Supreme Court Green Lights Vaccine Mandate for CMS; Stalls OSHA
|
01/13/2022
|
By: Donald Berner
|
Today
the
U.S.
Supreme
Court
issued
two
rulings
related
to
the
Biden
Administration’s
vaccine
mandates
for
employees
of
certain
businesses.
First,
the
Court
blocked
OSHA’s
implementation
of
the
COVID-19
Vaccination
and
Testing
Emergency
Temporary
Standard
(“ETS”)
for
large
businesses
and
sent
the
matter
to
the
Sixth
Circuit
Court
of
Appeals
to
reach
a
decision
on
the
merits.
The
stay
will
remain
in
place
until
the
Sixth
Circuit
decides
the
case.
Although
the
ETS
went
into
effect
on
Monday,
January
10,
employers
may
now
stop
complying
with
it
until
the
Sixth
Circuit’s
ruling.
Second,
the
Supreme
Court
has
given
the
go-ahead
to
the
Centers
for
Medicare
and
Medicaid
Services’
(“CMS”)
vaccination
mandate
by
lifting
stays
imposed
by
federal
courts
in
Missouri
and
Louisiana.
As
previously
reported
here,
on
November
4,
2021,
CMS
issued
an
Interim
Final
Rule
requiring
most
Medicare
and
Medicaid
certified
providers
and
suppliers
to
vaccinate
all
eligible
staff.
However,
in
the
weeks
following
the
release
of
the
Interim
Final
Rule,
a
series
of
federal
court
decisions
resulted
in
a
split
in
CMS’
ability
to
implement
and
enforce
its
vaccination
mandate.
Until
today,
CMS
could
implement
and
enforce
its
vaccination
mandate
in
25
states,
but
was
prohibited
from
implementing
and
enforcing
the
mandate
in
the
other
25
states,
including
Kansas
and
Missouri.
With
today’s
Supreme
Court
ruling,
CMS
may
now
implement
and
enforce
its
vaccination
mandate
in
all
50
states,
including
Kansas
and
Missouri,
while
the
Fifth
and
Eighth
Circuit
Courts
of
Appeals
work
through
deciding
these
cases
on
their
merits.
On
Continue Reading...
|
|
Side Effects From OSHA’s Withdrawal of COVID-19 Healthcare ETS
|
12/30/2021
|
By: Donald Berner
|
Earlier
this
week
OSHA
announced
its
plans
to
withdraw
the
substantive
aspects
of
the
COVID-19
Healthcare
Emergency
Temporary
Standard
(ETS)
that
was
published
back
in
June.
This
withdrawal
will
become
effective
when
notice
is
published
in
the
Federal
Register,
which
we
expect
to
occur
within
the
next
week.
While
the
ETS
will
be
officially
withdrawn,
OSHA’s
statement
“strongly
urges”
healthcare
employers
to
continue
to
comply
with
the
substance
of
the
healthcare
ETS,
including
its
PPE,
physical
distancing,
isolation/quarantine,
and
screening
requirements,
among
others.
The
agency
states
that
it
will
view
these
requirements
as
part
of
a
healthcare
employer’s
obligations
to
comply
with
OSHA’s
general
duty
clause.
A
critical
consequence
of
OSHA’s
decision
concerns
the
OSHA
COVID-19
Vaccination
ETS
for
large
employers
(100+
employees),
which,
among
other
components,
requires
covered
employers
to
impose
a
regimen
of
weekly
testing
and
masking
requirements
for
all
unvaccinated
employees.
The
Vaccination
ETS
contains
a
provision
that
excludes
employers
who
are
subject
to
the
Healthcare
ETS
from
its
coverage.
However,
once
the
Healthcare
ETS
is
officially
withdrawn,
that
exclusion
will
be
inapplicable,
and
those
larger
healthcare
employers
will
become
subject
to
the
broader
OSHA
Vaccination
ETS.
This
is
noteworthy
because
the
non-testing
aspects
of
that
ETS,
including
having
a
policy
in
place,
have
a
practical
effective
date
of
Jan.
10,
2022,
with
testing
required
for
unvaccinated
employees
by
Feb.
9,
2022.
Thus,
larger
healthcare
employers
who
previously
didn’t
have
to
worry
about
the
broader
OSHA
Vaccination
ETS
now
have
a
relatively
short
period
to
be
in
compliance.
This
Continue Reading...
|
|
Court Stays OSHA Emergency Temporary Standard for Large Employers
|
11/08/2021
|
By: Donald Berner
|
On
Saturday,
November
6,
a
federal
appeals
court
issued
an
order
temporarily
staying
the
Occupational
Safety
and
Health
Administration’s
Emergency
Temporary
Standard
(“ETS”),
which
directs
certain
private
employers
with
100
or
more
employees
to
mandate
COVID-19
vaccinations
or
weekly
testing.
The
U.S.
Court
of
Appeals
for
the
Fifth
Circuit,
stating
that
the
lawsuit
may
implicate
“grave
statutory
and
constitutional
issues,”
temporarily
stayed
the
ETS
pending
a
later
ruling
on
its
validity.
The
Court
ordered
an
expedited
schedule
for
responding,
under
which
the
parties
must
submit
response
briefs
on
November
8
and
9.
At
this
time
the
future
of
the
ETS
is
uncertain.
However,
as
a
practical
matter,
employers
may
need
to
continue
making
preparations
to
comply
with
the
ETS
by
the
December
5
deadline,
in
the
event
the
ETS
is
ultimately
upheld.
It
is
important
to
remember
that
the
Court’s
order
applies
only
to
the
OSHA
ETS.
It
does
not
apply
to
the
separate
vaccine
mandates
imposed
on
federal
contractors
and
Medicare
and
Medicaid
certified
providers,
which
require
that
covered
employees
be
vaccinated
(or
accommodated
for
medical
or
religious
reasons)
by
December
8
and
January
4,
respectively.
An
overview
of
the
OSHA
ETS
requiring
large
employers
to
mandate
vaccines
or
provide
weekly
testing
is
available
here.
|
|
Labor Day: The Unofficial End of Summer or Something More
|
09/07/2021
|
By: Donald Berner
|
We
hope
everyone
enjoyed
their
Labor
Day
holiday.
Over
the
years,
Labor
Day
has
been
viewed
as
the
last
gasp
of
summer
fun. While
taking
this
last
summer
holiday
to
enjoy
some
travel
or
family
time
is
a
great
idea,
the
roots
of
Labor
Day
can
actually
be
traced
to
labor
unions.
Labor
Day
was
established
in
the
late
1800s
and
early
1900s
as
a
holiday
to
celebrate
the
contributions
of
our
country's
workers
and
was
initially
proposed
by
organized
labor
unions.
Click
here
for
the
history
of
Labor
Day.
The
Labor
Day
holiday
should
serve
as
a
reminder
to
union-free
employers
that
organized
labor
is
still
working
hard
to
represent
the
employees
at
their
companies.
Your
management
team
should
spend
some
quality
time
on
a
regular
basis
communicating
with
your
employees
and
listening
to
their
concerns.
This
is
a
great
way
to
ensure
your
company
remains
union-free.
If
management
fails
to
establish
a
rapport
and
maintain
a
good
working
relationship
with
their
employees,
this
opens
the
door
for
people
outside
the
company
to
have
those
conversations.
I'm
sure
most
of
you
would
prefer
the
good
working
relationship
start
within
the
company
as
opposed
to
outside
the
company.
So
now
that
you
have
made
the
most
of
your
holiday
weekend
courtesy
of
the
labor
movement,
get
back
to
work
building
those
internal
relationships.
|
|
Can a Face Mask Land You in the Penalty Box?
|
03/02/2020
|
By: Donald Berner
|
Just
a
quick
heads-up
for
employers
in
this
challenging
period. With
everyone
thinking
about
COVID-19
and
worrying
about
exposure,
some
individuals
have
become
enamored
with
the
idea
of
wearing
a
face
mask
for
personal
protection.
In
the
past
few
days,
I
have
observed
a
number
of
people
wandering
the
streets
wearing
face
masks.
So
it
may
only
be
a
matter
of
time
before
an
employee
wants
to
wear
one
in
your
workplace.
While
this
may
seem
harmless,
employers
should
be
cautious
with
respect
to
the
use
of
face
masks
in
the
workplace. There
is
a
much
deeper
discussion
that
the
employer
may
need
to
have
with
regard
to
this
issue.
If
the
face
mask
is
a
respirator
(think
N-95),
the
voluntary
use
of
a
respirator
in
the
workplace
can
draw
an
employer
into
the
provisions
of
OSHA’s
Respiratory
Protection
standard.
Going
a
step
further,
if
an
employer
decides
to
require
the
use
of
a
face
mask
that
is
considered
a
respirator,
the
requirements
under
the
standard
become
even
more
onerous.
In
this
time
of
paranoia
and
hasty
reactions,
don’t
let
yourself
get
checked
into
the
boards
by
allowing
the
use
of
a
face
mask
or
dust
mask
in
the
workplace
that
is
actually
deemed
a
respirator,
without
first
getting
advice
from
legal
counsel.
|
|
Foulston Siefkin 2019 HR Training Series
|
12/20/2018
|
By: Donald Berner
|
Foulston
Siefkin’s
HR
Training
Series
presents
workshops
on
the
full
range
of
issues
that
are
important
and
relevant
to
employers.
These
workshops
are
designed
to
benefit
business
owners,
executives,
and
HR
professionals
with
responsibility
in
their
organization
for
the
issues
arising
from
the
employer-employee
relationship.
Each
session
will
be
presented
by
a
Foulston
Siefkin
attorney
at
our
offices
in
Kansas
City,
Topeka,
and
Wichita.
All
training
sessions
will
be
submitted
for
HRCI
and
SHRM
credit.
HR
Box
Lunch
Sessions:
WICHITA
- What
to
Do
When
OSHA
Shows
Up JANUARY
24,
2019
- FLSA
Update FEBRUARY
28,
2019
TOPEKA
- Box
of
Tricks
or
Pandora’s
Box?
How
Outside
Information
Can
Help
or
Hurt
Employee
Hiring
and
Retention JANUARY
30,
2019
- Anatomy
of
a
Complaint:
From
Charge
to
Lawsuit FEBRUARY
21,
2019
- FLSA
Update MARCH
6,
2019
- Just
the
Facts:
Difficult
Conversations,
Discipline,
and
Performance
Management APRIL
16,
2019
KANSAS
CITY
- Box
of
Tricks
or
Pandora’s
Box?
How
Outside
Information
Can
Help
or
Hurt
Employee
Hiring
and
Retention JANUARY
17,
2019
- Anatomy
of
a
Complaint:
From
Charge
to
Lawsuit FEBRUARY
12,
2019
- FLSA
Update MARCH
5,
2019
- Just
the
Facts:
Difficult
Conversations,
Discipline,
and
Performance
Management APRIL
11,
2019
|
|
Foulston Siefkin 2018-19 HR Training Series
|
07/11/2018
|
By: Donald Berner
|
Foulston
Siefkin's
HR Training
Series
is
designed
to
benefit
business
owners,
executives,
and HR
professionals
with
responsibility
in
their organization
for
the
full range
of
issues
arising
from
the
employer-employee
relationship. Presented
by Foulston
Siefkin
attorneys at
our
offices
in
Kansas
City,
Topeka,
and
Wichita,
each
session
will
address
issues
that
important
and
relevant
to
employers. All
training
sessions
will
be
submitted
for
HRCI and
SHRM
credit.
The
2018-19
schedule
is
available
below.
For
more
information
on
the
topics and
HR
Training
Series,
visit www.foulston.com/hrtraining.
Click
here
to
register
now.
HR Half-Day
Sessions
WICHITA
- Back
to
the
Basics:
HR
Topics
from
A-Z
that
Every
HR
Professional
Should
Know
AUGUST
29,
2018
- Not
as
Easy
as
One,
Two,
Three:
How
the
FMLA,
ADA,
and
Workers’
Compensation
Interact
with
Employee
Leave
of
Absence
and
Return
to
Work
OCTOBER
30,
2018
KANSAS
CITY
- Back
to
the
Basics:
HR
Topics
from
A-Z
that
Every
HR
Professional
Should
Know
SEPTEMBER
11,
2018
- Not
as
Easy
as
One,
Two,
Three:
How
the
FMLA,
ADA,
and
Workers’
Compensation
Interact
with
Employee
Leave
of
Absence
and
Return
to
Work
NOVEMBER
6,
2018
HR Box
Lunch
Sessions
WICHITA
- Box
of
Tricks
or
Pandora’s
Box?
How
Outside
Information
Can
Help
or
Hurt
Employee
Hiring
and
Retention
JULY
24,
2018
- Anatomy
of
a
Complaint:
From
Charge
to
Lawsuit
AUGUST
21,
2018
- Just
the
Facts:
Difficult
Conversations,
Discipline,
and
Performance
Management
SEPTEMBER
27,
2018
- The
Benefit
of
Staying
Up
Continue Reading...
|
|
Mandatory E-Verify????
|
10/26/2017
|
By: Donald Berner
|
Immigration
issues
continue
to
be
a
hot
topic
in
Washington.
As
immigration
reform
questions
circulate
through
Congress,
particularly
surrounding
the
DACA/Dreamer
issue,
a
bill
to
make
E-Verify mandatory
for
all
employers
arrived
on
the
House floor.
The
bill
would
phase
in the required
use
of
E-Verify
over
a two-year
period.
It
is
still
too
early
to
tell
if
the
bill will
survive,
but its
introduction
shows
a
continued
emphasis
on
border
control
by
the
Republican
in
Congress
and
the
Trump
Administration.
Stay
tuned
for
further
updates.
|
|
Trump Administration Makes Significant Change to Immigration Renewal Filings
|
10/25/2017
|
By: Donald Berner
|
USCIS issued
a
memorandum
on
October
23rd
that
rescinded
prior
guidance
established
by
the
Bush
and
Obama
administrations
related
to
extensions
of
temporary
work
visas.
The
prior
guidance
directed
USCIS
case
officers
to
approve
extension
requests
so
long
as
the
main
facts
of
the
extension
were
in
line
with
the
original
filing.
The
new
guidance
tosses
out
this
presumption
in
favor
of
approving
those
extension
requests
and
indicates
that
all
filings
will
be
subject
to
the
same
scrutiny
as
the
initial
filing.
In
essence,
the
Trump
Administration
does
not
want
to
give
credence
to
any
previously
approved
filings
and
will
review
them
with
fresh
eyes
upon
the
request
for
an
extension.
The
policy
memorandum
is
yet
another
indication
of
the
Trump
Administration's
negative
viewpoint
with
respect
to
the
use
of
foreign
labor.
In
keeping
with
the
theme
of
the
Buy
American
Hire
American
order
issued
by
President
Trump,
this
policy
memorandum
clears
the
way
for
USCIS case
officers
to
reject
extension
requests
in
hundreds
of
thousands
of
previously
approved
work
visas.
The
impact
of
the
memorandum
is
hard
to
predict
at
this
point,
but
does
point
to
a
continued
tightening
and
restricting
of
employer
access
to
work
visas
for
foreign
workers.
|
|
The Details are in the Weed
|
03/31/2017
|
By: Donald Berner
|
With
the
expansion
of
legalized
recreational
marijuana in
several states
and
localities,
there
will
continue
to
be
discrepancies
between
legal
usage
of
a
product
and
the
consequences
for
that
usage
under
employer
policies
for
drug
testing.
In
some
cases,
this
tension
may
come
from
the
use
of
other
substances
that
are
not
exactly
marijuana.
For
example,
an
employee
may
test
positive
for
the
use
of
marijuana
in
cases
where
they
are
ingesting
products
containing
cannabis.
These
products
can
include
items
like
hemp
oil
as
well
as
other
edible
type
items.
If
an
employee
has
sufficient
levels
of
a
controlled
substance
in
their
system,
a
positive
test
result
can
occur.
Unlike
other
situations
where
a
medical
review
officer
(MRO)
can
justify
the
positive
result,
the
scenario
with
hemp
and
other
cannabis
related
products
is
not
justifiable. As
a
result,
employers
may
see
more
cases
of
positive
drug
test
results
due
to
what
employees
perceive
to
be
acceptable
uses
of
products.
The
inability
of
an
MRO to
excuse
a
positive
result
triggered
by
hemp
oil
may
be
something
employers
want
to
address
with
employees
to
avoid
these
difficult
situations.
As
legalized
recreational
marijuana
becomes
more
common
and
the
uses
of
various
cannabis
related
products
grows,
these
situations
are
more
likely
to
become
more
commonplace.
|
|
Trump Administration Reverses OSHA Record-Keeping Rule Change Implemented by President Obama
|
03/24/2017
|
By: Donald Berner
|
The
OSHA administrative
change
referenced
in
my
blog
post
of
December
23,
2016,
has
been
overturned
by
the
Trump
Administration's
approval
of
a
joint
congressional
resolution.
As
you
may
recall,
OSHA established
a
rule
permitting
the
issuance
of
citations
to
employers
for
record-keeping
violations
for
up
to
five
years
from
the
point
of
the
error
or
violation.
The
Trump
Administration's
approval
of
the
joint
congressional
resolution
returns
the
look
back
period
for
violations
to
six
months.
Click
here
to
review
the
prior
blog
post
from
December
of
2016.
|
|
H-1B Filing Season Coming Up
|
03/17/2017
|
By: Donald Berner
|
The
annual
H-1B
visa
filing
cycle
is
coming
right
up. Employers
will
be
able
to
file
H-1B
applications
for
the
fiscal
year
2018
cap/quota
period
after
April
1,
2017.
USCIS will
begin
taking
applications
on
April
3,
2017,
and
if
the
cap
is
reached
during
that
first
week,
USCIS will
conduct
a
lottery
to
determine
which
applications
will
be
accepted
under
the
cap.
For
those
employers
looking
to
obtain
an
H-1B
visa
for
a
worker,
now
is
the
time
to
get
those
applications
ready
to
submit
for
the
upcoming
lottery.
|
|
USCIS Premium Processing Suspended
|
03/15/2017
|
By: Donald Berner
|
USCIS has
announced
a
suspension
of
the
premium
processing
program
for
H-1B
visa
applications
starting
on
April
3,
2017. The
premium
program
is
a
means
by
which
applicants
for
H-1B
visas
can
shorten
the
standard
processing
time
of
approximately
six
months
to
just
a
few
weeks.
The
program
is
funded
by
the
additional
filing
fees
paid
with
the
application.
With
the
upcoming
cap
lottery
process
and
the
current
significant
backlog
in
pending
H-1B
applications,
USCIS is
temporarily
halting
the
acceptance
of
applications
filed
for
premium
processing.
This
suspension
is
expected
to
last
a
few
months,
but
the
actual
length
is
hard
to
project.
Stay
tuned
as
USCIS works
through
its
annual
H-1B
visa
lottery
process
as
changes
to
the
premium
processing
suspension
are
likely.
|
|
OSHA Changes Statute of Limitations on Recordkeeping Citations
|
12/23/2016
|
By: Donald Berner
|
OSHA issued
a
new
rule
last
week
related
to
the
statute
of
limitations
for
recordkeeping
violations.
For
those
of
you
scratching
your
head
and
wondering
what
is
a
"statute
of
limitations",
it
is
simply
a
time
limit.
Prior
to
the
issuance
of
the
new
rule,
OSHA
could
only
cite
an
employer
for
a
recordkeeping
failure
in
the
six
month
period
following
the
error.
The
new
rule
moves
that
time
limit
out
to
five
years.
This
basically
means
that
errors
in
your
recordkeeping
practices
can
now
result
in
a
citation
for
up
to
five
years
after
the
error.
As
an
example,
Frosty
the
Elf
sustains
an
injury
on
12/24/2016
loading
Santa's
sleigh.
North
Pole
Industries
does
not
have
a
full-time
HR person
and
Mrs.
Claus
fails
to
record
the
injury
in
the
logs.
Under
the
old
rules,
if
OSHA did
not
discover
the
error
prior
to
June
24,
2017,
North
Pole
Industries
was
in
the
clear.
Under
the
new
rule,
Mrs.
Claus'
mistake
can
now
be
the
basis
of
a
citation
until
December
23,
2021.
The
new
rule
takes
effect
on
January
18,
2017.
While
the
rule
has
been
issued,
it
is
possible
the
incoming
Trump
Administration
will
change
directions
or
Congress
may
take
action
to
block
the
rule.
Stay
tuned
as
we
move
into
2017.
|
|
Looking Ahead to 2017
|
11/10/2016
|
By: Donald Berner
|
With
the
outcome
of
the
election
in
the
books,
we
can
begin
to
look
forward
to
2017
and
beyond.
In
most
election
years,
the
outcome
provides
us
with
a
decent
idea
of
what
is
to
come.
This
year's
election
cycle
is
a
bit
different
than
most.
It
is
a
bit
difficult
to
predict
how
Donald
Trump
and
his
presidency
will
impact
the
current
landscape
of
employment
law.
Here
are
a
few
things
that
might
get
some
attention
in
the
first
half
of
2017:
- The
topics
surrounding
health
care
and
the
ACA are
likely
to
get
plenty
of
discussion.
Whether
there
will
be
significant
change
is
another
question.
It
isn't
easy
to
make
tight
or
fast
turns
in
large
vehicles.
The
amount
of
change
to
the
health
care
system
as
a
whole
generated
by
the
ACA
in
the
last
several
years
is
considerable.
It
may
prove
to
be
slow
going
if
there
is
an
attempt
to
repeal
or
significantly
modify
the
ACA.
- The
immigration
area
is
likely
to
get
some
attention
in
2017.
The
scope
and
nature
of
that
attention
is
hard
to
predict.
This
is
a
rather
complex
set
of
issues
that
has
been
boiled
down
to
simple
campaign
rhetoric
in
2016.
As
with
health
care
reform,
this
area
may
prove
to
be
complex
as
well.
Employers
should
expect
some
shifts
in
enforcement
priorities
in
the
coming
year
as
the
new
administration
takes
over
in
Washington.
Keep
in
mind
programs
like
deferred
action
(DACA)
are
Continue Reading...
|
|
On Campus Recruiting and Age Discrimination
|
10/19/2016
|
By: Donald Berner
|
In
a
recent
decision,
the
11th
Circuit
Court
of
Appeals
ruled
that
on
campus
hiring
programs
used
by
employers
cannot
serve
as
the
basis
for
an
age
discrimination
claim. The
issue resolved
by
the
Court
revolved
around
whether older
applicants
can
make
the
claim
that on
campus
hiring
creates
a
disparate
impact
against older
applicants. The disparate
impact
theory
approach
was
rejected
by the
Court requiring
older
applicants
to bring
claims
only
for
intentional
bias.
In
plain
language,
the
idea
that
on
campus hiring
disadvantages
older
applicants
was
rejected
by
the
Court
as the
grounds
for
a hiring
discrimination
claim.
Employers
should
keep
in
mind
that
this
ruling
directly
applies
to
only
a
couple
of
states
in
the
southeast.
The
issue
is
still
unresolved
for
most
of
the
country,
although
this
ruling
would
be
persuasive
in
other
areas.
This
is
an
issue
to
keep
an
eye
on
as
other
jurisdictions
grapple
with
these
types
of
age
discrimination
claims
from
older
applicants.
|
|
Potential Legal Challenge to the New DOL Overtime Regulations
|
09/16/2016
|
By: Donald Berner
|
Just
a
heads
up
to
those
of
you
working
hard
to
plan
for
the
change
in
the
overtime
regulations
set
to
take
effect
on
December
1.
It
appears
that
the
U.S.
Chamber
of
Commerce
plans
to
file
a
lawsuit
seeking
to
enjoin
the
new
rule
and
ultimately
seeking
to
invalidate
the
regulation.
While
nothing
has
been
officially
announced,
the
McKinney
Texas
Chamber
of
Commerce
issued
an
announcement
that
it
was
joining
a
coalition
supporting
the
lawsuit
which
seems
to
indicate
something
is
about
to
happen
on
this
front.
Stay
tuned
to
this
issue
as
those
upcoming
changes
you
are
planning
to
make
may
not
be
necessary
if
the
litigation
succeeds.
|
|
EEOC's Position on Sexual Orientation Based Discrimination Rejected by the 7th Circuit
|
08/01/2016
|
By: Donald Berner
|
As
most
of
you
probably
already
know,
the
EEOC
has
taken
the
position
that
bias
based
on
sexual
orientation
is
sex
discrimination
in
violation
of
Title
VII.
In
a
decision
issued
by
the
7th
Circuit
Court
of
Appeals
(the
first
federal
circuit
court
of
appeals
to
hear
such
a
case),
the
EEOC's
position
was
rejected.
The
Court
focused
heavily
on
following
the
precedent
established
in
prior
7th
Circuit
cases
in
reaching
its
conclusion.
that
Title VII
does
prohibit bias
on
the
basis
of
sexual
orientation.
This issue
is
likely
to
make
news
through
the
remainder
of
2016
and
throughout 2017
as
other federal
circuit
courts
of
appeals
are
set
to
hear cases
raising
the
same
issue.
In
addition
to
further
court
decisions,
the
Equality
Act
is
pending
in
Congress
which
would
add sexual
orientation
and
gender
identity
to
the
protected
classifications
currently
in
existence under
federal
law.
Stay
tuned
for further
developments.
|
|
Communications Workers of America Open Field Office in Wichita
|
07/27/16
|
By: Donald Berner
|
The
Communications
Workers
of
America
(CWA)
plans
to
open
a
field
office
in
Wichita
to
facilitate
organizing
efforts
at
T-Mobile.
The
local
office
will
be
in
downtown
Wichita.
While
the
focus
of
the
organizing
effort
appears
to
be
T-Mobile,
a
CWA target
nation-wide
since
2008,
it
is
possible
the
CWA
will
use
the
office
for
other
organizing
activities
in
the
area.
|
|
Department of Justice Adjusts Penalties for Inflation
|
07/05/2016
|
By: Donald Berner
|
The
Department
of
Justice
("DOJ")
published
a
new
set
of
civil
penalty
amounts
for
a
variety
of
civil
matters
enforced
by
the
DOJ
that
are
set
to
go
into
effect
for
violations
occurring
after
August
1,
2016.
The
new
penalty
amounts
were
adjusted
for
inflation
from
the
prior
penalty
amounts
which
in
some
cases
had
not
been
adjusted
by
the
DOJ
for
quite
some
time.
As
a
result,
the
adjustments
to
the
penalty
amounts
in
some
areas
were
significant.
As
part
of
the
inflation
adjustment,
the
DOJ increased
the
penalty
amounts
for
the
various
immigration
related
violations
enforced
by
the
DOJ.
These
penalty
amounts,
initially
established
between
1980
and
1996,
had
never
before
been
adjusted.
Of
note,
the
DOJ adjusted
the
penalty
amounts
for
I-9
paperwork
violations
from
a
range
of
$110
to
$1,100
per
violation
up
to
a
range
of
$216
to
$2,156
per
violation.
In
addition,
the
penalty
amounts
for
employing
aliens
not
authorized
to
work
in
the
United
States
were
also
increased
significantly.
Employers
should
make
note
of
these
increases
related
to
the
I-9
process.
If
you
haven't
audited
your
I-9
records
in
some
time,
now
would
be
a
great
time
to
do
so
in
advance
of
these
increased
penalty
amounts.
|
|
A New Frontier -- Breastfeeding
|
05/23/2016
|
By: Donald Berner
|
Earlier
this
month,
four
breastfeeding
airline
pilots
filed
EEOC
complaints
against
Frontier
Airlines
for
refusing
to
accommodate
their
need
to
express
breast
milk
by
way
of
pumping. The
charges
allege
Frontier did
not
provide
any
accommodation
to
allow
the
employees
to
pump
regularly
and disciplined
one
employee
for
engaging
in
pumping
activity
aboard
an
airplane.
The
EEOC's
position
on
the
subject
is
clear
and
spelled
out
in
its
Enforcement
Guidance
on
Pregnancy
Discrimination
and
Related
Issues
dated
June
25,
2015:
"An
employee
must
have
the
same
freedom
to
address
such
lactation-related
needs
that
she
and
her
co-workers
would
have to
address
other
similarly
limiting
medical
conditions."
These
filings
serve
as
a
good
reminder
to
employers
that
the
EEOC
reads
the
Pregnancy
Discrimination
Act
to
include
reasonable
accommodation
obligations
similar
to
those
in
the
ADA.
Various
state
laws,
including
one
in
Kansas,
also
provide
certain
protections
for
breastfeeding
and/or
expressing
breast
milk.
Employers
should carefully
consider
any request
made
by
an
employee to
allow
for
this type
of
activity.
In
addition,
not
only
do
employers
need
to
consider
Title VII,
the Affordable Care
Act
amended
the
FLSA to
require
employers
to
provide
break
time
and
private
locations
for
pumping
activity.
It
will
be
interesting
to
see
how
Frontier
Airlines
responds
to
these
charges. Stay
tuned.
|
|
OSHA Record-Keeping Rule Modified
|
05/13/2016
|
By: Donald Berner
|
On
May
11,
OSHA issued
a
final
rule
modifying
the
record-keeping
regulations.
The
final
rule
takes
effect
in
August
of
2016.
The
highlights
of
the
final
rule
include:
- Requires all
employers
with 250
or
more
employees
to
submit
OSHA Form
300A
electronically.
- Requires
all
employers
with
more
than
20
employees
in
high-hazard
industries
to
submit
OSHA Form
300A
electronically
(these
can
be
found
by
NAICS
code
in
an
appendix
to
the
final
rule).
- The
submission
deadline
for
the
prior
year
data
in
2017
and
2018
is July
1.
- The
submission
deadline
for
the
prior
year
data
after
2019 is
March
2.
Above
and
beyond
the
procedural
changes,
the
final
rule
includes
strong
anti-retaliation
language. For
example,
the
final
rule
includes
a
requirement
that
injury/illness
reporting
procedures
are
not
reasonable
if
they
deter
or
discourage
employees
from
reporting. This
language
may
interfere
with
employer
incentive
programs
designed
to
reward
employees
for
preventing
work-related
injuries
or
illnesses
under
the
theory
that
such
an
incentive
plan
discourages
reporting. The
final
rule
also
contains
a
requirement
for
employers
to
provide
notice
to employees
of
their
right
to
report
work-related
injuries
and
illnesses
along
with
notification
that
the
employer
will
not
take
negative
action
against
an
employee
for
such
reporting.
The
purpose
of
the
electronic
submission
process
seems
to
be
driven
towards OSHA posting employer
specific
data
on
its
website
as
an
education/outreach
tool.
In
addition,
it
will
allow
OSHA easier
access
to
injury/illness
data
for
its
own
analysis
purposes
internally.
It
is
likely
this
more
readily
accessible
information
will
Continue Reading...
|
|
Protecting Your Workforce from the Zika Virus
|
04/25/2016
|
By: Donald Berner
|
Last
week
OSHA issued
a
fact
sheet
to
assist
employers
with
the
prevention
of
occupational
exposure
to
the
Zika
virus.
While
the
United
States
has
not
seen
a
Zika
virus
outbreak,
the
mosquito
types
capable
of
carrying
the
virus
exist
in
large
parts
of
the
United
States.
With
the
summer
season
approaching,
employers
are
more
likely
to
have
employees
exposed
to
mosquito
bites
and
thus
potentially
exposed
to
Zika
and/or
other
mosquito-borne
illnesses.
If
you
have
employees
working
outdoors,
following
this
guidance
will
be
a
good
idea.
To
see
the
OSHA fact
sheet
click
here.
|
|
E-Verify Expansion
|
04/22/2016
|
By: Donald Berner
|
The
trend
of
states
requiring
the
use
of
E-Verify
continues
as
Tennessee
will
require
private
employers
with
50
or
more
employees
to
utilize
E-Verify
after
January
1,
2017.
While
of
not
much
consequence
for
Kansas
employers
(unless
you
have
Tennessee
employees),
it
is
notable
that
the
march
of
states
mandating
the
use
of
E-Verify
continues. It
is
also
likely
that
any
immigration
reform
at
the
federal
level
(whenever
that
occurs)
will
require
employers
to
utilize
E-Verify.
With
the
trends
heading
in
the
direction
of
mandatory
participation
down
the
road,
employers
should
consider
the
pros
and
cons
of
voluntarily
opting
into
the
system
in
advance
of
any
mandates.
|
|
New STEM OPT Regulations Take Effect in May
|
4/11/2016
|
By: Donald Berner
|
The
new
STEM
(Science,
Technology,
Engineering, & Math) OPT
regulations issued
in
March
create
a
new
set
of
requirements
and
benefits
for
students
and
employers
seeking
to
participate
in
the
program.
For
those
not
familiar
with
STEM
and
OPT,
these
concepts
relate
to
foreign
students
and
work
authorization
which
typically
applies
after
the
student
completes
a
degree
program.
The
traditional
OPT,
which
stands for
optional
practical
training, program
allows
the
foreign
student
up
to
twelve
months
of
work
authorization
per
program
of
study
(degree
level)
to
obtain
practical
on-the-job
type
experience
before
returning
home.
There
are
special
rules
for
foreign
students
within
the
STEM degree
fields
that
allow
the
OPT
time
to
extend
out
an
additional
24
months.
This
extra
OPT
time
comes
with
some
strings
attached
for
the
employer.
The
primary
addition
in
the
new
rule
relates
to
training
plans
and
evaluative
processes. Foreign
students
must
now
have
a
training
plan
that
sets
out
goals
for
the
STEM practical
training
period.
The
plan
requires
a
description
of
the
skills,
techniques
and
knowledge
the
student
will
obtain
through
the
opportunity
with
the
employer
as
well
as
an
evaluation
process
and
a
description
of
how
the
student
will
be
supervised.
These
new
requirements
take
effect
for
STEM extensions
filed
by
students
after
May
10th.
For
more
information
on
the
new
STEM program
click
here.
|
|
March Forth!
|
03/04/2016
|
By: Donald Berner
|
Now
that
we’re
well
into
2016,
many
of
us
may
have
forgotten
our
New
Year’s
resolutions
and
returned
to
our
normal
routines.
But
not
to
worry.
If
you’ve
ignored
your
resolutions
(or
never
made
any
to
begin
with),
there’s
still
hope.
March
4th
(sounds
like
“march
forth”
-
get
it?)
is
national
“Do
Something
Day.”
So
today,
take
some
time
to
map
out
a
plan
for
doing
the
following
things
before
you
let
the
rest
of
the
year
get
away
from
you:
- Review
your
policy
materials,
and
make
sure
they
are
current
and
up
to
date.
You
should
review
your
policies
to
ensure
they’re
in
compliance
with
all
legal
requirements,
but
your
review
should
be
practical
as
well.
Are
your
current
policies
working
as
intended,
or
are
there
some
that
would
benefit
from
a
different
approach?
A
little
reflection
and
reworking
now
can
help
you
avoid
any
issues
you
had
in
the
past.
As
Winston
Churchill
observed,
“Those
that
fail
to
learn
from
history
are
doomed
to
repeat
it.”
- Take
time
to
clean
up
employee
files.
Is
the
required
documentation
in
the
file?
Conversely,
are
there
any
prohibited
materials
that
need
to
be
taken
out?
Remember
that
Continue Reading...
|
|
DOL Overtime Regulations Update
|
12/21/2015
|
By: Donald Berner
|
The
timing
of
the
issuance
of
DOL's
new
overtime
rule
has
been
a
matter
of
much
projection
and
debate. Prior
to
last
week,
the
estimated
arrival
date
for
the
final
rule
was
summer
of
2016. Last
week,
the
Secretary
of
Labor
expressed
his
desire
to
ensure
the
rule
is
issued
in
the
early
spring
of
2016.
Considering
the
potential
for
Congressional
action
and
other
litigation,
the
early
spring
2016
date
makes
sense. A
key
concern
for
worker
advocate
groups
is
to
ensure
the
rule
is
published
early
enough
that
any
Congressional
action
takes
place
while
President
Obama
is
still
in
office.
An
early
spring
release
meets
this
key
goal.
So
for
employers
working
on
contingency
planning
for
the
new
rule,
you
might
move
your
completion
date
up
a
bit
if
you
expected
this
to
be
a
summer/fall
of
2016
activity.
|
|
Leave as an ADA Accommodation: How Much is Enough
|
11/16/2015
|
By: Donald Berner
|
Consider
this
fact
pattern:
An
employee
has
a
back
problem
that
stretches
out
over
a
long
period
of
time.
At
some
point,
the
back
problem
becomes
severe
enough
the
employee
goes
out
on
FMLA
leave.
During
the
twelve
weeks
of
FMLA
leave,
the
employee
ends
up
scheduling
a
surgery.
The
surgery
takes
place
near
the
end
of
the
twelve
week
FMLA period
and
the
employee
has
a
set
of
lifting
restrictions
that
don't
allow
the
employee
to
perform
the
essential
functions
of
the
position.
Under
those
facts,
there
is
no
way
the
employee
can
return
to
work
at
the
conclusion
of
the
FMLA
leave. Now
what?
Employers face
fact
patterns like
this
one
on
a
fairly regular
basis.
A
reasonable
accommodation
under
the
ADA
might
be
to
provide
the
employee with
additional
leave
beyond
the
protected twelve-week
FMLA absence.
These
cases
are
usually
fact-specific and
can
be
tricky
to
resolve.
A
federal
court
in
Wisconsin
recently
decided
a
case with
this
set
of
basic
facts.
In
the
case,
the
employee requested
another
two
to three
months
of
additional
leave
to
allow
for
recovery
from
the
surgery. The
employer
denied the
request
for
the
additional
leave
and
ended
the
employment
relationship. As
you
might
expect,
the
employee
brought
an
ADA claim
against
the
employer. In what
might
be
a
surprise
for
employers,
the
court ruled
in favor
of the
employer.
The
court
focused
on
the
fact
the
employee
had
not
been
able
to
perform
the
job
duties
for
the three
months
during
the
FMLA leave
and
that
the
anticipated
two
to
three
additional
months
was
too
long
for
the
employee
to
be
away
from
work.
Keep
in
Continue Reading...
|
|
Expanded Deferred Action Program Remains on Hold
|
11/13/2015
|
By: Donald Berner
|
In
November
2014,
President
Obama
expanded
the
deferred
action
program
currently
in
effect. The
expansion
would
have
extended
eligibility
to
participate
in
the
program
to
about
4
million
more
individuals
currently
in
the
U.S.
illegally.
The
program
extension
is
currently
on
hold
due
an
injunction
issued
by
the
U.S.
District
Court
for
the
Southern
District
of
Texas.
The
issuance
of
the
injunction
was
appealed
by
the
federal
government.
The
Court
of
Appeals
upheld
the
injunction
in
a
decision
issued
earlier
this
week.
This
means
the
expansion
of
the
deferred
action
program remains
temporarily
blocked
from
implementation
until the
trial
of
the
matter takes
place or
the
federal
government
successfully
appeals
the
decision.
Stay
tuned.
It
will
likely
be
months
before
this issue
resolves
itself.
|
|
Happy Veteran's Day
|
11/11/2015
|
By: Donald Berner
|
Happy
Veteran's
Day
and
a
thank
you
to
all
who
have
served
or
are
currently
serving!
For
employers
looking
to
support
veterans,
check
out
the
Department
of
Labor
Veterans'
Employment
and
Training
Service
(VETS)
site.
To
see
more
click
here.
|
|
DHS Issues Proposed STEM OPT Rule
|
10/29/2015
|
By: Donald Berner
|
The
Department
of
Homeland
Security
(DHS) issued
a
proposed
rule
providing
for
the
extension
of
optional
practical
training
(OPT)
time
for
foreign
students
that
obtain
degrees
in
STEM
fields
of
study.
STEM
stands
for
science,
technology,
engineering
and
math.
The
new
regulation
proposes
an
additional
twenty-four
month
extension
to
the
existing
twelve
month
OPT period.
This
extension
will
be
made
available
for
each
degree
level
should
the
individual
obtain
a
bachelors
degree
and
then
later
obtain
a
masters
degree.
DHS is
currently
preparing
a
listing
of
eligible
STEM
fields
that
will
be
permitted
to
participate
in
the
program
and
will
provide
that
information
at
a
later
date.
The
proposed
rule
also
imposes
a
few
requirements
on
employers
participating
in
the
program.
Employers
will
be
required
to
participate
in
E-Verify, implement
mentoring
and
training
programs
to
further
the
attainment
of
the
practical
experience
contemplated
by
the
program, attest to
having
the
resources
to
provide
the
mentoring
and
attest
that
no
U.S.
workers
experienced
job
losses
as
a
result
of
employing
the
individual
participating
in
the
OPT
program.
Stay
tuned for
the
finalization
of
the
rule
and
the
detailed
listing
of
STEM
degree
fields.
|
|
New Farmworker Safety Rule Issued
|
10/02/2015
|
By: Donald Berner
|
The
Environmental
Protection
Agency
(EPA)
recently
issued
a
farmworker
safety
rule
related
to
pesticide
use.
The
new
rule
will
likely
take
effect
in
the
early
part
of
2017
as
the
full
version
is
set
to
be
published
in
the
next
60
days
with
a
14
month
implementation
period
before
taking
effect.
Some
highlights
of
the
new
rule
include:
- Employees
under
the
age
of
18
will
not
be
permitted
to
handle
or
apply
pesticides.
- Pesticide
training
must
take
place
on
an
annual
basis
as
opposed
to
once
every
five
years.
- Employees
must
be
trained
on
how
to
minimize
the
risk
of
carrying
home
residue
of
the
pesticides
in
use.
- The
usage
of
personal
protective
equipment
will
be
expanded
as
well
as
the
testing
and
monitoring
of
the
equipment.
- Employers
will
be
required
to
maintain
records
of
all
pesticide
use
for
at
least
two
years.
- Farm
workers
will
now
have
whistle
blower
protections.
With
these
changes
set
to
take
place
in
2017,
employers
that
use
pesticides
will
want
to
review
the
full
rule
upon
publication
and
begin
implementing
the
changes
along
the
way.
|
|
The Perils of HR: Beware of Texting Applicants
|
09/21/2015
|
By: Donald Berner
|
For
most
somewhat
technologically
adept
members
of
society,
the
use
of
text
messages
to
conduct
business
has
become
somewhat
common.
It
is
an
easy
and
quick
means
of
communication.
It
is
often
viewed
more
informally
than
an
email
or
other
written
correspondence.
Putting
aside
all
the
standard
warnings
about
the
use
of
text
messages
for
business
purposes,
HR personnel
must
now
be
wary
of
other
more
scary
concerns.
A
human
resources
manager
in
the
Chicago
area
recently
reported
receiving
nude
selfies
from
an
applicant
after
making
a
conditional
offer
of
employment
to
the
individual.
As
the
story
goes,
the
man
indicated
they
were
accidentally
sent
to
the
wrong
person.
This
does
highlight
the
danger
of
using
text
messaging
for
official
workplace
communications.
My
guess
is
the
HR manager
and
the
candidate
had
exchanged
relevant
work-related
texts. This
led
to
the candidate
confusing
the
phone
numbers
when
sending
his
photos.
So
next
time
you
pick
up
your
phone
and
contemplate
texting
someone
about
work-related
issues,
think
twice.
Maybe it
would
be
a
better
idea
to
send
an
email
instead.
|
|
Amputation Emphasis Program Gets Update
|
08/19/2015
|
By: Donald Berner
|
This
summer
OSHA updated
its
national
emphasis
program
designed
to
reduce
the
occurrence
of
amputations
in
the
workplace.
The
directive
sets
out
a
number
of
program
requirements
as
well
as
adding
a
number
of
new
manufacturing
industry
groupings
to
the
scope
of
the
program.
Here
are
a
few
highlights
from
the
directive:
- For
worksites
newly
covered
by
the
program,
OSHA is
required
to
engage
in
outreach
efforts
to
the
employer
prior
to
conducting
an
inspection
under
the
program.
- Facilities
with
an
amputation
in
the
last
five
years
can
be
added
to
the
list
of
target
entities
under
the
program. In
other
words,
if
your
facility
is
not
covered by
the
emphasis
program,
but
has
had
an
amputation,
OSHA can add
you
to
the
list
of
targets
for
random
inspection.
- The
new
directive
utilizes
the
NAICS code
system
as
opposed
to
the
old
SIC code system. This
change
will
result
in differences
in
the
master
list
of
potential
employer
targets
for inspection.
You
can
find
the
list
within
the
directive
on
OSHA's
website
here.
For
employers
falling
within
the
industry
listing
contained
in
the
directive,
your
facility
is
on
a
list
OSHA will
target
for
random
inspections.
It
is
well
worth
your
time
to
take
a
closer
look
at
your
machinery
that
presents
an
amputation
risk.
As
they
say
--
an
ounce
of
prevention
is
worth
a
pound
of
cure.
|
|
DOL "Spouse" Rule on Hold in Four States
|
04/20/2015
|
By: Donald Berner
|
The DOL recently
issued
a
final
rule
modifying
the
definition
of
spouse
under
the
FMLA. The
change
would
recognize
a
same-sex
spouse
for
purposes
of
the
FMLA based
on
where
the
celebration
of
the
marriage
occurred
as
opposed
to
where
the
employee
lives. Shortly
after
the
issuance
of
the
rule,
the
states
of
Texas,
Louisiana,
Arkansas,
and
Nebraska
filed
for
and
obtained
a
temporary
injunction
blocking
the
rules
application
in
those
states.
The
DOL presently
intends
to
enforce
the
rule
as
written
in
the
other
46
states
not
participating
in
the
filing.
Stay
tuned
for
further
developments.
|
|
H-1B Cap Update for 2016
|
04/07/2015
|
By: Donald Berner
|
USCIS announced
the
cap
for
fiscal
year
2016
(start
date
of
October
1,
2015)
has
been
reached.
For
all
those
submitting
applications
for
an
H-1B,
a
lottery
will
be
conducted
to
choose
the
applications
to
be
considered
for
the
85,000
slots.
The
lottery
process
is
likely
to
take
several
weeks
as
USCIS
processes
the
applications
and
conducts
the
random
selection
process.
Stay
tuned
and
keep
your
fingers
crossed.
|
|
Work Authorization for H-4 Visa Holders
|
04/03/2015
|
By: Donald Berner
|
The
USCIS announced
recently
that
certain
H-4
visa
holders
(dependents
of
H-1B
visa
holders)
will
become
eligible
to
receive
work
authorization.
This
new
rule
takes
effect
on
May
26,
2015
and
is
limited
to
a
specific
category
of
H-4
visa
holders.
If
the
H-4
visa
holder's
spouse
has
an
approved
I-140
(permanent
resident
application)
or
has
an
H-1B
extension
in
place
beyond
the
six-year
limit
for
H-1B
status,
the
H-4
visa
holder
can
apply
for
and
receive
an
employment
authorization
document
to
allow
them
to
work.
This
is
a
significant
change
for
the
dependents
of
those
individuals
pursuing
permanent
residence
as
it
will
allow
them
the
opportunity
to
obtain
employment
as
well.
Keep
in
mind,
however,
that
this
rule
has
a
very
limited
application
and
does
not
allow
all
H-4
visa
holder's
to
obtain
employment
authorization.
If
you
qualify
under
this
rule,
now
is
the
time
to
begin
preparing
the
application
for
employment
authorization
to
be ready
to
file
on
May
26th
when
the
new
rule
takes
effect.
|
|
NLRB "Quickie Election Rule" Faces Congressional Attack
|
03/05/2015
|
By: Donald Berner
|
The
NLRB election
rules
set
to
take
effect
on
April
14th
face
a
court
challenge
by
U.S.
Chamber
of
Commerce
and now
face
a
potential
legislative
challenge
as
well.
The
Senate
passed
a
resolution
designed
to
block
the
NLRB's
implementation
of
the
new
rules.
A
similar
measure
is
expected
to
be
considered
in
the
House
in
the
next
week
or
two.
There
is
no
guarantee
that
these
legislative
efforts
will
have
an
impact
on
the
NLRB
election
rules.
With
just
a
month
or
so
to
go
until
implementation
employers
should
stay
tuned
to
see
if
any
of
the
challenges
are
able
to
derail
the
rule.
|
|
Top Ten Most Frequently Cited OSHA Standards for FY2014
|
02/12/2015
|
By: Donald Berner
|
Here
is
a
little
top
ten
list
fun
on
this
pre-Valentine's
Day
Thursday. I
spent
way
too
much
time
earlier
this
week
helping
my
4th
grade
daughter
put
together
her
Valentine's
Day
box
for
school
and
I'm
sure
several
of
these
standards
were
violated
in
my
kitchen.
Without
further
ado
here
is
the
list . .
.
10. Electrical
systems
design
(good
news
here
for
our
project
--
it
was
super low
tech
so
no
chance
of
a
violation
here)
9.
Machine
guarding
(the
scissors
I
used
to
cut
the
shoe
box
should
have
been
guarded
or
at
least
my
fingers
believe
that
to
be
true)
8.
Electrical
wiring
methods
7.
Ladders
(I'm
sure
my
small
two
step
ladder/stool I
used
to
get
to
the
top
shelves
in
the
pantry
for
construction
paper
violate
something
here)
6.
Lockout/tagout
5.
Powered
industrial
trucks
(thankfully
we
didn't
need
a
lift
to
get
the
box
out
the
door
for
delivery
to
school)
4.
Respiratory
protection
(the
smell
of
glue
sticks
and
markers
in
the
air
surely
required
some
form
of
protection)
3.
Scaffolding
2.
Hazard
communication
(anytime
I
work
on
an
artistic
related
project
somebody
should
be
warning
the
rest
of
the
house)
and
the
number
one
most
cited
standard
.
.
.
1.
Fall
protection
(thankfully
the
table
top
isn't
high
enough
to
qualify
as
a
fall
hazard
although
I
did
drop
quite
a
few
things
if
that
counts)
For
all
of
you
that
have
some
safety
responsibilities,
this
list
is
a
good
starting
point
for
thinking
about
the
types of
issues
you
might
have
present
in
your
workplace.
|
|
Deferred Action Program Expansion Kicks Off
|
02/12/2015
|
By: Donald Berner
|
The
first
of
the
expanded
immigration
benefits
granted
by
President
Obama's
executive
action
is
slated
to
begin
processing
applications
next
week.
The
Deferred
Action
for
Childhood
Arrivals (DACA)
program
in
its
new
expanded
form
will
provide
benefits
to
a
wider
range
of
potential
applicants. This
expansion
is
likely
to
lead
to
a
new
wave
of
individuals
seeking
deferred
action
related
benefits
which
includes
a
work
authorization
document
to
allow
these
individuals
to
work
legally
in
the
U.S.
This
is
likely
to
lead
to
another
wave
of
your
employees
receiving
new
work
authorization
documents
later
this
year.
As
a
reminder,
DACA
is
for
those
individuals
that
entered
the
U.S.
prior
to
reaching
age
16.
The
DACA
program
has
been
modified
to
allow
individuals
of
any
age
to
apply
so
long
as
they
meet
the
requirement
of
having
entered
the
U.S.
prior
to
age
16
and
have
lived
in
the
U.S.
continuously
since
January
1,
2010 (the
prior
version
of
the
program
required
continuous
residence
since
June
15,
2007).
|
|
"Like a Girl" Superbowl Commercial
|
02/02/2015
|
By: Donald Berner
|
During
last
night's
Superbowl,
the
P&G
commercial
"Like
a
Girl"
caught
my
attention.
It
was
an
interesting
play
on
how
the
phrase
"Like
a
Girl"
somehow
represents
doing
a
task
poorly
or
as
the
commercial
shows
us
in
a
not
so
athletic
way.
From
an
employment
law
standpoint,
the
idea
that
"Like
a
Girl"
represents
a
weak
or
poorly
performed
action
is
just
the
type
of
approach
that
will
get
employers
into
hot
water.
So
on
this
post-Superbowl
Monday
morning,
give
a
thought
to
what
"Like
a
Girl"
might
mean
to
you.
If
you
buy
into
the
stereotypes
portrayed
in
the
commercial,
you
are
likely
to
be
exposing
your
company
to
liability
at
some
point
down
the
road. As
an
HR professional,
if
you
have
managers/executives
at
your
company
that
buy
into
the
"Like
a
Girl" stereotype,
its
only
a
matter
of
time
until
those
same
managers/executives find
themselves
on
the
wrong
side
of
a
gender
based
discrimination
claim
or
concern.
Now might
be
a
good
time
to
remind your
management team
of
the
perils
of
discrimination
and
your
company's
policies
against
the
same.
|
|
Immigration Reform Update
|
01/27/2015
|
By: Donald Berner
|
Now
that
the
State
of
the
Union
address
is
in
the
rear-view
mirror,
it's
a
good
time
to
peek
in
on
just
where
things
are
at
with
respect
to
immigration
reform.
As
you
might
recall,
President
Obama
announced
a
series
of
changes
he
intended
to
implement
by
Executive
Order
in
November
of
2014
(read
about
them
here.)
So
just
where
are
things
with
respect
to
all
these
changes?
The
answer
is
a
simple
one
--
UNDER CONSTRUCTION.
For
those
expecting
immediate
change,
immigration
reform
has
been
a
bit
of
a
sore
subject.
As
you
will
remember,
comprehensive
immigration
reform
has
been
a
topic
of
discussion
throughout
President
Obama's
presidency.
In
fact,
Congress
was
debating
comprehensive
immigration
reform
following
the
election
cycle
in
2012.
The
key
takeaway
is
that
while
immigration
reform
gets
a
lot
of
discussion
and
press,
actual
progress
is
hard
to
come
by
and
slow
to
arrive.
With
that
said,
deferred
action
related
information
is
likely
to
arrive
in
February.
In
addition,
the
new
deferred
action
program
targeted
at
parents
of
children
born
in
the
U.S.
will
likely
arrive
in
the
late
spring
or
early
summer
(May/June).
What
will
be
interesting
to
watch
is
how
these
upcoming
executive
changes
will
motivate
Congress
to
act.
So
while
things
are
likely
to
remain
quiet
in
early
2015,
expect
immigration
reform
to
be
a
hot
topic
again
as
we
move
towards
spring.
As
always,
stay
tuned.
|
|
DOL Continues to Add States to Employee Misclassification Initiative
|
01/26/2015
|
By: Donald Berner
|
With
the
addition
of
Wisconsin
last
week,
the
Department
of
Labor
(DOL)
now
has
19
states
participating
in
the
collaborative
effort
to
reduce
the
misclassification
of
employees
as
contractors.
The
DOL's
initiative is
a
concerted
effort
to
investigate
and
pursue
companies
that
misclassify
employees
as
contractors
to
avoid
various
tax
and/or
benefit
burdens.
Over
the last
three
to
four
years,
the initiative
has
resulted
in a
significant number of
companies
being
investigated
by
the
DOL (or
a
state
partner)
and
the payment
of
significant
back pay
amounts
to
employees.
If
your
company
makes use
of
independent
contractors
(contract
labor),
you
should
carefully
review
these
arrangements
to
ensure they
are
truly
contractors
and
not
employees.
Correcting
these
issues before
a
government
investigation
is
almost
certain
to
be
better
for
your
company.
|
|
Court Invalidates DOL Change to Companionship Exemption
|
01/22/2015
|
By: Donald Berner
|
Last
week
a
federal
judge
invalidated
the
Department
of
Labor's
(DOL)
proposed
change
to
the
companionship
exemption
under
the
Fair
Labor
Standards
Act.
The
change
in
the
rule
was
expected
to
cause
the
majority
of
home
health
workers
to
no
longer
be
exempt
and
thus
subject
to
the
minimum
wage
and
overtime
rules.
At
issue
was
how
the
DOL
defined
companionship
in
the
rule.
The
primary
change
at
issue
was
eliminating
the
exemption
for
those
home
health
care
workers
that
spend
more
than
20%
of
their
time
on
personal
care
related
tasks.
These
tasks
include
things
like
bathing,
dressing,
cooking,
shopping,
cleaning,
etc.
In
most
cases,
these
tasks are
a
significant
portion
of
what
home
health
care
workers
do
to
assist
their
clients. It
is
now
in
the
DOL's
court
to
decide
whether
to
appeal
the
decision.
Stay
tuned.
|
|
Termination Case Goes South
|
01/20/2015
|
By: Donald Berner
|
A
recent
decision
in
a
Texas
federal
court
case
highlights
for
employers
the
dangers
of
a
sloppy
termination
process.
The
basic
story
is
an
employer
terminated
the
employment
of
a
55
year
old
employee
for
having
a poor
attitude
and
poor
work
performance.
The
employee's
story
differed
in
that
he
claims
he
met
all
requirements
and
his
supervisor
harassed
him.
The
parties
ended
up
in
litigation
and through
the
discovery
process
the
employer's
termination
process
began
to
unravel.
The
employer's
basis
for
the
termination
came
into
doubt
when
the
supervisory
team
could
not
identify
who
made
the
decision
to
terminate
the
employee.
Multiple
supervisors
pointed
in
different
directions
as
to
the
identity
of
the
person
making
the
decision.
In
addition,
the
employer
failed
to
follow
its
own
progressive
discipline
policy
with
respect
to
the
employee.
These
flaws
in
the
termination
process
resulted
in
the
court
providing
the
employee the
opportunity
to
present
his
case
to
the
jury
at
a
trial.
This
outcome
is
a
significant
loss
for
the
employer
and
will
likely
result
in
the
employer choosing
to settle
the
case
with
the
employee
rather
than
go
forward
to
a
trial.
Looking
back at
the facts
of
the
Texas
case,
there
are
a
couple
simple
and obvious
lessons
for
other
employers.
First,
ensure
in
any
termination of
employment
that
you
follow
your
own company
policies/procedures.
If
you
fail
to
follow
your
own
policies/procedures
a
court
or agency
will
doubt
the truthfulness
of
story
you
tell
regarding
the
termination. Second,
make
sure
your
management
team
is
on
the
same
page
with
the
decision-making
process.
If
Continue Reading...
|
|
New OSHA Reporting Rule Goes Into Effect
|
01/16/2015
|
By: Donald Berner
|
Effective
January
1,
2015,
the
new
OSHA
incident
reporting
rule
took
effect.
The
rule
change
expands
the
types
of
incidents
employers
are
required
to
report
to
OSHA.
The
prior
rule
required
employers
to
report
a
work-related
fatality
or
work-related
hospitalization
of
three
or
more
employees.
The
rule
has
been
modified
to
require
the
reporting
of
any
work-related
fatality,
work-related
hospitalization
of
one
or
more
employees,
all
work-related
amputations,
and
any
work-related
loss
of
an
eye.
These
new
rules
significantly
lower
the
threshold
for
reporting
incidents
to
OSHA.
The
result
of
these
changes
will
be
an
increase
in
the
number
of
incidents
that
an
employer
is
required
to
report
to
OSHA.
Employers
should
make
note
of
the
lower
threshold
on
hospitalizations
and
the
addition
of
the
amputation
and
eye
loss
requirements.
|
|
NLRB Election Rule Challenged
|
01/13/2015
|
By: Donald Berner
|
As
most
of
you
are
aware,
the
National
Labor
Relations
Board
(NLRB)
recently
issued
a
rule
changing
the
process
for
representation
election
proceedings.
The
rule
changes
essentially
accelerate
the
process
and
is
a
favorable
change
for
unions.
This
is
the
second
time
the
NLRB
has
attempted
to
implement
this
new
representation
election
rule.
The
last
time
the NLRB
attempted
to
implement
the
rule
(2011),
the
U.S.
Chamber
of
Commerce
filed
a
lawsuit
that
ultimately
resulted
in
the
rule
being
rescinded
due
to
technical
issues
in
how
the
NLRB
adopted
the
rule.
Now
that
the
NLRB
has
reintroduced
the
rule,
the
U.S.
Chamber
of
Commerce
has
filed
suit
again
in
an
attempt
to
block
the
implementation
of
the
rule. This
time
around
the
rule
will
need
to
be
challenged on
its
merits
because
the technical
issue
from
the
2011
implementation
will
not
be
an
issue. These
challenges
will
resolve
around
due
process,
freedom
of
speech,
and
the
intent
of
the
National
Labor
Relations
Act.
Stay
tuned
as
the
litigation
proceeds
forward. The
rule
is
set
to
take
effect
on
April
1.
|
|
H-1B Season is Approaching
|
01/09/2015
|
By: Donald Berner
|
Now
that
the
calendar
has
turned
to
2015
it
is
time
to
begin
considering
the
rapid
approach
of
the
H-1B
filing
window.
The
H-1B
visa
is
the
most
commonly
utilized
work
visa
for
employers.
While
USCIS
has
not
issued
any
information
yet
with
respect
to
the
filing
window
and
lottery
process,
employers
should
expect
2015
to
be
no
different
than
the
last
couple
of
years.
The
H-1B
cap
for
the
2016
fiscal
year
(starts
on
October
1,
2015)
will
be
hit
in
the
initial
filing
window.
This
means
employers
seeking
a
H-1B
visa
for
an
employee
will
need
to
be
prepared
to
file
the
application
by
April
1,
2015,
to
participate
in
the
lottery
for
a
visa.
As
a
word
of
warning,
if
you
have
individuals
working
for
you
that
are
utilizing
OPT
(Optional
Practical
Training)
this
blog
posting
applies
to
you.
If
these
individuals
haven't
asked
yet,
expect
them
to
be
asking
soon
about
an
H-1B
filing
in
this
upcoming
filing
window.
Considering
the
need
to
file
by
April
1,
2015,
it
isn't
too
early
to
start
talking
through
these
issues
and
planning
for
any
filings.
|
|
NLRB Opens Company Email Up for Employee Use in Organizing Campaigns
|
01/07/15
|
By: Donald Berner
|
In
a
recent
decision,
the
National
Labor
Relations
Board
(NLRB)
reversed
its
longstanding
rule
regarding
employee
use
of
corporate
email
systems
for
the
purpose
of
union
organizing.
The
historical
rule
allowed
employers
to
prohibit
the
use
of
its
email
systems
so
long
as
it
did
so
on
a
non-discriminatory
basis.
This
is
no
longer
the
case.
The
NLRB
reversed
direction
last
month
changing
the
rule.
The
new
rule
requires
employers
to
allow
employees
to
use
corporate
email
systems
to
engage
in
union
organizing
activities.
The
use
must
be
during
non-working
hours
and
cannot
interfere
with
workplace
discipline
or
production.
So
long
as
employees
stay
within
these
vague
boundaries,
employers
must
allow
use
of
email
for
these
purposes.
It
is
likely
your
Company's
electronic
communications
policies
do
not
permit
this
type
of
usage.
It
might
be
time
for
a
revision
of
the
policy.
At
a
minimum,
you
need
to
ensure
no
discipline
is
issued
to
an
employee
for
this
type
of
usage
even
if
your
Company's
policy
prohibits
such
usage.
|
|
Court of Appeals Weighs in on H-2B Wage Rule
|
12/08/2014
|
By: Donald Berner
|
In
a
recent
decision,
the
U.S.
Court
of
Appeals
for
the
Third
Circuit
rejected the
Department
of
Labor's
(DOL) 2009
guidance
regarding
the
use
of
private
employer
surveys
for
determining
prevailing
wages
under
the
H-2B
program.
The
Court
found
that
the
usage
of
the
private
wage
surveys
had
the
effect
of
depressing
wages
which
harms
H-2B
workers
and
U.S.
workers.
The
Court
also
found
a
harm
to
U.S.
employer
that
could
not
afford
to
do
a
private
wage
survey
and
were
required
to
use
DOL's
wage
data
which
was
higher
than
the
private
survey
data. The
likely
effect
of
the decision
will
be a
push
to
the use
of
the DOL's
wage
data
rather
than
private
surveys.
The
decision
is
just
another
step
down
the
windy
and
painful
road
of
prevailing
wage
complications
for
H-2B
employers.
Stay
tuned
as
DOL
plans
to
engage
in
further
rulemaking
on
the
H-2B
prevailing
wage
front.
|
|
Corporate Media Policy Runs Afoul of the National Labor Relations Act
|
12/03/2014
|
By: Donald Berner
|
Does
your
Company
have
a
policy
prohibiting
employees
from
speaking
to
media
representatives
about
the
Company?
If
so,
your
policy
might
be
unlawful
under
the
National
Labor
Relations
Act (NLRA).
As
a
short
review,
the
NLRA
protects
the
rights
of employees to
engage
in
concerted
activities
for
their
mutual
aid
or
protection
with
respect
to
their
terms
and
conditions
of
employment.
In
simple
form,
anything
an
employer
does
to
interfere
or
prevent
employees
from
joining
together
to
address
workplace
concerns
can
run
afoul
of
the
NLRA.
In
a
recent
decision,
an
Administrative
Law
Judge
(ALJ)
found
a
Company
media
policy
overbroad
and
prevented
employees
from
engaging
in
protected
activities
under
the
NLRA.
The
particular
policy
simply
stated
that
if
contacted
by
the
media
that
"no
information
exchange
is
permitted"
unless
done
so
by
the
specifically
appointed
Company
spokesperson.
While
the
Company
tried
to
assert
the
policy
did
not
expressly
prohibit
employees
from
engaging
in
NLRA
protected
activity,
the
ALJ
noted
the
terms
of
the
policy
were
"ill
defined"
and
"the
guideline,
as
written,
could
also
encompass
and
prohibit
communications
about
wages,
labor
disputes,
and
other
terms
and
conditions
of
employment."
The
ALJ followed
a
prior
case
from
2008
in
which
a
similar
corporate
media
policy
was
struck
down
as
unlawful. What
is
important
to
note
is that
in
both cases
the
employer
argued
a
significant
need
to
limit
media
communications
to
the
centralized
corporate spokesperson
for
official
comments
to
the
media
for a
range
of
reasons. These
arguments
failed
and
are
likely
to
continue
to
fail
in
the
immediate
future.
The
policies
Continue Reading...
|
|
President Obama to Announce Executive Action on Immigration
|
11/20/2014
|
By: Donald Berner
|
President
Obama
is
scheduled
to
announce
his
executive
action
on
immigration
tonight
in
a
nationally
televised
speech.
The
details
of
the
plan
will
become
more
clear
in
the
coming
days;
however,
the
early
information
seems
to
indicate
an
expansion
of
the
already
existing
deferred
action
program. This
latest
executive
action
(or
frankly
inaction)
will
expand
coverage
to
another
group
of
illegal
aliens
estimated
to
number
around
five
million.
Putting
aside
all
the
rhetoric
surrounding
the
action,
President
Obama
will
simply
be
promising
all
those
in
the
eligible population
(those
living
in
the
U.S.
for
at
least five
years) that
apply
to
not
deport
them.
In
addition,
those
individuals
will
be
able
to
obtain
a
work
authorization
document
which
will
allow
them
to
legally
work
in
the
United
States.
Stay
tuned
tonight
and
in
the
coming
days
as
we
get
a
better
understanding
of
the
full
details
of
the
proposal.
The
key
thing
to
remember
is
to
tune
out
the
political
rhetoric
from
all
sides
and focus
on
the
facts
and
details
of
the
executive
action.
From
all
indications,
President
Obama
won't
be
doing
anything
different
from
what
was
already
done
several
years
ago
when
the
deferred
action
program
was
launched.
|
|
EEOC Concern About Targeted Job Advertisements
|
11/19/2014
|
By: Donald Berner
|
Does
your
company
utilize
social
media
outlets
to
recruit
employees?
If
so,
you
might
take
a
moment
to
consider
the
EEO
risks
of
utilizing
targeted
advertising
the
social
media
sites
utilize
on
your
behalf.
If
your
social
media
hiring
is
being
targeted
to
a
narrow
set
of
social
media
users
it
could
leave
you
exposed
to
an
accusation
of
discriminatory
hiring
practices.
The
possibility
that
your
ads
are
being
targeted
at
a
specific
age,
race,
gender,
or
ethnic
population
could
attract
the
EEOC's
attention.
This
risk
can
be
particularly
high
if
your
hiring
is
heavily
utilizing
targeted
advertisements
of
this
nature.
|
|
EEOC Catches Grief Over Wellness Plan Litigation
|
11/18/2014
|
By: Donald Berner
|
The
political
maneuvering
following
the
mid-term
elections
has
begun.
As
discussed
in
a
prior
post
(click
here),
the
expectation
of
more
Congressional
"oversight"
continues
to
become
a
reality.
In
a
recent
Senate
hearing, the
EEOC Commissioner
and
the
EEOC General
Counsel
were
roughed
up
a
bit
over
the EEOC's
recently
filed
wellness
plan
litigation. (Click here for
Jason's
prior
article
on
the
litigation)
The
clear
message
coming
out
of
the
Senate
hearing
was
that
the
EEOC
should
think
very
carefully
before
engaging
in
the
course
of
filing
litigation
against
employers
as
it
relates
to
wellness
plans. One
of
the
criticisms
directed
at the
EEOC was the
lack
of
ADA guidance
as
it
relates
to
wellness
plans. Look
for
this
to
get
further
attention
as
the
new legislature
convenes
in
2015.
|
|
The Lessons of the Recent Ebola Outbreak
|
11/12/2014
|
By: Donald Berner
|
Now
that
the
U.S.
has
been
officially
declared
Ebola-free,
it's
a
good
time
to
review
some
key
takeaways
from
the
treatment
and
quarantine
of
Ebola.
These
lessons
can
be
applied
in
just
about
any
context.
Whether
facing
a
deadly
disease
like
Ebola
or
a
major
workplace
change
that
feels
like
an
Ebola
outbreak.
1.
Educate
and
Inform:
Many
employee
fears
can
be
addressed
with
timely
education
and
information.
Ebola
news
coverage
was
unavoidable
and
as
a
result,
there
seemed
to
be
a
disproportionate
fear
of
contracting
and
transmitting
the
disease
in
the
U.S.
News
coverage
aside,
statistics
don't
lie.
The
CDC
considers
the
risk
of
a
U.S.
outbreak
to
be
very
low.
There
appear
to
have
been
ony
two
cases
of
Ebola
acquired
in
the
U.S.
(both
were
healthcare
workers
in
Dallas).
Both
recovered
and
have
been
declared
Ebola-free.
The
other Ebola
cases
were
individuals
that
acquired
Ebola
outside
the
U.S.
2.
Identify
and
Focus
on
Real
Risks:
Nothing
incites
fear
and
panic
more
than
misinformation. The
Ebola
outbreak
gives
employers
an
opportunity
to
remind
employees
of
more
realistic
workplace
concerns.
Ebola
is
not
easily
contracted
and
infection
requires
direct
contact
wtih
an
Ebola
patient
while
the
person
is
exhibiting
symptons.
While
the
spread
of
Ebola
in
the
workplace
is
unlikely,
the
characteristics
of
Ebola
mimic
a
much
more
common
plague
in
the
U.S.
The
symptoms
include
fever,
headache,
muscle
pain,
weakness,
fatigue,
diarrhea,
vomiting,
and
stomach
pain.
These
sound
very
familiar.
When
I hear
these
symptoms
I
think
flu
bug.
Take
this
as
an
Continue Reading...
|
|
Happy Veteran's Day
|
11/11/2014
|
By: Donald Berner
|
Today
is
a
great
day
to
remember
the
sacrifices
made
by
our
veterans.
Stop
and
take
a
moment
to
thank
a
veteran
for
their
service
to
our
country.
The
freedoms
we
all
enjoy
on
a
daily
basis
are
provided
by
those
who
are
currently
serving
and
those
that
have
served
in
the
past.
For
employers,
Veteran's
Day
is
a
great
time
to
reflect
on
your
employment
policies
and
practices
to
ensure
compliance
with
the
Uniformed
Services
Employment
and
Reemployment
Rights
Act
(USERRA).
For
more
reading
on
the
topic
check
out Department
of
Labor
Fact
Sheet
on
USERRA
located
here.
|
|
The Impact of Election Day 2014
|
11/06/2014
|
By: Donald Berner
|
The
elections
of
2014
have
come
and
gone
in
most
jurisdictions
(there
are
some
runoff
elections
still
pending).
The
results
for
Washington
will
be
a
divided
government
with
Republicans
holding
the
House
and
Senate
and
Democrats
holding
the
White
House. How
this
will
play
out
in
the
next
two
years
is
anyone's
guess.
The
most
likely
obvious
impact
will
be
the
need
for
both
sides
to
compromise
to
move
legislation
forward.
This
should
hold
the
pace
of
dramatic
change
down
quite
a
bit.
Here
are
a
few
things
to
keep
an
eye
on:
1.
Immigration
reform
efforts
might
be
one
of
the
first
testing
grounds
for
this
new
relationship.
President
Obama
has
vowed
to
take
action
via
Executive
Order
while
Congress
seems
to
bristle
at
the
idea.
Both
sides
seem
to
be
preparing
to
"visit"
about
the
issues.
This
might
be
the
year
we
see
comprehensive
immigration
reform
move
forward.
Remember
several
years
ago
the
Senate
passed
a
comprehensive
reform
bill.
2.
Administrative
agencies
continuing
to
push
forward.
Over
the
last
several
years
the
Department
of
Labor, the
National
Labor
Relations
Board, the
Occupational
Safety
and
Health
Administration
and
the
Equal
Employment
Opportunity
Commission have
all pushed
forward
with
a
strong
regulatory
agenda.
These
agencies
are
able
to change
the
course
and
direction of
labor
and
employment
law
as
they
manage enforcement
of
existing
laws
and
regulations.
3. With
the likey continuation
of
agency
activity
expect
to
see
Congress
increase
its
"oversight"
of
these
agencies. The
push
back
against
the
agencies
will
come
via
budgetary
actions
and/or
increased
hearings
and
scrutiny
of
actions.
From
a
legislative
Continue Reading...
|
|
A Freaky Non-Compete Non-Sequitur
|
11/4/2014
|
By: Donald Berner
|
Recently,
a
restaurant
made
headlines
for
something
other
than
its
food. A
restaurant employee
leaked
a
version
of
the store's
non-compete
agreement
and
the
document
raised
some
eyebrows.
Specifically,
the
leaked
document
provided
that employees
would
not
work
at
any
restaurants
within
three
miles
of
a
store if
the
other
restaurant
"derives
more
than
10%
of
its
revenue
from
selling
submarine,
hero-type,
deli-style,
pita
and/or
wrapped
or
rolled
sandwiches.:
Although
there
was no
discussion
about
whether
the
store ever
tried
to
enforce
the
non-compete
agreement,
it
does
raise
some
interesting
questions
for
employers
to
consider
when
it
comes
to
restrictive
covenants
like
a
non-compete.
The
first
question
is
most
likely
whether
the
agreement
is
enforceable.
Like
most
legal
questions,
the
answer
is
"it
depends".
In
order
to
reach
a
more
definitive
answer
there
are
a
number
of
questions
to
ask. In
what
state
was
the
store
located?
In
what
state
is
the
dispute
arising?
Was
it
a
delivery
driver, food
preparation
staff,
hostess,
waitress, or
store
manager
that
signed
the
agreement?
The
answers
to
these
types
of
questions
can
make
a
big
difference
and
can
determine
whether
the
agreement
is
enforceable.
Another
common
question
related
to
a
non-compete
agreement
is
why? Employees
who
are
asked
to
sign
non-compete
agreements
frequenly
ask
employers
why
such
an
agreement
is
necessary. A
court considering
enforcement
of a
non-compete
is
likely
to wonder the
same
thing.
While employer
responses
may
vary,
typcially
the
goal
is
to
protect
confidential
information,
trade
secrets, customer
lists,
etc. The application
of
the
non-compete to
the
types
of
concerns
can
vary
dramatically
depending
on
the
employee
and
the
specific
position.
Employers
should
Continue Reading...
|
|
Facebook “Like” Protected Concerted Activity
|
09/19/2014
|
By: Donald Berner
|
On
August
22,
2014,
the
NLRB
found
that
a
Connecticut
sports
bar
illegally
terminated
employees
that
criticized
their
employer’s
handling
of
payroll
taxes
on
Facebook. One
employee
“liked”
a
comment
posted
by
a
former
employee
that
said
“Maybe
someone
should
do
the
owners
of
Triple
Play
a
favor
and
buy
it
from
them. They
can’t
even
do
the
tax
paperwork
correctly!!!
Now
I
OWE
money
….
Wtf!!!!” The
other
added
to
the
post,
stating
“I
owe
too. Such
an
asshole
[referring
to
the
owner].” The
NLRB
rejected
the
employer’s
argument
that
such
behavior
was
disloyal
and
disparaging
beyond
the
protection
of
the
act. Rather,
the
Board
found
this
activity
protected
under
the
NLRA.
The
Board
also
found
in
a
2-1
decision
that
the
bar’s
“Internet/Blogging”
policy
interfered
with
employees
rights
under
the
NLRA.
The
policy
banned
“inappropriate
discussions
about
the
company,
management,
and/or
co-workers.”
Such
an
imprecise
ban
could
reasonably
be
understood
by
employees
to
prohibit
NLRA-protected
activity.
|
|
Similar in Their Ability or Inability to Work
|
09/11/2014
|
By: Donald Berner
|
Although
pregnancy
is
not
a
disability
within
the
meaning
of
the
Americans
with
Disabilities
Act
(“ADA”),
according
to
the
EEOC’s
new
Enforcement
Guidance
under
the
Pregnancy
Discrimination
Act
(“PDA”),
pregnant
workers
must
be
treated
the
same
as
other
employees
who
are
similar
in
their
ability
or
inability
to
work. For
example,
if
an
employer
accommodates
a
disabled
worker’s
need
for
more
frequent
use
of
the
restroom
during
work
hours,
it
must
also
provide
this
option
to
pregnant
workers
in
need
of
more
frequent
restroom
breaks.
Additionally,
the
new
enforcement
guidance
states
that
employers
may
not
rely
on
policies
that
distinguish
between
employees
based
on
the
source
of
an
employee’s
limitation. For
example,
many
employers
offer
light
duty
work
to
workers
injured
on
the
job,
but
do
not
provide
this
benefit
for
workers
injured
off
duty. According
to
the
EEOC,
even
though
a
pregnant
worker’s
condition
did
not
arise
on
the
job,
she
must
be
given
light
duty
on
the
same
basis
as
employees
injured
on
the
job.
|
|
How far does the PDA reach?
|
09/09/2014
|
By: Donald Berner
|
It
is
not
an
uncommon
perception
to
assume
the
Pregnancy
Discrimination
Act
(“PDA”)
protects
women
who
are
pregnant
or
recently
gave
birth. The
enforcement
guidelines,
however,
clarify
that
the
PDA
is
not
so
limited. Rather,
the
list
of
individuals
protected
by
the
PDA
includes,
all
women
who
are
currently
pregnant,
were
previously
pregnant,
are
intending
to
become
pregnant,
may
potentially
become
pregnant,
or
have
experienced
medical
conditions
related
to
pregnancy
or
childbirth. Essentially,
if
a
person
has
the
capability
of
becoming
pregnant,
regardless
of
intention,
or
has
ever
been
pregnant,
they
are
covered
by
the
PDA.
The
EEOC
provides
specific
examples
where
employers
may
be
found
to
have
violated
the
PDA. According
to
the
enforcement
guidance,
an
inference
of
discrimination
may
be
raised
where
an
employee
is
penalized
for
taking
time
off
from
work
to
undergo
a
surgical
impregnation
procedure. The
EEOC
also
states
that
an
employer
may
violate
the
PDA
by
providing
health
insurance
that
excludes
coverage
of
prescription
contraceptives.
Health
insurance
plans
must
cover
prescription
contraceptives
on
the
same
basis
as
prescription
drugs,
devices,
and
services,
used
to
prevent
the
occurrence
of
other
medical
conditions. Employers
are
not
required
to
offer
coverage
for
elective
abortions. But,
employers
may
not
terminate
an
employee
for
having
or
contemplating
having
an
abortion.
Additionally,
employers
may
not
discharge
female
employees
using
contraceptives
to
avoid
pregnancy.
|
|
Happy Labor Day!!!
|
09/02/2014
|
By: Donald Berner
|
We
hope
that
each
of
you
enjoyed
your
Labor
Day
holiday.
Now
that
school
is
back
in
full
swing
and
the
summer
has
come
to
an
end,
it
is
time
to
focus
on
the
short
period
between
now
and
year
end.
Most
employers
have
a
busy
HR
schedule
as
we
move
towards
the
end
of
the
year.
Now
is
a
good
time
to
step
back
and
consider
any
of
your
employment
practices
goals
before
that
busy
rush
to
year
end
begins.
Take
this
opportunity
to
look
over
your
HR
policies
and
practices
and
ensure
your
handbooks
are
up
to
date.
If
you
haven’t
trained
your
employees
on
your
anti-harassment
policies
in
sometime,
now
is
a
good
time
to
get
that
on
the
calendar
and
completed.
If
you
dig
a
little
deeper,
it
probably
wouldn’t
hurt
to
do
some
I-9
auditing
and
employee
classification
reviews.
As
they
say,
the
work
of
the
HR
professional
is
never
done.
|
|
Executive Order Protects LGBT Workers
|
08/12/2014
|
By: Donald Berner
|
President
Obama
signed
an
executive
order
extending
workplace
protections
to
lesbian,
gay,
bisexual,
and
transgender
(“LGBT”)
workers
in
the
federal
contracting
workforce. The
executive
order
amends
Executive
Order
11246,
which
protects
employees
working
for
federal
contractors
and
subcontractors
from
discrimination
on
the
basis
of
race,
color,
religion,
sex,
and
national
origin. The
Office
of
Federal
Contract
Compliance
Programs
(“OFCCP”)
will
issue
a
proposed
notice
of
rulemaking
later
this
year.
|
|
EEOC Delivers New Enforcement Guidance
|
08/05/2014
|
By: Donald Berner
|
Earlier
this
summer
the
Equal
Employment
Opportunity
Commission
(“EEOC”)
published
Enforcement
Guidance
for
“Pregnancy
Discrimination
and
Related
Issues.” The
guidance
addresses
pregnancy
discrimination
under
the
Pregnancy
Discrimination
Act
and
explains
how
pregnant
employees
are
not
excluded
from
the
protections
of
the
ADA,
despite
the
fact
that
“pregnancy
itself
is
not
a
disability.” Stay
tuned
for
more
details.
|
|
DOL Proposes Rule to Raise Minimum Wage for Federal Contract Workers
|
06/12/2014
|
By: Donald Berner
|
The
Department
of
Labor
issued
a
proposed
rule
raising
the
minimum
wage
for
employess
working
on
federal
government
service
and
construction
contracts to
$10.10
per
hour.
The
proposed
rule implements
Executive
Order
13658,
which
was
announced
by
President
Obama
on
February
12. The
Executive
Order
applies
to
new and
renewed
contracts
with
the
federal
government
after
January
1,
2015. The
proposed
rule
now
goes
through a
public
comment
period.
To
read
the DOL's press
release
click
here.
Stay
tuned for
further
developments
on
the
proposed
rule.
|
|
How About Lunch?
|
06/04/2014
|
By: Donald Berner
|
If
you
are
an
HR professional,
or
know
someone
who
is, we invite
you
to
join
us
at
any
one
of
our
2014
HR Box
Lunches
this
year.
This
is
a
chance for
you
to
join
us
for
lunch,
brush
up on
some
of
the top issues in
your
field,
and
earn
some
CLE.
Here
is
the
schedule:
The
NLRB
and
the
Non-Union
Employee: July
16,
2014
FMLA Basic: August
21,
2014
Religion
in
the
Workplace:
September
9,
2014
Employee
Benefits
Update: September
25,
2014
***TO BE DETERMINED: October
7,
2014
(Please
send
topic
suggestions
to
mknoblauch@foulston.com)
Union
Avoidance:
November
19,
2014
Wage
&
Hour
Update:
December
9,
2014
You
can
learn
more
information
and
sign
up
for
any
of
the
above
lunches
here.
We
hope
to
see
you
soon!
|
|
Foreign Student Employment
|
05/29/2014
|
By: Donald Berner
|
As
the
end
of
the
school
year
approaches
and
summer
begins,
employers
utilizing
the
services
of
foreign
students
as
employees
should
take
a
moment
to
review
the
work
authorization
of
those
individuals.
It
is
important
to
remember the
student's
presence
in
the
U.S.
doesn't
necessarily
mean
the
student
is
authorized
to
work.
In
addition,
those
students
with
work
authorization
may
have
an
expiring
work
authorization
which
is
equally
problematic
for
employers.
Foreign
students
in
the
U.S.
typically
obtain
work
authorization
through
one
of
two
vehicles
--
CPT
or
OPT.
CPT stands
for
curricular
practical
training
and
OPT stands
for
optional
practical
training.
The
authority
to
work
under
CPT
and
OPT
are
dramatically
different.
CPT
is
work
authorization
provided
through
the
university
for
a
specific
employer
for
a
limited
time
period
(typically
a
semester).
Think
of
CPT as
an
internship
while
going
to
school.
Also
remember
that
while
CPT has
a
short
approval
length, the
university
can
typically
provide
additional
semesters
of
CPT time.
OPT is
typically
used
by
students
upon
completion
of
a
degree
program.
Students
taking
OPT time
are
not
limited
to
a
specific
employer
and
receive
an
employment
authorization
document
allowing
work
at
any
employer.
OPT is
also
generally
for
a
twelve
month
period
and
in
most
cases
cannot
be
renewed/extended.
The
key
message for
employers
is
to
keep
an
eye
on
the
types
and
expiration
dates
for
work
authorization.
Allowing
a
student
to
continue
working
after
the
expiration
of
the
CPT
or
OPT
time
can
result
in
fines
for
employers
and
immigration
status
problems
for
the
student.
|
|
NLRB Election Process Under Review
|
05/08/2014
|
By: Donald Berner
|
The
NLRB
is
currently
conducting
public
meetings
concerning
proposed
changes
to
the
union
representation
election
process.
The
proposed
changes
to
the
process
stem
back
to
the
NLRB's
attempts
in
2011
to
change
the
representation
process.
The
NLRB's
effort
in
2011
came
to
end
after
the
final
rule
was
invalidated
by
the
federal
courts.
As
you
might
recall,
the
changes
proposed
in
2011
were
primarily
designed
to
assist
unions
and
to
hinder
employer
efforts
to
educate
impacted
employees.
Stay
tuned
for
further
developments.
To
read
the
NLRB
press
release
click
here.
|
|
H-1B Filing Season Approaching
|
03/04/2014
|
By: Donald Berner
|
As
the
weather
begins
to
warm-up
and
spring
arrives
so
does
the
H-1B
filing
season.
As
most
of
you
know,
the
H-1B
visa
program
comes
with
a
cap/quota
for
the
year.
The
new
allotment
of
numbers
under
the
quota
become
available
on
October
1,
2014.
The
filing
window
for
these
slots
opens
on
April
1,
2014.
With
the
demand
for
H-1B
visas
expected
to
exceed
the
quota,
the
USCIS will
conduct
a
lottery
drawing
in
mid-April
to
identify
which
applications
will
be
processed.
If
you
have
the
need
to
obtain
a
new
H-1B
visa
starting
in
2014/2015,
now
is
the
time
to
start
the
application
process.
Don't
delay.
|
|
What's in a Color???
|
02/12/2014
|
By: Donald Berner
|
A
pink
hard
hat.
Completely
harmless
on
its
own,
but
let's
put
the
pink
hat
in
context.
A
pink
hard
hat
is
provided
to
a
female
field
service
representative. The
field
rep
frequently
visits
work
sites
and
needs
to
wear
PPE,
including
a
hard
hat.
She
works
in
a
heavily
male
industry
and
is
one
of
the
few
females
working
in
the
field.
The
pink
hard
hat
is
said
to
be
a
sign
of
"inclusion"
making
the
field
rep
"part
of
the
team"
since
it
symbolizes
her
acceptance
by
the
male
employees
in
the
field.
She's
told
that
only
a
few
of
the
office
staff
(also
female)
have
pink
hard
hats
and
she
is
lucky
to
have
one.
So
what's
in
a
color?
The
color
of
this
hard
hat
is
not
just
coincidence.
It
is
gender
stereotyping
in
action.
Stereotyping
is
nothing
new;
it
is
an
age-old
way
for
people
to
categorize
information.
Stereotypes
are
not
inherently
negative
or
illegal
--
in
fact,
there
are
positive
associations
that
can
be
made.
With
that
said,
employers
should
be
extremely
wary
of
any
sort
of
mass
generalizations.
Stereotypes
can
cover
the
entire
spectrum
ranging
from
gender,
age,
race,
religion,
marital
status,
sexual
orientation,
national
origin
and
these
sort
of
biases
can
be
especially
costly
in
the
workplace.
Stereotyping
can
lead
to
a
variety
of
harms
including
poor
morale,
retention
difficulty,
lost
productivity
and
even
litigation.
At
its
core,
stereotyping
leads
to
the
creating
of
factions
with
the
workplace
thus
undermining
a
cohesive
work
environment.
As
Continue Reading...
|
|
EEOC FY2013 Data Shows Growth in EEOC Activity
|
02/05/2014
|
By: Donald Berner
|
The
EEOC recently
released
its
FY2013
enforcement
and
litigation
data
for
public review. The
data
shows
a
decline
in
the
total
number
of
charges
filed
with
the
EEOC as
compared
to
the
totals
for
2010,
2011
and
2012.
Of
note,
however,
is
the
growth
in
the
number
of
retaliation
charges
filed
as the
statistics
continue
to
show
a
growth
in
the
number
of
charges
based
on
retaliation
claims.
Employers
should
take
note
and
ensure
their
policies
and
procedures
address
retaliation
concerns. Furthermore,
employers
should
consider
additional
training
for
managers
as
it
relates
to
potential
retaliation.
Click
here
for
the
new
release
and
link
to
the
statistical
data.
|
|
Motivating Your Workforce
|
01/22/2014
|
By: Donald Berner
|
One
role
of
the
human
resources
staff
is
to
assist
the
leadership
team
with
all
things
related
to
employees.
A
lot
of
times
you
are
called
upon
to
take
part
in
unpleasant
situations
or
tasks.
As
a
result,
the
human
resources
team
is
often
looked
upon
as
a
negative
force.
There
are
other
areas
in
which
HR
can
provide
the
leadership
team
with
some
coaching.
One
of
these
areas
is
employee
motivation.
I read
an
interesting
story
related
to
employee
motivation
and
approaches
of
various
business
executives.
When
you
have
a
few
minutes
it
is
a
good
read.
Click
here
for
the
story.
|
|
OSHA Taking Comments on Electronic Submission of Injury and Illness Data
|
01/14/2014
|
By: Donald Berner
|
OSHA
has
proposed
an
amendment
to
the
recordkeeping
regulations
to
add
a
requirement
for
electronic
submission
of
injury
and
illness
information.
The
comment
period
for
this
proposed
change
has
been
extended
through
March
8,
2014.
Stay
tuned
as
this
proposed
change
works
its
way
through
the
regulatory
process.
|
|
EEOC Releases End of Year Report
|
12/17/2013
|
By: Donald Berner
|
The
EEOC released
its
fiscal
year
2013
report
earlier
this
week. The
EEOC's
overall
message
is
that despite
a
tough
year
with
furloughs
and
reduced
budgets,
the
agency
achieved
all
its
goals. In
2013,
the
EEOC reached
a
new
record
for
monetary
relief
obtained
on
behalf
of
claimants.
Piecing
together
the
various
numbers
throughout
the
report,
it
appears
that
over
half
of
the
monetary
relief
came
by
way
of
settlement
agreements
with
employers.
In
keeping
with
that
settlement
theme, the success
of
the
mediation
program
last
year
was
also
emphasized
in
the
report. To
view
the
full
report
click
here.
|
|
OSHA Adds Easy to Access Online Complaint Form
|
12/10/2013
|
By: Donald Berner
|
OSHA is
responsible
for
administering
whistleblower
complaints
for
a
variety
of
statutes.
Click
here
for
the
full
listing.
In
an
attempt
to
make
complaint
filing
easier,
OSHA
has
established
an
online
complaint
form.
Click
here
for
the
complaint
page.
Only
time
will
tell
whether
this
easy
access
will
lead
to
an
increase
in
complaints.
|
|
Holiday Party Fun
|
12/09/2013
|
By: Donald Berner
|
It
is
that
time
of
year
again.
Now
that
we
have
cleared
Thanksgiving,
we
are
into
the
homestretch
to
Christmas
and
the
New
Year.
As
they
say
-- "Tis
the
Season".
Well
it is
the
season for
the
annual
holiday
party
or
in
some
circles a
series
of parties
until
the
holidays
are
gone. Before
your company
holds
its
holiday
party,
take
a
quick
review
of
this
post
and
make
sure
you
are
all
set
in
the
HR office.
1.
Be
careful
with
the
alcohol.
If you
are
going
to
serve
alcohol do
your
best
to apply
some
sane
limits
upon
your
partygoers.
And
by
all
means
make
sure
that
before you
turn
off
the
lights
and
send
everyone
home
that
you
have
taken
care
of
providing
some
form of
transportation
to
those
that
failed
to
limit
themselves.
2.
It's
a
great
time
to shine
some
light
on
your
productive
work environment
policy
(anti-harassment). For
those
that
serve
alcohol
(see #1
above), harassment
concerns
may
rear
their
ugly
heads
at
the
holiday
party.
And
while
everyone
else
is
having
a
good
time,
keep
your
eye
out for problems
in
this
area
and step
in
before
it
gets
past
the
point
of
no return.
3.
If
you
have
employees
involved
in
any
of
the
setting
up
or
cleaning
up
beware
of
wage
and
hour
rules.
Remember,
employees
are
not
volunteers.
4.
Do
your
best
to
keep
the
various
religious
references
out
of
the
holiday
party.
Remember,
your
employee
group
is
diverse
and
what
might
be
acceptable
to
one
could
offend
another.
Keeping
an
eye
on
these
little
things
prior
to,
or
during,
the
holiday
party
can
help
avoid
Continue Reading...
|
|
Update on Immigration Reform
|
11/25/2013
|
By: Donald Berner
|
Following
the
summer
passage
of
a
comprehensive
reform
bill
by
the
Senate,
the
idea
of
immigration
reform
has
stalled
out
in
the
House.
After
several
months
of
delay,
the
House
has
resumed
discussion
of
immigration
at
some
level.
The
current
plan
in
the
House
appears
to
be
a
piecemeal
approach
to
the
various
concepts
found
in
the
Senate
bill
rather
than
a
comprehensive
approach.
This
strategy
should
result
in
a
slow
and
tedious
process
in
2014.
It
is
still
too
early
to
tell
whether
this
is
simply
a
delaying
tactic
or
a
realistic
approach
to
solving
all
of
the
issues
contained
in
the
Senate
version
of
the
bill.
Stay
tuned
into
2014
as
the
story
continues
to
evolve.
|
|
Facebook Rants: Protected or Not?
|
11/18/2013
|
By: Donald Berner
|
On
a
number
of
instances
over
the
course
of
the
last
few
years,
the
National Labor
Relations
Board
(NLRB)
has
tackled
the
issue
of
when
to
protect
employee use
of
social media
outlets
in
the furtherance
of an
employee's
rights
under
the
National Labor
Relations
Act
(NLRA). The
early
learning
for
employers
was
to
beware
of
taking
action
if
the
employee
communicated
workplace
concerns
through social
media. As
the
NLRB
has
decided
social
media
cases, the
parameters
have
become a
bit
more
defined
for
employers.
In
a recent
decision
involving
a
series
of negative
and disparaging
types
of
employee
commments,
the
NLRB
found
the
actions
not
protected
by
the
NLRA.
The
learning
point
for
employers
is
that if
employees
cross
over the
line
with
their comments,
the
NLRB will
not
protect
those
employees
from
the
disciplinary
consequences.
Employers
should
be
mindful
that
deciding
when
the
employees
have
crossed
that
line
can
be
a
difficult
and
murky
task
and
any
decision
to
take
negative
action
can
be
risky.
To
gain
a
better
understanding
of
the
types
of
social
media
behavior
that
is
not
protected
you
can
click
here
and
then
select the
Administrative
Law
Judge's
Decision
from
November
5,
2013
to
read
the
entire
decision.
|
|
OSHA Hazard Communication Training
|
10/31/2013
|
By: Donald Berner
|
Navigating
OSHA’s
Hazard
Communication
Standard
can
be
time-consuming
and
confusing. OSHA’s
recent
amendments
to
the
Standard
do
not
make
this
task
any
easier. These
amendments
also
impose
a
requirement
that
employers
provide
training
to
their
employees
on
the
new
label
elements
and
new
safety
data
sheet
by
December
1,
2013.
The
HAZCOM
standard
applies
to
any
employers
with
employees
who
may
have
access
to
any
hazardous
chemical,
and
is
not
limited
to
manufacturing
companies
or
chemical
producers.
In
order
to
assist
employers
with
this
requirement,
attorneys
at
Foulston
Siefkin
have
prepared
a
presentation-ready
PowerPoint
that
meets
OSHA’s
requirements
for
the
mandatory
training. This
presentation
provides
detailed
explanations
of
the
new
label
elements
and
safety
data
sheet
changes,
and
offers
an
easy
to
navigate,
do-it-yourself
format.
The
presentation
includes:
·
PowerPoint
Slides
·
Speaking
Notes
to
assist
the
presenter
·
A
sample
Chemical
Label
compliant
with
the
new
requirements
·
Side
by
Side
comparison
of
the
old
and
new
Hazard
Communication
Standards
·
Detailed
Explanations
of
the
new
label
elements
and
safety
data
sheet
To
purchase
the
presentation
materials
click
here.
|
|
Happy Halloween!
|
10/30/2013
|
By: Donald Berner
|
It's
almost
Halloween.
A
night
when
young
kids
dress
up
and
roam
the
streets
crying
out
"TRICK
OR
TREAT"
in
hopes
of
getting
bags
full
of
candy.
For
some
adults,
Halloween
is
a
big
holiday.
It's
a
time
to
dress
in
costume
and
go
to
parties
of
their
own
without
the
kids.
Keep
in
mind
that
Halloween
can
be
a
tricky
holiday
in
the
workplace.
The
origins
of
the
holiday
are
rooted
in
religious
related
concepts
(click
here
for the
unofficial
history
of Halloween).
These
religious
roots
can
make
Halloween
in
the
workplace
more
trick
than
treat.
The
holiday
meets
resistance
from
those
who
practice
Islam,
Judaism,
and
Christianity.
Some
have
very
strong
beliefs
about
Halloween.
With
that
in
mind,
if
your
workplace
celebrates
Halloween
or
requires
employees
to
dress
in
costume,
be
mindful
of
employees
with
religious
objections
to
such
activity. Should
an
employee
object,
ensure
you
carefully
handle
these
objections
to
avoid
religious
discrimination
concerns.
|
|
E-Verify Returns Post-Shutdown
|
10/18/2013
|
By: Donald Berner
|
Now
that
the
shutdown
has
come
to
a
close
and
federal
workers
have
returned
to
their
offices,
it
is
time
for
employers
to
get
all
caught
up.
One
of
those
catch-up
tasks
is
the
entry
in
E-Verify
of
employees
hired
during
the
federal
government
shutdown.
Employers
should
enter
all
employees
hired
during
the
shutdown
prior
to
November
5,
2013. In
response
to
any
question
generated
in
the
system
related
to
the
late
entry,
employers
should
check
the
"other"
box
and
enter
"federal
government
shutdown"
in
the
text
box.
Now
would
be
a
good
time
to
double
check
to
make
sure
all
your
new
hires
over
the
last
three
weeks
have
been
entered
into
the
system. Also
keep
in
mind,
employees
hired
now
that
the
government
has
resumed
operations
must
be
plugged
into
E-Verify
in
accordance
with
the
normal
rules.
The
additional
time
for
data
entry
applies
only
to
those
hired
during
the
shutdown.
|
|
Undocumented Workers and Criminal Indictments
|
10/14/2013
|
By: Donald Berner
|
It
is
never
good
when
the
federal
government
seeks
to
criminally
indict
your
company
or
one
of
your
management
team
in
the
context
of
hiring
undocumented
workers.
In
my
experience,
this
privilege
is
reserved
for
those
that
have
gone
above
and
beyond
in
their
efforts
to
ignore
the
law.
In
a
recent
case
from
northeast
Kansas
a
restaurant
owner
was
indicted
for
his
efforts
to
employ
undocumented
workers.
His
troubles
began
when
the
Department
of
Homeland
Security
(DHS) sought
to
review
his
I-9
forms
and
found
a
number
of
employees
without
completed
I-9
forms.
When
DHS
instructed
him
to
correct
the
problem
and
issued
a
fine,
he
ignored
the
requirement.
Making
matters
worse,
DHS
found
that
the
restaurant
owner
was
paying
workers
in
cash
and
providing
them
with
housing.
These
abuses
led
to
the
eventual
criminal
indictment.
While
this
isn't
the
only
set
of
circumstances
that
can
lead
to
a
criminal
indictment,
it
isn't
an
uncommon
fact
pattern
that
leads
to
that
consequence.
Most
employers
work
hard
to
ensure
they
are
in
compliance
with
federal
immigration
law.
For
those
employers,
the
likelihood
of
a
criminal
indictment
for
minor
errors
is
limited
to
none.
The
key
lesson
for
employers
is
to
ensure
you
complete
I-9
forms
for
all
your
employees
as
a
baseline
starting
point.
Once
those
forms
are
completed,
periodically
audit
your
I-9
file
to
ensure
you
have
not
made
errors
on
those
documents.
|
|
Immigration Reform Still Alive
|
10/10/2013
|
By: Donald Berner
|
The
topic
of
immigration
reform
was
hotly
debated
and
discussed
in
the
late
spring
and
early
summer
of
this
year
as
the
Senate
debated
a
bi-partisan
comprehensive
reform
bill. The
bill
was
ultimately
passed
in
the
Senate
and
attention
turned
to
the
House.
As
the
attention
turned
to
the
House,
immigration
reform
fizzled
a
bit
and
moved
to
the
back
burner
while
Obamacare
and
the
fiscal
crisis
took
center
stage.
In
a
little
noticed
event
on
October
2,
2013,
a
group
of
House
members
introduced
a
bill
that
more
or
less
tracked
the
immigration
reform
bill
passed
by
the
Senate.
Only
time
will
tell
whether
this
issue
gets
traction
in
the
House
in
the
next
few
months. It
may
be
a
slow
process
considering
the
fiscal
crisis
and
its
related
debate(s)
was
simply
postponed
until
early
2014.
As
we
move
into
2014,
this
is
one
worth
keeping
an
eye
on.
For
the
highlights
of
the
Senate
version
of
the
bill
click
here.
|
|
E-Verify Goes Dark
|
10/01/2013
|
By: Donald Berner
|
Employers
are
not likely
to
experience
much
disruption
due
to
the shutdown
of
the
federal
government. With
the
shutdown now
underway,
one
of
those
disruptions
is
now
perfectly
clear.
Employers
using
E-Verify
will
not
have
access
to
the
system
until
the
shutdown
comes
to
an
end. Employers
should continue
completing
I-9
forms
and
operating
business
as usual. Once
the shutdown occurs,
the
new
hires
will then
be
entered
into
E-Verify.
For those
employers
with
pending
tentative
non-confirmations, there will
be
additional
time
provided
to
allow for
a
resolution. Employers
should
continue to employ
any
individuals
in
this
circumstance
until
such
time
as
the
shutdown
ends.
Stay
tuned for
further developments regarding the
E-Verify
tool.
|
|
Changes to the TNC Notice Provisions in E-Verify
|
09/17/2013
|
By: Donald Berner
|
As
of
September
8,
E-Verify
users
will
only
receive
one
notice
when
the
system
returns
a
Tentative
Nonconfirmation
(TNC).
The
Further
Action
Notice
replaced
the
Tentative
Nonconfirmation
Notice
and
the
Referral
Letter
by
combining
them
into
a
single
notice. The
new
notice
includes
the
employee’s
biographical
information,
the
reason
for
the
TNC,
the
employee’s
decision
to
contest,
and
employee
instructions
for
contesting
a
TNC.
The
Further
Action
Notice
(here)
includes
instructions
for
the
employer
and
for
the
employee.
Employers
must
review
the
information
contained
in
the
notice
with
the
employee,
ask
the
employee
to
indicate
on
page
two
whether
the
employee
will
contest
the
TNC,
and
follow
the
E-Verify
instructions
if
the
employee
is
contesting
the
case,
or
close
it
if
not. Employers
must
attach
the
original
Further
Action
Notice
to
the
employee’s
Form
I-9
and
provide
a
copy
of
the
notice
to
the
employee.
After
the
employer
has
referred
a
contested
TNC,
a
Referral
Date
Confirmation
Notice
will
appear. The
employer
must
print
and
issue
this
notice
to
the
employee. The
Referral
Date
Confirmation
Notice
informs
the
employee
of
the
deadline
for
contacting
the
DHS
or
the
SSA
to
begin
resolution
of
the
TNC. Although
the
notice
contains
this
information,
employers
also
must
inform
employees
that
the
deadline
is
eight
federal
government
working
days
from
the
date
of
referral.
Other
recent
changes
include
email
notifications
to
employees
regarding
TNCs. The
USCIS
will
email
information
regarding
TNCs
to
employees
who
have
chosen
to
provide
an
email
address
on
the
Form
I-9. This
does
not
relieve
the
employer
from
Continue Reading...
|
|
EEOC Commissioner Discusses Obesity as a Disability
|
09/10/2013
|
By: Donald Berner
|
Chai
Feldblum,
commissioner
of
the
EEOC,
recently
discussed
obesity
as
a
disability
in
an
interview. While
the
EEOC
has
only
brought
two
lawsuits
against
employers
involving
morbid
obesity
since
the
2008
Amendments,
obesity
rates
in
the
United
States
continue
to
rise,
which
means
employers
must
know
how
to
deal
with
obese
workers.
Feldmun
recognized
that
since
the
Amendments,
courts
have
begun
reassessing
whether
morbid
obesity
qualifies
as
a
disability
under
the
ADA. The
EEOC
has
not
issued
formal
guidance
on
the
issue,
but
recognizes
that
severe
obesity
(body
weight
more
than
100%
above
the
norm)
is
“clearly
an
impairment.” The
key
is
whether
the
obesity
substantially
limits
a
major
life
activity
or
major
bodily
function.
Feldmun
emphasized
that
in
her
experience,
discrimination
frequently
occurs
against
obese
individuals
because
of
perceived
limitations
rather
than
actual
limitations. Feldblum
recommended
that
employers
follow
the
“stop,
think,
and
justify”
method
when
taking
an
employment
action
or
dealing
with
company
policies.
This
policy
may
be
extended
beyond
the
disabilities
context
and
may
be
applied
whenever
implementing
a
policy
or
making
an
employment-related
decision. Spending
a
few
moments
to
ask
why
you
are
taking
an
action
may
save
a
lot
of
time
(and
potentially
money)
in
the
long
run.
|
|
Temporary Impairments Can Get ADAAA Protection Too
|
09/06/2013
|
By: Donald Berner
|
A
recent
case
in
the
District
of
Columbia
addressed
whether
an
employee’s
temporary
impairment
could
qualify
as
a
disability
under
the
Americans
with
Disabilities
Act
Amendments
Act
of
2008
(ADAAA). In
Hodges
v.
District
of
Columbia,
the
employee
had
a
disc
herniation,
a
disc
osteophyte
with
facet
degenerative
changes,
and
a
lumbar
disc
bulge. The
condition
was
expected
to
last
three
to
six
months,
with
a
six
to
eight
week
“incapacity
duration.” Hodges
would
need
a
reduced
work
schedule
for
approximately
three
months.
Hodges
requested
leave
without
pay
and
short
term
disability. His
request
was
denied
and
he
was
placed
on
absent
without
leave
status. Nine
days
later,
Hodges
was
fired. Hodges
brought
various
claims
against
the
District
of
Columbia
Office
of
Inspector
General
(OIG),
including
violations
of
the
ADA.
ADA
Refresher
As
a
quick
refresher,
the
ADA
prohibits
discrimination
in
the
workplace
against
qualified
individuals
on
the
basis
of
disability. Disability
is
defined
as
“(A)
a
physical
or
mental
impairment
that
substantially
limits
one
or
more
major
life
activities
of
such
individual;
(B)
a
record
of
such
an
impairment;
or
(C)
being
regarded
as
having
such
an
impairment.”
Before
the
Amendments
to
the
ADA
in
2008,
the
Supreme
Court
required
that
a
disability
be
permanent
or
long
term
and
it
interpreted
“substantially
limits”
narrowly,
in
effect
making
it
more
difficult
to
qualify
under
the
Act. As
amended,
the
ADA
now
states
that
“disability”
and
“substantially
limits”
should
be
“construed
in
favor
of
broad
coverage.” These
amendments
went
into
effect
on
January
1,
2009.
Back
to
the
Case
|
|
Happy Labor Day!
|
09/03/2013
|
By: Donald Berner
|
A
belated
happy Labor
Day
to
everyone.
Hope
each
of
you
had
a
relaxing
day
off
yesterday.
To
some,
the
Labor
Day
holiday
is
a
celebration
of
the
efforts
of
organized
labor.
To
others,
it
is
the
unofficial
end
of
the
summer
season.
For
a
bit
of
historical
perspective
on
the
holiday
click
here
to
see
the
Department
of
Labor's
page
on
the
history
and
meaning
of
Labor
Day.
|
|
Employment Practices Liability Insurance: I think I want it, but what should I consider before buying?-Part II
|
08/29/2013
|
By: Donald Berner
|
Last
post,
we
gave
an
overview
of
the
most
common
type
of
Employment
Practices
Liability
Insurance
(EPLI)
policy,
and
some
information
on
policy
coverage
and
exclusions.
Today,
we’ll
finish
up
by
highlighting
EPLI
policy
limits
and
deductibles,
choice
of
counsel
and
settlement
strategy
considerations.
Policy
Limits
and
Deductibles-Policy
limits
and
deductibles
in
a
typical
EPLI
policy
apply
on
a
per
claim
basis
(e.g.
$250,000
per
claim)
and
aggregate
basis
($1
million
cap
for
all
claims).
Employers
need
to
consider
what
deductible
and
cap
they
are
comfortable
with.
Some
will
purchase
lower
premium
EPLI
coverage
with
higher
deductibles
and
caps
as
a
type
of
catastrophic
coverage,
leaving
them
without
coverage
for
smaller
claims.
Other
employers
will
opt
to
pay
higher
premiums
for
lower
deductibles--in
essence,
simply
trading
dollars
with
the
insurer.
Think
about
the
type
and
frequency
of
the
claims
your
company
may
be
most
likely
faced
with
and
buy
insurance
accordingly.
Choice
of
Counsel-A
matter
often
overlooked
by
employers
purchasing
EPLI
coverage
is
that
most
policies
allow
the
insurer
to
control
the
choice
of
defense
counsel.
Typically,
EPLI
policies
are
duty
to
defend
policies,
meaning
the
defense
of
a
covered
claim
is
tendered
to
the
insurance
company
which
will
likely
reserve
the
right
to
select
defense
counsel.
EPLI
policies
are
less
frequently
reimbursement
or
indemnity
policies.
Under
these
policies,
the
employer
usually
chooses
its
own
defense
counsel.
Under
duty
to
defend
policies,
EPLI
carriers
require
employers
to
select
defense
counsel
from
an
approved
“panel”
of
law
firms
to
defend
the
claims.
Sometimes
the
Continue Reading...
|
|
Employment Practices Liability Insurance: I think I want it, but what should I consider before buying?-Part I
|
08/25/2013
|
By: Donald Berner
|
In
the
last
post,
we
discussed
how
the
increasing
number
and
expense
of
employment-related
claims
and
lawsuits
have
prompted
employers
to
seek
insurance
for
the
associated
defense
costs
and
potential
liability
awards.
While
employment
practices
liability
insurance
(EPLI)
policies
are
the
insurance
industry’s
answer,
as
with
any
type
of
insurance,
there
are
a
number
of
important
considerations
the
savvy
employer
will
evaluate
before
purchasing
any
EPLI
product.
In
today’s
issue
we’ll
highlight
the
most
common
EPLI
policy
type,
some
important
terms
and
the
importance
of
timely
notice
of
claims,
and
coverage,
and
exclusions.
Policy
Type,
Terms
and
Notice
of
Claims-Most
EPLI
policies
are
“claims
made”
policies,
that
is,
the
claim
must
be
incurred
during
the
coverage
period
and
the
insurer
must
be
notified
during
a
designated
reporting
period.
Because
employment
disputes
may
develop
over
a
long
period
before
they
actually
become
“claims,”
employers
should
consider
purchasing
tail
coverage
when
dropping
or
changing
EPLI
policies.
It
is
critical
to
understand
the
policy
definition
of
all
terms,
and
in
particular
those
for
“claim,”
“loss,”
“insured,”
and
“wrongful
employment
practice.”
Know
your
carrier’s
notification
requirements.
Failure
to
provide
timely
notice
as
set
forth
in
the
policy
may
result
in
the
insurer
denying
coverage
for
an
otherwise
covered
claim.
Coverage-EPLI
usually
provides
coverage
to
the
employer,
its
executives
and
employees
against
claims
for
discrimination,
retaliation,
harassment;
defamation,
invasion
of
privacy
and
negligent
supervision;
and
wrongful
discharge,
failure
to
promote
and
failure
to
hire.
Traditional
insurance
policies,
including
“umbrella”
policies,
directors
and
officers
liability
policies
and
workers’
Continue Reading...
|
|
Employment Practices Liability Insurance: What is it and why should I buy it?
|
08/20/2013
|
By: Donald Berner
|
If
you’ve
ever
had
an
employment
related
charge
or
lawsuit
filed
against
your
company,
you
know--they
can
be
costly
in
terms
of
money
and
staff
time.
Unfortunately,
such
claims
are
increasingly
common.
For
example,
the
Equal
Employment
Opportunity
Commission
(EEOC),
which
enforces
federal
employment
discrimination
laws,
received
nearly
100,000
discrimination
charges
each
of
the
last
three
years.
In
2012,
the
EEOC
obtained
$365.4
million
in
settlements
from
employers,
the
largest
amount
ever.
The
agency
has
decided
to
shift
its
focus
to
systemic
pattern
and
practice
discrimination
litigation,
especially
gender
compensation
inequality.
The
goal
is
to
have
broad
remedial
impact
by
spending
its
considerable
resources
pursuing
large
group
or
class
claims
rather
than
individual
claims.
EEOC
litigation
can
be
very
expensive,
and
it’s
not
just
employment
discrimination
that
employers
need
to
worry
about.
The
current
administration,
which
can
hardly
be
characterized
as
employer-friendly,
is
also
moving
to
update
and
aggressively
enforce
other
major
workplace
laws.
While
federal
discrimination
laws
apply
to
employers
of
15
or
more
(20
or
more
in
the
case
of
the
age
discrimination),
smaller
employers
are
not
immune
from
claims.
They
are
usually
covered
by
substantially
similar
state
laws.
Kansas
employment
discrimination
statutes
apply
to
employers
with
as
few
as
four
employees.
The
Kansas
Human
Rights
Commission
enforces
these
statutes
and
resolved
more
than
1,000
claims
in
2012,
collecting
more
than
$800,000
from
Kansas
employers.
Discrimination
claims
are
very
common
because
they
are
so
easy
to
file.
It
costs
a
current
or
former
employee
nothing
and
he/she
doesn’t
need
a
Continue Reading...
|
|
Are You My Supervisor?
|
07/22/2013
|
By: Donald Berner
|
Possibly
lost
in
the
anticipation
and
coverage
of
the
Supreme
Court’s
DOMA
decision
was
the
Court’s
opinion
in
Vance
v.
Ball
State
University. Vance
resolved
a
circuit
split
as
to
who
qualified
as
a
supervisor. The
decision
marked
another
win
for
employers
as
the
Supreme
Court
adopted
a
narrow
definition
of
supervisor.
In
Vance,
an
African-American
employee
filed
a
complaint
with
the
EEOC
claiming
that
she
was
harassed
by
co-workers
with
racial
epithets,
subjected
to
references
to
the
Ku
Klux
Klan
and
threatened
with
physical
harm
under
Title
VII.
Vance
sued,
claiming
a
hostile
work
environment,
specifically
alleging
that
her
supervisor
made
her
feel
unwelcome;
a
co-worker
called
her
a
"porch
monkey"
and
other
racial
epithets;
and
that
a
different
supervisor
made
faces
at
her.
Vance’s
case
turned
on
employer
liability. She
was
able
to
establish
the
first
three
elements
of
a
hostile
work
environment
claim:
(1)
the
work
environment
was
objectively
and
subjectively
offensive;
(2)
the
conduct
was
based
on
race;
(3)
the
conduct
was
severe
and
pervasive. But,
the
fourth
and
final
element
was
key. Vance
had
to
establish
that
a
supervisor
harassed
her
or
her
employer
was
negligent
in
discovering
or
addressing
the
situation.
The
Supreme
Court
affirmed
the
7 th
Circuit’s
ruling
that
Vance
failed
to
establish
employer
liability. For
purposes
of
determining
vicarious
liability
under
Title
VII,
the
Supreme
Court
stated
that
an
employee
is
only
a
supervisor
if
the
employee
is
empowered
by
the
employer
to
Continue Reading...
|
|
NLRB Recess Appointments Under Continued Attack
|
07/18/2013
|
By: Donald Berner
|
The
issue
of
recess
appointments
to
the
NLRB
was
the
subject
of
yet
another
Court
of
Appeals
decision
yesterday.
The
4th
Circuit
issued
a
ruling
following
the
same
general
approach
set
out
originally
by
the
D.C.
Circuit
Court
of
Appeals
and
then
followed
by
the
3rd
Circuit
Court
of
Appeals.
The
technical
outcome
of
these
decisions
is
to
find
the
recess
appointments
invalid
due
to
the
lack
of
a
recess.
The
practical
outcome
is
that
without
these
appointments,
there
are
periods
in
which
the
NLRB
did
not
have
a
quorum
to
be
able
to
conduct
business.
This
lack
of
a
quorum
calls
into
question
various
NLRB decisions
during
the
relevant
time
period.
This
is
another
area
in
which
employers
should
stay
tuned.
It
is
possible
the
U.S. Supreme Court
will
hear
this
issue
in
the
upcoming
session.
|
|
Secrets, Lies & Whistleblowers
|
07/11/2013
|
By: Donald Berner
|
China?
Cuba?
Ecuador?
Russia?
While
the
“Where
in
the
World
is
Edward
Snowden”
quest
continues,
his
situation
does
bring
whistleblowers
back
to
center
stage. If
you’ve
been
enjoying
your
summer
vacation
and
somehow
missed
out
on
WikiLeaks
2.0,
Edward
Snowden
is
a
former
technical
contractor
for
the
United
States
National
Security
Agency. Snowden
leaked
details
of
several
top-secret
U.S.
and
British
government
mass
surveillance
programs
to
the
press. Since
then,
Snowden
has
been
on
the
run
and
ignited
a
debate
about
whether
he
is
a
whistleblower
or
a
traitor.
From
a
legal
sense,
Snowden
is
probably
not
a
true
“whistleblower.” On
a
federal
level,
whistleblower
claims
are
mostly
covered
by
the
False
Claims
Act. Federally,
whistleblowers
may
also
get
the
benefit
of
OSHA's
Whistleblower
Protection
Program
(WPP). WPP
enforces
the
whistleblower
provisions
of
20
plus
statutes,
protecting
employees
who
report
violations
of
workplace
safety,
airline,
commercial
carriers,
consumer
product,
environmental,
financial
reform,
food
safety,
health
insurance
reform,
motor
vehicle
safety,
nuclear,
pipeline,
public
transportation
agency,
railroad,
maritime,
and
securities
laws.
More
information
is
available
here: http://www.whistleblowers.gov/
On
a
state
level,
the
Kansas
Whistleblower
Act
(K.S.A.
75-2973)
protects
employees
of
state
agencies
from
disciplinary
action. It
does
not
extend
to
private
employees,
but
does
protect
all
public
employees
who
report
any
violation
of
state
and
federal
law. In
addition
to
the
broad
public
employee
protection
under
the
Kansas
Whistleblower
Act,
several
individual
statutes
protect
private
employees
from
retaliation. Statutory
protections
include
employees
reporting
or
opposing
discrimination
under
the
KAAD
Continue Reading...
|
|
Unpaid Interns Can Bring Big Headaches
|
7/9/2013
|
By: Donald Berner
|
With
the
summer coming
to
a
close
and
the
school
year
about
to
resume,
it's
a
good
time
to
issue
a
reminder
about
the
perils
of using
interns. This
particular
topic
continues
to
be a
hot
one
as class
action
claims continue
to
be
filed
on
behalf
of
groups
of
interns at
various
companies.
For
a
quick
refresher
on interns
click
here and
read
our
blog
post
from
earlier
this
year.
|
|
You Should Know GINA
|
07/03/2013
|
By: Donald Berner
|
At
this
point,
GINA
should
need
no
introduction. She’s
been
around
since
2009. But
for
those
who
might
have
ignored
her,
the
time
for
cat
and
mouse
flirting
is
over. It’s
time
to
settle
in
and
get
to
know
GINA
before
it
is
too
late.
GINA
generally
prohibits
the
use
of
genetic
information
in
making
employment
decisions. Genetic
information
includes
information
about
an
employee’s
or
job
applicant’s
genetic
tests,
genetic
tests
of
that
person’s
family
members,
and
family
medical
history. Under
GINA,
employers
are
also
prohibited
from
requesting,
requiring,
or
purchasing
such
information,
except
in
limited
circumstances
(i.e.
genetic
services
are
offered
by
the
employer
as
part
of
a
wellness
program
or
the
genetic
information
is
necessary
for
FMLA
certification).
Now
that
you
know
who
GINA
is,
why
should
you
care? She
has
been
sitting
in
a
corner
for
the
last
few
years,
but
the
EEOC
recently
announced
that
Fabricut,
Inc.,
a
large
fabric
distributor,
will
pay
$50,000
to
settle
a
disability
and
GINA
suit. The
EEOC
alleged
that
Fabricut
violated
GINA
when
it
sent
an
employee
for
a
pre-employment
drug
test
and
physical,
which
included
a
questionnaire
requiring
the
employee
to
disclose
the
existence
of
heart
disease,
hypertension,
cancer,
tuberculosis,
diabetes,
arthritis,
and
“mental
disorders”
in
her
family. The
family
medical
history
and
testing
disclosed
that
the
applicant
suffered
from
carpel
tunnel
syndrome
and
Fabricut
rescinded
the
offer
of
employment.
|
|
Immigration Reform Takes a Leap Forward
|
07/01/2013
|
By: Donald Berner
|
Late
last
week
the
Senate
passed
the
comprehensive
immigration
reform
bill
which
now
moves
the
issue to
the
House.
The
bill
included
provisions
related
to:
- The
mandatory
use
of
E-Verify
by
all
employers
within a
five
year
phase
in
period;
- A
long-term
path
to
legalization
for
those currently
in
the
U.S.
illegally;
- A
temporary
worker
program
for
low-skilled
non-agricultural
workers;
- A
program
to
help
legalize
undocumented
farm
workers;
- Minor
changes
making
the
H-1B
program
slightly
more
restrictive
for
employers;
- Additional
funding
for
border
security
issues;
and
- Funding
for
a
youth
jobs
program
through
fees
levied
on
employers
using
foreign
workers.
The
next
step
for
immigration
reform
is
for
the
House
to
deal
with
the
issue
of
immigration
reform.
While
the
Senate
was
taking
up
the
issue
of
comprehensive
immigration
reform,
the
House
was
simply
debating
individualized
bills
targeting
specific
items
of
interest
to
House
members.
The
step-by-step
approach
being
used
by
the
House
has
put
forward
a
number
of
bills
addressing
similar
issues
as
those
covered
in
the
Senate
bill.
Over
the
next
several
months,
the
House
is
likely
to
see
strong
debate
on
this
issue.
Stay
tuned
to
see
how
the
House
deals
with
the Senate
approved
version
of
immigration
reform.
|
|
EEOC Turns up the Heat on Employer Sponsored Wellness Programs
|
06/05/2013
|
By: Donald Berner
|
Swimsuit
season
is
in
full
swing
and
the
EEOC
is
taking
a
closer
look
at
those
employer-sponsored
wellness
programs
that
can
help
employees
slim
down
for
summer. Although
most
wellness
programs
are
not
designed
as
a
weight
loss
tool,
a
majority
of
US
employers
offer
some
form
of
a
wellness
program
designed
to
reduce
the
cost
of
healthcare
costs,
and/or
improve
the
health
and
well-being
of
employees.
Last
month,
the
EEOC
held
a
public
meeting
to
discuss
how
wellness
programs
may
stray
off
course
and
violate
federal
anti-discrimination
laws.
Specifically,
the
EEOC
panel
discussed
potential
violations
of
the
Americans
with
Disabilities
Act,
the
Genetic
Information
Nondiscrimination
Act,
the
Health
Information
Portability
and
Accountability
Act,
and
the
Affordable
Care
Act. According
to
the
EEOC,
the
most
common
potential
violation
involves
the
intersection
of
wellness
programs
and
the
ADA. Specifically,
employers
can
run
into
trouble
when
the
employer-sponsored
wellness
program
requires
medical
exams
or
asks
disability-related
questions. While
asking
for
medical
information
in
connection
with
voluntary
wellness
programs
is
permitted
under
the
ADA,
the
EEOC
signaled
that
the
meaning
of
"voluntary"
merits
further
clarification
and
discussion.
|
|
June is Safety and Awareness Month
|
06/01/2013
|
By: Donald Berner
|
With
the
official
start
of
summer
just
around
the
corner,
Governor
Brownback
proclaimed
the
entire
month
of
June
as
“Safety
and
Awareness
Month.” In
partnership
with
the
Kansas
Department
of
Labor
and
the
Division
of
Industrial
Safety
and
Health,
Governor
Brownback
has
asked
employees
and
employers
to
take
an
active
role
in
not
only
their
own
safety,
but
that
of
their
coworkers,
family,
and
friends.
With
the
summer
heat,
employers
should
stay
alert
for
signs
of
an
employee’s
overexposure
to
heat. Working
in
direct
sunlight,
high
temperature
and
humidity,
physical
exertion
and
lack
of
water
intake
can
lead
to
heat
stress—including
heat
stroke
or
heat
exhaustion. Employers
can
find
more
information
on
protecting
workers
from
the
effects
of
heat
on
OSHA’s
website
http://www.osha.gov/OshDoc/data_Hurricane_Facts/heat_stress.pdf.
In
connection
with
Safety
and
Awareness
Month,
the
Division
of
Industrial
Safety
and
Health
is
promoting
its
Safety
and
Health
Achievement
Recognition
Program
(SHARP). SHARP
provides
incentives
and
support
to
small,
high-hazard
employers
to
develop,
implement
and
continuously
improve
the
effectiveness
of
their
workplace
safety
and
health
programs. There
are
currently
175
SHARP
employers
in
Kansas;
the
highest
number
of
SHARP
sites
in
the
U.S.
For
more
information
on
SHARP
or
for
safety
and
health
tips
throughout
the
month
of
June,
visit
the
Kansas
Department
of
Labor’s
facebook
page.
|
|
Immigration Reform Bill Continues to Evolve
|
05/22/13
|
By: Donald Berner
|
The
Senate
Judiciary
Committee
continues
to
work
through
the
markup
process
on
the
comprehensive
immigration
reform
bill.
The
markup
process
is
where
the
committee
works
through
the
bill
making
revisions
prior
to
the
bill
arriving
on
the
floor
of
the Senate
for
full
debate.
There
have
been
a
couple
of
interesting
skirmishes
that
highlight
some
areas
of
disagreement
between
the
parties
on
the
use
of
E-Verify
and
the
low-skilled
worker
visas.
The
current
version
of
the
bill
contains
a four-year
phase-in
process
for
the
mandatory
use
of
E-Verify
with
the
implementation
based
on
employer
size
(larger
employers
sooner).
One
of
the
debated
changes
was
an
attempt
to
reduce
the
phase-in
process
to
eighteen
months.
This
attempt
failed,
but
this
amendment
will likely
be
debated
again
when
the
bill
moves
to
the
full
Senate
for
debate.
The
other skirmish
over
the
low-skilled worker
visa
focused
on
the number
of
visas
permitted per
year.
An
amendment
was
proposed to
double
the
number
of
visas
allowed
in
the
original draft
of
the
bill.
This
amendment
failed
to
gain
support
in
the
committee,
but
is
also
likely
to
be
debated
again
in the
full
Senate.
The
current
plan
is
for
the
bill
to
leave
the
mark-up
phase around
the Memorial
Day
holiday
time
frame.
This
timetable
might
be
a
bit
aggressive,
but
stay
tuned
as
the bill
will
arrive
in
the
full
Senate
soon
and
promises
to provide
some
interesting
debate.
|
|
NLRB Poster Rule Struck Down
|
05/09/2013
|
By: Donald Berner
|
In
a
decision
yesterday
out
of
the
Court
of
Appeals
for
the
D.C.
Circuit,
the
NLRB's
notice
posting
requirement
was
struck
down
as
invalid.
For
those
of
you
that
have
been
following
along
since
the
start,
the
NLRB
issued
the
poster
rule
in
August
of
2011
and
then
repeatedly
delayed
enforcement
of
the
rule
as
litigation
popped
up
in
several
federal
district
courts
as
to
the
validity
of
the
rule.
The
rule,
in
its
simplest
form,
required
employers
to
post
a
notice
containing
information
about
the
ability
of
employees
to
seek
union
representation.
Click
here
for
more
information
on
the
rule.
In
its
decision,
the
Court
held
that
the
rule
violated
an
employer's
right
to
free
speech.
The
Court
also
addressed
a
provision
in
the
rule
related
to
the
tolling
of
the
statute
of
limitations
for
filing
a
charge
based
on
a
violation
of
the
poster
rule.
This
provision
was
also
struck
down
as
invalid.
For
those
that
like
reading
court
decisions,
this
particular
portion
is
a
bit
convoluted,
but
interesting
for
reasons
beyond
the
NLRB poster.
The
tolling
arguments
touched
on
some
Title
VII and
ADEA
posting
issues
and
tolling
principles
used
by
the
EEOC.
The
Court
did
not
specifically
rule
on
the
tolling
issues
beyond
the
NLRB poster;
however,
it
did highlight
and
call
into
question
the
validity
of
tolling
in
that
context
as
well.
For
now
the
poster
rule
looks
to
be
on
its
death
bed,
but
one
never
knows
what
appeal
may
arise
or
what
another
Court
of
Appeals
might
have
Continue Reading...
|
|
Electronic Population of the Employee Section of the I-9 Form
|
05/08/2013
|
By: Donald Berner
|
Immigration
and
Customs
Enforcement
(ICE)
just
provided
employers
with
some
troubling
guidance
on
the
pre-population
of
the
employee
information
(Section
1)
portion
of
the
I-9
form. Employers
with
robust
human
resources
systems
that
integrate
the
I-9
form
into
the
mix may
have
reason
to
be
concerned
about
this
problematic new
guidance.
According
to
ICE,
the
pre-population
of
Section
1
is
not
acceptable
under
any
circumstance.
The ICE position
is
that
the
employee
must
complete
Section
1
of
the
I-9
form
themselves.
The notion
that
the
data
placed
into
Section
1
originates
from
employee
provided
data
carries
no
weight
with
ICE.
The
ICE view
is
that
any
pre-population
of
the I-9 form
based
on
data
input
into
a
human
resources
system
is
unacceptable.
Employers
that
continue
to
utilize
this
practice
may
find
themselves
at
significant
risk
should
ICE
conduct
an
audit
of
the
employer's
I-9
process.
This
change
in
position
is
a
fairly
dramatic
shift
in
ICE's
position
on
this employer
practice.
It
also
seems
to
be
a
bit
of
a
drastic
change,
considering
the
employee
is
reviewing
and
signing
the
data
placed
into
Section
1.
One
can
only
hope
ICE
changes
direction
on
this
decision.
|
|
FMLA Changes Proposed in Congress
|
04/30/2013
|
By: Donald Berner
|
A
bill
was
introduced
last
week
to
amend
the
FMLA.
The
proposed
changes
focus
on
expanding
the
family
relationships
covered
under
the
law.
The
bill
expands
coverage
to
allow
leave
to
care
for
adult
children,
siblings,
grandchildren,
grandparents,
parent-in-law,
and
same-sex
spouses
or
domestic
partners. Stay
tuned
as
this
proposal
begins
its
journey
through
Congress.
|
|
States Continue to Weigh in on Social Media Access
|
04/26/2013
|
By: Donald Berner
|
State
legislatures
continue
to
debate
and
pass
laws
restricting
employer
behaviors
with
respect
to
the
access
to
employee/applicant
social
media
accounts.
At
the
present
time,
six
states
(CA, IL,
MI,
MD, NM,
and
UT) have
passed
legislation
on
this
topic
and
there
will
likely
be
others
in
time.
The
primary
focus
of
the
legislation
to
date
has
been
to
prohibit
employers
from
requiring
candidates/employees
to
provide
passwords
and
access
to
private
accounts.
Most
of
the
state
efforts
have
not
tried
to
prevent
employers
from
reviewing
publicly
available
items
published
via
social
media.
This
trend
is
likely
to
continue
and
employers
with
multi-state
operations
should
be
paying
attention
to
these
developing
statutory
enactments.
Furthermore,
even
if
you
are
in
a
state
that
doesn't
prohibit
you
from
requiring
employees
to
show
you
private
social
media
areas,
you
might
consider
whether
you
truly
want
to
engage
in
that
type
of
behavior.
There
is
a
pretty
strong
element
of
it
just
not
feeling
right.
Those
are
the
types
of
feelings
jurors
and
other
fact
finders
are
likely
to
have
as
well.
In
addition,
who
knows
what
those
private
pages/areas
are
going
to
teach
you.
There
are
plenty
of
facts
that
you
don't
really
want
to
know
when
considering
a
candidate/employee
and
their
future
with
your
company.
|
|
Comprehensive Immigration Reform Bill Introduced
|
04/18/2013
|
By: Donald Berner
|
The
anticipated
comprehensive
immigration
reform
bill
was
finally
introduced
in
the
Senate.
The
bill
contains
provisions
designed
to
deal
with
a
variety
of
immigration
related
problems
in
the
current
legal
framework. The
general
changes
in
the
law
include:
- A path
to
legal
status
for
all
those
currently
illegally
in
the
United
States
- Enhanced
border
security
- Temporary
worker
programs
for
lower
skilled
workers
- Increased
visa
availability
for
the
H-1B
program
- Mandatory
use
of
E-Verify
- A
re-work
of
the
quota
system
for
employment
based
green
cards
to
allow
faster
access
for
prioritized
categories
of
workers
- A
new
merit-based
visa
category
to
allow
USCIS to
provide
visas
to
special
categories
of
individuals
The
proposal
put
forward
in
the
Senate
has
been
labelled
a
compromise
package
by
the
sponsoring
Senators.
The
current
thinking
is
the
bill
would
be
debated
in
the
full
Senate
in
late May
or
early
June.
The
bill
covers
a
wide-range
of
areas
of
concern
and
seems
to
truly
be
a
comprehensive
attempt
to
fix
a
number
of
areas
in
the
current
law
that
appear
to
be
broken.
There will
almost
certainly
be
changes
made
in
the
coming
weeks
as
the
bill
makes
its
way
through
the
committee
process. The
early
takeaway
for employers
seems
to
be improved
access
to
foreign
talent,
a
clean-up
of
the
existing
labor force, and
the
required
use
of
E-Verify.
We
will
keep
you
posted
as
the
bill
moves
forward
in
Washington.
|
|
H-1B Cap Hit in First Week of Filing Period
|
04/8/2013
|
By: Donald Berner
|
The
H-1B
filing
window
opened
up
for
FY2014
application
filings
on
April
1st
and
by
the
end
of
the
first
week
of
April,
the
window
is
now
closed. USCIS will
be
conducting
a
lottery
in
the
coming
week
or
so
to
decide
which
applicants
will
be
accepted
and
processed.
The
total
number
of
applications
received
exceed
the
H-1B
by
about
40,000.
This
is
the
first
year
in
the
last
several
in
which
the
H-1B
quota
has
been
reached
in
the
initial
filing
window. Stay
tuned
as
the
lottery
is
conducted.
|
|
More Shocker Fun
|
04/04/2013
|
By: Donald Berner
|
In
light
of
Jason's
post
about
fun final
four
facts,
and
in
tribute
to
his
participation
in
the
WSU pep
band,
here
is
a
link
to
a
fun
video
created
by
my
8th
grade
daughter's
middle
school
band.
I'm
not
sure
if
they
are
"playing
angry"
like
the
basketball
team
has
been
implored
to
do,
but
they
are
playing loudly.
Click
here to
see
the
video.
|
|
Building A Strong Team
|
04/02/2013
|
By: Donald Berner
|
With
the
arrival
of
April
Fool's
Day,
baseball
season
is
officially
underway.
I
know
for
some
of
you
with
kids,
baseball/softball
season
has
been
underway
for
quite
some
time.
I
read
an
interesting
blog
posting
yesterday
talking
about
timeless
leadership
lessons
from
baseball.
I
thought
I
would
pass
along
some
of
the
more
pertinent
HR-related
points
here,
although
all
of
the nine
items
listed
in
the
original
posting
are
good
tidbits
to
consider.
Here
are
the
HR-related
points:
- Measure
everything
important.
Good
decisions
come
from
gathering
and
reviewing
good
data.
Take
advantage
of your electronic
information
systems
to
track
and
analyze
information
related
to
employee
performance.
This
is
a
key
step
to
fielding
a
great
team
at
your
company.
- Team
versus
superstar. Make
sure
your
team
is
solid
from
the
top
to
the
bottom
of
your
roster.
Having
great
employees
surrounded
by
mediocre
employees
isn't
nearly
as
effective
as
having
good
employees
across
the
board.
Make
sure
to
focus
your
efforts
to
develop
talent
across
the
board.
- Team
chemistry
rules. A
cohesive
team
is
always
better
than
a
team
fighting
amongst
itself.
Sometimes
you
just
have
to
make
a
move
purely
to
fix
the
overall
workplace
chemistry.
Ignore
this
issue
at
your
own
peril.
To
read
the
full
version
of
the
article
click
here. It's
a
short
read
and
makes
some
great
points
about
leadership.
|
|
Immigration Reform Still Being Discussed
|
04/01/2013
|
By: Donald Berner
|
I
saw
a
news
story
last
night
about
the
AFL-CIO
(union
federation)
and
the
U.S.
Chamber
of
Commerce
striking
a
compromise
deal
related
to
guest
worker
type
programs.
The
gist
of
the
story
is
that
these
two
adversaries
have
reached
an
agreement
on
how
to
bring
in
temporary
workers,
which
is
expected
to
be
a
big
part
of
any
immigration
reform
legislation.
This
agreement
is
a
big
step
forward
in
the
overall
effort
to
create
a
comprehensive
immigration
reform
package.
This
agreement
may
signal
a
push
is
underway
to
finalize
the
legislative
package
to
bring
immigration
reform
to
the
top
of
the
legislative
agenda
in
Washington.
|
|
Washington Looking to Increase Penalties for OSHA Violations
|
03/29/2013
|
By: Donald Berner
|
An
OSHA reform
bill
titled
Protecting
America's
Workers
Act
was
reintroduced
in
the
Senate.
Employers
should
keep
an
eye
on
the
progress
of
this
bill
as
its
goal
is
to
increase
the
penalties
for
OSHA violations.
This
potential
legislation
comes
following
OSHA's
own
internal
changes
a
few
years
ago
that
resulted
in
higher
penalty
amounts
being
levied
by
OSHA.
In
addition
to
the
penalty
changes,
the
proposed
legislation
would
expand
the
coverage
of
the
general
duty
clause
and
revise
the
way
subcontractor
employer
relationships
are
viewed
by
OSHA.
Stay
tuned
as
this
Senate
bill
begins
its
journey
through
the
legislative
process.
|
|
Beware of Your Job Descriptions
|
03/28/2013
|
By: Donald Berner
|
Every
so
often
we
are
given
a
gentle
reminder
to
pay
close
attention
to
the
job
descriptions
in
place
at
our
companies.
In
a
recent
Americans
with
Disabilities
Act
(ADA) case
from
Maryland,
the
employer
failed
to
obtain
summary
judgment
because
of
the
essential
functions
listed
in
the
employee's
job
description.
This
means
the
plaintiff
gets
to
present
his
case
to
the
jury.
The
key
issue
revolved
around
whether
having
a
commercial
drivers
license
was
an
essential
function
of
the supervisory
position
held
by
the
plaintiff.
The
job
description
listed
the
commercial
drivers
license
as
a
preference
for
the
supervisor,
as
opposed
to
a
required
item
in
the
basic
driver
job
description.
This
small
difference
is
what
led
to
the
employer
ending
up
in
what
is
now
a
pretty
tough
spot.
So
make
sure
you
look
at
your
job
descriptions
and
carefully
weigh
the
use
of
"preferred"
versus
"required."
|
|
The Perils of Interns Under the FLSA
|
03/26/2013
|
By: Donald Berner
|
While
it
may
not
seem
like
it
with
the
current
weather
patterns
shifting
back
and
forth
from
mild
to
cold,
including
a
little
snow,
the
summer
season
is
just
around
the
corner.
And
with
that
comes
the
arrival
to
the
workforce
of
students
looking
for
a
bit
of
solid
experience
between
school
years.
Sometimes
this
experience
is
paid
work
and
sometimes
it
is
not.
For
those
employers
considering
the
unpaid
internship
approach,
beware.
Simply
calling
someone
an
intern
and
putting
them
to
work
for
free
isn't
necessarily
the
right
approach
and
may
lead
to
a
bill
coming
due
later
for
unpaid
wages.
The
DOL has
a
six-factor
test
for
making
determinations
about
whether
an
internship
meets
the
exclusion
and
can
be
unpaid. Those
factors
include:
- Is
the
training
similar
to
the
training
the
individual
would
get
in
an
educational
atmosphere;
- Is
the
experience
for
the
benefit
of
the
intern;
- Does
the
intern
replace
a
regular
employee
and
work
under
close
supervision;
- Does
the
employer
gain
any
immediate
advantage
from
the
training
program;
- Is
the
intern
entitled
to
a
job
at
the
end
of
the
internship;
and
- The
employer
and
intern
understand
the
intern
will
be
unpaid.
If
the
employer
can
sufficiently
meet
all
the
factors
listed
above,
then
the
intern
can
be
unpaid.
Employers
should
keep
in
mind,
however,
that
this
exclusion
is
very
narrowly
interpreted.
For
an
intern
to
be
truly
unpaid,
it
almost
needs
Continue Reading...
|
|
Get Back to Work: The Telecommuting Debate
|
03/18/2013
|
By: Donald Berner
|
Recently,
Melissa
Mayer
reignited
the
telecommuting
debate
when
an
internal
Yahoo!
memorandum
leaked.
Starting
in
June,
Yahoo!
employees
with
remote
working
arrangements
must
physically
report
to
company
offices.
But,
Yahoo!
isn’t
the
only
company
rolling
back
the
telecommuting
red
carpet.
Best
Buy
also
announced
the
end
of
its
ROWE
(Results-Only
Work
Environment)
program.
Most
corporate
Best
Buy
employees
will
now
have
to
report
to
the
company’s
headquarters
in
Richfield,
Minnesota.
Is
this
the
start
of
a
new
trend
or
merely
a
couple
companies
changing
course?
The
Wall
Street
Journal
reported
that
more
Americans
are
working
from
home
than
ever
before.
About
9.4%
of
U.S.
workers
worked
at
home
at
least
one
day
per
week
in
2010,
compared
with
7%
in
1997,
according
to
a
Census
Bureau
report.
So,
what
is
an
employer
to
do?
Before
changing
your
company’s
course,
here
are
a
few
considerations.
Offering
telecommuting
can
help
employers
attract
and
retain
talent.
Certain
segments
of
the
workforce
value
the
flexibility
provided
by
telecommuting
and
such
an
arrangement
can
be
a
valuable
recruiting
tool.
Before
wooing
employees
with
promises
of
work-life
balance
bliss,
carefully
consider
whether
you
have
the
tools
in
place
to
effectively
manage
performance
of
employees
who
work
remotely.
Evaluate
each
job
and
the
employee
on
an
individual
basis.
Telecommuting
is
not
the
answer
for
every
employee
or
every
employer.
|
|
H-1B Filing Season Rapidly Approaching
|
03/15/2013
|
By: Donald Berner
|
The
H-1B
visa
filing
season
is
upon
us.
Each
year,
USCIS approves
up
to
85,000
H-1B
visas,
which
permit
specialty
occupation
employees
to
travel
to
and
work
in
the
United
States.
This
cap
of
85,000
visas
is
not
sufficient
to
meet
all
of
the
demand
for
applications
during
a
given
fiscal
year.
In
the
last
several
years,
the
cap
has
been
reached
at
some
point
in
the
late
summer
or
early
fall.
This
year
the
expectation
is
that
demand
for
H-1B
visas
will
return
to
somewhat
normal
levels,
as
the
U.S. economy
seems
to
have
rebounded.
What
does
that
mean
for
someone
interested
in
obtaining
an H-1B
visa
for
a
potential
employee?
The
filing
window
will
open
on
April
1st
for
employees
to
start
work
on
October
1st
of
2013,
and
the
basic
assumption
is
that
all
visa
slots
for
fiscal
year
2014
will
be
used
up
in
the
first
few
days
of
the
filing
period.
So
if
you
are
planning
an
H-1B
filing,
don't
be
late.
If
your
application
isn't
ready
to
file
for
an
April
1
arrival
at
USCIS,
you
might
be
waiting
until
October
of
2014.
|
|
New FMLA Posters and Forms In Effect
|
03/11/2013
|
By: Donald Berner
|
In
honor
of
the
20th
anniversary
of
the
FMLA,
the
DOL
issued
final
rules
regarding
the
amendments
to
military
family
leave
and
airline
flight
crew
FMLA
eligibility.
As
part
of
the
final
rules,
as
of
March
8,
2013,
employers
must
use
updated
FMLA
notice
and
certification
forms.
|
|
USCIS Issues New Version of I-9 Form
|
03/09/2013
|
By: Donald Berner
|
The
USCIS released
a
new
version
of
the
I-9
on
March
8,
2013.
Employers
should
begin
using
the
new
I-9
form
immediately.
The
old
version
of
the
form
can
continue
to
be
used
until
May
7,
2013.
The
new
I-9
form
contains
very
little
in
the
way
of
new
information
employers
are
required
to
collect
from
employees.
The
primary
difference
in
the
new
form
is
the
inclusion
of
email
and
phone
number
boxes
for
the
employees
in
Section
1.
While
the
form
itself
doesn't
designate
these
boxes
as
optional,
the
instructions
to
the
new
form
reflect
that
these
two
boxes
are
not
required.
The
employee
can
choose
to
provide
the
contact
data
or
simply
put
N/A
in
those
boxes.
The
real
impact
of
the
new
look
I-9
is
the
layout.
Instead
of
cramming
all
the
required
information
into
one
single
page,
the
employee
portion
is
now
one
page
and
the
employer
portion
is
now
a
second
page.
This
allows
the
form
to
make
it
much
clearer
where
data
is
to
be
recorded
in
each
area
of
the
form.
This
change
is
likely
to
reduce
the
number
of
I-9
forms
filled
out
with
data
on
the
wrong
line
or
incomplete
forms.
You
can
find
the
new
form
on
the
USCIS
website
in
a
downloadable
PDF
here.
|
|
Who is the Future of Your Company?
|
02/14/2013
|
By: Donald Berner
|
Every
business
needs
a
leader.
Someone
must
be
in
charge
and
make
the
tough
decisions.
The
sudden
resignation
of
Pope
Benedict
(read
here) should
serve
as
a
reminder
for
your
business
to
consider
its
future
leaders.
From
large
businesses
to
small
family
owned
business
the
issue
of
succession
planning
and
leadership
training
is
equally
important.
Identifying
and
grooming
those
individuals
in
advance
of
their
need
to
lead
is
key
to
the
long-term
health
of
your
business.
If
you
haven't
considered
training
plans
and
leadership
succession
in
some
time,
spend
a
few
minutes
(or
a
few
hours)
on
this
task
over
the
next
month
or
two.
One
never
knows
when
a
resignation
or
situation
will
arise
to
trigger
your
company's
need
to
replace
a
leader.
Being
prepared
ahead
of
time,
and
having
a
candidate
being
groomed
for
that
role,
will
make
that
sudden
transition
much
smoother
when
it
comes.
|
|
"There Is No I in Team" and Other Coaching Thoughts
|
01/29/2013
|
By: Donald Berner
|
I
spend
a
lot
of
time
either
coaching
youth
sports
or
hanging
out
watching
youth
sports.
It
is
the
nature
of
the
beast
when
you
have
three
kids
at
home.
Those
experiences
remind
me
that
managing
kids
is
a
lot
like
managing
employees.
The
big
difference
is you
hope
employees
are
a
bit
more
mature
and
responsible
than
kids.
As
most
of
you
in
HR
can
attest,
that
isn't
necessarily
true (as
a
coach
I
have
seen
young
players
be
a
lot
more
mature
than
their
own
parents).
Over
the
last
several
months
there
have
been
a
number
of
times
those
parallels
between
sports
teams
and
workplaces
were
very
apparent.
Without
naming
the
guilty,
here
are
a
few
stray
observations
about
youth
sports
that
carry
over
to
the
HR realm:
- No
matter
how
hard
you
try,
you
can't
cure
a
personality
defect.
Individuals
who
are
moody
and
grumpy
(read:
have
bad
attitudes)
usually
stay
moody
and
grumpy. It
seems
the
more
you
try
to
draw
them
out
of
that
mindset
the
deeper
they
settle
in.
It's
time
for
tough
love.
Instead
of
slipping
into
the
cycle
of
coaxing
better
performance
from
this
type
of
person,
make
it
simple.
Drop
the
attitude
or
find
a
new
employer.
In
other
words,
just
get
rid
of
the
cancer
--
cut
it
out.
If
you
don't
it
will
spread
to
your
other
team
members.
Plus you
will
have
a
lot
more
time
to
focus
on
your
other
employees
since
you
won't
be
wasting a
bunch
of
time
on
Continue Reading...
|
|
So What Does Recess Have to Do With the NLRB?
|
01/28/2013
|
By: Donald Berner
|
Those
of
you
following
the
national
news
scene
closely may have
noticed
a
flurry
of
excitement
related
to
the
National
Labor
Relations
Board
(NLRB)
and
some
appointments
made
to
the
NLRB
last
year.
The
excitement
is
related
to
recess
time
in
Washington, and
even more
specifically, the
Senate's
recess
time.
Presidents
sometimes
use
the tactic of waiting
to
make appointments,
which technically
should
be
confirmed
by
the
Senate,
until
after the
Senate
heads
out
for recess.
Three
of
the
five
members
of
the
NLRB
were appointed
during
an
alleged recess
last
year.
While
the
Senate
was
supposedly out
in
the
yard
playing
dodge
ball,
the
President
gave
away
a
few
jobs
to
people
the
Senate
likely
would
not
have
approved.
But
this
time
around, some
members
of
the
Senate,
having
watched
President
Obama
use
this
tactic
in
prior
recess
times,
decided
to
linger
inside
and
work
on
some
homework.
As
a
result,
the
question
was
whether
the
Senate
was
actually
in
recess
when
the
appointments
were
made.
The
federal
appeals
court
for
the
D.C.
Circuit
said
the
Senate was
not
in
recess,
so the
three
appointments
were
invalid.
The
consequence
of
this
decision
could
very
well
be
that
all
of
the
200
plus
decisions
handed
out
by
the
improperly
formed
NLRB may
be
invalid
as
well.
In
addition,
there
are
also
other
decisions
made
by
the
NLRB
that
could
be
in
question.
Stay
tuned
over
the
next
few
weeks
or
months
as
this
schoolyard
recess
drama
plays
out.
If
you
were
subject
to
an
NLRB
decision
in
the
last
year,
it
is
probably
worth
revisiting
the
issue
to
see
if
there
Continue Reading...
|
|
Adult Children and the FMLA: New DOL Guidance
|
01/22/2013
|
By: Donald Berner
|
The
Department
of
Labor
issued
a
new
interpretation
letter
last
week
addressing
the
issue
of
adult
children
under
the
FMLA.
As
most
of
you
are
aware,
employees
are
not
generally
able
to
seek
FMLA
to
care
for
a
child
over
the
age
of
18.
For
an
employee
to
be
able
to
take
leave
to
care
for
an
adult
child
with
a
serious
health
condition,
the
adult
child
must
be
incapable
of
self-care
because
of
a
mental
or
physical
disability.
The
hard
part
for
employers is
deciding
whether
the
adult
child
actually
clears
that
threshold.
In
its
interpretation
letter,
the
DOL notes
that
an
employee
is
eligible
for
FMLA leave
to
care
for
an
adult
child
if
the
adult
child
has
a
disability
as
defined
by
the
ADA,
is
incapable
of
self-care
due
to
the
disability,
has
a
serious
health
condition,
AND
is
in
need
of
care
due
to
the
serious
health
condition.
The
important
point
for
employers
to
take
away
is the
adult
child
needs
to
trigger
all
four
of
those
elements.
The
interpretation
letter
contains
a
couple
of
examples
to
help
employers
understand
how
these
adult-child
rules
will
be
applied.
In
one example,
an
adult
child
has
an
auto
accident
and is
likely
to
clear
the
threshold
and
allow
a
parent
to
take
FMLA leave.
In
another
example,
an
adult
child
suffering
from
diabetes
is
determined
not to
clear
the
threshold
for
the
parent
to
take
FMLA leave.
The
interpretation
letter can
be
found
here.
If
you find
yourself
dealing
with
an
adult
child
situation the
letter
is
a
good
starting
point.
On
a
side note,
Continue Reading...
|
|
Immigration Reform in 2013?
|
01/17/2013
|
By: Donald Berner
|
Every
so
often
the
topic
of
immigration
reform
comes
to
the
forefront
in
Washington.
In
years
past,
the
debate
would
rage
for
periods
of
time
and
then
the
effort
would
stall
out
amidst
political
fighting
over
various
elements
of
the
"reform"
needed.
There
are
a
wide-ranging
number
of
interest
groups
fighting
for
and
against
various
types
of
reform.
What
can
we
expect
in
2013?
Considering
the
last
election
cycle
and
the
behaviors
of
certain
demographic
groups
in
that
cycle,
a
comprehensive
effort
to
reform
the
U.S.
immigration
system
is
a
bit
more
likely.
At
least
right
at
this
moment.
My
thought
on
that
only
applies
if
some
other
hot
potato
social
or
economic
agenda
item
does
not
interfere
with,
or
take
priority
over,
immigration
issues.
At
this
point,
several
things
look
likely,
to
include:
- An
amnesty-style
program
of
some
sort
for
those
currently
in
the
country
illegally
or
without
status;
- Changes
to
the
visa
allocation quotas/system
to
allow
those trying
to
immigrate
the
right
way
to
get
out
of
the
long
lines
and
backlogs
created
by a
shortage
of
available
slots;
- The
inclusion
of a
guest-worker
type
program
to
allow
for
lower-skilled
workers
to
come to
the
U.S.
to
fill
temporary
needs
for lesser-skilled
labor;
and
- A
requirement
that
employers
verify
the
legal
status
of
workers
(read
this to
mean
mandatory
E-Verify
for
all
employers).
The
idea
of
immigration
reform
typically
brings
out
vocal advocates on
all
sides
of
the equation.
Stay tuned
over
the
next
six months
as things
heat
up
in
Continue Reading...
|
|
Wrapping Up 2012 and Launching Into 2013
|
01/04/2013
|
By: Donald Berner
|
Now
that
2012
has
come
to
and
end
and
we
have
all
returned
to
the
normal
routine,
here
are
a
few
things
we
might
take
some
time
to
consider
before
moving
forward
into
the
new
year
and
getting
swallowed
up
in
the
new
routine:
- Review
your
policy
materials
and
make
sure
they
are
current
and
up
to
date.
While
you
should
review
your
policies
to
make
sure
they
are
in
compliance
with
all
legal
requirements,
this
review
also
should
be
practical
as
well.
Are
your
current
policies
working
as
intended
or
are
there
some
that
just
need
a
different
approach.
A little
reflection
now
can
allow
you
to
get
these
cleaned
up
for
2013
and
help
avoid
the
same
issues
you
had
in
2012.
- Take
a
few
minutes
to
clean
up
any
employee-file-related
issues.
Are
the
employee
files
complete?
Have
the
reviews
been
done
in
accordance
with
your
policies?
Are
the
required
items
contained
in
the
file?
On
a
side
note,
its
always
a
good
idea
to
audit
your
I-9
files
and
make
sure
all
is
well
with
those
forms
and
that
any
old
forms
that
are
no
longer
required
for
retention
are
disposed
of
properly.
- Evaluate
your
safety
policies
and
training.
Are
we
complying
with
all
of
the
applicable
OSHA requirements?
Spend
a
few
minutes
self-inspecting
your
operations
to
make
sure
you
are
in
compliance.
Check
the
training
requirements
and
conduct
any
annual
training
or
refresher
training
that
is
needed.
|
|
Things to Watch for in 2013
|
01/02/2013
|
By: Donald Berner
|
Welcome
to
2013.
Hopefully
everyone
is
already
working
hard
at
sticking
to
their
New
Year's
Day
resolutions.
Looking
ahead
to
2013,
here
are
a
few
things
to
keep
an
eye
on
this
year.
It
can
be
tricky
predicting
the
future,
but
here
are
a
few
general
themes
I
expect
to
get
some
extra
attention
in
2013
in
the
employment
law
area.
For
all
of
the
HR types
out
there,
you
might
spend
a
little
extra
time
thinking
about
how
these
might
impact
your
company.
- NLRB.
Expect
the
NLRB
to
remain
a
very
active
agency.
The
NLRB
has
spent
the
last
few
years
turning
up
the
heat
on
employers
in
a
variety
of
areas.
At
the
end
of
the
day,
the
NLRB
is
shifting
the
law
to
provide
a
more
union-friendly
playing
field
in
representation
election.
In
addition,
the
NLRB
has
spent
a
considerable
amount
of
energy
in
areas
that
are
primarily
non-unionized-employer
related
(for
example
social-media
issues).
This
trend
is
almost
certain
to
continue
in
2013
and
beyond.
Is
your
workplace
a
potential
target
for
a
union
organizing
drive?
Are
your
policies
over-broad
in
some
way
that
interferes
with
protected
and
concerted
activity?
If
so,
some
adjustments
might
be
in
order.
- Immigration
Reform.
An
immigration
reform
measure
of
some
sort
is
on
tap
for
this
four-year
political
cycle,
and
it
may
get
done
in
2013.
President
Obama
put
the
deferred
action
program
in
place
in
2012
to
allow certain
groups
of
illegals
to
gain
work
authorization
Continue Reading...
|
|
Policy Considerations for 2013
|
12/27/2012
|
By: Donald Berner
|
The
passage
of
Thanksgiving
and
the
approach
of
Christmas
means
football
season
is
winding
down
and
basketball
season
is
underway
and
gaining
speed.
For
most
of
those
working
in
a
broader
HR
function,
benefits
enrollment
is
over
(or
close
to
over)
and
its
time
to
start
reflecting
on
the
goals
for
the
coming
year.
Now
is
also
a
good
time
to
think
about
your
workplace
policies
and
more
importantly
those
policies
that
might
be
in
need
of
a
tune
up
in
2013.
Here
are
a
few
that
might
be
worthy
of
placement
at
the
top
of
a
lot
of
lists:
- Social
Media
--
For
most
of
us
these
two
words
are
enough
to
convince
us
to
ban
Internet
use
for
all
employees
whether
at
work
or
at
home.
While
this
has
been
an
area
of
constant
flux
in
2011
and
2012,
employers
that
ignore
this
issue
are
doomed
to
suffer
a
significant
failure
in
the
near
future.
A
good
social
media
policy
should
account
for
employee
behaviors
via
social
media
as
well
as
ownership
of
business
related
social
media
accounts.
- Paid
Time
Off
--
These
policies
come
in
a
wide
range
of
styles
and
types.
The
real
task
here
is
for
employers
to
decide
whether
a
historical
bucket
style
approach
(vacation,
sick,
etc.)
is
the
best
type
of
system
or
whether
to
consider
implementing
a
single
bucket
PTO
type
of
system.
Each
approach
has
its
pros
and
cons
and
there
is
no
such
Continue Reading...
|
|
Fair Labor Standards Act Pitfalls Abound
|
11/28/2012
|
By: Donald Berner
|
A
news
release
yesterday
from
the
Department
of
Labor
(DOL)
announcing
the
recovery
of
over
a
million
dollars
for
a
group
of
approximately
400
bank
employees
highlights
the
types
of routine
risks
the
FLSA
creates
for
employers.
In the
reported
case,
the
employees
were
improperly
classified as
exempt employees.
As a result,
the
employer
was
required
to
provide
back
pay
for
overtime
hours
worked
by
the
group.
Adding
insult
to
injury,
the press
release noted
the
DOL collected additional
overtime
as
a
result
of
bonus
payments
made
to
the
employees
improperly
classified
as
exempt.
Once
the
employees
were
no
longer
exempt,
the
bonus
payments
were required
to
be
added
into the
employees
total
compensation in
order to
calculate
the
effective
hourly
rate
for
purposes of overtime
payment.
This
press
release
should
serve
as
a
reminder
to
employers
to
pay
close
attention
to
the
classification
of
employees
as
exempt
or
non-exempt.
A
group
of
improperly
classified
employees
can
be
a
ticking
time
bomb
within
the
workplace
since
the
statute
of
limitations
period
for
a
FLSA
claim
can
be
as
long
as
three
years.
To
read
the
press
release
click
here.
|
|
Preparing for the Holiday Season and Beyond
|
11/23/2012
|
By: Donald Berner
|
It's
that
time
of
year
again.
Thanksgiving
has
arrived,
and
Christmas
is
just
around
the
corner.
The
holiday
season
brings
lots
of
things
to
prepare
for
each
year.
For
those
of
you
out
shopping,
there
were
preparations
for
the
big
Black
Friday
sales
events.
Hopefully
by
the
time
you
are
looking
at
this
article
you
have
survived
the
crazy
rush
of
the
day
and
found
all
those
awesome
bargains
you
went
out
to
get
today.
Some
of
you
might
find
preparing
for
the
holiday
season
to
be
a
bit
of a
waste
of
time
this
year
since
the
Mayan's
have
forecast
the
end
of
the
world.
What
I
wanted
to
point
out
today
is
a
bit
of guidance
about
preparing
for
the
Black
Plague
of
2012.
Or
maybe
just
a
simple
flu
bug.
OSHA
has
a
webpage
with
resources
that
have
been
prepared
for
employers
to
assist
in
dealing
with
a
flu
pandemic
which
can
be
found
here.
Whether
this
is
the
year
of
the
massive
global
flu
outbreak
or
not,
it
might
be
helpful
to
browse
the
information
put
together
by
OSHA just
in
case.
There
are
a
few
items
contained
in
OSHA's
guidance
that
might
have
some
more
generic
applications
to
a
non-pandemic
flu
season
such
as:
1.
Develop
a
sick-leave
policy
that
does
not
penalize
sick
employees
for
staying
home.
The
upshot
here
is
to
keep
sick
employees
away
from
the
workplace
so
the
rest
of
the
workforce
isn't
infected.
If
your
sick-leave
policy
is
already
effective
and
in
place,
make
Continue Reading...
|
|
Are These Common OSHA Violations Present in Your Workplace?
|
11/13/2012
|
By: Donald Berner
|
Each
year
OSHA publishes
a
listing
of
the
most
commonly
cited
standards
during
the
most
recent
fiscal
year.
For
fiscal
year
2012
(October
2011
to
September
2012)
the
list
contains
some
familiar
standards
from
the
fiscal
year
2011
list.
In
fact,
the
2012
list
contains
the
same
top
ten
cited
standards,
just
in
a
slightly
different
numerical
ranking
order.
The
list
for
fiscal
year
2012
is
as
follows:
- Fall
Protection
in
the
construction
industry (29
C.F.R.
1926.501)
- Hazard
Communication
(29
C.F.R.
1910.1200)
- Scaffolding
in
the
construction
industry
(29
C.F.R.
1926.451)
- Respiratory
Protection
(29
C.F.R.
1910.134)
- Lockout/Tagout
(29
C.F.R.
1910.147)
- Powered
Industrial
Trucks
a/k/a
Forklifts
(29
C.F.R.
1910.178)
- Ladders
in
the
construction
industry
(29
C.F.R.
1926.1053)
- Electrical
Hazards
-
Wiring (29
C.F.R.
1910.305)
- Machine
Guarding
(29
C.F.R.
1910.212)
- Electrical
Hazards
-
Design (29
C.F.R.
1926.303)
This
list
should
be
instructive
for
employers
with
hazards
of
this
nature
in
the
workplace.
These
are
commonly
violated
by
employers
and
result
in
the
issuance
of
citations
by
OSHA.
Spending
a
little
extra
time
in
these
areas
can
yield
dividends
next
time
OSHA visits
your
workplace.
|
|
Dealing with Work Authorization Concerns
|
11/09/2012
|
By: Donald Berner
|
The
recent
news
regarding
the
Immigration
and
Customs
Enforcement
(ICE)
actions
in
Wichita
involving
a
local
McDonald's
franchise
highlights
the
risk
for
employers
with
respect
to
employee
work
authorization.
This
arena
involves
a
wide-ranging
variety
of
fact
patterns
for
employers
to
work
through
as
no
two
cases
are
ever
exactly
alike.
The
key
points
for
employers
to
consider
are:
- I-9:
Make
sure
your
I-9
process
is
being
conducted
properly
and
that
your
I-9
documents
are
being
fully
and
accurately
completed.
In
addition,
conduct
periodic
audits
of
your
completed
I-9
collection
to identify
any
shortcomings
in
your
process
and
follow-up
on
those
shortcomings
to
ensure
the
process
is
working
as
intended.
- Stray
Information:
Promptly
respond
to
all
information
that
calls
into
question
the
work
authorization
of
one
of
your
employees.
This
can
be
a
very
tricky
issue
for
employers
since
there
can
be
varying
levels
of
information
presented
which
may
or
may
not
be
legitimate.
The
source
of
the
information
should
be
evaluated
in
determining
the
proper
response
to
the
situation.
The
key
point
for
employers
on
this
issue
is
not
to
bury
your
head
in
the
sand
and
ignore
the
information.
Ignoring
can
lead
to
a
very
negative
outcome
at
some
point
in
the
future.
- Social
Security
Problems:
While
somewhat
like
the
stray
information
category,
there
are
a number
of
ways
a
social
security
number
problem
can
arise.
Anytime
the
concern
is
generated
by
some
sort
of
action
by
the
Social
Security
Administration,
Continue Reading...
|
|
The Day After the Election: A Recap of What I Learned on Election Day
|
11/07/2012
|
By: Donald Berner
|
As
most
of
the
free
world
can
attest,
yesterday
(and
last
night)
was
election
day
here
in
the
United
States,
which
is
a
very
serious
and
somber
process.
It
is
on
election
day
that
we
select
candidates
to
serve
all
the
way
from
local
positions
up
to
the
President
of
the
United
States.
These
choices
can
have
a
major
impact
on
how
government
interacts
with
employers
and
their
employees
over
the
following
four
years.
This
election
day
was
much
different
for
me
than
those
in
past
years.
I
learned
a
lot
by
looking
and
listening
as
the
election
process
was
fed
back
to
me
through
the
eyes
and
ears
of
my
children.
My
high
school
junior
and
8th
grader
had
strong
feelings
about
who
the
right
candidate
for
the
job
might
be
for
President.
The
problem
is
they
did
not
agree.
Talk
about
partisan
politics.
It's
hard
enough
to
keep
the
normal
sibling
squabbles
under
control
without
tossing
politics
into
the
equation.
While
the
older
siblings were
entertaining
at
some
times
and
irritating
at
others,
the
2nd
grader
brought
the
political
process
into
a
whole
new
light
for
me.
On
election
night
at
the
dinner
table
I was
grilled
by
her
about
whether
I had
voted
yet.
I
had
not
done
so,
which
seemed
to
be
a
big
deal
even
though
the
polling
locations
were
still
open
for
another
ninety
minutes
(I
like
to
slip
in
near
closing
in
hopes
it
is
quieter).
Not
only
did
I
get
chastised
for
not
having
exercised
my
right
Continue Reading...
|
|
U.S. Attorney Serves up an Unhappy Meal to Wichita McDonald's Franchise
|
11/02/2012
|
By: Donald Berner
|
On
a
night
when
most
of
the
kids
in
Wichita
are
going
door-to-door
dressed
in
scary
costumes
declaring
trick
or
treat,
the
U.S.
Attorney's
office
served
up
a
very
scary
and
unpleasant
trick
on
a
local
Wichita
business.
The
press
release
issued
by
the
Immigration
and
Customs
Enforcement
agency
(ICE)
reflects
that
the
business
was
charged
with
one
felony
count
for
knowingly
accepting
a
fraudulent
identification
document.
At
some
point
in
the
past,
the
employer
was
made
aware
of
an
employee
with
a
bad
social
security
number.
The
employer
followed
up
by
asking
for
documentation
to
prove
the
employee
was
authorized
to
work
in
the
U.S.
The
employee
provided
a
permanent-resident
card,
and the
employer
updated
the
employee's
I-9
documentation.
ICE took
the
position
that
the
employer
was
aware
the
permanent-resident
card was
not
legitimate
because
of
the
speed
with
which
the
employee
obtained
the
documentation. The
ICE press
release
indicates
a
plea
agreement
is
in
the
works,
and
the
company
will
pay
out
$400,000
in
fines
and
forfeitures
to
the
federal
government as
a
result
of
the
agreement.
Read
the
ICE press
release
here.
|
|
Employee Off-Duty Access: The NLRB's New Twist on the Open Door Policy
|
10/23/2012
|
By: Donald Berner
|
As
most
of
you
are
probably
aware,
the
National
Labor
Relations
Board
(NLRB) has
been
extremely
active
in
applying
the
National
Labor
Relations
Act
(NLRA)
in
ways
that
have
are
having
a
significant
impact
on
employers
without
labor
unions.
The
most
well-known
of
these
areas
is
in
the
context
of
social-media
policies
and
the
application
of
those
policies
in
disciplinary
matters.
In
a
recently
issued
decision,
the
NLRB
took
on
the
issue
of
employee
access
to
the
employer's
facility
during
off-duty
hours.
From
a
historical
standpoint,
the
NLRB
decisions
considered restrictions
for
off-duty
employee
access
acceptable,
so
long as
the
restriction
was
clearly
communicated
to
the
employees,
limited
to
the
interior/working
areas
of
the
employer,
and
applied
to
all
employees
seeking
access
and
not
just those
engaging
in
union-related
activity.
This
standard
allowed
employers
to generally
prohibit employee
off-duty
access
and
still
allow
for
limited
exceptions
as
they
might
arise.
For
example,
an
employer could
have
a
policy prohibiting
off-duty
access
that
allowed
for
exceptions
with
manager
approval.
This
would
allow
a
supervisory
employee to
make
a
limited
exception
in
those
circumstances
where off-duty
access
was
really
necessary.
Under
the
historical
approach,
these
limited
exceptions
would
allow
for enough
flexibility
to
handle
emergency
situations
and
still
not
run
afoul
of being
interpreted
in
a
way
that
was
targeting
employees
engaging
in union
activity.
The
historical
approach
followed
by
the
NLRB
dates
back
over
thirty-five
years
and
has
worked
sufficiently
well
to
balance
the
needs
of
employers
to
secure
their
facilities
while
still
allowing
some
flexibility
when
needed
by
employees.
The
current
NLRB,
however,
in
Continue Reading...
|
|
Avoiding Discrimination Claims - Good Investigations
|
10/16/2012
|
By: Donald Berner
|
In
most
cases,
a
discrimination
claim
arises
following
some
sort
of
disciplinary
process
or
performance
counseling
activity.
In
more
limited
cases,
the
external
claim
follows
some
concern
raised
internally
with
the
employee
being
dissatisfied
with
the
resolution
reached
during
the
internal
process.
In
all
of
these
situations,
the
employer
should
have
conducted
an
internal
investigation
into
the
matter.
The
quality
of
the
internal
investigation
will
have
a
significant
impact
on
the
later
external
claim
the
employee
files
with
the
KHRC/EEOC.
In
the
case
of
employee
misconduct,
the
internal
investigation
will
provide
the
basis
for
the
discipline
that
is
ultimately
issued
in
the
matter.
The
documentation
of
the
investigation
will
go
a
long
way
to
supporting
the
employer's
defense
to
a
discrimination
claim
if
the
investigation
was
handled
appropriately.
The
key
to
any
investigation
is
to
be
thorough
and
fair
as
the
facts
and
circumstances
are
evaluated.
A
good
investigation includes
interviews
of
any
and
all
witnesses
to
the
situation,
even
if
the
witness
will
provide
information
that
is
contradictory
to
the
position
the
management
team
has
taken.
Trust
me
on
this
one
--
it
is
much
better
to
find
out
all
the
sordid
details
during
the
internal
investigation
than
to
be
hit
over
the
head
with
those
bad
facts
months
(or
even
years)
after
the
fact
during
an
external
investigation.
|
|
Avoiding Discrimination Claims - Good Documentation
|
10/12/2012
|
By: Donald Berner
|
If
you
have
worked
in
HR
or
management
for
more
than
a
few
days
you
are
sure
to
have
heard
several
times
by
now
to
document
and
then
document
and
then
document.
This
old
employment-law
adage
remains
true
today.
Maintaining
documentation
of
your
employment
decisions
can
be
the
difference
between
being
able
to
successfully
defend
a
discrimination
claim
and
losing
on
that
claim.
The
typical
discrimination
charge
filed
with
the KHRC/EEOC
covers
factual
events
that
range
anywhere
from
three
months
old
to
several
years
old.
If
you
are
anything
like
me,
remembering
where
I
was
at
two
years
ago
today
is
virtually
impossible
let
alone
what
happened
during
a
three-minute
conversation
with
a
co-worker.
That's
where
documentation
comes
into
play.
I
want
to
expand
a
bit
on
that
concept
of
documenting
to
add
in
the
notion
that
what
you
are
really
after
is
good
documentation.
Any
employment
decision
made
should
be
supported
with
documentation
reflecting
that
action.
The
documentation
can
be
simple
notes
written
by
a
supervisor
or
a
full-scale
form
detailing
actions
taken
and
the
reasons
for
the
action.
In
most
cases,
the
documentation
will
be
an
accurate
and
true
reflection
of
the
events
being
noted
and
will
be
given
much
more
weight
two
years
later
than
a
supervisor
or
employee's
recollection
of
the
events.
That's
what
makes
good
documentation
so
important
--
it
is
not
subject
to
revisionist
memory
since
it
was
created
at
the
time
of
the
event.
One
last
note:
the
documentation
maintained
in
an
employee's
personnel
file
should
Continue Reading...
|
|
J-1 Visa Waivers for Physicians Under the Conrad 30 Program
|
10/04/2012
|
By: Donald Berner
|
The
new
government
fiscal
year started
on
October
1st
which
means
it
is
time
to
begin
preparing
and
filing
J-1
visa
waiver
applications
for
physicians
under
the
Conrad
30
program.
The
program
is
used
by
medical
employers
(hospitals,
clinics,
practice
groups,
etc.)
to
hire
foreign
physicians
to
work
in
medical
provider
shortage
areas
(HPSA
or
MUA)
or
outside
of
shortage
areas
but
providing
care
to
residents
within
shortage
areas.
The
program
provides
Kansas
employers
with
a
great
tool
to
recruit
physicians
to
these
shortage
areas.
For
more
information
click
here.
|
|
An Employer Wins A Battle in the Social Media War as NLRB Upholds Employee Facebook Posting Related Discharge
|
10/02/2012
|
By: Donald Berner
|
Earlier
this
week
the
National
Labor
Relations
Board
(NLRB)
upheld
a
car
dealership's
discharge
of
a
salesman
for
posting
photos
and
comments
to
his
Facebook
page.
The
NLRB's
decision
is
a
welcome
victory
for
employers
after
a
long
series
of
employer
unfriendly
pronouncements
from
the
NLRB.
Over
the
last
year
or
two,
the
NLRB
has
provided
employers
with
a
series of
memoranda
designed
to highlight
the
acceptable
parameters
for
employer
policies
and
employee
discipline
for
social
media
postings.
With
each
additional
bit
of
guidance, an
employer's
ability
to
deal
with
problem
social
media
postings appeared
to
become increasingly more
difficult.
While
the
NLRB should
(and
will)
ensure
that
employees
engaging
in
protected
and
concerted
activity
are
not
discriminated
against,
there
have
to be
some
boundaries
to
the
types
of comments
an
employee
can
post
for
the whole
world
to
read
that
concern
the
employer.
In
this
particular
case,
the
employee salesman
posted
two
different
sets
of
photos
and
comments
to
his
Facebook
page.
One
set
of
photos
and
comments
centered
around
a
dealership
event
related
to
the
roll
out
of
a
new
luxury
vehicle.
The
photos
and
comments
were
mocking
and
sarcastic
in
tone
and
focused
upon
the
employer's
decision
to
serve
hot
dogs,
chips,
and
water
at
the
event
as
opposed
to
something
more appropriate
for
a
luxury
event
like
"champagne
or
wine".
The
second
set
of
photos
and comments
were
related
to
an
accident
that
occurred
during
the test
drive
of
a
new
vehicle
and
were
also
sarcastic
and
mocking
in
tone.
Following
the
postings,
the salesman's
employment
with
the
dealership
was
terminated.
Continue Reading...
|
|
Avoiding Discrimination Claims - Training
|
9/27/2012
|
By: Donald Berner
|
If
an
employer
has
a
set
of
policies
and
practices
in
place,
educating
the
employees
and
the
management
team
is
a
critical
link in
reducing
the
likelihood
of
a
discrimination
claim.
The
training
for
employees
will
differ
somewhat from
the
training
provided
to the management
team.
With
respect
to
employees,
the
new-hire orientation process
should
contain a
general
overview of
company
policies
and
rules.
In
addition,
it
is
always
a
good
practice
to
have the
employees
sign an
acknowledgment
that
they
were
made
aware
of
the
policies
and
rules
in
place.
Beyond
a
general new-hire-training
process,
it
is
also
helpful
to
conduct periodic training
sessions
for
employees
focused
on
non-discrimination
and anti-harassment
policies,
as
well
as
any
specific
company
rules
that
need
additional
emphasis.
With
respect
to the
anti-harassment and
non-discrimination
training,
it is
important
to
emphasize
the
internal process
by
which
complaints
under
those
policies
can
be
made.
This
internal
complaint
process will
be
helpful
in
that
it
will
encourage
employees
to
keep
complaints
internal
and
may
provide
the
employer
with
the
ability
to
assert
some
affirmative
defenses
if
the
employees
fail
to
follow
a
complaint
process.
The
management
team
should
receive
the
same
training
as
non-management
employees,
as
well
as
additional
training
on
topics
including
the
FMLA,
ADA,
Title
VII,
and
the
FLSA.
It
is
important
for
supervisory
employees to
understand
the
employer's basic
obligations
and
practices
with
respect
to
these
various
statutes.
These
management
employees
are
likely
to
be
the
first
employer
representative
to
encounter
a
concern
implicating
these
statutes,
so
they
need
to
understand
the
basics
to
ensure
they
properly
respond
to
the
employee.
Another
key
part
of
the
Continue Reading...
|
|
Avoiding Discrimination Claims - Policies Pt. 2
|
09/25/2012
|
By: Donald Berner
|
The
last
installment
discussed
a
couple
of
important
policies
-
EEO
and
anti-harassment
-
that all
employers
should
have
in
their
policy
collection
to
help
avoid
discrimination
claims.
Beyond
those
two
policies,
employers
should
also
have
a
wide-ranging
variety
of
policies
related
to
how
employees
should
conduct
themselves
in
the
workplace.
These
various
policies
will
cover
all
sorts
of
disciplinary
and
performance
issues
and
will
vary
from
employer
to
employer.
While
having
the
policies
is
helpful,
the
next
key
to
avoiding
discrimination
claims
is to
ensure
these
wide-ranging
policies
are
followed
as
written
by
the
employer.
If
an
employer
policy
addresses
a
situation,
the
actions
taken
by
the
employer
should
be
consistent
with
the
policy.
And
beyond
being
consistent
with the
policy,
the
actions
taken
should
be consistent
how
the
employer
handled past
instances
of
violations
of
the
policy.
An
employer
that
deviates
from
the
terms
of
its
own
policies
or from
its
past
practices may
find
it
difficult
to
defend
the
employment
action
taken.
You
can
be
sure
the
employee
filing
the
charge
will
claim
the
deviation
is
a
result
of
the
employee's
protected
classification
as
opposed
to the
employer's
insistence
the
action
was based
upon
the policy
violation.
So
remember,
follow
the
policy
as
written
and
make
sure
any
employment
action
taken
is
consistent
with
how violations
have
been
handled
in
the
past.
A
failure
to
do
so
will
invite employee-discrimination
claims.
|
|
Avoiding Discrimination Claims - Policies
|
09/21/2012
|
By: Donald Berner
|
As
most
of
you
know, any
of
your
employees (or
former
employees) can
file
a
discrimination
charge
with
the
EEOC
or
KHRC
alleging
your
company
discriminated
against
them
on
the
basis
of
any
(or
several)
protected
classifications
under
the
various
statutes
like
the
ADA or
Title
VII.
When
a
charge
is
filed,
the
employer
will
almost
always
be
required
to
respond
to
the
agency
and
provide
a
variety
of
supporting
materials
and/or
materials
requested
by
the
agency.
These
investigations
also
frequently
involve
the
agency
sending
an
investigator
to
your
workplace
to
interview
witnesses
(managers
and
co-workers
of
the
complaining
party).
This
process
can
be
time
consuming
for
employers
and
serve
as
a
distraction
from
the
normal
course
of
business
for
the
employer.
The
best
defense
to
a
discrimination
charge
is
to
exercise
good
preventive
medicine.
Over
the
next
few
weeks,
check
back
for
a
series
of
posts
highlighting
some
good
preventive
measures
an
employer
can
take
to
avoid
a
discrimination
charge.
And even
if
these
measures
don't
prevent
a
charge, following some
or
all
of
them
will
make
defending
the
charge
a
much
easier
task.
So
let's
get
started.
The
first
line
of
defense
revolves
around
employer
policies.
Every
employer
should
implement EEO-related
policies
and
procedures.
The
basic
EEO
policy
should
reinforce
the
employer's
commitment
to
equal
employment
opportunity
and
to making
employment-related
decisions
without
considering
protected
classification
information.
In
addition
to
an
EEO policy,
employers
should
also
have
a
policy
related
to
harassment
issues.
The
anti-harassment
policy
should
cover
sexual
harassment
and
other
forms
of
harassment
based
on
protected
classifications.
It
is
Continue Reading...
|
|
Another Potential Facebook Casualty
|
09/17/2012
|
By: Donald Berner
|
Most
of
you
know
by
now
that
social
media
websites
can
be
dangerous
in
the
employment
context. Apparently,
one
of
the
NFL's
replacement
referees
failed
to
get
that
memo. Over
the
weekend,
the
NFL was
forced
to
replace
a
referee
on
a
crew
after
learning
of
his
posts
on
Facebook
highlighting
that
he
was
a
New
Orleans
Saints
fan. Apparently
the
postings
included
photos
of
the
referee
in
his
Saints
jersey
at
a
tailgate
party. The
bad
news
for
the
NFL
is that
this
referee
was
assigned
to
call
the Saints
game
on
Sunday. Nothing
like
being
placed
in
a
position
to
officiate
your
team's
game. As
of
today, the
NFL has
not
terminated
the
referee
for
this
potential
bias. Hopefully,
the
NFL is
smart
enough
to
realize
this
conflict
of
interest
goes
beyond
just
a
game
involving
the
Saints,
as
his
decisions
in
another
game
could
easily
benefit
the
Saints. I would
assume
the
NFL will
piece
all
this
together
and
take appropriate
action. Stay
tuned
to
see
if
this
social
media
dust
up
includes
some
further
employment
action
and
whether
that
action
leads
to
some
other
legal
process.
|
|
EEOC Strategic Enforcement Plan Published
|
09/11/2012
|
By: Donald Berner
|
The
EEOC
published
a
draft
version
of
its
Strategic
Enforcement
Plan
last
week.
Of
particular
note
for
employers
is
the
priorities
section
of
the
document,
which
identifies
the
areas
in
which
the
EEOC
will
place
special
emphasis
in
the
future.
Some
of
the
areas
of
emphasis
will
include:
- Hiring
Discrimination:
The
gist
of
this
effort
is
to
target
employers
with
hiring
practices
that
discriminate.
While
this
seems
easy
enough
to
understand,
keep
in
mind
that
a
neutral
policy
or
practice
that
has
an
adverse
impact
on
a
protected
classification
is
just
as
much
a
problem
as
a
policy
that
directly
discriminates.
- Immigrants
and
Migrant
Workers:
The
EEOC
views
this
segment
of
the
population
as
vulnerable
and
exploited
and
intends
to
pay
special
attention
to
the
treatment
of
these
groups.
- Pregnancy
Accommodation:
The
EEOC
seems
to
believe
that
pregnant
women
are
placed
on
unpaid
leave
when
other
employees
are
provided
accommodations
and
will
be
paying
special
attention
to
this
concern.
There
are
some
other
areas
of
emphasis
that
shouldn't
come
as
a
surprise
(like
ADA
enforcement). You
can
review
the
full
document
here. To
see
the
priorities
scroll
down
to
Section
III
of
the
document.
|
|
Labor Day: The Unofficial End of Summer or Something More
|
09/04/2012
|
By: Donald Berner
|
Hopefully
everyone
enjoyed
their
Labor
Day
holiday.
Over
the
years,
Labor
Day
has
been
viewed
as
the
last
gasp
of
the
summer
"fun"
season.
While
taking
this
last
summer
holiday
to
enjoy
some
travel
or
family
time
is
a
great
idea,
the
roots
of
Labor
Day
can
actually
be
traced
to
labor
unions.
Labor
Day
was
established
in
the
late
1800s
and
early
1900s
as
a
holiday
to
celebrate
the
contributions
of
the
our
country's
workers
and
was
initially
proposed
by
organized
labor
unions.
Click
here
for
the
history
of
Labor
Day.
The
Labor
Day
holiday
should
serve
as
a
reminder
to
union-free
employers
that
organized
labor
is
still
working
hard
to
represent
the
employees
at
their
companies.
Your
management
team
should
spend
some
quality
time
on
a
regular
basis
communicating
with
your
employees
and
listening
to
their
concerns.
This is
a
great
way
to
ensure
your
company
remains
union-free.
If
management
fails to
establish
a
rapport
and
good
working
relationship
with
their
employees,
this
opens
the
door
for people
outside
the
company
to
have
those
conversations.
I'm
sure
most
of
you
would
prefer
the
good
working
relationship
start
within
the company
as
opposed
to
outside
the company.
So
now
that
you
have
made
the
most
of
your holiday
weekend
courtesy
of
the
labor
movement, get
back
to
work building
those
internal
relationships.
|
|
Leave as an ADA Accommodation
|
08/30/2012
|
By: Donald Berner
|
The
10th
Circuit
Court
of
Appeals
(the
federal
appellate
court
responsible
for
Kansas
and
other
midwestern
states)
decided
a
case
involving
leave
as
an
accommodation
under
the
Americans
with
Disabilities
Act
(ADA).
In
the
case,
the
employer
provided
significant
amounts
of
leave
time
for
a
disabled
employee
over
a
several-year
period.
After
providing
leave
as
an
accommodation,
the
employer
eventually
discharged
the
employee
because
of
the
uncertainty
surrounding
her
return
to
work.
In
its
decision,
the
10th
Circuit
confirmed
that
an
employer
is
not
required
to
provide
an
indefinite
leave
of
absence
as
an
accommodation
under
the
ADA.
In
addition,
the
court
referenced
the
reasonableness
of
a
leave
of
absence,
mentioning
that
a
leave
of
four
months
is
reasonable
and
that
a
leave
of
six
months
may
not
be
reasonable.
Employers
can
utilize
these
guideposts
in
assessing whether
to
provide
an
employee a
leave
of
absence
as
an
accommodation
for
a
disability.
Finally,
congratulations
to Jim
Oliver,
Bud
Cowan,
and
Tara
Eberline of Foulston
Siefkin's
Overland Park
office
for
their
successful
defense
of
the
defendant
in
this
particular
case.
To
read
the
opinion
in
its
entirety
click
here.
|
|
Do Your Workplace Investigations Run Afoul of the NLRA?
|
08/28/2012
|
By: Donald Berner
|
As
most
of
you
are
aware,
the
NLRB
has
been
very
active
with
respect
to
employer
policies
and
their
impact
on
the
rights
of
employees
under
the
NLRA.
The
most
widely
publicized
of
those
policy-related
forays
are
the
NLRB's
various
decisions
and
memoranda
regarding
employer
social
media
policies.
In
a
recent
decision,
the
NLRB
weighed
in
on
employer
requirements
of
confidentiality
with
respect
to
internal
employer
investigations.
The
NLRB
noted
that
a
blanket
prohibition
on
employee
interaction
with
co-workers
was
a
violation
of
the
employees'
right
to
engage
in
collective
activity.
With
its
decision,
the
NLRB
noted
that
in
some
circumstances
a
confidentiality
requirement
may
be
crucial
to
the
investigation
to
protect
witnesses
or
preserve
evidence;
however,
a
blanket
confidentiality
requirement
was
not
acceptable.
If
you
use
such
a
blanket
approach
to
workplace
investigations,
you
might
want
to
consider
whether
such
a
restriction
is
important
to
the
overall
investigation.
If
not,
requiring
the
employee
to
keep
quiet
might
very
well
lead
you
into
a
fight
with
the
NLRB.
|
|
Employer Flunks the Test with Pre-Employment Testing
|
08/16/2012
|
By: Donald Berner
|
The
use
of
pre-employment
testing
by
employers
has
become
more
common
in
recent
times.
In
most
cases,
the
testing
is
conducted
by
outside
vendors
offering
these
types
of
services
to
multiple
groups
of
employers.
While
these
tests
seem
to
be
a
good
idea
to
most
employers,
it
is
important
to
make
sure
they
pass
muster
with
the
various
administrative
agencies
at
the
federal
and
state
level.
In
a
recent
example
of
a
test
gone
wrong,
the
OFCCP took
issue
with
an
employer's
written
testing
program.
The
test
had
an
adverse
impact
on
minority
applicants
and
failed
to
meet
the
EEOC's
Uniform
Guidelines
on
Employee
Selection
Procedures. In
this
recent
case,
the
OFCCP
reached
a
$550,000
settlement
with
the
employer.
Click
here
for
the
OFCCP press
release.
While
having
the
OFCCP
involved
might
suggest
this
is
only
an
issue
for
written
tests
and
government
contractors, don't
be
misled.
This
is
only
an
OFCCP issue
because
the
problem
was
uncovered
by
an
OFCCP audit
of
the
employer.
The
EEOC's
requirements
in
this
area
apply
to
all
employers.
In
addition,
the
selection
guidelines
apply
to
all
types
of
pre-employment
testing,
ranging
from
written
testing
to
skills
testing
to
strength-and-agility
testing.
If
your
company
conducts
these
types
of
tests,
it
is
important
to
ensure
there
is
not
an
adverse
impact
on
a
specific
class
of
individuals.
If
there
is
an
adverse
impact,
the
employer
can
still
defend
the
testing
measure
if
the
employer
can
show
the
test
is
an
accurate
predictor
of
a
candidate's
ability
to
perform
a
job.
This
is
where
Continue Reading...
|
|
Possible Federal Relief for Employer Protection of Trade Secrets
|
08/13/2012
|
By: Donald Berner
|
Last
month
a
bill
was
introduced
in
the
U.S. Senate
to
provide
a
limited
federal
cause
of
action
for
employer
use
in
protecting
a
company's
trade
secrets
from
misappropriation.
The
Protecting
American
Trade
Secrets
and
Innovation
Act
of
2012
was
introduced
and
referred
to
the
Senate
Committee
on
the
Judiciary.
The
goal
of
the
bill
is
to
provide
a
federal
cause
of
action
to
employers
attempting
to
file
litigation
to
protect
a
company's
trade
secrets.
As
currently
structured,
the
new
legislation
would
provide
this
cause
of
action
under
a
limited
set
of
circumstances.
The
current
option
for
an
employer
is
to
bring
claims
in
state
courts
with
the
underlying
law
varying
significantly
from
state
to
state.
This
variance
in
state
law
can
create
complications
and
sometimes
make
it
difficult
for
companies
to
effectively
defend
their
confidential
information.
Stay
tuned
as
this
bill
makes
its
way
through
the
legislative
process.
To
track
the
legislation,
click
here.
|
|
Access to Employee Social Media May Be Unlawful
|
08/07/2012
|
By: Donald Berner
|
The
recent
uproar
over
employers
demanding
access
to
a
prospective
employee's
Facebook
account
has
now
resulted
in
state
laws
prohibiting
the
practice
in
Illinois
and
Maryland.
For
employers
with
employees
in
those
states,
it
is
now
unlawful
to
demand
an
employee
provide
passwords
or
any
other
means
of
access
to
the
employee's
various
social-media
accounts. If
your
company
requires
access
to
an
employee's
social-media
accounts,
stay
tuned
as
this
is
likely
to
spread
to
additional
states
in
the
near future.
|
|
FLSA Claims Reach Record Levels in 2012
|
8/3/2012
|
By: Donald Berner
|
I read
an
interesting
article
highlighting
the
statistics
for
claims
filed
under
the
FLSA over
the
last
twenty
years.
This
year,
FLSA claims
reached
a
record
high
and
we
still
have
four
months
left
in
the
year.
The
statistics
show
claims
for
2011
at
7,006
for
the
year
and
this
year
we
are
already
at
7,064
claims.
By
the
time
the
numbers
are
all
in,
the
claims
filed
in
2012
will
dramatically
exceed
the
numbers
historically.
While
employers
can't
do
much
to
stem
the
growing
number
of
claims,
they
can
be
sure
they
are
complying
with
the
FLSA
rules. For
most
employers,
the
key
risk
areas
involve
the
payment
of
overtime
and
proper
classification
of
exempt
employees.
Spending
a
little
time
this
fall
to
make
sure
your
company
is
in
compliance
may
be
time
well
spent
considering
the
extra
attention
being
paid
to
FLSA issues
by
the
Department
of
Labor
and
the
plaintiff's
lawyers.
|
|
OSHA Adds Fall-Protection Resources
|
07/31/2012
|
By: Donald Berner
|
OSHA recently
established
a
website
section
devoted
to
providing
construction-industry
employers
with
fall-protection
information.
Statistics
show
that
falls
are
the
most
likely
cause
of
on-the-job
fatalities
in
the
industry,
and
OSHA is
making
a
concerted
effort
to
reduce
the
number
of
fall-related
incidents
in
the
industry.
For
employers,
this
new
outreach
website
provides
a
single
location
with
links
to
a
wide
variety
of
educational
materials
on
the
topic.
This
includes
short
summaries
of
the
various
regulations
related
to
fall-protection
issues,
as
well
as materials
that can
be
used
to
train employees
on
these
various
concerns.
The
OSHA fall-protection website
section
can
be
found here.
|
|
What All Employers Can Learn From Penn State
|
07/24/2012
|
By: Donald Berner
|
Over
the
last
several
months
the
Penn
State/Sandusky
story
has
taken
numerous
twists
and
turns.
For
the
most
part,
the
final
chapter
has
been
written
on
most
of
the
participants.
The
main
perpetrator,
Sandusky,
has
been
convicted
on
a
significant
number
of
criminal
offenses
and
will
spend
the
rest
of
his
life
in
jail.
Penn
State
has
been
hit
with
significant
NCAA
penalties
and
is
defending
itself
from
a
range
of
civil
claims.
The
once
revered
head
coach,
Joe
Paterno,
has
died
and
his
reputation
destroyed.
While
most
employers
don't
expect
to
deal
with
employee
issues
as
horrible
as
those
Penn
State
has
been
faced
with,
there
are
some
lessons
that
can
be
learned
from
Penn
State's
fall.
- Make
sure
your
organization
has
a
process
by
which
complaints
of
wrongdoing
can
be
made.
This
process
should
include
multiple
avenues
for
an
employee
to
bring
a
complaint
forward.
- No
matter
how
loved
and
adored
a
leader
in
an
organization
may
be,
the
leader
should
not
be
above
reproach.
Any
allegations
made
must
be
investigated
and
taken
seriously.
- If
that
investigation
determines
an
allegation
has
merit,
take
action
to
protect
the
victim
in
the
situation.
Ensure
the
victim
is
aware
of
the
actions/investigation
and
are
on
notice
to
bring
future
concerns
to
the
employer.
- Protect
complaining
parties
and/or
witnesses
from
all
forms
of
retaliation.
This
includes
making
sure
employees
are
aware
of
these
protections
so
they
are
comfortable
bringing
forward
any
Continue Reading...
|
|
Foreign Students and Work Authorization
|
07/20/2012
|
By: Donald Berner
|
One
of
the
more
confusing
work
authorization
scenarios
I
see
clients
dealing
with
relates
to
when
a
foreign
student
is
authorized
to
work
in
the
United
States.
The
default
rule
is
that
a
student in
the
U.S. with
an
F
visa
(the
typical
one
used
by
students)
is
not
permitted
to
work. Students
typically
gain
the
ability
to
work
in limited
ways. A
student
may
gain
work
authorization
via a
curricular
practical
training
program
(CPT)
or
via an
optional
practical
training
program
(OPT). These
programs
differ
quite
a
bit. A
student
working
via CPT
will
have
the
ability to
work
for
a
limited
period
of
time
and
for a
specific
employer
as
part
of
a
school
sponsored
training
program. A student
working
via
OPT
will
have
an
employment
authorization document
(EAD) which
will
allow
a much
longer
period
of
employment with
no
specific
employer
restrictions. If
your
company employs
a
foreign
student,
make
sure you carefully
evaluate whether
the individual
has
proper
work
authorization
documents to
work
for
your
company
and
ensure
you
carefully
note
the
expiration
of
that
work
authorization.
|
|
Heat Injuries and OSHA's General Duty Clause
|
07/17/2012
|
By: Donald Berner
|
As
most
of
you
are
painfully
aware,
it
is
incredibly
hot
outside.
This
week
the
temperatures
will
continue
to
exceed
100
degrees.
While
most
of
us
understand
that
the
intense
heat
poses
a
health
risk,
it
is
probably
safe
to
say
that
we
don't
fully
appreciate
just
how
dangerous
the
heat
can
be.
Each
spring
OSHA issues
press
releases
highlighting
the
dangers
of
working
in
the
heat;
however,
there
are
no
specific
safety
standards
related
to
avoiding
heat
injuries.
This
does
not mean
that
your
company
won't
receive
a
citation
should
heat
related
injuries
occur
in
your
workplace.
OSHA typically issues citations
to
employers
when
the
employer
violates
some
specific
written
safety
standard established
by
regulation.
In
addition
to
these
written
standards,
OSHA may
rely
on
the
general
duty
clause
within
the
OSH Act
to
issue citations. The
general
duty
clause requires
employers
to
maintain
a
workplace
free
of
recognized
hazards. In
a recent
decision,
an OSHA citation
alleging
an
employer
violation
of
the
general
duty
clause
following an
employee heat
injury was
upheld
by
an
administrative
law
judge.
In
the
particular
case,
an
employee
died from
a
heat
stroke.
The supervisor's failure
to
recognize
the
obvious
symptoms
of
the
heat
injury
resulted
in OSHA's
issuance
of
the citation.
The
simple
message
to
other
employers
is
to
ensure
your
workforce
is adequately
trained
with
respect
to
heat
injuries
and
to
apply
as
many
safety
measures as
possible
to
avoid
the
onset
of
a
heat
injury.
A
failure
to
do
so
may
expose
your
workers
to
serious
injury
and
your
company
to
significant
penalties.
|
|
Summer HR Box Lunch Workshop Series
|
07/09/2012
|
By: Donald Berner
|
The
first
of
several
HR Box
Lunch
Workshops
is
set
to
begin.
There
is
still
time
to
get
signed
up
to
attend
the
sessions.
Click
here
for
more
information
on
the
upcoming
sessions
and
click
here
to
sign
up.
Hope
to
see
you
there.
|
|
Immigration Debate Likely to Continue
|
07/03/2012
|
By: Donald Berner
|
What
better
time
to
consider
the
issue
of
immigration
than
on
the
eve
of
the
4th
of
July.
As our
nation
of
immigrants
gathers
together
to celebrate
the
birth
of
our
nation,
the
issue
of
immigration
reform
should
continue
to
garner
attention
over
the
next
year.
In
the
last
month,
the
U.S. Supreme
Court
upheld
the
central
piece
of
the
controversial
Arizona
immigration
statute
and
the
Obama
White
House
announced
an
intention
not
to
enforce
deportation
against
a
selected
group
of
young
illegal
aliens.
Both
events
have
sparked
significant
interest
in
the
issue
around
the
country
and
should
fuel
a
continued
debate
over
immigration
reform.
While
the
Supreme
Court's
upholding
of
the
"show
me
your
papers"
provision
seemed
to
garner
more
attention,
the
enforcement
suspension
is
likely
to
result
in
a
much
larger
impact
to
employers
and
illegal
aliens.
The
Department
of
Homeland
Security
(DHS)
will
provide
more
detail
in
the
coming
weeks
regarding
President
Obama's
announcement,
but
the
short
version
is
that
a
status
called
deferred
action
will
be
conferred
on
those
who
meet
the
limited
eligibility
criteria
set
forth
by
DHS.
Once
that
status
is
granted,
those
individuals
will
be
able
to
apply
for
and
receive
work
authorization
documents.
As
DHS
publishes
the
program
criteria,
there
is
bound
to
be
a
significant
amount
of
attention
paid
to
this
issue.
This
upcoming
debate
may
provide
some
momentum
for
a
more
comprehensive
set
of
immigration
reforms.
For
more
information
on
the
enforcement
suspension
click
here.
|
|
OSHA Targets Nursing and Residential Care Facilities
|
6/29/2012
|
By: Donald Berner
|
OSHA recently
announced
a
national
emphasis
program
that
targets
nursing
homes
and
residential
care
facilities.
The
program
is
being
implemented
due
to
the
higher than
average injury
and
illness
rates
within
the
industry.
Employers
falling
within
the
covered
NAICS Codes (used
to
be SIC Codes) should
expect
to
see
a visit
from
OSHA in
the
coming
year.
For
more
information
on
the
OSHA emphasis
program click
here.
|
|
Drugs, Alcohol, and Falls: Workplace Safety Gone Bad
|
06/12/2012
|
By: Donald Berner
|
Most
employers
with
drug-and-alcohol-testing
policies
require
employees
suffering
a
workplace
injury
to
be
tested
for
drugs
or
alcohol.
It
is
common
for
these
post-injury
tests
to
be
conducted
at the
same
time
the
employee
receives
medical
attention
for
the
injury. These
types
of
testing
requirements
make
sense
and
are
generally
a
sound
practice. The
key
for
employers
is
ensuring
these
policies
are
implemented
in
an
effective
yet
responsible
manner.
From
the
category
of
its-too-crazy-to-be-made-up,
a
lawsuit
on
this
topic
was recently
filed
in
Dallas.
In
that
case,
an
employee
suffered
a
workplace
injury
after
falling
from
an
undisclosed
height. The employer
had
a
practice
of
drug
testing
employees
injured
on
the
job
and
allegedly
required
a drug
test. The minor
problem
in
this
case --
the
employer is
alleged
to
have
left
the
unconscious
worker lying
on
the
floor
for
two
hours
waiting
on
the
drug
test
to
be
administered. The
employer
then
called
911,
and
the
employee
was
taken by
the
paramedics
to
a
hospital,
where
the employee
later
died.
The
plaintiffs
allege
the
long
delay
in
receiving
treatment
led
to
the
employee's
death.
Click
here
for
the
story.
Keep
in
mind
now
that,
as
with
any
lawsuit,
the
initial
claims
made
by
the
plaintiff
are
not
always accurate,
and
in
this
case
I
hope that is
exactly
the
situation.
For
those
of
you
that
require a drug
test
following
a
workplace
injury,
make
sure
you
always look
first
to
the
employee's
health and
safety
before focusing
on
the testing
procedure.
|
|
Exercise Caution With Employees of a Contractor Your Company Hires
|
06/07/2012
|
By: Donald Berner
|
Imagine
you
hire
a
company
to
perform
a
service
or
conduct
a
function
of
your
business
you
have
chosen
to
outsource. As
a
result,
the
contractor
company
sends
its
employees
to
your
facility
to
perform
those
tasks.
Now
imagine
an
employee
of
the
contractor
engaging
in
union
organizing
activities
while
on
your
property.
Can
you
have
the
contractor
company
remove
its
employee
from
your
property?
It's
a
simple
question;
however,
the
answer
isn't
so
simple.
The
safe
assumption
to
start
with
is
that
you
cannot
ask
the
company
you
contracted
with
to
remove
one
of
its
employees
when
the
employee
engages
in
protected
activity.
In
a
recent
decision,
the
National
Labor
Relations
Board
(NLRB)
required
a
company
to
reverse
its demand
to
a
contractor
company
to
remove
an
employee
engaging
in union-organizing
activity
on its
property.
In
addition
to
being
required
to
allow the
contractor-company
employee
on
its
property,
the
employer
was
also
required
to make payment
to
the
contractor
employee
for
any
losses
suffered
by
the requirement
to
remove
the contractor
employee
from
the
employer's
property.
This
general
theme
should
cause
employers
to
pause
and
consider
carefully
the
identity
of
their
contractors
and
the
number
of
non-employees
granted
access
to
their
facilities.
While
this
recent
case
makes
it
clear
that
an
instruction
to
a
contractor
to
remove
contractor
employee(s)
engaging
in
protected
activity
is
unlawful,
there
may
very
well
be
circumstances
that
would
allow
for
the
removal
of
the
contractor
employee(s).
Should
a
similar
situation
arise
at
your
workplace,
it
is
advisable
to
think
carefully
before
requiring
a
contractor
to
Continue Reading...
|
|
When 6 Months Really Means 6 Months
|
06/05/2012
|
By: Donald Berner
|
In
a
recent
decision,
the
Court
of
Appeals
for
the
D.C. Circuit
provided
some
clarity
with
respect
to
the
statute
of
limitations
contained
within
the
Occupational
Safety
and
Health
Act.
Most
of
us
believe that
when
a
statute
states
any
claim,
or
in
this
case
any
citation,
must
be
made
within
six
months
of
the
event,
what it
really
means
is
there
is
a
six-month
cutoff.
OSHA took
a
little
different
approach
by
issuing
a
series
of
citations
to
an
employer
for
failing
to
keep
adequate
records
over
a
several-year
period.
When
the
employer
pointed
out
the
six-month
statute
of
limitations,
OSHA's
response
was
that
the
violation
remained
ongoing
due
to
the
employer's failure
to make
the
record.
After
multiple
levels
of
proceedings
where
OSHA's
continuing-violation
theory
was
accepted
as
valid,
the
case
arrived
at
the
D.C.
Circuit
Court
of
Appeals
where
it
was
promptly
rejected
by
the
Court.
For
now,
six
months
really
does
mean
six
months
again.
|
|
IRS Provides Guidance on $2,500 Health FSA Cap
|
05/31/2012
|
By: Donald Berner
|
The
IRS issued
Notice
2012-40
yesterday
(click
here
for
the
notice),
providing
a
number
of
important
clarifications
regarding
the
$2,500
cap
on
health
FSA contributions
that
applies
beginning
in
2013.
The
most
surprising
development
is
the
IRS's
interpretation
that
the
cap
applies
on
a
plan-year
basis,
rather
than
a
calendar-year
basis.
This
is
important
for
employers
with
fiscal-year
plans. They
will
be
able
to
wait
until
the
first
plan
year
beginning
after
December
31,
2012,
to
implement
the
cap,
rather
than
using
the
transition
rule
or
early
implementation
of
the
cap
to
ensure
contributions
during
the
2013
calendar
year
do
not
exceed
the
cap,
as
was
previously
thought
necessary.
Other
key
guidance
points
include:
- Clarification
that
unspent
amounts
carried
over
during
a
grace
period
will
not
count
against
the
cap
for
the
plan
year
in
which
the
grace
period
occurs.
- Confirmation
that
the
cap
only
applies
to
employee
salary-reduction
contributions
to
a
health
FSA.
Employer
contributions (e.g.,
flex
credits)
and
salary-reduction
contributions
to
dependent-care
FSAs
do
not
count,
nor
do
amounts
credited
to
HSAs
or
HRAs.
In
addition
to
interpretive
guidance,
the
Notice
provides
a
limited
correction
rule
that
will
allow
fixing
some
good-faith
mistakes.
If
a
mistaken
election
to
contribute
more
than
$2,500
to
a
health
FSA
in
a
year
is
properly
corrected,
the
error
will
not
jeopardize
the
plan's
status
as
a
qualifying
cafeteria
plan.
Of
academic
interest,
the
Notice
also
requests
comments
on
the
use-it-or-lose-it
rule.
The
implication
is
that
the
$2,500
cap
may
be
low
enough
Continue Reading...
|
|
Jason Lacey Joins Kansas Employment Law Blog
|
05/31/2012
|
By: Donald Berner
|
As
if
two
ugly
faces
on
this
blog
weren't
bad
enough,
beginning
in
June
you'll
see
three.
Jason
Lacey
is
joining
the
Kansas
Employment
Law
Blog
to
contribute
content
on
employee
benefits
and
related
issues.
Consistent
with
the
theme
of
the
blog,
his
posts
will
primarily
focus
on
employer-related
aspects
of
new
developments
and
other
considerations
in
employee
benefits.
Jason
is
a
partner
with
Foulston
Siefkin
LLP
in
Wichita.
He
is
a
hopeless
fly
fisherman
and
a
worse
golfer,
so
he
wisely
spends
most
of
his
time
thinking
about
federal
laws
that
most
people
love
to
hate
-
ERISA,
HIPAA,
COBRA,
the
Internal
Revenue
Code,
and
the
like.
He
has
two
young
daughters,
who
have
convinced
him
that
sleep
and
a
full
head
of
hair
are
overrated.
|
|
DOL FAQ's Update Guidance on the Summary of Benefits and Coverage (SBC)
|
5/29/2012
|
By: Donald Berner
|
The
Department
of
Labor
(DOL) recently
posted
a
new
set
of
FAQs
(click
to
here
to
read
the
FAQ)
to
its
website
providing
additional
guidance
on
the
requirement
under
health
care
reform
to
give
health
plan
participants
a
four
page
uniform
summary
of
benefits
and
coverage
(SBC). Some
highlights
include:
- A
new
electronic-distribution
safe
harbor
that
specifically
allows
for
distribution
of
the
SBC
with
online
enrollment
materials.
- A
transition
rule
for
arrangements
that
are
partly
insured
and
partly
self-funded
(e.g.,
an
insured
high
deductible
plan
with
integrated
self-insured
HRA)
that
allows
using
two
or
more
partial
SBCs
for
the
first
year
of
applicability.
- A
non-enforcement
rule
for
expatriate
coverage
during
the
first
year
of
applicability,
effectively
suspending
the
requirement
to
provide
an
SBC
for
expatriate
coverage
during
the
first
year.
- Assurance
that
penalties
will
not
be
imposed
during
the
first
year
of
applicability
on
employers
"that
are
working
diligently
and
in
good
faith
to
comply"
with
the
rules.
The
detailed
requirements
for
preparation
and
distribution
of
the
SBC are
described
in
final
regulations
issued
by
the
IRS,
DOL,
and
HHS earlier
this
year. (Click
here
to
see
the
final
regulation.)
The
requirement
to
distribute
an
SBC
generally
applies
to
the
first
open
enrollment
period
beginning
on
or
after
September
23,
2012.
|
|
Happy Memorial Day
|
05/25/2012
|
By: Donald Berner
|
Memorial
Day
is
rapidly
approaching.
Many
of
you
may have
plans
to
take
a
few
days
off
and
enjoy
the
official
start
to
the
summer
vacation
season.
Popular escapes include
a
wide
variety
of
outdoor
activities
like camping
and lake
trips.
For
those
of
you
with
kids
playing
sports,
Memorial
Day
is
also
a
popular
time
for
tournaments.
With
all
of
these
recreational
activities
on
our
minds,
let's
not
lose
sight
of
the
purpose
for
the
Memorial
Day
holiday.
Memorial
Day
was
originally
established
as
a
day
of
remembrance
for
those who
died
in
service
to
the
nation (read
more
here).
In
this
spirit,
it
is
a
good
time
for
employers
to
consider their
obligations
under
USERRA,
the
federal
law
that protects
returning
service
members
as
they
re-enter
the
workforce
following
their
military
service.
USERRA
protects
veterans
from
discriminatory
treatment
and
provides
a
variety
of
re-employment
related
protections.
For
a
quick
review
check
out
this
summary
of
USERRA's
protections.
The
DOL
has
published
a
lengthy
handbook
related
to
USERRA,
which can
be
found
here.
No
matter
what
your
tradition,
have
a
great
and
safe
holiday
weekend.
|
|
Facing the Music at Facebook: When the Tax Bill Comes for Equity Compensation
|
05/18/2012
|
By: Donald Berner
|
Facebook's
pre-IPO
regulatory
filings
(click
here)
with
the
Securities
and
Exchange
Commission
(SEC)
highlight
a
common
issue
with
equity
compensation
programs
--
the
tax
bill
can
be
very
large
and
trigger
a
burdensome
withholding
obligation.
Facebook
reports
that
its
employees
and
contractors
hold
about
378.5
million
restricted
stock
units
(RSUs).
Each
RSU represents
a
right
to
receive
one
share
of
Facebook
stock
when
the
RSU vests. The
RSUs
will
vest
approximately
six
months
after
the
IPO.
Facebook
is
estimating
a
median
IPO price
of
$36
per
share.
If
that
valuation
holds
up,
the
RSU holders
will
vest
in
equity
compensation
worth
approximately
$13.6
billion.
Assuming
a
combined
state
and
federal
tax
rate
of
40%,
that
will
produce
a
tax
bill
of
about
$5.5
billion.
A
big
tax
bill
can
be
a
nice
problem
to
have;
however,
employers
are
required
to
withhold
taxes
with
respect
to
equity
compensation
as
it
vests,
and
the
IRS wants
to
be
paid
in
cash,
not
shares.
So
where
does
the
money
come
from?
In
Facebook's
case,
it
looks
like
they
are
planning
to
use
a
good
chunk
of
the
money
they
will
receive
from
selling
shares
to
the
public
in
the
IPO
for
business
purposes;
however,
Facebook
will
likely hold
back
a
percentage
of
the
shares
each
employee
would
receive
upon
vesting
of
the
RSUs
and
then
use
some
of
the
cash
from
the
IPO
to
make
the
required
tax
payments.
This
is
sometimes
referred
to
as
"netting
down"
the
shares
the
employees
receive.
It
is
convenient
for
employees,
but
requires
the
Continue Reading...
|
|
New Election Rule Placed on Hold
|
05/15/2012
|
By: Donald Berner
|
The
NLRB's
new
quick
election
rule
(also
dubbed
the
ambush
election
rule),
which
took
effect
at
the
end
of
April,
has
quickly
been
shelved.
Yesterday,
a
federal
district
court
ruled
the
election
rule
was
improperly
|