, rest break enforcement, meal periods and "on-call" time
  • How FMLA coverage and eligibility may be affected when implementing layoff alternatives and how to avoid making an inaccurate determination
  • How to deal with internal roadblocks when implementing layoff alternatives, such as a collective bargaining agreements
  • Policy issues that surface when restricting overtime and eliminating bonuses
  • How to use departmental restructurings to avoid layoffs and improve productivity

To register, visit the HR Hero website's page on the audio conference:  Hold Off On Layoffs: Furloughs, Salary Freezes, and Other Labor-Cost Cutters.

Off-Duty Conduct in the News

Posted by Molly DiBiancaOn March 14, 2008In: Newsworthy, Off-Duty Conduct

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When should off-duty behavior matter to employers?
On Monday, the Wilmington News Journal published an article about the effect an employee's off-duty conduct can have on his or her employment. Our Section Chair, Barry M. Willoughby, was quoted in the article.

"Lifestyle discrimination" is a rapidly expanding area of the law with staunch advocates on both sides of the fence. "Off-duty conduct," is anything an employee does during his non-working time that is not illegal but not usually "good" for you.

This topic first hit the news when employers began firing and/or refusing to hire smokers. This trend has continued to pick up supporters and is more common than ever. Another ideation of the same idea is to charge smokers a premium for health care. The "carrots and sticks" can vary a great deal and some of the better programs supplement these types of rules with "wellness benefits" where employees are eligible for all sorts of rewards for working towards a healthier lifestyle.

Some opponents of this trend claim that the consideration of non-workplace activity is a violation of employee's privacy rights. Others express concern that the it won't be long before "wellness initiatives" expand to other areas of employees' private lives. For example, many critics worry that weight will be the next area of employer-legislation.

The idea is certainly not unimaginable. If employers want to "encourage" employees to get healthier by quitting smoking, it seems reasonable that they would also want their workers to eliminate the many health risks associated with obesity. On the issue of weight-based regulations in the workplace, Barry had the following to say:

"Weight becomes another issue," said Barry Willoughby, chair of employment section at Young Conaway Stargatt & Taylor in Wilmington. If a person's weight is due to a provable medical condition, the Americans With Disabilities Act may offer protections, but failing that, workers are at the mercy of the company.

"I don't know any employer would actually do that," he said, though complete worker protection for lifestyle choices would be possible only by an act of the General Assembly.

And it is very unlikely that the Delaware General Assembly will pass any broad-sweeping lifestyle anti-discrimination ban any time soon. This is especially unlikely given the State's disposition for pro-business legislation. Unlike California, where employees have a vast variety of rights, Delaware tends to take a more conservative approach to its regulation of the workplace.

Until such laws were passed, though, businesses can continue to consider tobacco use, weight, or even alcohol use, in making employment decisions.

Fighting Cancer in the Workplace

Posted by William W. BowserOn March 11, 2008In:

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Last Night, I had the honor of presenting the Wallace N. Johnson Citizenship Award to Governor Ruth Ann Minner at the New Castle Chamber of Commerce Annual Dinner. The Governor, through the Delaware Cancer Consortium, has made fighting cancer a priority. As a result, Delaware's cancer incidence rates are declining at four times the national average. Our death rate is declining at twice the national average.

While we are starting to turn the tide on cancer in Delaware, much remains to be done. Here are a couple of thoughts:

First, screening saves lives…and money. The earlier a cancer is detected, the better chance of survival. In fact, some screens can actually prevent a cancer from occurring. If that's not enough to encourage screening, how about this? Early detected cancers are cheaper to treat. That's what you call a win-win-win situation. As a result, employers should take an active role in encouraging their employees to get all appropriate cancer screenings. Have you thought about a floating screening day, so that employees can take off work to get a screen without losing pay?

Second, cancer happens. If your workplace hasn't been touched by cancer yet, it will be. And, 80 percent of cancer survivors return to the workplace during or after treatment. Why not think about and plan for it now? Of course, you will have to meet your obligations under the FMLA and ADA, but there is so much more you can do. It all starts with talking with the employee with cancer. You should first discuss how much information they want to share with co-workers. Some employee will want to keep the diagnosis quiet while others will want to know everything they are going through with their co-workers. Next you can talk about what help do they need? Every employee will have different needs, but most will need some kind of help. For example, one may need meals cooked for her family. Another might need someone to watch his kids so that he can get treatment or just go to a movie. A human resources professional can help by organizing the workforce to meet an employee's needs.

Third, knowledge is power. Most cancers are preventable. An employer can educate its workforce on simple ways to lower cancer risks like quitting smoking, exercising, using sun screen and eating healthy. Numerous non-profits, like the American Cancer Society, offer lunch time programs to provide such information.

Are Bullies Beating Up Your Employees' Health?

Posted by Molly DiBiancaOn March 11, 2008In: Benefits

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As a Tennessee appellate court noted in rejecting Joan Frye's lawsuit against her hospital employer, “[T]he fact that a supervisor is mean, hard to get along with, overbearing, bellig­erent or otherwise hostile and abusive does not violate civil rights statutes.”
Workplace Bullying is a current hot topic in the business world. There are lots of theories about how bullying costs employer real dollars and cents in a variety of ways. From, here is another potential cost--employees' health.

Given the rapidly increasing cost of health insurance, this theory gives businesses another reason to put a stop to bullying behavior. reports:

When it comes to employee health, bullying is bad for business.

Workplace bullying can create a cache of health problems for workers who feel overburdened by stress, said Gregg Brewer, employee assistance program supervisor for IntegNET, a division of Agnesian HealthCare.

Employee Assistance Programs are designed to prevent workplace bullying and solve conflicts that arise at work, among other things.

Brewer said someone who is being bullied at work is often under a tremendous amount of pressure.

"It leads to stress," he said. "And generally people who are under a lot of stress have 45 percent higher health- care costs."

Physical signs of stress include rapid breathing, fatigue, sleep and appetite changes, Brewer said. Emotional symptoms can include anger, irritability and forgetfulness and cause employees to have a hard time concentrating at work.

These stress symptoms can lead to changes in productivity and interaction with co-workers and lower morale, Brewer said.

More serious health problems have also been linked to stress.

"There is a strong connection between stress and cardiovascular issues," Brewer said.

Stress can cause blood pressure to increase and can lead to strokes and other heart problems, he said.

Brewer said it might also lead employees struggling to cope to drugs and alcohol.

Plaintiff Gets a Pass From the Supreme Court to Proceed Without a Charge

Posted by Molly DiBiancaOn March 11, 2008In: Cases of Note, U.S. Supreme Court Decisions

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On Wednesday, the US Supreme Court decided the question, "When Is a Charge a Charge?" According to the Supreme Court's decision in Federal Express v. Holowecki, the answer may leave some employers wanting for more.

Current and former FedEx employees filed an "intake questionnaire" withthe Equal Employment Opportunity Commission (EEOC), alleging that they had been subject to unlawful discrimination based on their ages. The Age Discrimination in Employment Act (ADEA), requires an employee to exhaust her remedies at the administrative level, either with the EEOC or the local state agency, before she can proceed with a civil lawsuit.

The administrative process begins with the complainant going to the EEOC or state agency and completing a Charge of Discrimination. A "Charge" form is a simple, one-page form designed to capture only the most basic information about the allegations; i.e., employer's name and address, number of employees, protected class asserted, adverse action, and a brief narrative.

Here, the plaintiffs filed an "intake questionnaire," instead of a Charge. The former is a "fill-in-the-blank" question and answer form that the complainant would normally fill out after her initial intake interview and Charge are completed.

The EEOC says that a filing will be considered a Charge, "so long as it reasonably be construed to request agency action and appropriate relief on the employee's behalf." The EEOC failed to notify FedEx about the allegations--meaning that FedEx had no opportunity to respond to the claims before being sued. The Court held that the plaintiff should not be penalized for the EEOC's mistake:

The Federal Government interacts with individual citizens through all but countless forms, schedules, manuals, and worksheets. Congress, in most cases, delegates the format and design of these instruments to the agencies that administer the relevant laws and processes. An assumption underlying the congressional decision to delegate rulemaking and enforcement authority to the agency, and the consequent judicial rule of deference to the agency's determinations, is that the agency will take all efforts to ensure that affected parties will receive the full benefits and protections of the law. Here, because the agency failed to treat respondent's filing as a charge in the first instance, both sides lost the benefits of the ADEA's informal dispute resolution process.

The employer's interests, in particular, were given short shrift, for it was not notified of respondent's complaint until she filed suit. The court that hears the merits of this litigation can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect. Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset.

This result is unfortunate, but, at least in this case, unavoidable. While courts will use their powers to fashion the best relief possible in situations like this one, the ultimate responsibility for establishing a clearer, more consistent process lies with the agency. The agency already has made some changes to the charge-filing process. ... To reduce the risk of further misunderstandings by those who seek its assistance, the agency should determine, in the first instance, what additional revisions in its forms and processes are necessary or appropriate.

This decision is disappointing, though not necessarily surprising. The courts are always hesitant to dismiss a plaintiff's claim because of a procedural defect--especially when that defect was not caused by the plaintiff. Despite the sense of unfairness to the employer that results from this case, the Court's decision did contain one small trinket of employer victory. In it's opinion, the Court scolded the Commission to get its act together by evaluating its internal processes in an effort to avoid this sort of beaurocratic oversight again in the future. A small victory for sure. Read the full text of the Court's decision here.

DOL Offers Retirement-Planning Resources Online

Posted by Molly DiBiancaOn March 11, 2008In: Internet Resources

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The U.S. Department of Labor announced a new addition to its already voluminous online resources. The website will help workers plan for retirement.

The website provides free access to a series of interactive worksheets were developed as a companion to a 2006 publication entitled "Taking the Mystery Out of Retirement Planning."** The worksheets are designed to help calculate their income and savings as well as their projected expenses in retirement.

The site is designed for people who are 10 to 15 years away from retirement but can also be helpful to recent retirees.

**Free copies of the booklet are available by calling the Employee Benefits Security Administration (EBSA) toll-free at 866-444-3272 and online at (under Publications).

Somebody's Watching You: New Data on Electronic Monitoring

Posted by Molly DiBiancaOn March 11, 2008In: Electronic Monitoring

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The American Management Association (AMA) and The ePolicy Institute have recently released the results of their survey on Electronic Monitoring & Surveillance. The survey is of great interest to employers, who face more and more issues in this area.

Some highlights from the survey:

E-Mail and Internet-Related Terminations:

The 28% of employers who have terminated employees for e-mail misuse did so for the following reasons: violation of any company policy (64%); inappropriate or offensive language (62%); excessive personal use (26%); breach of confidentiality rules (22%); other (12%).

The 30% of bosses who have fired workers for Internet misuse cite the following reasons: viewing, downloading, or uploading inappropriate/offensive content (84%); violation of any company policy (48%); excessive personal use (34%); other (9%).

Internet, E-Mail, Blogs and Social Networking:

Employers are primarily concerned about inappropriate Web surfing, with 66% monitoring Internet connections. Fully
65% of companies use software to block connections to inappropriate websites—a 27% increase since 2001 when AMA/ePolicy Institute first surveyed electronic monitoring and surveillance policies and procedures. Employers who block access to the Web are concerned about employees visiting adult sites with sexual, romantic, or pornographic content (96%); game sites (61%); social networking sites (50%); entertainment sites (40%); shopping/auction sites (27%); and sports sites (21%). In addition, companies use URL blocks to stop employees from visiting external blogs (18%).

Computer monitoring takes many forms, with 45% of employers tracking content, keystrokes, and time spent at the keyboard. Another 43% store and review computer files. In addition, 12% monitor the blogosphere to see what is being written about the company, and another 10% monitor social networking sites.

Of the 43% of companies that monitor e-mail, 73% use technology tools to automatically monitor e-mail and 40% assign an individual to manually read and review e-mail.

Telephone and Voice Mail:

Six percent of employers have fired employees for misuse or private use of office phones. Fully 45% monitor time spent and numbers called, and another 16% record phone conversations. An additional 9% monitor employees’ voicemail messages. Most employers notify employees of phone (84%) and voicemail (73%) monitoring.

Video Surveillance:

Almost half (48%) of the companies surveyed use video monitoring to counter theft, violence and sabotage. Only 7% use video surveillance to track employees’ on-the-job performance. Most employers notify employees of anti-theft video surveillance (78%) and performance-related video monitoring (89%).

Global Satellite Positioning and Emerging Surveillance Technology:

Employers who use Assisted Global Positioning or Global Positioning Systems satellite technology are in the minority, with only 8% using GPS to track company vehicles; 3% using GPS to monitor cell phones; and fewer than 1% using GPS to monitor employee ID/Smartcards. The majority (52%) of companies employ Smartcard technology to control physical security and access to buildings and data centers. Trailing far behind is the use of technology that enables fingerprint scans (2%), facial recognition (0.4%) and iris scans (0.4%).

YCST Annual Employment Law Seminar

Posted by E-LawOn March 11, 2008In: Seminars, Past

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Our yearly Employment Law Seminar will be held this year on April 16, 2008. Due to the ever-expanding number of attendees (last year, we sold out within a week of the invitation release), the seminar will be held at the Chase Center on the Riverfront in Wilmington, Delaware. The complete invitation and registration information can be viewed at the YCST website, but here's a quick summary.

The seminar begins at 8:30 with a welcome from Barry M. Willoughby, who serves as Chair of the YCST Employment Law Department. Following the introduction will be two morning plenary sessions. First, "The Good, Bad, and the Ugly," which is a perpetual favorite, giving you the need-to-know developments in employment law during 2007. The second plenary session will cover two areas that have seen a tremendous amount of change and development over the past year--Family Responsibilities Discrimination, and the new FMLA regulations.

Attendees can choose from four different topics for the two break-out sessions, including,
*Annual Labor Update reviewing all of the essential developments in the Public Sector;
*Electronic Discovery Workshop to cover the critical developments in a rapidly developing aspect of litigation;
*The Jerk at Work, which deals with the cost of the "jerk" to your business and what you can do to eliminate them from your workplace; and
*Wage and Hour Class Action Litigation, an area of the law that has seen exponential growth over the past few years.

The Keynote Speaker this year is the Honorable Mary Pat Thygne, one of two Federal Magistrate Judges in the United States District Court for the District of Delaware. We are positively thrilled to have Judge Thygne join us this year. She is well-known among practitioners in the Delaware District Court for her service as a federal mediator, having helped parties resolve disputes on mutually beneficial terms. Judge Thygne has a tremendously insightful perspective on federal employment litigation that she has graciously agreed to share with our seminar attendees.

The YCST Annual Employment Law Seminar is a yearly highlight for the presenters and attendees, alike. We're looking forward to seeing you there!

DOL Website on Proposed New Regulations

Posted by Molly DiBiancaOn March 11, 2008In: Internet Resources

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The U.S. Department of Labor has created a web page covering its proposed changes to the FMLA. The web page contains the text of the proposed changes, FAQ’s, and information about how to submit comments.

According to the Department's press release:

Proposed changes include increased notice obligations for employers so that employees will better understand their FMLA rights, while revising the employee notice rules to minimize workplace disruptions due to unscheduled FMLA absences. The proposal also contains technical changes to reflect decisions by the Supreme Court and lower courts. A new section addresses recently enacted legislation to expand the FMLA entitlement to 26 workweeks for certain military family members caring for a service member with a serious illness or injury.

You can link to the DOL's website here.

Opening Arguments

Posted by E-LawOn March 11, 2008In: YCST

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Congratulations! You have found what is sure to be a great addition to your favorite employment-law resources. This blog is hosted by the Employment Law Department at Young Conaway Stargatt & Taylor, LLP.

Our blog will keep you up to date on all of the latest happenings, news, and trends in the rapidly changing world of employment law. We know how difficult it can be to keep tabs on employment-related topics. To help you stay on top of it all, our posts will feature issues that we see in our practices and hear about from our clients.

Human resources and the law intersect at crucial times. And somehow, you're expected to keep up with it all. We will keep you posted as developments occur, and try to provide a little insight along the way.

So, welcome to our new readers. The Delaware Employment Law Blog is sure to be a great resource for every employer, small business owner, in-house counsel, HR professional, recruiter, management consultant, executive, and manager that stops by. We're looking forward to what is sure to be an adventure in blogging!