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.
|
|
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.
|
|
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.
|
|
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.
|
|
New Affirmative Action Rules for Government Contractors
|
10/16/2013
|
By: Boyd Byers
|
Federal
contractors
and
subcontractors
now
must
adopt
quantifiable
goals
for
the
employment
of
individuals
with
disabilities
and
protected
veterans,
according
to
new
regulations
issued
by
the
U.S.
Department
of
Labor’s
Office
of
Federal
Contract
Compliance
Programs.
The
new
Rehabilitation
Act
regulations
require
contractors
to
establish
a
“utilization
goal”
of
having
7
percent
of
their
workforce
be
comprised
of
persons
with
disabilities.
Similarly,
the
new
regulations
under
the
Vietnam
Era
Veterans’
Readjustment
Assistance
Act
(VEVRAA)
require
contractors
to
establish
a
“benchmark”
for
hiring
veterans.
Contractors
may
either
use
the
national
percentage
of
veterans
in
the
civilian
labor
force,
which
currently
stands
at
8
percent,
or
develop
their
own
hiring
benchmark
based
on
factors
listed
in
the
regulations.
Both
sets
of
new
regulations
point
out
that
the
respective
utilization
goals
and
benchmarks
are
neither
rigid
quotas,
nor
are
they
floors
or
ceilings
on
the
hiring
and
employment
of
individuals
with
disabilities
or
protected
veterans.
A
contractor’s
failure
to
meet
these
metrics,
however,
will
invite
government
scrutiny
into
the
adequacy
of
its
affirmative
efforts
to
recruit
and
employ
members
of
these
protected
classes.
In
addition
to
these
new
metrics,
the
regulations
impose
additional
data
collection,
self-identification,
and
other
requirements
on
contractors.
For
example,
contractors
now
must
collect
and
retain
data
regarding
the
total
number
of
job
openings
and
jobs
filled;
the
total
number
of
job
applicants
and
the
number
of
applicants
known
to
have
disabilities
or
to
be
veterans;
Continue Reading...
|
|
‘Not so fast,’ Kansas AG tells EEOC
|
08/28/2013
|
By: Boyd Byers
|
The
college
football
season
is
upon
us.
Which
means
the
return
of
the
antics
and
banter
of
Lee
Corso,
Kirk
Herbstreit,
and
Chris
Fowler
on
ESPN’s
College
GameDay program.
As
part
of
their
weekly
shtick,
Herbstreit
makes
a
prediction
about
a
game,
to
which
Corso
expresses
wild
disagreement,
uttering
his
catchphrase,
“Not
so
fast,
my
friend!”
Last
year
the
Equal
Employment
Opportunity
Commission
issued
controversial
enforcement
guidance
regarding
the
use
of
arrest
and
conviction
records
in
employment
decisions.
This
summer
the
EEOC
put
its
playbook
into
action
by
suing
two
employers,
BMW
and
Dollar
General,
for
their
use
of
criminal
background
checks. In
response,
the
Kansas
Attorney
General
(along
with
the
AGs
from
eight
other
states)
said,
“Not
so
fast!”
Well,
not
literally.
And,
unlike
Lee
Corso,
they
did
not
say
“my
friend.”
What
the
AGs
actually
said,
in
an
open
letter
to
the
EEOC,
is
that
the
guidance
and
lawsuits
are
“misguided”
and
“a
quintessential
example
of
gross
federal
overreach.”
Boo
Yah!
Things
went
from
bad
to
worse
for
the
EEOC
two
weeks
later,
when
a
federal
court
punted
the
commission’s
lawsuit
against
another
employer
based
on
its
use
of
criminal
background
checks.
The
EEOC
alleged
that
the
background
checks
caused
a
disparate
number
of
African-American
and
male
workers
to
be
disqualified
from
jobs.
But
the
court
threw
out
the
case,
calling
the
EEOC’s
analysis
“flawed,”
“rife
with
analytical
errors,”
“laughable,”
and
“an
egregious
example
of
scientific
dishonesty."
Read
the
play-by-play
below.
EEOC
game
plan
|
|
EEOC Sues Employers Over Criminal Background Checks
|
06/19/2013
|
By: Boyd Byers
|
Last
year
the
EEOC
issued
Enforcement
Guidance
on
the
Consideration
of
Arrest
and
Conviction
Records
in
Employment
Decision
Under
Title
VII
of
the
Civil
Rights
Act
of
1964.
As
explained
in
the
Guidance,
an
employer's
use
of
an
individual's
criminal
history
in
making
employment
decisions
may,
in
some
instances,
violate
prohibitions
against
employment
discrimination,
particularly
with
regard
to
race
and
national
origin.
This
can
occur
when
an
employer's
neutral
policy
disproportionately
impacts
persons
of
a
particular
race
or
national
origin,
and
the
policy
is
not
job-related
and
consistent
with
business
necessity. Last
week
the
EEOC
put
its
money
where
its
mouth
is
by
suing
two
employers,
BMW
and
Dollar
General,
for
their
use
of
criminal
background
checks.
In
the
suit
against
BMW,
the
EEOC
alleges
that
BMW
disproportionately
screened
out
African
Americans
from
jobs,
and
that
the
policy
is
not
job
related
and
consistent
with
business
necessity.
The
EEOC
alleges
that
after
BMW
ended
its
contract
with
UTi
Integrated
Logistics,
Inc.
("UTi"),
which
provided
logistic
services
to
BMW
at
a
manufacturing
facility,
UTi
employees
were
informed
of
the
need
to
re-apply
with
the
new
contractor
to
retain
their
positions
in
the
BMW
warehouse.
As
part
of
the
application
process,
BMW
directed
the
new
contractor
to
perform
new
criminal
background
checks
on
every
current
UTi
employee
applying
for
transition
of
employment.
The
new
contractor
subsequently
discovered
that
several
UTi
employees
had
criminal
convictions
in
violation
of
BMW's
criminal
conviction
policy.
As
a
result,
those
employees
were
told
that
they
no
longer
met
the
Continue Reading...
|
|
FMLA XX
|
02/05/2013
|
By: Boyd Byers
|
What
day
of
the
year
is
FMLA
leave
accessed
the
most? The
day
after
the
Super
Bowl. Seriously.
This
fact
underscores
how
the
FMLA
is
subject
to
employee
misuse
and
creates
burdens
for
employers. “It’s
a
ripple
effect,”
says
Marc
Freedman
of
the
U.S.
Chamber
of
Commerce. “Other
people
have
to
cover
for
them. Customers
are
left
wanting. It
can
create
a
lot
of
problems
throughout
the
workplace.”
Twenty
years
ago
today,
President
Clinton
signed
the
FMLA
into
law. Since
then,
employers
have
struggled
to
administer
employee
leave
and
comply
with
the
law. FMLA
consistently
tops
the
list
of
HR’s
legal
questions,
according
to
the
Society
for
Human
Resource
Management.
Today
the
U.S.
Department
of
Labor
is
holding
a
party
to
celebrate
the
FMLA’s
twentieth
anniversary. Former
President
Clinton and
other
dignitaries
will
speak. And
in
honor
of
the
occasion,
DOL
gave
you
a
present—new
regulations!
The
new
rules
implement
and
interpret
two
statutory
amendments
that
expanded
FMLA
protections.
The
first
expansion
provides
families
of
eligible
veterans
with
the
same
job-protected
FMLA
leave
currently
available
to
families
of
military
service
members,
and
it
also
enables
more
military
families
to
take
leave
for
activities
that
arise
when
a
service
member
is
deployed.
The
second
expansion
modifies
existing
rules
so
that
airline
personnel
and
flight
crews
are
better
able
to
make
use
of
the
FMLA’s
protections.
For
a
summary
guide
to
the
new
regulations
in
Q
&
A
format,
click
here. If
you
have
a
couple
of
hours
to
kill
and
are
a
glutton
for
punishment,
you
can
link
to
the
new
rule
itself
here
Continue Reading...
|
|
DOL Creates 100-Year Anniversary Video
|
11/07/2012
|
By: Boyd Byers
|
In
honor
of
America's
centennial,
France
gave
us
a
gift:
the
Statue
of
Liberty. In
recognition
of
its
own
centennial,
the
United
States
Department
of
Labor
has
given
all
of
you
a
gift:
a
YouTube
video
chronicling its
history. The
six-minute-long
video
describes
DOL's creation,
introduces
the
labor
secretaries,
summarizes
its
legislative
history,
and
promotes
the
things
it
does
for
workers. But
be
forewarned:
the
video
is
a slide slow,
not
a
live-action
film,
and
DOL
tells
the
story
to
serve
its
own
interests.
Watch
the
Video
|
|
Do You Know? Job Protection for Employees Who Experience Domestic Violence
|
10/31/2012
|
By: Boyd Byers
|
On
October
12,
the
EEOC
issued
guidance
titled
“Questions
and
Answers:
The
Application
of
Title
VII
and
the
Americans
with
Disabilities
Act
to
Applicants
or
Employees
Who
Experience
Domestic
or
Dating
Violence,
Sexual
Assault,
or
Stalking.”
The
guidance
recognizes
that
federal
EEO
laws
do
not
prohibit
discrimination
on
these
bases,
per
se,
but
explains
how
these
laws
may
apply
to
such
situations.
Examples
include:
- A
manager
fires
a
female
employee
after
learning
she
was
subjected
to
domestic
violence
because
he
fears
the
"potential
drama
battered
women
bring
to
the
workplace.”
- An
employer
refuses
to
allow
an
employee
extra
time
off
work
for
treatment
of
anxiety
or
depression
resulting
from
domestic
violence.
But
do
you
know
that
Kansas
law
specifically
allows
employees
to
take
time
off
work
to
deal
with
the
effects
of
domestic
violence
or
sexual
assault?
Kansas
employers
are
required
to
allow
employees
time
off
from
work:
- To
obtain
restraining
orders
or
other
injunctive
relief
in
domestic
violence
or
sexual
assault
situations;
- To
seek
medical
attention
for
injuries
caused
by
domestic
violence
or
sexual
assault;
or
- To
obtain
services
from
a
domestic
violence
or
sexual
assault
center
shelter.
An
employee
should
give
the
employer
reasonable
advance
notice
of
the
intention
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...
|
|
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...
|
|
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.
|
|
EEOC Says High School Diploma Requirement May Violate ADA
|
04/09/2012
|
By: Boyd Byers
|
About
a month
from
now
high
school seniors
will
be
donning
funny
looking
caps
and
gowns
and
parading
across
stages
to
receive their
hard-earned
diplomas.
But
employers
who
require
a
high
school
diploma
or GED
as
a
condition
of
employment
need
to
make
sure this
requirement is
job-related
and
consistent
with
business
necessity,
and
that
it
doesn't
screen out
individuals
who
cannot
obtain
a
diploma
because
of
a
learning
disability.
The
Equal
Employment
Opportunity
Commission
recently
published new
guidance
on whether
an
employer's
requirement
that
a
job
applicant
have
a
high
school
diploma
may
violate
the
Americans
with
Disabilities
Act.
The
guidance
is
in
response
to
an
informal
discussion
letter
issued
by
the
EEOC
last
November
that
created
significant
commentary
and
conjecture.
The
guidance
explains
that
requiring
a
high
school
diploma
for
a
position
is
not
illegal.
Employers
may
continue
to
have
high
school
diploma
requirements
and,
in
the
vast
majority
of
cases,
they
will
not
have
to
make
exceptions
to
them.
However,
according
to
the
EEOC,
if
an
applicant
tells
an
employer
she
cannot
meet
this requirement
because
of
a
disability,
an
employer
may
have
to
allow
her
to
demonstrate
the
ability
to
do
the
job
in
some
other
way.
This
may
include
considering
work
experience
in
the
same
or
similar
jobs,
or
allowing
her
to
demonstrate
performance
of
the
job’s
essential
functions.
The
guidance
clarifies
that
the
ADA
only
protects
someone
whose
disability
makes
it
impossible
for
him
to
get
a
diploma.
It
would
not
protect
someone
who
simply
decided
not
to
get
a
high
school
diploma.
The
employer
can
require
Continue Reading...
|
|
EEOC Issues Final ADEA Regs
|
04/02/2012
|
By: Boyd Byers
|
On
March
29
The
U.S.
Equal
Employment
Opportunity
Commission
(EEOC)
issued
the
"Final
Regulation
on
Disparate
Impact
and
Reasonable
Factors
Other
than
Age"
(RFOA) under
the
Age
Discrimination
in
Employment
Act
of
1967
(ADEA).
The
final
rule
clarifies
the
EEOC's
position
that
the
ADEA
prohibits
policies
and
practices
that
have
the
effect
of
harming
older
individuals
more
than
younger
individuals,
unless
the
employer
can
show
that
the
policy
or
practice
is
based
on
a
reasonable
factor
other
than
age.
The
rule
responds
to
two
Supreme
Court
decisions in
which
the
Court
criticized
one
part
of
the
EEOC's
existing
ADEA
regulations.
The
Court
upheld
EEOC’s
longstanding
position
that
the
ADEA
prohibits
policies
and
practices
that
have
the
effect
of
harming
older
individuals
more
than
younger
individuals,
even
if
the
harm
was
not
intentional.
However,
it
disagreed
with
the
part
of
the
regulations
that
said
that,
if
an
employee
proved
in
court
that
an
employment
practice
disproportionately
harmed
older
workers,
the
employer
had
to
justify
it
as
a
“business
necessity.” The
Court
said
that,
in
an
ADEA
disparate
impact
case,
the
employer
did
not
have
to
prove
business
necessity;
it
need
only
prove
that
the
practice
was
based
on
an
RFOA.
The
Court
also
said
that
the
RFOA
defense
is
easier
to
prove
than
the
business
necessity
defense
but
did
not
otherwise
explain
RFOA.
In
issuing
the
new
rule,
the
EEOC
tried
to
make its regulations
consistent
with
the
Supreme
Court’s
holding
that
the
defense
to
an
ADEA
disparate
impact
claim
is
RFOA,
and
not
business
necessity. For
a
more-detailed
Continue Reading...
|
|
NLRB Postpones Posting Deadline
|
12/30/2011
|
By: Boyd Byers
|
On
December
23
the
National
Labor
Relations
Board
agreed
to
postpone
the
effective
date
of
its
new
employee
rights
notice-posting
rule. The extension
moves
the implementation
date
from
January
31
to April
30,
2012.
Under
the
new
rule,
most
private
sector
employers
will
be
required
to
post
the
11-by-17-inch
notice
on
the
new
implementation
date.
The
notice
and
additional
information
on
posting
requirements
are available
on
the
NLRB's
website,
www.nlrb.gov. The
NLRB
took
this
action, at
the
request
of
the
federal
court
in
Washington,
D.C.,
to
facilitate
resolution
of
legal
challenges to
the
rule.
|
|
IRS Calls 'Olly Olly Oxen Free' to Employers Who Voluntarily Reclassify Contractors as Employees
|
09/23/2011
|
By: Boyd Byers
|
Olly
olly
oxen
free!
Do
you
remember
this
chant
as
the
“all
clear”
signal
when
playing
tag,
hide-and-seek,
and
similar
childhood
games?
(In
case
you’re
wondering, linguists
think the
phrase
probably
evolved
from
“all
ye,
all
ye,
‘outs’
in
free”
as
it
was
passed
down
over
generations
of
schoolchildren.)
On
September
21,
the
Internal
Revenue
Service
announced
the
Voluntary
Classification
Settlement
Program
(VCSP).
It’s
sort
of
like
an
“olly
olly
oxen
free”
for
employers
who
have
misclassified
employees
as
independent
contractors.
Sort
of.
It’s
not
entirely
free,
of
course.
But
the
program
does
offer
employers
substantial
relief
from
past
federal
employment
tax
liability
if
they
agree
to get
into
compliance
going
forward.
The
VCSP
is
available
to
employers
who
are
currently
treating
a
class
or
group
of
workers
as
independent
contractors,
but
want
to
treat
the
workers
as
employees
prospectively.
In
exchange
for
agreeing
to
treat
the
workers
as
employees
for
future
tax
periods,
employers
participating
in
the
VCSP
get
the
following
relief:
- pay
only
10
percent
of
the
employment
tax
liability
that
may
have
been
due
on
compensation
paid
to
the
workers
for
the
most
recent
tax
year;
- no
liability for
any
interest
and
penalties
on
the
amount;
and
- not subject
to
an
employment
tax
audit
with
respect
Continue Reading...
|
|
Business Groups Sue NLRB Over Union Poster Rule
|
09/21/2011
|
By: Boyd Byers
|
As
we
previously
reported,
last
month
the
National
Labor
Relations
Board
issued
new
regulations
that
require
employers
to
post
notices
informing
workers
of
their
rights
under
the
National
Labor
Relations
Act. (See
NLRB
Issues
New
Posting
Rule.)
This
week
the
U.S.
Chamber
of
Commerce
sued
the
NLRB
to
block
the
rule. It
alleges
that
the
NLRB
does
not
have
authority
to
force
employers
to
post
the
notifications
or
impose
penalties
for
failing
to
do
so,
and
that
the
notification
rule
violates
employers’
First
Amendment
rights. Two
other
business
groups,
the
National
Association
of
Manufacturers
and
the
National
Federation
of
Independent
Businesses,
previously
sued
the
NLRB
over
the
union
poster
rule. We’ll
let
you
know
how
it
all
shakes
out. Until
the
courts
rule
on
this
issue,
employers
are well-advised
to
comply
with
the
posting
requirements,
which
become
effective
on
November
14,
2011.
|
|
Feds Find Fault with Firm's Facebook Firings
|
09/09/2011
|
By: Boyd Byers
|
A
non-profit
organization
violated
the
National
Labor
Relations
Act
by
firing
five
employees
who
trash-talked
a
co-worker
on
Facebook,
a
National
Labor
Relations
Board
administrative
law
judge
found.
The
employer
argued
that
it
fired
the
employees--who
posted
angry
and
defensive
comments
about
the
co-worker
on
one
of
their
Facebook
pages--for
bullying
and
harassing
the
co-worker
in
violation
of
its
zero-tolerance
policy
against
harassment.
But
these
Facebook
rants
constituted
"concerted
activity"
protected
by
the
NLRA,
the
ALJ
ruled,
so
the
organization
must
reinstate
them
with
full
back
pay.
Employers
have
legitimate
business
reasons
to
protect
their
good
will
and
to
foster
a
harmoneous
workplace.
They
also
have
a
legal
obligation
to
protect
employees
from
harassment.
So
the
NLRB's
stance
on
social
media
policies
and
practices
obviously
puts
employers
in
a
difficult
position.
The
case
is
Hispanics
United
of
Buffalo
Inc.,
NLRB
No.
3-CA-27872
(Sept.
2.
2011,
released
Sept.
6,
2011).
You
can
read
the
full
opinion
here.
For
more
on
this
subject,
click
on
the
links
below
to
our
prior
blog
posts:
In
Your
Facebook--NLRB
Scrutinizes
Employers'
Social
Media
Policies
(08/23/2011)
Social
Media
and
the
NLRB:
Where
Are
the
Boundaries
of
Protected
Activity?
(05/20/2011)
Social
Media
and
the
National
Labor
Relations
Act
(02/08/2011)
NLRB
Joins
Fray
on
Facebook
Posts
(11/09/1010)
|
|
DOL to Update Child Labor Regulations
|
9/06/2011
|
By: Donald Berner
|
The
Department
of
Labor
(DOL) announced a
plan
to
update
the
hazardous
occupation orders
with respect
to
agriculture-related
jobs. This
proposed
update will
restrict
young
workers
from
performing
certain
jobs
in
agricultural
businesses.
A
few
of
the proposed
changes
include
the prevention
of workers
under
the
age
of eighteen
from
working
in
grain
elevators,
feed
lots, and
stockyard
type
environments,
as
well
as preventing
workers
under sixteen
from
operating
power-driven equipment.
For
more about
the
restricitons
and
further
details
on
the
proposed
updates
click
here.
|
|
NLRB Continues to Clear a Path for Unionization
|
08/30/2011
|
By: Donald Berner
|
There
have
been
a
number
of
actions
taken
by
the
NLRB
in
2011
that
have
been
blog
worthy.
For
those
that
have
followed
along
closely,
the
overwhelming
theme
of
the
NRLB's
decisions
and
actions
has
been
extremely
pro-union. Each
of
the
decisions
along
the
way makes
it
harder
for
employers
to
manage
their
workforce
and
to
avoid
unionization
should
a
labor
union
become
interested
in
representing their
employees. In
a
decision
a
few
days
ago,
Specialty
Healthcare
and
Rehabilitation
Center
of
Mobile,
the
NLRB
altered
the
rules
with
respect
to
which
employees
can
be
included
in
a
bargaining
unit. The
NLRB
held
that
once
a
union
petitions
for
a
specific
bargaining
unit, for
an
employer to
add
other
employees
to
the
requested
unit
it
must
be
demonstrated
that
they
share
an
"overwhelming
community
of
interest"
with
the
requested
unit.
What
is
new
with
this
decision
is
the
addition
of
the
qualifier
"overwhleming."
The
requirement
to
show
an
"overwhelming" community
of
interest,
in
a
practical
sense,
means
that
employers
may
struggle
mightily
to
alter
the
unit
of
employees
the
union
targets
with
a
petition.
While
this
may
sound
like
a
non-issue
for
those
who
have
not
dealt
with
union
organizing
efforts,
it
may
prove
to
be
one
of
the
most
significant
pro-union
decisions
issued
by
the
NLRB.
The
practical
application
of
this
concept
is
that
unions
may
now
choose
small
subsets
of
employees
within
an
employer
as
a
target
for
unionization,
and
the
employer
may
be
powerless
to
add
other
similar
employees
into
the
election
process.
This
ability
to
Continue Reading...
|
|
Smoke-free for One Year
|
07/01/2011
|
By: Boyd Byers
|
Today
marks
the one-year
anniversary
of the
Kansas
Indoor
Clean
Air
Act.
This
law prohibits smoking in
most indoor
public
places
and
employment
places,
including
within
10
feet
of
any
doorway,
open
window,
or
air
intake
of
a
building
where
smoking
is
prohibited.
If
you were
in
a
coma last
summer
when
the
law
went
into
effect,
or
just
haven't made
the time
to
get
your
company
into
compliance
yet, here
are
the
steps
you
need
to
take
now,
according
to
the
Kansas
Department
of
Health
and
Environment:
1.
Adopt
a
written
smoking
policy
to
prohibit
smoking
in
all
areas
of
employment
and
communicate
this
policy
to
all
current
employees
and
all
new
employees
upon
hiring.
2.
Remove
all
ashtrays
and
matches.
3.
Post
a
no
smoking
sign.
4.
Ask
any
person
violating
the
law
to
stop
smoking.
Remind
customers
of
the
law
and
politely
explain
they
must
step
outside
to
smoke.
Train
your
staff
regarding
what
to
say
to
customers,
for
example:
“We’re
now
smoke-free,
you’ll
have
to
put
out
your
cigarette,”
or
“The
new
law
prohibits
smoking
indoors.
Thanks
for
your
cooperation.”
5.
Refuse
service
to
any
person
who
continues
to
violate
the
law.
6.
Ask
any
person
violating
the
law
to
leave.
7. Continue Reading...
|
|
Looking for Work? The DOL is Hiring
|
6/27/2011
|
By: Donald Berner
|
The
Department
of
Labor
is
currently
hiring.
While
this
is
good
news
for
recent
college
graduates
looking
for
work,
this
may
not
be
such
good
news
for
employers.
The
DOL is
continuing
to focus
its resources
on
enforcement
of
the
Fair
Labor
Standards
Act
(FLSA). This
focus can
mean
only
one
thing
for
employers
--
an
increased
likelihood
of
a
wage
and
hour audit.
The
local
DOL office in
Wichita,
which
covers
most
of
Kansas, has
added
several
new
investigators
in
recent
months
and
is
currently hiring
yet
another. These
recent
hires
are
just
now
starting
to
get
out
of
their
office
and
into
employers'
offices.
These additional investigators
likely
will result
in
increased
enforcement
activity
going
forward.
In
the
short-term,
employers
should
consider
self-auditing
their
pay
practices,
with
the
guidance of
legal
counsel
under
the
attorney-client
privilege, to
ensure
compliance
with
the
FLSA
prior
to
getting
a
visit
from
the
DOL.
|
|
KDOL Updates Work Comp Poster
|
06/03/2011
|
By: Boyd Byers
|
We
previously
gave
you
the
skinny
on
the
Kansas
Workers
Compensation
Reform
Act,
which
went
into
effect
May
15,
2011.
(Read
more
here.)
The
Kansas
Department
of
Labor has
since
updated
its
“posting”
notice,
which
the
Department’s
regulations
require
all
employers
covered
by
state
workers
compensation
laws
to
post
in
their
workplaces.
The
new
bi-lingual
form
(Form
K-WC
40
(Rev.
5/11)),
which
tells
employees
what
to
do
if
an
injury
occurs
on
the
job,
is
available
for
free
on
the
Department’s
website
here.
Adhering
to
the
regulations’
posting
requirement
may
help
employers
defeat
untimely
workers
compensation
claims.
Kansas
employers
should
also
be
aware
that
the
KDOL
is
in
the
process
of
updating
its
workers
compensation
“Practice
and
Procedure
Guide”
to
reflect
all
the
changes
in
the
Reform
Act.
Stay
tuned
to
Kansas
Employment
Law
Blog;
we’ll
let
you
know
when
this
resource
becomes
available.
|
|
Social Media and the NLRB: Where Are the Boundaries of Protected Activity?
|
05/20/2011
|
By: Donald Berner
|
Social
media
(Facebook,
Twitter,
MySpace,
etc.)
issues
have
made
for
interesting
news
so
far
this
year.
The
National
Labor
Relations
Board
(NLRB),
which
has
weighed
in
on
social
media handbook
policy
related
issues,
recently
issued
a
complaint
against
a non-profit
agency after
five
employees
were
discharged
from
their
employment.
The
trouble
started
when
an
employee
posted
a
message
on
her
personal
Facebook
page
related
to
the
agency's
shortcomings
in
serving
its
clients
and
naming
a
co-worker.
In
response
to
the
posting,
several
of
the
employee's
co-workers
engaged
in
a
discussion about
staffing
levels
and
workloads
at
the
agency
via
comments
to
the
initial
Facebook
posting.
When
the
employer discovered
the
discussion,
all five
employees
involved
were discharged for
the
comments.
The
employer
says the
postings harassed
the
named
employee.
As
you
might
guess,
the
NLRB
took
issue with
the discharges
since
the
group
discussion
related
to
working
conditions.
The
NLRB's
position
is
the
five
employees
were
engaged
in
concerted
activity
related
to
the
terms
and
conditions
of
their
employment,
and
such
activity
is
protected
from
interference
(read
discharge)
by
the
employer.
This
complaint
is
yet
another
attempt
by
the
NLRB
to
weigh
in
on
social
media
issues. The
NLRB is
aggressively
policing
employer
social
media
policies
to
ensure
they
are
not
overly
broad
and
restrictive.
This
complaint
furthers
that
effort
by
attempting
to
prohibit
employee
discipline/discharge
for
employees
discussing
workplace
concerns
via
social
media.
As
we
all
saw
throughout
the
Middle
East,
social
media
sites
can
provide
an
easy
means
for
individuals
to
spread
messages
to
a
widespread
and
mainly
anonymous
audience.
The
NLRB's
efforts
in
early
Continue Reading...
|
|
So You've Been Sued -- Now What?
|
05/12/2011
|
By: Donald Berner
|
Earlier
this
week
at
the
Foulston
Siefkin
LLP employment
law
seminar,
David
Rogers
and
Teresa
Shulda
provided
employers
with
an
overview
of
the
entire
litigation
process
from
demand
letter
through
the
administrative
process
and
into
a
jury
trial.
The
presentation
highlighted
how
HR professionals
are typically involved
at
each
stage
of
the
process.
The
session
concluded
with
a
discussion
of
a
scenario
demonstrating
some
pitfalls
for
HR.
Some
lessons
learned
include:
- The
things
HR professionals
do
and
say
early
on
in
a
case
can
make
a
huge
difference
in
the
outcome;
- Following
the
company's
policies
is
key
to
defending
an
employment-related
claim;
- Taining
HR and
Management
on
the
company's
policies
is
critical;
- Employers
need
to
develop
a
document
preservation
process
("litigation
hold")
and
implement
the
process
when
a
claim
is
made;
and
- Be
cautious
when
responding
to
EEOC
or
state
agency
inquiries--providing inconsistent
or
invalid
reasons
for
an
employment
decision
can
make
it
next
to
impossible
to
get
the
case
dismissed
without
a
trial.
|
|
Want to Make an Overtime Claim? There's an App for That!
|
05/11/2011
|
By: Boyd Byers
|
On
May
9
the
U.S.
Department
of
Labor
announced
the
launch
of
its
new
smartphone
application,
a
user-friendly
electronic
timesheet
employees
can
use
to
track
their
hours
worked
and
calculate
wages
they
are
owed.
The
app
allows
employees
to
record
regular
work
hours,
break
time,
and
any
overtime
hours
for
one
or
more
employers.
Users
can
manually
enter
their
time,
or
use
simple
“start
work”
and
“stop
work”
buttons
that
automatically
record
their
time
worked.
DOL
is
providing
this
new
technology
to
help
workers
keep
their
own
time
records
rather
than
rely
on
their
employers’
records.
If
an
employer
fails
to
maintain
accurate
time
records,
the
employee
may
then
use
this
information
as
evidence
to
try
to
prove
that
he
or
she
performed
work
for
which
she
was
not
compensated.
The
app
not
only
records
hours,
it
also
automatically
calculates
gross
pay,
including
overtime
pay
at
one-and-one-half
times
the
regular
rate
for
all
hours
worked
over
40
in
a
workweek.
Users
can
view
summaries
of
hours
worked
in
daily,
weekly,
and
monthly
formats,
with
gross
pay
calculations.
They
can
then
easily
email
these
reports,
which
show
up
as
attached
Excel
spreadsheets.
The
app
also
includes
a
“Contact
Us”
page
with
a
link
to
the
DOL’s
website
and
a
function
to
directly
send
emails
to
DOL.
The
free
app
is
currently
compatible
with
the
iPhone
and
iPod
Touch.
DOL
says
it
will
explore
apps
for
other
Continue Reading...
|
|
DOL Issues New FLSA Regs
|
04/13/2011
|
By: Boyd Byers
|
Last
week
the
U.S.
Department
of
Labor
issued
new
FLSA
regulations. The
final
rules,
which
become
effective
May
5,
2011,
reflect
changes
necessary
to
update
the
regulations
to
comply
with
statutory
changes
or
to
replace
outdated
examples.
Tipped
Employees.
As
a
result
of
recent
increases
in
the
federal
minimum
wage
to
$7.25
per
hour,
the
new
regulations
clarify
that
the
minimum
cash
payment
required
to
tipped
employees—redefined
by
statute
and
now
updated
in
the
regulations
to
mean
an
employee
who
customarily
and
regularly
receives
over
$30
per
month
in
tips—remains
unchanged
at
$2.13
per
hour
(assuming
the
employee
receives
enough
wages
from
tips
to
reach
the
minimum
wage).
This
effectively
increases
the
maximum
tip
credit
an
employer
may
claim—the
difference
between
the
minimum
wage
and
the
minimum
cash
payment—to
$5.12
per
hour.
The
new
regulations
provide
that
tips
are
the
property
of
the
employee,
whether
or
not
the
employer
takes
a
tip
credit,
and
cannot
be
used
by
the
employer
for
any
purpose
other
than
as
a
tip
credit
or
a
part
of
a
valid
tip
pool.
There
is
no
limit
on
the
percentage
of
tips
that
an
employer
may
require
an
employee
to
contribute
to
a
tip
pool,
but
the
pooled
tips
must
be
distributed
only
to
employees
who
customarily
and
regularly
receive
tips
and
may
not
be
retained
for
any
other
purpose.
Whatever
the
arrangement,
the
employer
may
not
claim
Continue Reading...
|
|
Learning A Lesson -- H-1B Prevailing Wage Violation
|
04/12/2011
|
By: Donald Berner
|
The
Department
of
Labor
(DOL)
recently
penalized
the
Prince
George's
County
school
system
for
its
failure
to
properly
pay
H-1B
workers.
In
the
case
of
an H-1B
worker,
the
employer
must
pay
the
employee
at
least
the
prevailing
wage
amount
established
for
the
position.
The
prevailing
wage
system
is
designed
to
ensure
that
foreign
labor
is
not
used
to
lower
the
U.S.
wage
base
in
a
given
occupation.
While
the
announcement
is
unclear,
the
problematic
issue
for
the
school
is
likely
to
have
been
the
requirement
the
H-1B
worker
pay
some
or
all
of
the
fees
for
the
preparation
of
the
H-1B
application
packages.
Generally
speaking, it
can
be
permissible
for
the
employer
to
require
an
employee
to
pay
the
legal
fees
associated
with
any
H-1B
filing
so
long
as these
costs
do
not effectively
lower
the
employee's
wage
rate
below
the
prevailing
wage
rate. For
purposes
of
compliance,
H-1B
employers
should
view
the
prevailing
wage
as
the
minimum wage
for
an
H-1B
employee.
In
addition
to
the
prevailing
wage
floor,
employers
with
H-1B
employees
should
also
be
mindful
of
how
the
H-1B
employee's
compensation
compares
to
his/her
peers
in
the
job
classification. Dropping
below
one
of
these
floors
can create
a
backpay
liability
issue
for
an
H-1B
employer.
In
addition
to
the
attorneys'
fees
concerns,
there
is
also
a
government
filing
fee
cost associated
with
the
H-1B
program. While
a
payment
of
the
attorneys'
fees
amount
can
be
permissible,
employers
are
not
permitted
to
require
the
employee
to
pay
the
government
filing
fees
associated
with
the
H-1B
application
process.
For
the
Continue Reading...
|
|
EEOC Issues Final ADAAA Regs
|
03/25/2011
|
By: Boyd Byers
|
The
EEOC
has
finally
issued
its
long-awaited
regulations
interpreting
the
ADA
Amendments
Act.
The
final
regulations
are in
today's Federal
Register.
Here's
the link
(guaranteed
to
make
your
eyes
glass
over):
http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as#h-73
|
|
KHRC Officials Criticize Governor's Plan for Agency
|
03/14/2011
|
By: Boyd Byers
|
Two
months
ago
we
told
you
about
Governor
Sam
Brownback's
proposal
to
move
the
Kansas
Human
Rights
Commission
into the
Attorney
General's
Office
as
part
of
a
plan
to
cut
costs.
William
Minner,
the
Commission's
Executive
Director,
and
Joseph
Mastrosimone,
its Chief Legal
Counsel--whose
positions
would
be
eliminated
if
the
plan
is
approved--are
now
speaking
out
against
the
proposal. They say
the
plan
would
create
legal
conflicts
of
interest
when
the
KHRC
pursues
discrimination
cases
against
state
agencies
and officials,
because
the
AG's Office represents
agencies
and
officials
when
they're
sued.
Several
civil
rights organizations,
including
the
Kansas
chapters
of the
National
Association
for
the
Advancement
of
Colored
People
and
the
National
Organization
for
Women, oppose
the Governor's
proposal.
They
plan
to
conduct
a protest
march
and
rally
this
weekend.
A
spokesperson
for
the
Governor
says
the
AG's
office
regularly
manages conflict
issues
like
this
already. The
Kansas
Legislature will
eventually
decide
whether to
act
on
the proposal.
|
|
Hasta la vista, KHRC?
|
01/14/2011
|
By: Boyd Byers
|
Governor
Brownback's
proposed
budget,
released
yesterday,
would
eliminate
eight
state
agencies
as
a
cost-cutting
measure.
The
Kansas
Human
Rights
Commission
is
one
of
the
targeted
agencies.
Under
Brownback's
proposal,
the
KHRC
would
cease
to
be
its
own
agency,
and
would
become
part
of
the
Attorney
General's
office,
saving
$231,375
in
fiscal
year
2012.
The
proposed
budget
is
just
that--a
proposal.
The
Kansas
legislature decides
whether
to
accept
or
reject
the
governor's
recommendations.
Follow
Kansas
Employment
Law Blog
to
see
how
this
plays
out.
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Meet the Repealer
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12/17/2010
|
By: Boyd Byers
|
Arnold
Schwarzenegger
was
the
Terminator. Former
President
George
W.
Bush
famously
dubbed himself
the
Decider.
Yesterday
Kansas
Governor-elect
Brownback named
Dennis
Taylor
as
"the
Repealer.” Taylor
(who must
still
be
approved
by
the
Senate)
will
actually
hold
the
title
secretary
of
administration,
overseeing
the
newly
created
office
of
the
repealer. The
office
will
seek
to
eliminate
state
regulations
deemed
unconstitutional,
unlawful,
or
unnecessary. Stay
tuned
to
see
if
he
puts
any
Kansas
Department
of
Labor
or
other
employment-related
regulations
in
the
crosshairs
for
repeal.
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|
Grain Industry Target of OSHA Emphasis
|
11/12/2010
|
By: Donald Berner
|
OSHA has
announced
a
new
emphasis
to
protect
the
safety
of
workers
in
the
grain-handling
industry
in
Kansas.
Employers
in
this
industry
should
expect
an
investigative effort
by
OSHA
focused
on
their
operations
in
the coming months. The
time
to
prepare
for
a potential
OSHA inspection
is
now,
not when
the
OSHA inspector
arrives
at
your
doorstep. For
more
information
on
the
emphasis
and a
recent
letter
from
OSHA to grain industry
employers,
hit
the
links
below.
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=18657
http://www.osha.gov/asst-sec/Grain_letter.html
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|
In Loco Parentis and the FMLA
|
9/14/2010
|
By: Donald Berner
|
What
does
a
crazy
parent
have
to
do
with
the
FMLA?
Seems
like
a
fair
question
to
ask.
As
a
parent,
most
days
I come
away
feeling
a
bit
crazy.
Instead
of
pondering
the
merits
of
crazy
parents,
or
parents
driven
crazy,
let's
ponder
the
Department
of
Labor
Wage
and
Hour
Division's
(DOL/WHD) recent
Interpretation
of
the
in
loco
parentis
language
contained
within
the
FMLA regulations.
This
recent
pronouncement
from
the
DOL/WHD
appears
to
expand
the
group
of
employees
who
are
able
to
claim
parent
status
for
purposes
of
taking
FMLA to
care
for
a
child.
The regulations
explain
that
individuals
"who
are
'in
loco
parentis'
include
those
with
day-to-day
responsibilities
to
care
for
and
financially
support
a
child."
The
new
DOL/WHD interpretation
softens
this
requirement
by
stating an
employee
qualifies
as
a
parent
by
showing
either
day-to-day
care
or
financial
support
so
long
as
the
employee
intends
to
assume
parental
responsibility.
The
practical
implication
of
this
interpretation
is
to
further
expand
the
group
of
individuals
able
to
assert
leave
rights
as
the
parent
of
a
child.
Be
mindful
of
this
interpretative
expansion
as
you
receive
FMLA requests
related
to
the
care
of
a
child.
You
can
find
the
text
of
the
interpretation
at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm
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|
Tips & Tactics -- Government Investigations
|
07/06/2010
|
By: Donald Berner
|
One
of
the
new
realities
for
employers
is
the
increased
risk
of
a
visit
from
an
investigator
working
for
the
government.
These
visits
can
come at
any
time,
without
warning,
and
may
be
conducted
by
any
number
of
government
agencies.
The
typical
visit
for
an
employer
is
likely
to
be
a
wage
and
hour
audit
or
an
OSHA safety
inspection.
While
these
(and
any
other
agency
visit)
inspections
are
in
widely
varying
areas,
there
are
some
common
themes
for
employers
to
consider.
The
worst
time
to
prepare
a
workplace
for
an
inspection/audit
is
when
the
inspector
shows
up
at
your
door.
Here
are
a
few
quick
thoughts
should
your
workplace
receive
an
unwanted
visitor
from
the
government:
- Plan
ahead:
The
time
to
develop
a
game
plan
for
an
inspection
is
well
in
advance
of
the
actual
investigator's
visit.
Responding
to
an
inspection
in
"crisis
mode"
is
highly
likely
to
lead
to
mistakes
or
oversights. The ultimate
outcome
is
almost
certainly not
going
to
be
as
favorable
to
the
Company
as
a
situation
in
which
a
well-conceived
plan
is
in
place.
- Communicate
the
Plan:
Make
sure
all
management
team
members
all
the
way
down
to
the
lowest
level
of
management
understands
the
Company's
plan
of
action
should
an
investigator arrive. There
is
nothing worse than
failing
to
implement
a
well-planned strategy because
the individual meeting
with
the
inspector
doesn't
know the
strategy.
- Have a
Core
Team:
A group
of
individuals
on
the
management
team
should
be
designated to
handle
the
Company response
to
the
arrival
of
any government
investigator.
This
group
Continue Reading...
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Editors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources

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