October 2008 Archives

HR Glossary: Generations at Work

Posted by Molly DiBiancaOn October 31, 2008In: Generations: Boomers, Xers, and Millennials

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Human Resource professionals must be familiar with a vast vocabulary, spanning from the legal world to psychology and sociology terms.  At a professional organization meeting I attended this morning, I had the pleasure of listening to an organizational consultant speak about employee retention and engagement--a very important topic in my world.  Her presentation was filled with a variety of factoids of which I hadn't been aware.  One little tiny piece of constructive feedback I have, though, is that she got the Generations wrong.   generations

During her talk, she referenced the challenges presented to employers by Generation Y employees.  But what she meant was Generation X and Generation Y.  She stated that Gen Y includes employees just entering the workforce (i.e., 18 years old), through individuals aged 31.  This is not quite accurate.  Here's what she probably meant to say:

Traditionalists are actually two generations ("Matures" and "Silents") who share similar values and behaviors who were born between the start of the 20th century and the end of World War II (1900-1945).  This generation is characterized by rigidity, privacy, and loyalty.

Baby Boomers, who were born between 1946 and 1964 during the Post-World War II baby boom,  the largest generation ever born in the U.S.  This generation is known for its love affair with rock 'n roll, Woodstock, and its experiences with the civil rights movement and Watergate.

Generation X includes individuals born between 1965 and 1980 grew up with celebrity figures that included Madonna, Oprah, and Michael Eisner.  Because the Baby Boomer parents of Gen X included working mothers, Gen X was left to fend for itself and the concept of the latchkey kid became prevalent. As a result, this generation is particularly independent and resilient.

Generation Y (also known as "Millennials") represent the youngest workers in today's workplace, being born between 1981 and 1999.  Raised by Baby Boomers, who coddled and protected in a way that they'd not been cared for by their own parents, Gen Y believes that it really can do anything and, as a result, tends to see very low penalty associated with frequent job changes and even career changes.  Gen Y engages in "real-time learning" as a result of constant digital access to resources such as YouTube and Google.  One defining feature of this generation is their general lack of awareness of the concept of a chain of command--something that can put a Baby Boomer or Traditionalist into a tailspin. 

For other posts on Generational Issues in the Workplace, see:

Why Recruiters Need to Understand the Helicopter Parent
How to Use Reverse Mentoring as a Retention Tool for Gen Y Employees
Gen Y Demands Employers Open the Checkbook for Technology Requests
The Connection Between Training and Employee Retention, According to Gen Y
What Makes a Good Leader? If You Lead Gen Y's, You'd Better Find Out.
Knock It Off, Gen Y: 3 Ways You're Driving Your Boss Crazy

FLSA 103: Defining What Constitutes "Hours Worked"

Posted by Molly DiBiancaOn October 31, 2008In: Fair Labor Standards Act (FLSA), HR Summer School

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Employees must be paid wages for all time worked.  Period. That's the law.  It seems simple enough but the seeming simplicity of that statement can be deceptive.  What constitutes "time worked" has remained an elusive concept for many employers.  As a result, the issue of what should be included in a calculation of the total time worked for compensation purposes, has generated a great deal of case law on the issue--some making clearer and others making the issues even more complex.

Work "suffered" is time worked.  Work that was not requested by the employer but that was "suffered" or "permitted" is considered time worked.  Then, of course, the question becomes when has an employee "suffered work."image

Waiting time is counted as time worked when the employee is unable to use the time effectively for his own purposes and the time is controlled by the employer.   Waiting time is not counted as hours worked when the employee is completely relieved from duty; and the time is long enough to enable the employee to use it effectively for his own purpose.

On-call time is time worked when the employee has to stay on the employer's premises or the employee has to stay so close to the employer's premises that he cannot use that time effectively for his own purposes. But, simply being required to wear a pager or to leave word at home or with the employer about where the employee can be reached, is not considered "on-call" time that constitutes "work suffered."

Meal periods are not hours worked when the employee is relieved of duties for the purposes of eating a meal.  But rest periods (include smoking breaks, if permitted), lasting 5 to 20 minutes are counted as time worked and must be paid accordingly. 

When traveling between work and home, employees are not considered to be working and the time spent traveling is not working time.  Travel during the normal working day between job sites is considered working time.

Time employees spend in meetings, lectures, or training, is considered hours worked and must be paid unless:

  • attendance is outside regular working hours;
  • attendance is voluntary;
  • the course, lecture, or meeting is not job-related; and
  • the employee does not perform any productive work while attending.

For more about the basics of the FLSA, see:

FLSA 101: Who Is Covered Under the Fair Labor Standards Act?
FLSA 102: Minimum Wage Requirements of the Fair Labor Standards Act

New Study on Trends in Pregnancy-Discrimination Lawsuits

Posted by Adria B. MartinelliOn October 30, 2008In: Pregnancy (Title VII)

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Pregnancy discrimination complaints have been on the rise for a very long time.  In 2007, working women in the United States filed 65 percent more complaints of pregnancy discrimination with the Equal Employment Opportunity Commission (EEOC) than they filed in 1992.  A new study analyzing pregnancy discrimination claims (pdf) was released today by the National Partnership for Women & Families at a symposium to commemorate the 30th anniversary of the Pregnancy Discrimination Act (PDA), enacted on October 31, 1978. image

To conduct the study, the National Partnership for Women & Families analyzed the most recent pregnancy discrimination charge data, as well as detailed pregnancy discrimination charge data from a ten-year period – FY1996 to FY2005. They also reviewed recent demographic data on women’s labor force participation and childbearing trends, and data about stereotypes and attitudes confronting pregnant women on the job.

The study reaches some interesting conclusions:

1. The growth in pregnancy discrimination claims during the time period was fueled largely by charges filed by women of color. Claims by by women of color jumped 76 percent, while claims overall increased by 25 percent.

2. Female-dominated industries may be no less likely to have discriminatory practices than industries with women in non-traditional jobs. More than half the claims filed with the EEOC during that period (53 percent) were filed in service, retail trade and the financial services, insurance and real estate industries – where some seven in ten women work.

3. Pregnancy discrimination charge filings increased in almost three-quarters of the states, with 38 states recording an increase in charges.

4. There is no single cause for the rise in pregnancy discrimination suits. The study posits that longstanding stereotypes and attitudes about gender, coupled with increasing numbers of women in the workplace, are among the key reasons for the rising numbers.

FLSA 102: Minimum Wage Requirements of the Fair Labor Standards Act

Posted by Molly DiBiancaOn October 29, 2008In: Fair Labor Standards Act (FLSA), HR Summer School

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The Fair Labor Standards Act ("FLSA"), provides that covered employees must be paid no less than the current state or federal minimum wage, whichever is greater, for all hours worked. The Delaware minimum wage is $7.15 trumps the current federal minimum wage of $6.55.  image

Although the concept of minimum wage is not a complicated one, there are some issues that can blur the obviousness of the hourly wage amount.  One such issue is what exactly should be included as compensation when determining whether minimum wage has been paid for all time worked.  Included in the definition of compensation are:

  • Wages (salary, hourly, piece rate);
  • Commissions;
  • Certain bonuses;
  • Tips received by eligible tipped employees (up to $4.42 per hour); and
  • Reasonable cost of room, board , and other "facilities" provided by the employer for the employee's benefit.

The fifth type of compensation, "board and lodging," presents some nuances of its own.  For example, it cannot exceed the actual cost of the facilities provided and cannot include a profit for the employer.  The employer must follow good accounting practices when determining the reasonable cost.  And, if no cost is incurred, the employer may not take a credit.

Deductions from pay can present major problems when they bring an employee's hourly wage below the minimum wage.  Deductions are illegal if:

  • Made for an item considered primarily for the benefit or convenience of the employer; and
  • Reduce the employee's earnings below the required minimum wage.

Some of the most common examples of illegal deductions include:

  • Tools used for work;
  • Required uniforms;
  • Damages to employer's property;
  • Cash-register shortages.

Tipped employees are not as problematic as illegal deductions but can be complex.  To be considered a "tipped employee" under the FLSA, the employee must work in an occupation in which he customarily and regularly receives more than $30 per month in tips.  Tipped employees must be paid at least $2.13 per hour in cash by the employer, who may claim a "tip credit" for the rest of the minimum wage.  The employer may claim the "tip credit" only if:

  • The employer informs each tipped employee about the tip-credit allowance, including the amount to be credited before the credit is utilized;
  • The employer can document that the employee received at least enough tips to bring the total wage paid up to minimum wage or more;
  • All tips are retained by the employee and are not shared with the employer or other employees, unless through a valid tip-pooling arrangement.

An example of the FLSA's minimum-wage requirements in action:

Employee receives $9 per hour for 40 hours plus $5 in commission and $20 in reasonable cost of room and board. 

Total earnings = $360 + $5 + $20 = $385

Total earnings / total hours = $385 / 40 = $9.63

 

See also:  FLSA 101: Who Is Covered Under the Fair Labor Standards Act?

How to Use Reverse Mentoring as a Retention Tool for Gen Y Employees

Posted by Molly DiBiancaOn October 29, 2008In: Employee Engagement, Generations: Boomers, Xers, and Millennials

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Generational differences have transformed the concept of workplace management.  Ground rules that once seemed obvious and implied to many of today's managers have been flipped upside down.  And, often, there seems to be no common ground to be found among a workforce that now spans across four generations.  There is much to understand about each of the generations' perspectives, values, and priorities, and the differences among them.  Armed with an improved knowledge of the motivators and disincentives that drive its employees, an organization is more likely to develop the recruitment and retention strategies that others only dream about.  This post is not about any of that.  image

This post does not discuss the differences between the Baby Boomers and Matures as compared to Gen X and Millennials.  But not because there is no value in that knowledge--there undoubtedly is.  If you understand the "why," it is infinitely easier to understand the "how," (as in how to respond/react/prevent, etc.)  Putting aside the value in being well versed in these sociological and psychological concepts, there is a way to press "fast forward" and jump straight to the playbook.  In other words, there are a number of programs and policies that employers can implement that will silently effectuate improved relationships between generations--without the employer even having known about it in the first place.  Although there are several such programs that come to mind, I will limit this post to just one--reverse mentoring.

What Is Reverse Mentoring?

Reverse mentoring is a type of workplace-mentor relationship.  The mentor in a reverse-mentor relationship is younger than his or her mentee with substantially less seniority in the organization.  Conversely, the mentee is the older of the two and is well-established in his or her position within the company.  Reverse mentoring works in all industries but may demonstrate the most effective results in professional fields where technology is an integral part of the work environment but is not the central focus of the work.  This environment is conducive to knowledge sharing between mentor and mentee using the mentor's deeply engrained familiarity and comfort with basic computer skills.  Of course, many would agree that there is no industry in which the new would not have something to teach the not-so new.

What Is the Subject of the Mentoring Relationship?

Reverse mentoring works in all industries but may demonstrate the most effective results in professional fields where technology is an integral part of the work environment but is not the central focus of the work.  This environment is conducive to knowledge sharing between mentor and mentee using the mentor's deeply engrained familiarity and comfort with basic computer skills.  Of course, many would agree that there is no industry in which the new would not have something to teach the not-so new. 

So, exactly what the topic is for the mentoring relationship will depend, in large part, on what it is that the mentor is knowledgeable about but the mentee is not.  As long as those two requirements are satisfied, the topics are unlimited. Most commonly, the mentor offers to share his or her technological know-how and the mentee returns the favor by sharing broader-picture lessons that can be formulated only after a full career of participating and observing one's self and others in the workplace.

What Does Reverse Mentoring Involve?

As with any mentor program, there are no clearly defined requirements for an effective relationship.  But there are guidelines that should be followed in order to receive the best results.  First, there must be a clear set of objectives and they must be communicated to and understood by both persons.  They can define the objectives themselves--no corporate branding required--but they must both come to the relationship with a defined target and set of goals.

Also, as in any relationship, both inside and outside the work environment, time matters.  There must be a mutually acceptable time commitment to both parties if the relationship can be expected to produce real results.  And the more time, the better.  Up to once weekly or as little as once every quarter can be effective. The key, though, is to set expectations in advance and to meet them every time. 

Why Is Reverse Monitoring Effective?

Reverse mentoring is a "win-win" relationship.  The mentee gets to learn skills or obtains access to information that otherwise would be unavailable or unattainable.  The learning environment is non-threatening, which means that it is much more likely to stick.  The mentor has no incentive to make the experience a hostile or showmanship-like event.  Not only does the student rank substantially higher than the teacher in the organization, but the student gets direct fulfillment from the relationship, as well. 

The mentee is given a direct line to someone who is willing to share valuable insight, which Generations X and Y deeply value.  The mentee is also given an opportunity to demonstrate his or her particular skill set, which, especially for the most junior employee, doesn't happen very often--usually because the skill set hasn't yet developed.  Once the bond has been forged, both parties are more likely to an active interest in the success of the other. 

For additional information on employee engagement through peer-to-peer training, see these prior posts:

 

As Further Proof that Training Is Key to Employee Engagement . . .

Why Top Performers Are So Hard To Please

The Connection Between Training and Employee Retention, According to Gen Y

FLSA 101: Who Is Covered Under the Fair Labor Standards Act?

Posted by Molly DiBiancaOn October 28, 2008In: Fair Labor Standards Act (FLSA), HR Summer School

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The Fair Labor Standards Act (FLSA) protects more than 130 million workers in more than 7 million workplaces.  image

There are two types of coverage under the FLSA:

  • Enterprise coverage:  If an enterprise is covered, all of the enterprise's employees are entitled to FLSA protection.
  • Individual coverage:  Even if the enterprise is not covered, individual employees may be covered and entitled to FLSA protections.

To qualify for enterprise coverage, the "enterprise" must have at least two employees and must generate at lease $500,000 per year in business.  For the purposes of the FLSA, enterprises include:

  • Hospitals;
  • Businesses providing medical or nursing care for residents;
  • Schools;
  • Preschools; and
  • Federal, state, and local government agencies.

To qualify for individual coverage, the employee must be engaged in:

  • Interstate commerce;
  • Production of goods for commerce;
  • Closely-related process or occupation directly essential such production; or
  • Domestic service.

Don't underestimate the first possible qualification:  employees engaged in interstate commerce.  This may include even the most minimal activity across state lines, such as:

  • Making telephone calls to other states;
  • Typing letters to other states;
  • Processing credit-card transactions;
  • Traveling to other states.

As a general rule, almost every employee in the U.S. is covered by the FLSA. Some examples of employees who may not be covered include:

  • Employees working for small construction companies;
  • Employees working for small independently owned retail or service businesses.

Employee Handbooks: Anti-Harassment Tip Sheet

Posted by Molly DiBiancaOn October 27, 2008In: Employee Handbooks, Harassment, Other (Title VII), Harassment, Sexual

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A legally effective anti-harassment policy is an absolute requirement for any employee handbook.  There is not a single reason to not have a policy that effectively establishes the organization's prohibition against harassment and related retaliation.  But there are millions of reasons to make sure that your handbook includes such a policy and that the workplace is set to manage a complaint of harassment should it receive one.   Employee Handbooks

To make sure your employee handbook includes a legally effective anti-harassment policy, a great place to start is with the EEOC itself.  In 2005, the EEOC issued the findings of a limited review of the anti-harassment programs in 43 federal agencies and one component's 64 sub-agencies.  The findings that were published included an excellent overview of the purposes of an anti-harassment program and the legal requirements of an effective policy.  The EEOC's report is as relevant and accurate today for private-sector employers as it was three years ago for federal-agency employers. 

According to the EEOC, an anti-harassment policy and complaint procedure should contain, at a minimum:

  • A clear explanation of prohibited conduct;
  • Assurance that complainants or witnesses will not be subject to reprisal;
  • A clearly described complaint process that provides alternative avenues for complainants;
  • Assurance that the employer will protect the confidentiality of the reporting employee to the extent possible;
  • A prompt, thorough, and impartial investigation process; and
  • Assurance that the employer will take immediate and appropriate remedial action if it determines that harassment has occurred.

Each of these elements are essential if you want your policy to be effective against a claim of harassment by an employee.   Employers cannot take advantage of an effective policy, though, without additional workplace safeguards.   The most important of these safeguards is periodic training.

Managers and supervisors should receive annual training to ensure that they understand their responsibilities under the company's anti-harassment policy and complaint procedure.  Training should review:

  • The types of conduct that violate the policy;
  • The seriousness of the policy;
  • Their responsibilities when they learn of a claim of harassment; and
  • The prohibition against retaliation. 

Employees should also receive periodic training.  After all, what good is a complaint mechanism with which employees are unfamiliar.  One important benefit of training employees on the organization's anti-harassment policy is the ability to communicate that harassment is not limited to sexual conduct alone.  Instead, an anti-harassment policy should cover all forms of harassment, including race, color, gender (both sexual and non-sexual), age, national origin, disability, and religion. Many employers' harassment policies are limited to sexual harassment, which is insufficient under the law. 

Drafting Your Employee Handbook--the Legally Effective Way

Posted by Molly DiBiancaOn October 27, 2008In: Employee Handbooks

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Drafting Your Employee Handbook is the title of the employment-law seminar I taught last week. I spoke on the topic in downstate Delaware and will be presenting another sold-out session in Wilmington, Delaware, on Thursday.  [For those interested, I'll be posting the materials from the seminar after this week's session].    Employee Handbooks

The agenda for the 2-hour program includes:

  • An overview of the purposes of an effective employee handbook and a discussion of basic drafting principles to keep in mind when writing a handbook; 
  • A review of the elements of each of the 10 policies that absolutely must be included in every employee handbook;
  • A discussion of other, recommended policies, as grouped into 10 broad categories;
  • An in-depth look at 5 technology-based policies that should be included in your next handbook update; and
  • A discussion about the best practices for implementing changes to your handbook.

Seminar attendees were Delaware small-business owners and HR professionals from a variety of industries.  As is usually the case in a seminar with attendees from multiple organizations, there were a number of different perspectives offered, lending to insightful questions.  The discussions gave me an opportunity to hear directly from employers about the specific problems they face in managing employees and implementing their desired policies. 

In follow-up to these discussions, I'm going to post a short series on some of the important considerations in drafting an employee handbook.  If there is a policy in particular that you'd like to know more about or if you've had difficulty in crafting a particular policy, feel free to e-mail me directly or post it in the comments section and we'll see if we can't try to incorporate it into the series. 

Employers Google the Darndest Things!

Posted by Molly DiBiancaOn October 23, 2008In: Just for Fun

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Employers search for the funniest things.  Here are a few snippets from the various search terms readers entered into Google that lead them to the Delaware Employment Law Blog.  They speak for themselves, really

Enjoy and happy Friday!

 

This one, I feel positive, speaks for itself.

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Ok, so technically, we did write a post that answers this question.  But why is it being asked?  I'm going to write this one off to Halloween. 

 

image

 

 

 

 

 

 

 

 

The answer to the next query is, "When you have to Google this question."

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CLE: Delaware Employment Law for In-House Counsel

Posted by Molly DiBiancaOn October 23, 2008In: Locally Speaking

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73.5% of corporate and in-house counsel report that their companies have been a defendant in employment-related litigation over the last three years. Delaware employers, therefore, have an immediate need to understand state employment laws. To address these concerns, the Employment Law Group at Young Conaway Stargatt & Taylor, LLP, will host a CLE seminar specifically for in-house counsel with responsibilities for Delaware employees.

The seminar will be held at our offices in Wilmington, Delaware on December 9, 2008, from 9 am - 12 p.m. Registration is $105 per person and includes all seminar materials, validated parking, continental breakfast, and, as a bonus, the 2009 edition of the Delaware Employer's Handbook, which annotates the state-specific employment laws. Registration is open until November 26, 2008, and seats are limited.

To register, visit the Young Conaway website and register online or download the form for submission via fax, e-mail or mail. If you have any questions, please feel free to call or e-mail Shaina Carl (302) 571-4745 or SCarl@ycst.com.

How to Make Your Summer Program One of the Best in the Country

Posted by Molly DiBiancaOn October 23, 2008In: Hiring, YCST

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Joe Biden isn't the only national news out of Delaware these days--Young Conaway's Summer-Associates Program ranked first in Delaware and 4th nationally (out of 162 participating firms) in The American Lawyer’s latest survey. The survey was conducted from early June to mid-August, and drew responses from 7,633 Summer Associates.  

This is a program to which we devote a lot of effort--not just funds, but effort--in the form of attorney event attendance, one-on-one mentoring, and real-time substantive feedback.  Young Conaway approaches recruiting and development from a fairly unique perspective--when we make hiring decisions, we do so with the expectation that the new lawyer will join the Firm and stay with us, well, forever.  That long-term-investment approach definitely carries into the amount of hard work and attention that is given to our Summer program.

Associates were asked how interesting the work was, how much "real" work was assigned, how the training and guidance measured up, how positive the interactions were with partners and associates, how well the firm communicated its goals and expectations, how accurately the firm portrayed itself in interviews, and the respondents' inclination to accept a position if one were offered.  The respondents were also asked to rate the firm overall as a place to work.

Eligible summer associates were first- and second-year law students (classes of 2009 and 2010) clerking at firms for at least three weeks during the summer. Respondents were guaranteed anonymity.

So what makes the program great enough to rank among the best in the country?  A number of things, starting with the hiring philosophy discussed above.  But philosophy alone cannot carry the day.  Real, live, people, must play a role, as well.  In that respect, although all of the firm's attorneys are given some credit because all participate in some way, the real accolades are deserved by two lawyers in particular. 

Tricia A. Widdoss, Esq., who had responsibility for firm recruitment and associate development, as well as the Summer programs for the past three years, deserves countless kudos for her creative ideas, innovative initiatives, and her unyielding enthusiasm and devotion to making the program a success and to each of the Summer Associates placed in her care.  There is a tremendous amount of hand-holding to be done--of the lawyers' hands, mostly--to make sure that all candidates are given a broad range of assignments from as many practice groups as possible.  (This can be particularly difficult when one group falls in love with a candidate and doesn't want to share their new all-star.  Not such a bad thing from the Summer's perspective, of course).

Danielle Gibbs, Esq., is the other half of the winning equation.  Danielle is the Hiring Partner, which means that she has the responsibility to manage all of the behind-the-scenes choreographing to make sure candidates are getting enough exposure to the departments where they may want to be placed.  It also means countless hours spent at committee meetings and at the two formal evaluation meetings provided to every summer associate.  It also requires review of enough writing samples to make your eyes cross and twice as many work-product memos and assignments generated by the Summer Associates over the course of the summer.

The ultimate goal of the Summer Program is to provide summer associates with a structured program emphasizing continued development of their legal skills while also allowing them a sampling of private practice. Young Conaway accomplishes this goal through a centrally coordinated assignment allocation process, a summer-long writing program, and extensive mentoring and feedback, all fostered by the firm’s open-door and accessible culture.  Most important, though, are the exceptional candidates who seem to get more brilliant every year, who make the attorneys actually look forward to their arrival each summer.  They are truly a remarkable group of students who we are thrilled to have join us as colleagues.

See the full American Lawyer survey results.  Or, see more information on Young Conaway's recruiting program.

2009 Pension Plan Limitations Announced

Posted by Justia AdminOn October 23, 2008In: Benefits

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Employee Benefits Attorney, Timothy J. Snyder, Esq., provides this update on pension-plan limitations.

The IRS has announced the pension plan limitations for 2009.  See the chart below for the limits for 2009 compared to those for 2008.

Item

2009

2008

Social Security Taxable Wage Base $106,800 $102,000
Highly Compensated Employee $110,000 $105,000
SEP Minimum Compensation $550 $500
Annual Compensation Limit $245,000 $235,000
Defined Benefit Plan Limitation on Benefits $195,000 $185,000
Defined Contribution Plan Limitation on Contributions

$49,000

$46,000

Catch-up Deferrals for SIMPLE

$2,500

$2,500

SIMPLE Elective Deferral Limitation

$11,500

$10,500

Catch-up deferrals for §§401(k), 403(b) and 457 plans

$5,500

$5,000

§§401(k), 403(b) and 457 Elective Deferral Limitation

$16,500

$15,500

Hablas Ingles? Let's Hope So If You Sign an Employment Contract Written in English!

Posted by Lauren Moak RussellOn October 23, 2008In: Employment Contracts

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What happens when an employee signs an employment contract that he doesn’t understand because it’s written in a language he doesn’t speak? Is he bound to its terms despite the language barrier? This was the issue taken up recently by the Third Circuit Court of Appeals in Morales v. Sun Constructors, Inc. The answer? Absent fraud, an employee is bound by the contract he signs, whether or not he understands the language in which it was written.contractguy

In Morales, a Spanish-speaking welder signed an hourly employment agreement when he was hired to work for a company, Sun Constructors. Eight of the thirteen pages of the agreement consisted of an arbitration clause, requiring any dispute to be resolved in arbitration. The problem? The contract was written in English, a language the welder did not understand.

After the welder was terminated for “dumping a bottle of urine from a great height on another contractor’s employees[,]” he sought to sue Sun Constructors for wrongful termination. Sun Constructors moved to stay the proceedings pending arbitration, a strategy that would only work if the arbitration clause contained in the employment agreement was found to be enforceable.

The court held that the arbitration clause was enforceable even though the welder was ignorant of the language in which it was written. It was, after all, the welder’s “obligation to ensure he understood the agreement before signing.” And the welder did not do a good job of fulfilling that obligation because he failed to take advantage of the bilingual person Sun Contractors arranged to have help him fill out his paperwork and he failed to retain his own translator (something he had done in the past). The court reasoned that “[i]t will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained.”

The moral of the Morales case is clear--never, ever, sign a legally binding document that you do not understand. If you are a Spanish-speaking employee, and are interested in translation, or other cultural services, please visit the Hispanic Emphasis Program, which provides local resources and contacts that can provide clarity on workplace issues.

A New Take On An Old Practice: Rethinking the Performance Review

Posted by Maribeth L. MinellaOn October 22, 2008In: Performance Evaluations

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“Get Rid of the Performance Review!” That was the title of an article in Monday’s WSJ. I’m certain many employees read the headline and thought, “If only it were that easy.” In the article, author Samuel A. Culbert promotes nixing the tired annual performance review in favor of a “preview.”

His message is simple: instead of looking back, think about what’s going to happen next. The essence is that instead of reviewing what your employees did, consider what they are going to do and how they will achieve their goals in the future. It’s sensible and makes good business sense to have your employees think about what they are going to do better, not what already happened that can’t be fixed. Culbert rightly advocates that a boss should “guide, coach tutor, provide oversight and generally do whatever is required to assist a subordinate to perform successfully.”

But, because of the anxieties associated with a performance review, that goal is lost to things like concerns over pay raises and disruptions to teamwork. In Culbert’s alternative, a preview becomes an exercise in problem-solving and promotes discussions among teammates who are going to work together more effectively and efficiently than in the past. A preview focuses on the future, and, according to Culbert, “promotes straight-talk relationships for people who are up to it.” Although a preview may not be for the fainthearted, it can be a useful mechanism to re-tool your old performance review checklist in favor of a more dynamic activity aimed at promoting employee and business development.

Why Recruiters Need to Understand the Helicopter Parent

Posted by Molly DiBiancaOn October 20, 2008In: Generations: Boomers, Xers, and Millennials, Hiring

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Gen Y employees are difficult to recruit.  "Millenial" employees, as they've come to be known, have lots of demands from a potential employer.  But the expectations of potential Gen Y employees are not nearly as high as the expectations of their parents.  Their parents?  That's right.  For the first time, employers aren't recruiting just job candidates.  They're also recruiting the parents of job candidates. 

No, I'm not kidding.  The parents of Gen Y'ers are often referred to as "helicopter parents."  Why?  Because they're always hovering around overhead.  They were hyper-involved in their childrens' already over-extended activity schedules.  They raised Gen Y to believe that there was nothing they could not be, nothing they could not achieve.  (Thus explaining Gen Y's perceived sense of entitlement--Why can't I be the boss right away?  My mom said I can be anything I want to be!)  They coddled their Gen Y'ers and bought them new gadgets like cell phones and Blackberries, which, as an ancillary perk, enabled parent and child to remain in constant contact.  They treated their Gen Y offspring like adults, further deepening the one-way dependence that ran from child to parent. 

And now, employers of America, they're yours.  Now it's up to you to treat them like the equals that they're not, to pat them on the back for every seemingly unimportant accomplishment, and to give them the flexibility to work from home whenever the spirits move them crack open their third laptop of the year.

Which brings me to recruiting strategies.  For employers who haven't already figured it out, Gen Y job applicants won't make a move before getting the stamp of approval from Mom and Dad.  Not until the parents give the thumbs up will candidates accept a job offer.  So, when recruiting Gen Y, be sure to advertise your organization's flexible and alternative work schedules, the company's continued investment in its technology infrastructure, and the yearly allowance offered to new hires for purchases of Blackberries, laptops, and the like. But don't forget to look out for what Mom and Dad will want to see before they'll give the official seal of approval.

Helicopter parents want to make sure their Gen Y'ers will be secure for a long, long time (even though it's fair to say the chances of a Gen Y staying at any firm for more than 3 years at a time is pretty slim).  They don't want any chance that their pride and joy will be subject to a layoff during a reorganization.  But Helicopter Parents also want to be Helicopter Grandparents.  And in order to do that, the Gen Y employee needs to work for an employer with a healthy understanding of work-life balance.  After all, how else can the generation be expected to find a mate and produce offspring?  Work-family balance is as important to the parents of Gen Y employees as it is to Gen Y employees themselves.  The next time you are recruiting for a position that may be filled by a Gen Y candidate, don't forget your marketing audience has grown and now includes the parent hovering overhead. 

Terminating Employees for Off-Duty Conduct

Posted by Molly DiBiancaOn October 20, 2008In: Off-Duty Conduct

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Employers can terminate employees for what the employees do in their personal, non-working time.  This is true for non-contractual (i.e., at-will) employees in most states. 

Some states have laws that prohibition employers from considering off-duty conduct when making an adverse employment decision.  For example, New York State has one such statute, known as a "lifestyle-discrimination" law.   West Virginia has a law that prohibits employers from taking an adverse employment action based on the fact that an employee uses tobacco.  There aDiscrimination Hurtsre several such laws scattered across the country, known as "Smokers Rights" statutes.  But these laws are the exception--not the rule.  

Contrary to what many employees believe, the general rule is that employers have the right to terminate employees for any reason, so long as it is not an unlawful reason, such as race, religion, gender, age, disability, etc.   This means that you can be fired because you have hot-pink hair.  Or for dating your boss's daughter.  Or for being a loyal drinker of the brand of beer made by your employer's #1 competitor.  And, outside of the states where lifestyle discrimination is prohibited, all of this is perfectly legal. 

Unlawful discrimination requires, in short, some unlawful conduct. Discrimination alone is not against the law.  We all discriminate countless times every day.  The word "discriminate," is defined by Webster's as "to mark or perceive the distinguishing features of."  We do this all day long.  We discriminate between ham and turkey for lunch.  We discriminate based on our color biases when we choose between the black and navy suits.  We discriminate when we attend one child's soccer game over another's baseball practice. None of these choices are unlawful--they're just choices. 

Similarly, employers make choices and decisions for a variety of reasons that are not limited exclusively to work-related factors.  So long as these factors do not include any of the statutorily prohibited bases, such as disability, genetic information, or national origin, for example, there is nothing unlawful about doing so.   Off-duty conduct, such as what kind of car you drive, where you buy your groceries, and whether you like your eggs fried or over easy, are all legal bases for making an adverse employment decision.  [And, for the record, you'll note that I said legal but I did not say legitimate--what's lawful does not necessarily equate with wise decisionmaking.]

For more on the topic of the role of off-duty conduct in employment decisionmaking, see Dan Schwartz's recent post at the Connecticut Employment Law Blog discussing a claim brought by a teacher who was fired for his MySpace page, which Michael Stafford covered from the education-law perspective in his post, MySpace and Employment: Another Tale of Woe or any of the other posts we've written on Off-Duty Conduct here at the Delaware Employment Law Blog.

Another Private School Sued by EEOC, this time for Pregnancy Discrimination

Posted by Molly DiBiancaOn October 20, 2008In: EEOC Suits & Settlements, Pregnancy (Title VII)

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Pregnancy discrimination is the wrong being alleged by the U.S. Equal Employment Opportunity Commission ("EEOC"), against not-for-profit company, Imagine Schools, Inc., which is one of the largest operators of charter and private schools in the country.  The company, based in Virginia, is alleged to failed to hire two women for administrative positions at the Renaissance Academy in Kansas City, Missouri, because they wee pregnant.  The Renaissance Academy was the rebirth of Southwest Charter School in Kansas City, which had lost its charter.  Both women worked at Southwest prior to its closing. 

The EEOC recently filed suit against a private school in Maryland, alleging that it failed to renew a teacher's contract after learning that he was HIV positive. (See EEOC Files Suit Alleging School Fired Teacher for Being HIV Positive).

Developments in Work-Family Issues

Posted by Adria B. MartinelliOn October 17, 2008In: Alternative Work Schedules, Flextime

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Flexible work schedules are continually becoming one of the most demanded employment benefits.  Life Meets Work is an organization that promotes flexible work schedules and alternative work arrangements. The organization is currently conducting its first annual survey on the topic of work-life balance. karen_juggler

The goal of the survey, called Flexing, Floundering, or 'Just Fine Thanks': Work/Life Issues in America, is to capture the opinions of Americans challenges in balancing work and life, the role of government in work-life initiatives, and flexible work programs. Life Meets Work also wants to hear about the flex programs, and work-life initiatives from an employer's perspective.

Whether you're working parent, stay-at-home mom, business owner or human resources executive, Life Meets Work want to hear from you. The survey takes less than 10 minutes to complete. Your responses are confidential.

The results of the study, along with a corresponding white paper, will be presented on a free Webinar, appropriately titled after the survey,  on October 28, 2008.

Dear Governor Palin, Will You Support Working Moms? Check Yes or No

Posted by Adria B. MartinelliOn October 17, 2008In: Alternative Work Schedules, Women In (and Out of) the Workplace

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With the ever-increasing interest in alternative work schedules, Americans are curious how the candidates in this year's election feel about work-life issues, particularly our first woman (and mother)  Vice Presidential nominee.  MomsRising.org is an advocacy organization lobbying for the need of a more family-friendly America. They have drafted the following letter they encourage you to sign and submit to Governor Palin. The letter reads as follows:

Dear Governor Palin,6a00d8341bf80c53ef00e54f6d38b18834-800wi

It was dazzling to see a mom on the stage at the Republican convention accepting  the Vice Presidential nomination.  There are too few mothers in the boardrooms and high levels of political office.  As members of MomsRising.org we celebrate your path from PTA to Vice Presidential candidate, but we didn't hear much in your speech about what you and your party will do for mothers and families. 


Due to the economic downturn, mothers and families are struggling more than before.  A quarter of families with children under age six are living in poverty, and having a baby is a leading cause of a “poverty spell” in our nation--a time when income dips below what’s needed for food and rent.  Women get a huge wage hit when they have children: mothers make only 73 cents to a man’s dollar, and single moms make only about 60cents.  Countries with family-friendly policies and programs in place--like paid family leave and affordable childcare--have smaller wage gaps for mothers, healthier children, and spend less funds later on the criminal justice system, grade repetitions, healthcare, and much more.


Our nation can’t afford to ignore the issues of mothers and families any longer.  We want to know where you stand on the issues which are critical to mothers like healthcare, fair pay, paid family and medical leave, afterschool programs, childcare/early learning, paid sick days, and flexible work options.
With now three-quarters of American mothers in the labor force, but a societal structure which hasn’t caught up to that modern reality, we, as a nation, are at a crisis point for our families.  Bottom Line: Mothers want to ensure the well-being of their families.  No mother should have to choose between taking care of a sick child and feeding her child. And no mother should have to choose between taking her child to the doctor and paying rent.

Governor Palin, if elected Vice President of the United States, how will you support mothers and families? Mothers across the nation look forward to hearing where you stand on our issues.

To submit this letter, visit MomsRising.org , and simply sign your name electronically to the letter, which will then be submitted by the organization to Palin.

Worthy Workplace Reads

Posted by Molly DiBiancaOn October 17, 2008In: Employee Engagement

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In my current mission to call some well-deserved attention to fellow bloggers who consistently generate posts about the workplace.  Here are a few worthy reads.

Effortless HR Blog takes an in-depth look at one of the most challenging types of compensation structures--commission-based employees.  And then takes it to an even deeper level by discussing what many employers seem not to understand--that Commissions Should Produce Sales.

Alison Green, from the Ask a Manager blog, readily agrees that she likes working with recent graduates.  And, because of her general affection for the generation that is destined to revolutionize the workplace as we know it, she helps them avoid the 7 Mistakes that Recent Grads Made at Work in her post at U.S. News.

And, in case you missed the opportunity to wish your boss Happy Boss's Day today, there are a few worthwhile comments to soothe your woes. Start your journey at the Blogging Boss blog, where there are some tips for What to Say on Boss's Day.  Management Craft Blog has a very clever post on Poems for Boss's Day--for the sensitive employees in the group.  Finally, be sure to check out the well-timed Carnival of HR at Totally Consumed for a great mashup of HR and leadership blog posts.

Top Small Places to Work Awarded to 15 Small Businesses

Posted by Molly DiBiancaOn October 16, 2008In: Employee Engagement

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Every employer would like to know the secret of employee engagement. Satisfied and loyal employees who are motivated by a sense of ownership can turn a good business into a true success. Winning Workplaces and The Wall Street Journal combined forces to create the 2008 Top Small Workplaces Competition to give credit where credit is due.   image

After all, according to the WSJ's Executive Summary of the awards:

Small businesses, 25 million strong in the United States, remain the backbone of our nation's economy. According to the Small Business Administration, they account for 50 percent of the country's private gross national product, create between 60 and 80 percent of the net new jobs and are 14 times more innovative per employee as large firms.

Competing for the coveted award were the more-than 780 nominated small organizations and the 406 organizations that completed applications.  The WSJ provides an executive summary to online readers, which extracts some of the commonalities among winners.  This data is very revealing--it's a short-form description of the features and benefits offered by the best small business employers in the country. what it takes to be the best.  There are many more factors worthy of reviewing but here are a few that are of particular interest:

1.  In these small businesses, some things don't change--employees.  These companies each displayed a high retention rate.

  • Average employee tenure is 6 years with an average turn-over rate of 13%.
  • Average CEO tenure is 17 years.
  • 14 of the 15 firms practice open-book management and 10 provide structured training on financial literacy to employees.

2.  These businesses each subscribe to the mantra that healthy employees are the way to a happy employer.

  • Employees receive generous medical benefits--on average, nearly 90% of medical-insurance premiums and 72% of dependents' premiums were paid for by the firm.
  • 14 firms offer benefits to part-time employees who work at least 21 hours per week.
  • 11 firms offer employee-wellness programs

3.  In line with the current employment trend, these employers believe that flexibility is a benefit

  • 13 firms offer some kind of flexible work options.

4.  And, last but not least, one of my personal favorites--these employers put a premium value on training as a way to engage employees.  

  • 13 firms have a structured tuition assistance program for employees, on average, $3,500 per employee / per year.

Third Circuit Rules on Payment under Bloodborne Pathogens Standard

Posted by Molly DiBiancaOn October 15, 2008In: Wellness, Health, and Safety

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The Bloodborne Pathogens Standard (BPS), was issued by OSHA as a measure to protect employees who are at risk for exposure to viruses caused by bloodborne pathogens, such as HIV and Hepatitis.  For more background on what exactly the BPS requires employers to do, see our prior post on the Bloodborne Pathogens Standard.

In a recent decision by the Third Circuit Court of Appeals, the federal appellate court with jurisdiction over Delaware, Pennsylvania, and New Jersey, the procedures requirements of BPS were put under the spotlight—with interesting results.

In Secretary of Labor v. Beverly Healthcare-Hillview, the Third Circuit was asked to interpret what it means to provide the necessary testing “at no cost to the employee.” In that case, two employees suffered needlestick injuries while at work. They sought treatment after the shift at the hospital’s designated medical facility. They subsequently returned to the facility for periodic treatment as prescribed. All of the treatment occurred during their non-working time. Beverly paid the cost of the treatment but did not compensate the employees for the non-working time they spent in treatment.

Beverly was cited by OSHA for failing to provide the testing and treatment “at no cost to the employee.” The citation was appealed to an administrative judge and, subsequently, to the Third Circuit. The appellate court held that the language of the applicable BPS provision relating to “at no cost” was ambiguous, which gave the Secretary of Labor the authority to interpret the provision. OSHA interpreted the language to include compensation for travel time and non-working time when the employees sought follow-up care. In short, the court’s decision means that employers must compensate employees for time spent and costs expended while seeking post-incident evaluation and treatment.

Delaware Bankruptcy Court Holds that Employee’s WARN Act Claim Does Not Have Administrative Priority

Posted by Maribeth L. MinellaOn October 14, 2008In: WARN Act

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As layoffs continue to occur, the WARN Act will become increasingly meaningful to employers, particularly those who are considering bankruptcy protection.

The WARN Act requires employers to give advance notice to employees who will be affected by a plant closing. Generally, 60 days’ written notice is required before closing a plant or implementing a mass layoff. Failure to comply with the Act can result in serious liability, including back pay and benefits for each affected employee for every day that the notice was not provided, for up to 60 days. This number can quickly add up to millions of dollars, which, for a company considering bankruptcy protection, can become an important factor in managing a bankruptcy estate.

On October 10, 2008, Delaware’s Bankruptcy Court issued a memorandum opinion which held, in a question of first impression for the Third Circuit, that an employee’s WARN Act claim is a general unsecured claim, rather than an administrative expense claim–a favorable opinion for debtor-employers.[1]

Powermate Holding Corp. and certain of its affiliates filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code on March 17, 2008. Prior to the filing, Powermate operated in three states. On March 10, 2008, it sold all of its assets in Springfield, Minnesota and terminated the employment of all workers at that location. Next, on March 17, 2008, prior to their bankruptcy filings, Powermate discharged all of its remaining employees in all of its locations without prior notice. Approximately 260 employees lost their jobs.

Gregg Henderson, a former employee, sued Powermate on behalf of himself and other discharged employees, alleging that Powermate violated their rights under the WARN Act. Henderson further alleged that he and other similarly situated employees were entitled to recover their wages, ERISA, and other benefits for sixty days pursuant to the WARN Act, and that their claims were entitled to administrative priority. If Henderson were correct, the administrative liability would have been significant for Powermate’s bankruptcy estates.

The Bankruptcy Code structures claims against debtors in a particular order to achieve the goal of equitably distributing the estate among all creditors. For example, the Bankruptcy Code prioritizes secured claims (i.e., claims for which there is some associated collateral) above unsecured claims. Generally high priority claims are paid in full, whereas holders of lower priority claims (e.g., general unsecured claims) are infrequently paid in full. Administrative expenses, which are typically costs associated with preserving the bankruptcy estate or facilitating with the estate’s wind-down, are highly ranked and are usually paid in full. The import here is that, if an employee’s WARN Act claim were given administrative priority, it should be paid and full, which is a burden many employer-debtors could not bear.

Although the Bankruptcy Court has not yet determined whether Powermate has any liability under the WARN Act, it nonetheless considered Henderson’s claim ripe for adjudication because the issue was purely legal and required the interpretation of one of the 2005 amendments to the Bankruptcy Code. The Court also emphasized, “Without a determination of the priority status of the Plaintiff’s claims, [Powermate] will be frustrated in their efforts to proceed any further in their bankruptcy, to formulate a plan as well as to negotiate with creditors. Depending on the outcome of this issue, the claims of Plaintiff could be of sufficient magnitude and priority that there may be nothing left for distribution to other, lower priority creditors.”[2] Thus, the parties sought the Court’s determination that if there were WARN Act violations, would any damages be considered an administrative expense? The Court answered in the negative; in this case any damages would be considered unsecured claims (under Bankruptcy Code Section 507(a)(4)-(5)).

This finding is important for debtor-employers because, as the Court noted, without a determination of the priority status, Powermate’s bankruptcy proceedings would be stalled until any WARN Act liability was reduced to a liquidated amount, which would not occur until after a trial.


--------------------------------------------------------------------------------

[1] Henderson v. Powermate Holding Corp. (In re Powermate Holding Corp.), Adv Pro. No. 08-50559 (KG) (Del. Bankr. Oct. 10, 2008).

[2] Slip. Op. at 6.

Worthy Reads about Work

Posted by Molly DiBiancaOn October 13, 2008In: Dress & Attire, Public Sector

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The blogroll at the Delaware Employment Law Blog currently houses approximately 150 links to blogs in a variety of topic areas.  I started the links page, which you can find under the "Resources" tab at the top of the page, as a way to store the crazy number of feeds I had collected.  Well, in the roughly 9 months since then, I have managed to accumulate nearly ten times the original amount!  Yes, I've collected roughly 1,500 blog links.  I've been checking the validity of the links and categorizing them in a way that will can understood by "normal people."  While tclip_image002hat project is being finished, though, I thought it only due to recognize some of my favorites on the list.  So, with that being said, here are a few posts about work that I hereby deem worthy of a read.

John Phillips at The Word on Employment Law posted on the normalcy of visible tattoos in the workplace

Jon Hyman at the Ohio Employment Law Blog has a comprehensive post on the ADA Amendments Act, which is bound to be a hot topic for many months to come.  Not to be accused of showing favorites, but Jon also has an easy-to-understand piece on everyone's favorite intermittent leave under the FMLA and, specifically, the recertification requirements that employers can impose.

The First Amendment Prof Blog directs our attention to a case involving school teachers who've filed constitutional claims alleging free speech violations over a school rule banning political pins worn by employees.

At The New Age blog at the N.Y. Times is a thought-provoking post on the language choices we make called, How Not to Offend the Aging.  Take the opportunity for a refresher in what's ok to say.

I have to give a major shout out to Ask a Manager, who advises job applicants to stop dressing down for interviews at nonprofits.  Amen.  Although there has been a lot of advice in the opposite direction, I stand firm in my belief that it is better to be overdressed than underdressed.  Worst case, you look like an over-eager job candidate, which, in my world, is an excellent quality.  I want candidates to be eager, and passionate, and enthusiastic, about the potential of working at our organization.

Update on the State of Women-Owned Businesses

Posted by Molly DiBiancaOn October 13, 2008In: Women In (and Out of) the Workplace

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The Center for Women’s Business Research recently testified at a hearing of the Senate Committee on Small Business and Entrepreneurship. On Sept 9, 2008, Executive Direct Sharon Hadaray presented research on the issues faced by women-owned businesses, collected in the Center’s 9th biennial update. The hearing was held on the 20th anniversary of the Women’s Business Ownership Act

The report submitted by the Center revealed a variety of interesting facts. Here’s a brief recap of Center for Women's Business Research[1]some of the highlights.

Statistics Relating to All Business Owned by Women:

· 40% of privately-held firms are owned by women

· 10.1 million firms in the U.S. that are 50% or more     women-owned

· Women-owned firms provided 13 million jobs

· Women-owned business generate nearly $2 trillion in revenues

· Between 1977 and 2002, the number of women-owned businesses increased by 824%.

Statistics Relating to Businesses In Which Women Hold a Majority Interest:

· 7.2 million firms that are majority (51%) owned by a woman,

· These firms provide 7.3 million jobs

· They generate $1.1 trillion in revenues.

Statistics Relating to Businesses Owned by Women of Color:

· 26% of all majority women-owned firms – up from only 20% just a few years ago.

· Women of color are starting businesses at three times the rate of all businesses.

The top industries for women-owned businesses are:

• Health care and social services (16%)

• Administrative support/waste management (15%)

• Professional, scientific and technical services (15%)

• Educational services (13%)

• Transportation and warehousing (9%)

Third Circuit Affirms Privacy Verdict Against Labor Union

Posted by Molly DiBiancaOn October 12, 2008In: Union and Labor Issues

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In Philadelphia, one of the most popular organizing tactics used by labor unions to recruit new members was found by the Third Circuit Court of Appeals to be in violation of the law.  Nearly two thousand employee-partners of Cintas, a publicly held industrial uniform company, filed suit against an affiliate of the AFL-CIO, UNITE-HERE, claiming that the labor-organizing operation had used their motor-vehicle records to wrongfully obtain their personal information. (Pichler v. UNITE).

They filed suit under the Privacy Protection Act of 1994, which prohibits the disclosure and use of personal information obtained through motor-vehicle records.  After being hit by a verdict of $5 million, UNITE HERE appealed to the Third Circuit, which has federal appellate jurisdiction over Pennsylvania, Delaware, and New Jersey.  

The Third Circuit's response was imageunequivocal.  Not only did it uphold the multi-million dollar verdict but it also implied that the union may be on the hook for more in light of the fact that there could have been numerous privacy violations for each employee targeted.  The court also reversed the district court's decision precluding an award of punitive damages.  Instead, the court remanded the punitive-damages issue to the lower court to be retried.

The suit alleged that UNITE HERE illegally obtained the personal information of Cintas employees in order to solicit their support during a union campaign.  The plaintiffs first learned of the information-theft when UNITE-HERE representatives started showing up at their homes uninvited.

This is the latest battle in a long war between UNITE HERE and Cintas. It's the second multi-million dollar verdict against the organizer, as well.  A California jury awarded Cintas $17 million for defamation against Sutter Health and its affiliated hospitals during a union-organizing campaign in 2006.  Cintas is also one of three companies to have sued the organizers alleging RICO-based claims of civil conspiracy.

This is the second recent decision in favor of employers who stood firm against unlawful union-organizing tactics.   (See Clarification of "Permanent-Replacement Employees" During Economic Strike).

The ING Direct [Role] Model for Wellness Programs--Part 2

Posted by Molly DiBiancaOn October 10, 2008In: Wellness, Health, and Safety

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The background of the ING DIRECT model for its employee wellness strategy and approach was the subject of Part I of this post.  In this part, we'll review the principals underlying the program that shape the company's various health-centric initiatives. image

Philosophical Underpinnings

Baag reports that, although it can be tempting to follow the current wellness trends as many companies have, the ING DIRECT culture demands something different. And something better. The goal is to effectuate deep-rooted and sustainable behavioral change without intruding on personal privacy and without monetary incentives, at least overtly. This means that wellness will have to appeal to employees with minimal emphasis of the traditional ‘carrot and stick’ model, if at all.

The principal underlying ING DIRECT’s wellness program is, at the same time, both obvious and complex. The philosophy that motivates the course of the wellness program can be described as, “The cost of providing health care to the workforce is higher than ever but the price of an unhealthy workforce is even higher.”

This philosophy reveals the company’s established recognition that health-care absorbs a substantial portion of the resources that can be allocated to employees as benefits. This is not so unusual. What differentiates the ING DIRECT methodology, though, is an equally well-established recognition of the very real costs associated with employees who are not able to perform at their best level. In other words, the company employs an organizational appreciation for the power of full engagement. ING DIRECT’s goal, then, is to promote well-being among employees while still preserving the integrity of its low-cost business model.

Caution: Obstacles Ahead

And, as formidable as that challenge may seem just by itself, there is another ever-present obstacle--the modern health-care system. Baag is often left to pick up the pieces as ING DIRECT employees make their way through a system that inefficient, slow, and without sufficient value placed on the needs of the individual patients. The ING DIRECT wellness program plays a double role as its members are frequently called on to be advocates for employees--intervening on their behalf when needed.

In developing ING DIRECT’s program, Baag first looked at the business costs of the health-care crisis. He then turned to the root causes of that crisis to determine what factors had the greatest impact on the cost of health care. The wellness program directly targets those root causes.

It is no secret that the cost of employer-sponsored health plans has skyrocketed. In turn, many employers have had to pass some of this cost along to employees in the form of higher premiums, increased copays, and deductibles. But the cost of health care itself is not the only cost that businesses must absorb.

Productivity is directly affected by the health of the organization’s employees. Absenteeism is an obvious drain on resources. Equally destructive is the cost of “presenteeism,” which occurs when employees attend work but are less productive due to illness or mental duress. In other words, they’re showing up but not much more. According to some accounts, presenteeism accounts for 20-60% of the total economic health cost incurred by employers. And one study found that the loss of productivity due to illness and sub-par performance in 2003 was approximately $260 billion.

The culmination of this data was a health-care paradox. On the one hand, employers cannot afford to have anything less than a healthy workforce while, on the other hand, the current state of modern health care is unaffordable. The next step in Baag’s analysis was to identify the main factors that had caused the cost of health care to become so unattainable.

One of the most significant factors is the cost of chronic medical conditions. They account for nearly half of the total health care expenditures in the U.S. The preventable conditions that ING DIRECT chose to target included heart disease and stroke, diabetes, high blood pressure, work-related stress, obesity, and conditions caused by smoking.

In the next post, we will look in detail at the various measures ING DIRECT has implemented to help achieve its goal of workplace wellness. We will also evaluate the benefits ING DIRECT has been able to realize through its wellness program and whether its initiatives can be replicated by other employers.  In the meantime, you can have a look around some of the other wellness-related posts at the Delaware Employment Law Blog.

Balancing Kids and Career, from the wOwosphere

Posted by Molly DiBiancaOn October 10, 2008In: Women In (and Out of) the Workplace

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Women with young children--bad idea to try to juggle a demanding job?  Or actually a great idea that, in the long-term, benefits the children who are raised to be independent and assertive?  Some famous women are discussing just this issue in the "wOwosphere," a "party designed as a website" and created, run, and written by sixteen "independent-minded women," including Candice Bergen, Whoopi Goldberg, and Lesley Stahl.  image

MSN.com has some good excerpts of the continuing discussion.  Here are a few:

Candice Bergen: OK. At the risk of being politically incorrect, I think if you are going to commit to the decision to have a child, you owe that child your best. And I think the old saying "Quality time is better than quantity time" is a self-justifying adage that over-worked women use to assuage their guilt. A guilt I think is valid. . . . I always made a point of showing and telling my daughter that she was the love of my life and I think she benefited from that. Obviously I made huge mistakes. And there were times I wasn't there when I should have been. But not many. I do not think you can have it all without someone paying the price and that shouldn't be your child.

Whoopi Goldberg: The truth is it is very hard to balance career and family. If you have money, of course it's easier.  But it doesn't compensate for birthdays, graduations and the like. If you don't have money it is incredibly hard and you are constantly worried that you can't cover whatever costs you have. The truth also is that each family is different and it may be easy for some, except for the guilt of not fitting the perfect mother pattern.

Judith Martin: I have been answering these very questions for more than 40 years. During that time, there was a great wave of feminism, and middle-class mothers entered the work force in large numbers. (That poor mothers have always worked is usually overlooked.) Wouldn't you think that conditions might have changed just a little?

Then, as now, the working world was designed for people with no personal responsibilities, which originally meant men whose wives ran the entire domestic side of life for them. So both were short-changed: the mothers, who did unrelieved child-care during the years that they might have been building careers and were considered unemployable when the children had grown; and the fathers, who had little time to develop close relationships with their growing children. If anything, the work place is now worse, with ersatz socializing after hours and constant technological availability expected in many jobs. And then, as now, women who take care of their own children full-time were venerated but offered no help, while women who did it professionally were given little money and less respect.

Women On the Web is packed with information, conversations, news, and opinions all relating to topics that relate to and affect the modern American woman.

Presidential Campaigns Address Work-Life Policy Issues

Posted by Adria B. MartinelliOn October 10, 2008In: Employee Engagement, Women In (and Out of) the Workplace, Women, Wellness, & Work-Life Balance

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In time for National Work and Family Month, Families and Work Institute (FWI) released today full notes from conference calls it convened in September with policy leaders from Senator Obama's and Senator McCain’s campaigns.   calendar

The calls focused on how, if elected, the two candidates would address work life issues ranging from sick leave to health care to early education and child care. “This is the first ever Presidential campaign in which both nominees have formally articulated their positions in this arena,” according to Ellen Galinski, President of FWI. While much has been written about how Vice Presidential candidates Biden and Palin manage their own work and family lives, and where Palin and Biden have been affected by work-life issues in the past, these calls move us from their personal to their policy stands on these issues. 

Among the questions addressed by the campaigns during the calls were:

  • What are the work and family life issues the candidate feels are most important to address?
  • What is the candidate’s position on workplace flexibility? What are the roles of the government, employers and employees in providing workplace flexibility?
  • Should the Family and Medical Leave Act (FMLA) be changed? In what ways? Should it be paid? By whom? Should sick leave be established and paid? By whom and for whom?
  • How would the candidate address issues of the time famine that so many employees experience?
  • How does each candidate plan to address the impact of the gas crisis on commuting employees?  
  • How can work life issues help address the spiraling cost of health care?
  • What would each candidate do to help the low-wage working family? And how would your candidate address narrowing the gap between men and women’s pay for all workers, especially for older workers?
  • What is the candidate’s position on education and care for the first three years of life for those families who need and want to work- and on universal pre-K?  What proposals does each candidate have for after-school care?
  • What if anything, does either party plan to do to support the 45% of employees taking care of our growing elderly population?  

The full notes from the call with Senator Obama's campaign and with Senator McCain's campaign are linked here in pdf format.  These notes provide great insight into the positions of the candidates on work-life and work-family issues. 

National Disability Employment Awareness Month

Posted by Molly DiBiancaOn October 9, 2008In: Disabilities (ADA)

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October is National Work and Family Month.  October is also National Disability Employment Awareness Month (NDEAM).  In 1988, Congress expanded what previously was National Employ the Handicapped Week, which was first initiated in 1945, and later renamed in 1962.  Department of Labor (DOL), Secretary Chao reminds citizens that the DOL's Office of Disability Employment Policy (ODEP), "leads the nation's activities and produces materials to increase the public's awareness of the contributions and skills of American workers with disabilities."  The ODEP's website is a fantastic reference point for employers with links to a number of resources for a variety of employment-related disability needs. This is a great opportunity to take a look at our own internal practices and reevaluate what our organizations are doing to eradicate the workplace of false perceptions about persons with disabilities.

Need a refresher in the requirements of the Americans With Disabilities Act (ADA)?  See our prior posts in the HR Summer School Series, ADA 101, which covers the basics of the ADA.

Employee Wellness and Small-Business Employers

Posted by Molly DiBiancaOn October 7, 2008In: Wellness, Health, and Safety

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Employee health and wellness is spreading beyond corporate giants. Small businesses are joining together to share ideas and resources as part of a corporate-health strategy.  Health and wellness programs are attractive (or should be) to small employers for a variety of reasons. 

For one, smaller business are more vulnerable to attendance problems. It's a matter of statistics--when staffing is lean, an out-of-work employee can cause a chain reaction of problems that affect the entire organization.  Consequently, these businesses benefit from having a workforce that is less afflicted by health problems.

From a different perspective, wellness plans can be seen not only as a preventative step that benefits employers but also as an additional benefit to employees.  In tough economic times, employers are less likely to offer big bonuses or large annual increases.  Yet, employees value wellness programs, leading to increased employee retention and improved recruitment efforts.

Although small-businesses may be fairly new to the employee-wellness scene, the idea is not a new one.  For additional reading on employee-wellness programs, see these earlier posts:

  1. State Employees Will Go From Fat to Fit--Or Else
  2. Health vs. Privacy: Employers Continue to Juggle Both
  3. What Does It Take to Be "Best Place to Work"?
  4. Three Days of the Bar Exam and the Next Great Wellness Benefit
  5. These Pumps Were Made for Walkin'
  6. Are Employers Getting Pushy About Weight Loss?
  7. Employers Should Know that Cancer Screening Saves Lives . . . And Money
  8. More Employers Giving the Gift of Wellness--via gift cards
  9. Employee Blogs as Part of Corporate Wellness Programs?
  10. Employees, Prepare to Get Healthy, Like It Or Not!
  11. DelaWELL, Delaware’s Health-Management Program, Wins NASPE Award
  12. DOL Offers Compliance Checklist for Wellness Programs
  13. Are Today's Wellness Programs Running Out of Steam?
  14. A Role Model for Wellness Programs: ING Direct

October is National Work and Family Month

Posted by Adria B. MartinelliOn October 7, 2008In: Family Responsibilities (FRD), Women, Wellness, & Work-Life Balance

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October is National Work and Family month. The Alliance for Work-Life Progress (AWLP) , sponsored the work-life-balance initiative, which was passed by Congress in 2003. National Work and Family month recognizes the importance of employer-sponsored work-life programs in attracting, motivating and retaining top talent.

work_life_balance_sign Though employers may scoff at such perceived “perks” in the current economic environment, organizations that incorporate work-life programs report that such programs help to create more effective workplaces. Flexible work arrangements provide enhanced employee performance and show that employers care about the well-being of their workforce.

With an increase in single-parent households and homes where both parents are wage earners, businesses must proactively incorporate work-life initiatives into their business models.  The Families & Work Institute released a study last Spring, the 2008 National Study of Employers, which showed that employers are rapidly adjusting to the demands of the family-oriented employee. Proponents of work-life programs say that such initiatives reduce turnover, absenteeism, and stress-related illnesses, as well as contribute to increased productivity.

young businesspp2  Moreover, work-life balance is critical to attracting Gen Y workers, who don’t understand the rigidity of the 9-to-5 work week created by Baby Boomers. Study after study have shown that Millennial employees work best when they can set their own hours to get work accomplished. Our department  has written numerous posts on recruiting, managing, and retaining Millenials.

If your company is already implementing such a program, you can nominate it for AWLP’s Work-Life Innovative Excellence Award – nominations are being accepted until November 15, 2008. If you think your company could do better, take AWLP’s self-audit, help you identify ways in which you can help your workplace balance the work-life dynamic and enjoy all of the benefits of an engaged workforce.

For more information on Work-Life balance, Alternative Work Schedules, the pros and cons, and implementation please read:

  1. Feds Take a Cue from the States and Consider the 4-Day Workweek
  2. 35 Questions You Should Ask When Drafting a Compressed Work Week Policy
  3. Positive Benefits of a Four-Day Work Week
  4. 5 Steps Toward a More Flexible Workplace
  5. Should a Four-Day Work Week Be Mandatory*
  6. It's Saturday Today in Utah: 4 Day Work Week
  7. Alternatives to the Four Day Work Week
  8. Popularity of the 4-day Week Continues to Grow
  9. Will Four-Day School Week Push the Four-Day Work Week Trend?
  10. Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.
  11. Alternative Work Arrangement May Soon Become Mandatory
  12. I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic
  13. How the Current Economy Could Affect the Future of Flextime
  14. New Employer & Workplace Study on Flexible Schedules
  15. The Pros and Cons of a 4-Day Workweek: Cons
  16. New Survey on Workplace Lateness Supports Flextime Initiatives?

Clarification of "Permanent-Replacement Employees" During Economic Strike

Posted by Molly DiBiancaOn October 6, 2008In: Union and Labor Issues

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Union members engaged in an economic strike are entitled to immediate reinstatement once they make an unconditional offer to return, unless the employer can demonstrate a legitimate and substantial business justification for refusing such reinstatement.  One such justification occurs when the employer hired "permanent replacement workers" to enable the continued operation of the business.  Last month, the Seventh Circuit Court of Appeals ruled on this requirement and came down on the side of the employer. image

The union-plaintiff in the case filed an Unfair Labor Practice charge (ULP), with the National Labor Relations Board (NLRB), after its members were refused reinstatement despite having made an unconditional offer to return to work following an economic strike.  The employer contended that, because it had hired permanent replacement workers shortly after union members announced the strike, it was under no obligation to reinstate the members upon their request.

At issue was a form that the replacement workers signed at the time they were hired.  The form stated that the signatory accepted employment as a permanent replacement worker but could quit or be fired at any time, with or without cause or notice, including as a result of a strike settlement.  The union argued that the at-will status of the new employees prohibited them from being considered "permanent replacements."  Instead, claimed the union, a replacement worker had to be employed under a binding employment contract. 

The NLRB disagreed and so did the Seventh Circuit, both finding that at-will status and permanent-replacement status are not mutually exclusive concepts.  So long as the employer intends to employ the replacements only until the strike is resolved.

Busted: Unemployment Money Spent at the Tanning Salon

Posted by Molly DiBiancaOn October 6, 2008In: Privacy In the Workplace

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Stories of technology's effects on employees are everywhere.  Employees are using technology to espouse negative views about their employers.  Employers claim rights to their employees' e-mail accounts--both personal and private, even after the employee resigns, as well as employees' text messages made from the phone the employer provided.  The power of technology has again landed employees in the hot seat, which is likely warmer than the tanning beds they visited at the taxpayers' expense.

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This time, technology has led to the arrest of more than 30 persons on the unemployment-insurance payroll.  The N.Y. Department of Labor tracked the allegedly fraudulent conduct with a new system that cross-checks the names reported by employers within the state as "new hires" against those on the unemployment list.  Clever, isn't it?

It gets better.  Once the Department generated a list of individuals whose name appeared on both lists, it was able to track the purchases of the unemployment recipients through a debit card that the state issues as part of its unemployment program.  And what were these "newly employed unemployment recipients purchasing with their state-issued debit cards?  Only the essentials, of course--subscriptions to dating websites, tanning salons, and lots of bar bills and restaurant charges.

Both of these new technology initiatives have produced a clear victory for citizens of New York, demonstrating additional benefits employers stand to gain from implementing effective technology measures. 

For a similar story on citizens' misuse of government money, see Workers’ Compensation Claims - A result of bad luck or bad leadership?

Religious Discrimination Claim Filed Over Refusal to Wear Short Shorts to Work

Posted by Molly DiBiancaOn October 6, 2008In: EEOC Suits & Settlements, Religious (Title VII)

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Religious discrimination can arise in a variety of circumstances. For example, just recently, we posted about a religious-discrimination claim filed by the U.S. Equal Employment Opportunity Commission ("EEOC"), on behalf of four Rastafarians who had been disciplined for their dreadlocks.  In another, fairly unusual, claim of religious discrimination, the issue isn't hair-style choices, though.  This time, the problem is with short shorts. image

But not with an employee wearing one.  Instead, the EEOC claims, an employee at St. Louis clothing store, Hollister Co., was terminated when she refused to wear pants or skirts the didn't cover the knee.  She stated a religious objection to the required uniform on the ground that her Pentecostal faith prohibited such attire.

Apparently, though, the employee had no such religious objection at the time she was hired

And, although this point is certainly relevant from the perspective of truth-seeker, it's not so relevant when it comes to determining whether religious discrimination occurred.  An employee need not explained what caused him or her to alter conduct based on religious views--or to change their religious views, for that matter.  If faced with a request for a religious accommodation, it does not behoove an employer to start "throwing stones" as it were. 

Instead, unless it is an absolutely obvious contradiction of the employee's otherwise-professed lifestyle, you are best advised to take the employee's word on it.  Just assume that they do hold a sincere religious belief about the issue and focus, instead, on the viability of the request.

**The irony in this claim can't go unnoticed by the Human Resource generalists in the world who spend such an inordinate amount of energy working towards eradicating short shorts in the workplace, which, I am certain, many would argue is a religious mission in its own right.  Of course, the NYT, this summer, published an article claiming that the "man-short" (pictured above), was making its way to the "acceptable attire" list in corporate America.  Let me know how that works out.**

Previous posts on religious discrimination and dress codes include:

EEOC Files Religious Discrimination Lawsuit on behalf of Sikh who refused to remove turban

What Not to Wear to Work: More Style Rules for the Modern (Gen Y) Worker

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

EEOC Sues over Dreadlocks, Claiming Religious Discrimination

AARP Announces Best Employers for Workers Over 50

Posted by Molly DiBiancaOn October 6, 2008In:

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Employers must recruit and retain Generation Y employees to stay current in the rapidly evolving workplace.  Equally important is the ability of employers to engage and utilize its older workers.  Employers are scrambling to find ways to harvest the knowledge of older workers before being faced with the impending brain drain.  All around, it's in the best interest of employers to provide a workplace that will attract older workers.    image

These factors make the AARP's recent award, 2008 Best Employers For Workers Over 50, particularly timely.  Cornell University topped the list and was recognized for its health and wellness programs, which include health screenings and counseling, multiple fitness centers, as well as group nutrition and aerobics classes.

On its website, the AARP has published a helpful summary of the features common to the 50 winners. 

[H/T to the Aging Workforce News Blog, which consistently publishes timely and helpful information on issues facing employers as they deal with new generational challenges.]

MySpace and Employment: Another Tale of Woe

Posted by Michael P. StaffordOn October 3, 2008In: Privacy Rights of Employees, Social Media in the Workplace

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MySpace and Employment Law have crossed paths again. This time, they intersect, again, in education law. But this isn’t the first time. My Computer

You may remember Stacy Snyder, the "Drunken Pirate,” who, at the time, was a student in the Education program at Millersville State University.   In a moment of poor judgment, Snyder posted a photo of herself in a pirate hat, drinking, captioned "drunken pirate" on her personal MySpace page.  School officials  learned of the photo and refused to give Snyder a teaching credential because they believed the picture promoted underage drinking. 

Alas, another teacher has fallen prey to MySpace.  A federal District Court in Connecticut has upheld the decision of a school board in that State, which voted to not renew a teacher's contract because of content posted on his MySpace profile. The court found that the non-renewal decision did not violate the teacher’s constitutional rights to Free Speech or Free Association. 

A high school teacher, Jeffery Spanierman, apparently created a MySpace profile, which he used to communicate with students.  The discussions concerned a mix of topics, some of which were unrelated to the school.  Of course, Spanierman's venture into the world of social networking soon came to the attention of the school administration.   An administrator viewed the profile and believed it contained inappropriate comments and "peer-like" discussion with students.  Spanierman deleted the profile after these concerns were brought to his attention. 

But the lure of the social networking site proved to strong for Mr. Spanierman to long resist.  Shortly after deleting the original profile, Spanierman created a second one.  After learning of the second profile, Spanierman was placed on an administrative leave.  Ultimately, the school district decided not to renew Spanierman's teaching contract.   Spanierman filed suit against the school district and various individual officials alleging several violations of his constitutional rights.  In particular, Spanierman claimed that his rights of Free Association and Free Speech had been breached.

The District Court rejected Spanierman's arguments. Although the court determined that Spanierman was not acting pursuant to his official duties as a teacher in maintaining the MySpace page, it found that the page's content did not deal with matters of public concern.  The sole exception to this was a short poem on the Iraq war.  But there was no evidence that any administrator retaliated against Spanierman for expressing his views on that conflict in verse.  The Court went on to note that the school district would likely have been able to demonstrate that Spanierman's "speech" would have been sufficiently disruptive so as to outweigh any the First Amendment value it possessed.

The Court also rejected the teacher's free association claim.  MySpace may be a social networking website, but here, there was “no evidence in the present case that MySpace, as an organization, purports to speak out on matters of public concern.”

Off-duty conduct as grounds for termination is a common topic in employment law. It is not uncommon for employers to include "morals clauses" in employment contracts. And social-networking sites are not the only forums in which employees are getting "busted." You may remember the recent scandal involving not the internet, but a local newspaper, which ran unfavorable photographs of the then-president of the community college engaging in off-duty conduct that reflected negatively on his leadership and judgment. Robert Paxton, resigned after the paper published a photograph of him pouring beer into a young woman’s mouth.

Companies will not risk their reputations on drunken pirate escapades or inappropriate MySpace relationships. Few states offer protection under the law for employees' off-duty conduct. Delaware is not one of those states--employers have full authority to determine what actions constitute "bad behavior," and can result in termination. 

Employment-Law Google Search of the Week

Posted by Molly DiBiancaOn October 3, 2008In: Just for Fun

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Labor and employment law attorneys, much like Human Resources generalists, have to be able to take a joke.  So how would we characterize Search #52, which was one of the Google searches that led a reader to the Delaware Employment Law Blog?  I mean, generally we don't encourage supervisors to write a bad evaluation, as much as we hope they will write a fair one. Well, at least it's being written!

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Last week's Employment-Law Question of the Week.

EEOC Sues over Dreadlocks, Claiming Religious Discrimination

Posted by Molly DiBiancaOn October 2, 2008In: Dress & Attire, Policies, Religious (Title VII)

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Work rules for dress code are not out of fashion just because the season has changed.  Instead, the topic of "What Not to Wear to Work" is as trendy as ever.  So, for those of you charged with the task of enforcing dress codes and monitoring hem lines, here's a bit of reassurance that you are not alone.   

Four security guards at NYC's Grand Central Station were disciplined when their "sloppy-looking" dreadlocks did not fit under the uniform-standard caps.  imageThree of the four were suspended for their refusal to comply with their employer's demand that they come to work "with their hair properly cut."  The fourth shaved his beard after being told that failure to do so would result in his termination. 

The EEOC filed suit on behalf of the public safety officers against the Grand Central Partnership alleging religious discrimination--the employees are Rastafarians.  The matter appears to have been resolved, though.  The partnership recently agreed to provide custom-made hats to each of the officers so they could tuck in their dreadlocks.

Third Circuit Issues Opinion on OSHA's Bloodborne Pathogens Standard

Posted by Molly DiBiancaOn October 1, 2008In: Wellness, Health, and Safety

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OSHA's Bloodborne Pathogens Standard is common to many of you.  Workers in a variety of different occupations are at risk of exposure to bloodborne pathogens, which also includes exposure to Hepatitis B, Hepatitis C, and HIV/AIDS.  Employees in healthcare, housekeeping, health clubs and gyms, dentistry, funeral homes, law enforcement, and first-aid and emergency responders are some of the most commonly affected. 

OSHA issued the Bloodborne Pathogens Standard ("BPS"), in 1991.  BPS was intended to protect workers from the risk of exposure to bloodborne Pathogens and, in turn, to the associated viruses.  In 2001, in response to the Needlestick Safety and Prevention Act, OSHA revised the BPS. The revised standard addressed the need to select safer needle devices and the importance of involving employees in making those selections.  The updated standard also imposes recordkeeping requirements for injuries relating to contaminated sharps.

Pursuant to BPS, employers must identify the job duties or tasks and the job classifications where occupational exposure to blood occurs.  The list must be put into writing and it must not take into consideration whether the employee would likely be wearing personal protective clothing and equipment.  Then, armed with that information, employers must create and implement standards and procedures for evaluating the risk involved in the identified circumstances.  The plan must be accessible to employees and available to OSHA.  The written plan must be revaluated annually, or earlier if conditions require.

In addition to the recordkeeping and procedures-based requirements, BPS also imposes requirements relating to the rights of employees.  Employees must be given training in accordance with BPS requirements.  They are also entitled to receive certain notices, and access to the policies that are being implemented and reviewed.  All employees who risk exposure to hepatitis B must be offered vaccination. 

Finally, BPS also mandates certain procedures in the event of an exposure incident.  Employees must be provided with a post-exposure evaluation and follow-up must be provided to all employees who have had an exposure incident. The follow-up testing must be provided at no cost to the employee.