The U.S. Department of Labor (DOL) has issued a final rule that requires federal contractors and subcontractors to post a notice advising employees of their rights under the National Labor Relations Act (NLRA), the primary law governing relations between unions and employers in the private sector. This notice advises employees of their rights under the NLRA to form, join and assist a union, and to bargain collectively with their employer. It also lists examples of illegal conduct by employers and unions, and provides contact information to the National Labor Relations Board. Federal contractors and subcontractors must post the prescribed notice conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity, including all places where notices to employees are customarily posted, both physically and electronically. Employers that fail to comply with these notice requirements may be subject to sanctions, including suspension or cancellation of the contract and debarring them from future federal contracts. For more information and to obtain copies of the prescribed notice, visit the DOL Web site.
The U.S. Court of Appeals for the Eleventh Circuit (covering Alabama, Florida, and Georgia) has held that an employee does not have the absolute right to commence FMLA leave. In Krutzig v. Pulte Home Corp., the plaintiff, who at the time was on a performance improvement plan, requested FMLA so that she could have surgery on her foot. On the same day that the plaintiff requested leave, a customer filed a complaint with a company vice-president against the plaintiff. The next day, Pulte Home Corp. terminated the plaintiff, based on her failure to address the issues raised in her performance improvement plan and the complaint made by the customer. The plaintiff sued, claiming that her termination was in retaliation for taking FMLA leave and that her employer interfered with her right to take leave under the FMLA. However, the company vice-president who terminated the plaintiff testified that he was not aware that the plaintiff had requested leave at the time he made his decision. Based on these facts, the trial court granted summary judgment in favor of the employer and dismissed the plaintiff’s lawsuit.
The Court of Appeals affirmed the trial court’s decision, holding that “[a]s with the FMLA right to reinstatement, the FMLA right to non-interference with the commencement of leave is not absolute, and if dismissal would have occurred regardless of the request for FMLA, an employee may be dismissed, preventing her from exercising her right to leave or reinstatement.” The Eleventh Circuit joined the Sixth, Eighth, and Tenth Circuits in holding that “an employee who requests FMLA leave has no greater protection against her employment being terminated for reasons unrelated to an FMLA request than she did before submitting her request.”
In Stengart v. Loving Care, the New Jersey Supreme Court held that an employee had a reasonable expectation of privacy in e-mails she sent to her attorney via a personal, password protected e-mail account on a company computer. As part of her employment, Loving Care issued Ms. Stengart a laptop computer. Loving Care’s electronic communications policy stated that the company had a right to review and access all material kept on its electronic media systems at any time, with or without warning. The policy also allowed employees to use its servers and computers for occasional personal email or other use.
Ms. Stengart used her company-issued laptop computer to access her personal Yahoo! E-mail account and to correspond with an attorney regarding her allegations of harassment and discrimination by Loving Care. She eventually resigned her position and sued Loving Care. The company hired a computer specialist to retrieve files from Ms. Stengart’s laptop. The specialist found her correspondence with her attorney, which the laptop had automatically saved in a “cache” folder of temporary Internet files. Loving Care argued that Ms. Stengart’s e-mails were not privileged or confidential because she had no expectation of privacy in communications on its media systems.
The New Jersey Supreme Court disagreed, holding that Loving Care’s communications policy was too broad to encompass private, password protected e-mail communications, especially where the content was attorney-client communication. Loving Care’s failure to include personal, password protected e-mail in its electronic communications policy specifically, as well as its allowance of occasional personal use created a reasonable expectation of privacy. Although recognizing a company’s ability to enact policies that protect its assets, reputation, and productivity, and to ensure compliance with company policy, the court held that Loving Care had no legitimate purpose in reviewing the content of attorney-client communication.
Employer Tip: Although this is a “narrow” decision that applies only in New Jersey to communication with counsel, it sends a clear warning to all employers about diving too deeply into employee e-mails, etc. Employers should also heed a warning that they “specifically include personal, password protected e-mail in its electronic communications policy,” and beware of any “allowance of occasional personal use creating a reasonable expectation of privacy.”
Article courtesy of Pettit Kohn Ingrassia & Lutz.
In their recent Webinar on Healthcare Reform, attorneys Doug Seaton and Emily Ruhsam focus on nine key changes that take effect on January 1, 2011 (for calendar year health plans):
- Non-grandfathered plans must provide for certain internal appeals procedures (including an external review process).
- Non-grandfathered plans must cover certain preventative services (i.e., immunization and infant screenings) without cost sharing.
- Non-grandfathered, fully insured plans must undergo non-discrimination testing (currently a requirement for self-insured plans only). This is similar to the top-heavy discrimination testing for 401(k) plans.
- Plans that offer dependent coverage must offer coverage until age 26 (grandfathered plans must cover such dependents only if the dependent is not eligible for other employer-sponsored coverage).
- Prohibits pre-existing condition limitations for children under 19.
- Abolishes lifetime limits on minimum essential benefits.
- Prohibits “unreasonable” annual limits on minimum essential benefits.
- Prohibits recession (cancellation) of participants.
- Prohibits reimbursement of over-the-counter medications (without a physician prescription through a Health Flexible Spending Account, Health Reimbursement Account, Health Savings Account, or Archer Medical Savings Account).
HR That Works members can watch the Webinar and read the complete report on HR That Works.
In my workshops, I joke that it “only takes one felon to ruin a day.” This isn’t funny, especially if such a person has victimized you. Unfortunately, despite the recommendation that employers should do criminal background checks on all employees, most still don’t, either because they think that bad things only happen to other companies or they claim that they don’t have the time or money. This is a huge mistake. Remember, felons have sold drugs, defrauded, robbed, assaulted or killed people, embezzled, or engaged in many other criminal acts. I’m not saying that you should never hire ex-felons. I have some printing company clients who run their presses 24/7. Most of their third shift have criminal records. At least they know what type of person they’re dealing with!
Remember this too: If you use a temporary firm, recruiter, leased employee, etc. make sure that whoever provides you with this person has done their criminal background checks.
Consider using HR That Works partner www.globalhrresearch.com for your criminal background checks.
I just listened to a great Freakonomics podcast, in which the authors discussed “faking it:” Everything from saying, “I’m sorry” to “I love you,” as well as “Yes, I’m happily married with kids and I play golf” in order to land a sales job. Of course, there’s a fine line between innocence and manipulation when we fake it. We figure that it’s OK to lie about family life because if it helps you to get the job, you know you’ll perform when you get there and then your employer will have no regrets. So what’s the harm? We say we’re sorry, even though we don’t mean it because we still want the other person to like us – and, in the end, we want to be able to like ourselves.
One of my favorite questions when I’m recruiting someone is, “What felt unfair to you in your last job?” This is where “faking it” meets the road. How we respond to this question provides a good measure of our integrity or personal culture. Will we always answer with 100% honesty? Really? Even if doing so could hurt you or someone else? Is brutal honesty always worth the price paid?
Of course, where to draw this line is never the same for two people. In large measure, it’s about having enough self-confidence to handle things in a way that would make you proud – to perhaps mitigate, but at the same time accept, any discomfort the honest answer might cause.
Unfortunately, there’s a lot of faking it in the workplace, caused by any of Maslow’s Hierarchy of Needs: Survival, security, belonging, ego gratification, and self-actualization. It’s easy to see how we might lie for survival purposes (“I really need this job”). However, it’s more difficult to justify faking it for self-actualization (“This little white lie might spur this person toward positive action”).
As the podcast noted, everybody fakes it. In the end, nobody is responsible for the consequences of our faking it except us. Even if the outcome is positive, it can put a dent in our soul, somehow cheapening the experience. The end, of course, does not always justify the means.
So what lesson can we learn? Create a work environment that diminishes the need for faking it. It’s about communicating expectations, ethics, vision, and the other variables that come in to play. In Four Arguments, Don Miguel Ruiz says that we need to be impeccable with our word – without exception. As a manager, we don’t BS people hoping we can gain their loyalty or productivity. On the other hand, if people aren’t performing on the job, we need to be honest about saying so, despite the fact that this might not feel fair to the other person. As employees, we can be honest about our commitment to an organization, our work ethic, and our long-term plans. We can make sure that we don’t place ourselves in situations or with companies where we can’t be honest.
One of the podcast authors asked what would happen if we had a “National No Faking It Day,” where people decided to be brutally honest for 24 hours. In response, the other authors predicted “a jump in the homicide rate.”
In the end, the authors thought that, in order to survive, we need to fake it. For example, it probably wouldn’t make sense for a manager to say exactly what’s on her mind at the moment she’s upset with someone she dislikes. We might not want to speak truthfully about how we feel about a client while they’re in front of us. Or we might not want to punch that guy in the nose – even if he deserves it.
Finally, bear in mind that we have been conditioned to believe that we should “fake it until we make it” by pretending that we like an unpleasant person or situation until we really do or the problem goes away.
VIOLENCE POLICY
(PDF)
According to numerous polls, violence in the workplace is one of the top risk management concerns. Consider using this policy from OSHA as part of your prevention program. Click here for more information.
The DOL has plenty of them, and they can offer great guidance for employers. To learn more, click here. Note: the Bulletins and Field Operations Handbook at the bottom of this link are also very helpful!
The Federal Third Circuit Court has held that limitations on life activities caused solely by the side effects of medication do not give rise to a disability claim under the ADA. In Sulima v. Tobyhana Army Depot, the plaintiff claimed that he was forced to accept a voluntary layoff because his employer did not accommodate the side effects of medications he was taking to treat obesity and sleep apnea. The district court ruled that medication side effects may, under certain conditions, constitute a disabling condition under the ADA, but that the side effects experienced by the plaintiff did not rise to that level. The Circuit Court agreed. The plaintiff, who was morbidly obese and suffered from sleep apnea, was taking several medications related to those issues at the time of his layoff. The medication caused the plaintiff to need to use the restroom frequently for extended periods. The employer decided to transfer him, but had no other work available at the time. The plaintiff accepted the voluntary layoff in advance of layoffs scheduled for the following month. He did not present any evidence that his obesity or sleep apnea directly and substantially limited a life activity, and instead focused on the side effects of the medication. To prevail under this theory the plaintiff needed to show that: (1) the treatment is required “in the prudent opinion of the medical profession;” (2) the treatment is not just an attractive option; and (3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices. The plaintiff could not meet this test because his doctor had discontinued the medications, thus refuting part (1) of the test that the treatment be required “in the prudent opinion of the medical profession.”
Article courtesy of Worklaw® Network firm Shawe Rosenthal.
The Federal Fourth Circuit Court has ruled that a plaintiff could proceed to trial on her claim of sexual harassment and constructive discharge after she had worked with the alleged harasser for only two days. Whitten v. Fred’s, Inc. involved an employee transferred to the Fred’s store in Belton, SC, where she worked as an assistant manager for two days. During those two days, the store manager made it clear he was unhappy that the plaintiff had been transferred to his store, repeatedly called her dumb and stupid, and told her he didn’t want her working in his store. He also told her to “be good to [him] and give [him] what [he] wanted,” adding that he would make her life a “living hell” if she ever took work matters over his head. On two occasions, he walked behind her and pressed his genitals against her back. Two days after she started this assignment (on a Sunday), the plaintiff told three company officials about the conduct and said she was going to quit. However, she got nowhere, with one manager telling her she had overreacted. She quit that day and reported the matter to the company’s corporate office the following day. The company investigated but took no action. Although the district court granted the employer’s motion for summary judgment, the Court of Appeals reversed, ruling that the plaintiff had a prima facie case of sex harassment, including her claim for constructive discharge, and remanded the case for trial.
