High Employee Turnover Expected

According to a recent survey from Opinion Research Corporation, an infoGroup company, employers may find themselves with a high employee turnover rate once the job market bounces back. Of those surveyed, 80% reported they would leave their current position if presented with other opportunities, while 25% said they already have plans to leave their current employer once the job market stabilizes. Employees who are most likely to job hop are between the ages of 18-34. The survey showed that only 19% are happy with their current employer.

CCH Aspen Publishers- Dec. 2, 2009

Discrimination in Employment/National Labor Relations Act

What is the Age Discrimination in Employment Act?

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination based on age. For purposes of this statute, age is defined as forty years of age or older. Thus, under the ADEA, an employer could refuse to hire you because you are twenty-five years old. However, some state laws prohibiting age discrimination have a broader definition of the protected class.

What is the National Labor Relations Act?

The National Labor Relations Act (NLRA) deals with the role of unions as the bargaining representative of employees and prohibits discrimination in employment based on union activity or other protected concerted activity.

Side Bar - By Any Other Name . . . The NLRA is referred to by several different names. It is also called the Wagner Act, and is part of the Labor-Management Relations Act (also called the Taft-Hartley Act).

Some Courts Raise the Bar on Reading Employee E-mails

Employees may have more privacy rights than they expect with regards to corporate e-mail servers, according to legal experts. Some state courts are showing more consideration when it comes to employers reading employee e-mails electronically and violating their privacy. The force behind the change in how some state courts view these violations is due to increasing capabilities of accessing someone's personal and financial information. Some state courts take into account whether or not employers have clearly explained how e-mails are monitored to their employees. A recent survey of 220 large U.S. firms conducted by Proofpoint Inc., a provider of e-mail security and data loss prevention services, reported that 52% of employees access their personal e-mail accounts on their work computer, 20% said their organization has a policy that explains how it protects employee information, and 38% of companies said they employ staff to read or analyze the content or outgoing e-mail.

WallStreet Journal. com - Nov. 24, 2009

Temporary Workers in 21st Century Economy

A recent surge in temporary workers is good news for the economy, according to a recent article in the Wall Street Journal. Firms have started to hire top-level personnel on a temporary basis to help boost innovation, and during uncertain times, firms feel more secure hiring contingent workers due to the flexibility. Hiring temporary workers boosts economic efficiency, because not all executive roles require permanent staff. Experts maintain that hiring temporary employees on a project basis gets the job done faster and is more cost effective. It also allows companies to rethink how work is organized, allowing them to work closest to the dollar. WallStreetJournal.com - December 1, 2009

Unemployment Stats for November

The unemployment rate decreased to 10% in November, down from 10.2 % in October. The number of people who are unemployed decreased by 325,000 to 15.4 million in November. At the beginning of the recession in December 2007, the jobless rate stood at 4.9%, and the number of employed persons was 7.5 million. Job declines were seen in manufacturing, construction, and information, while temporary help services and health services saw an increase in jobs.

Among the major worker groups, unemployment rates for adult men (10.5 percent), adult women (7.9 percent), teenagers (26.7 percent), whites (9.3 percent), blacks (15.6 percent), and Hispanics (12.7percent) showed little change in November. The unemployment rate for Asians was 7.3 percent, not seasonally adjusted.

Among the unemployed, the number of job losers and persons who completed temporary jobs fell by463,000 in November. The number of long-term unemployed (those jobless for 27 weeks and over) rose by 293,000 to 5.9 million. The percentage of unemployed persons jobless for 27 weeks or more increased by 2.7 percentage points to 38.3 percent.

OSHA and Workplace Safety

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Employees have the right to a workplace that is reasonably free of safety and health hazards. The Occupational Safety and Health Administration (OSHA) is the federal agency that seeks to assure the safety and health of America's workers by setting and enforcing workplace safety standards.

Employee Rights Under OSHA

The Occupational Safety and Health (OSH) Act of 1970 created the Occupational Safety and Health Administration (OSHA) within the Department of Labor, in order to reduce workplace hazards and implement safety and health programs. OSHA gives employees many rights and responsibilities, including the right to:

• Review copies of appropriate standards, rules, regulations, and requirements that the employer should have available at the workplace.

• Have access to relevant employee exposure and medical records.

• Request the OSHA area director to conduct an inspection if they believe hazardous conditions or violations of standards exist in the workplace, and have an authorized employee representative accompany the OSHA compliance officer during the inspection tour.

• Have their names withheld from their employer, upon request to OSHA, if they sign and file a written complaint.

• Be free of any discriminatory or retaliatory action taken by their employer as a result of any OSHA complaint.

Employer Obligations Under OSHA

Among the obligations imposed under OSHA, employers have a duty to:

• Provide work and a workplace free from recognized hazards.

• Inform employees of OSHA safety and health standards that apply to their workplace.

• Display in a prominent place the official OSHA poster that describes rights and responsibilities under the OSH Act.

• Establish a written, comprehensive hazard communication program that includes provisions for such things as container labeling, material safety data sheets, and an employee training program.

• Inform employees of the existence, location, and availability of their medical and exposure records when employees first begin employment and at least annually thereafter, and to provide these records upon request.

OSHA Inspections

If a hazard is not being corrected, an employee can contact an OSHA area office or state office via a written complaint. If the OSHA or state office determines that there are reasonable grounds for believing that a violation or danger exists, the office will conduct an inspection. A workers' representative has a right to accompany an OSHA compliance officer during the inspection. The representative must be chosen by the union (if there is one) or by the employees. Under no circumstances may the employer choose the workers' representative. The inspector may conduct a comprehensive inspection of the entire workplace or a partial inspection limited to certain areas or aspects of the operation.

At the end of the inspection, the OSHA inspector will meet with the employer and the employee representatives to discuss the abatement of any hazards that may have been found.

Mandatory Paid Sick Leave Bill Pending in Congress

A comprehensive bill (H.R. 3047) intended for working families has been introduced in the House of Representative Lynn Woolsey (D-Cal). Called the Balancing Act of 2009, the bill incorporated the provisions of several previously-introduced family and medical leave bills, including the Family Leave Insurance Act (H.R. 1723), Family and Medical Leave Enhancement Act (H.R. 824), Domestic Violence Leave Act (H.R. 2515) and the Healthy Families Act (H.R. 2460), all bills introduced in the House within the past six months. In addition to expanding family and medical leave, the proposed bill would also enhance access to childcare and in-school/after-school assistance, addressing school breakfast and lunch eligibility, child care facility financing, family care needs and telecommuting. In particular, the bill would create a pilot program to raise awareness about telecommuting among employers and to encourage employers to offer telecommuting options to employees.

This week we will look at the proposed bill for Healthy Family Act (H.R. 2460).

In the last few weeks, the Healthy Family Act (HFA) was introduced in both the House of Representative (H.R. 2460) and Senate (S. 1152). The bills are sponsored by Representative Rosa DeLauro (D-CT) and Senator Ted Kennedy (D-MA). If passed as introduced, the legislation would require employers to provide employees with up to 56 hours (roughly 7 days) of paid sick leave annually.

The HFA is proposed to apply to public and private employers with 15 or more employees, and permit accrual of one hour of paid sick leave for every 30 hours worked. Leave would begin accruing at the start of employment, for use beginning after 60 days of employment. The paid sick time could be used for the employee's own medical needs or to care for the medical needs of a child, parent, spouse, or any other blood relative. Additionally, the leave may be used for an absence resulting from domestic violence, sexual assault or stalking.

Interestingly, the HFA, as proposed, will not supersede state or local laws that provide greater paid sick time or leave employees may be entitled to under workers' compensation laws or the Family and Medical leave Act. Similar to FMLA, leave taken under the HFA could not be counted against an employer's "no-fault" attendance policy.

Employers would be required to allow workers to carryover unused paid sick leave to the next year. However, nothing in the legislation would require employers to allow employees to accrue more than 56 hours of earned paid sick time at a given time.

The legislation was introduced in previous congressional sessions and did not pass. However, President Obama was a supporter of the legislation while he served in the Senate. Moreover, with increased majorities in both the House and Senate, the HFA has a greater chance of success in the 111th Congress. LAJHRC will keep you informed about this legislation. Please visit next week as I will discuss other pending legislation

Harassment

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).

Harassment is unwelcome conduct that is based on race, color, sex, religion, national origin, disability, and/or age. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, with work performance. Harassment can occur in a variety of circumstances, including but not limited to, the following:

• The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
• The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
• Unlawful harassment may occur without economic injury to, or discharge of, the victim.

Prevention is the best tool to eliminate harassment in the workplace. Employers should take appropriate steps to prevent and correct unlawful harassment. They should clearly communicate to employees that unwelcome harassing conduct will not be tolerated. They can do this by establishing an effective complaint or grievance process, providing anti-harassment employee complains. Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed.

Employees should inform the harasser directly that the conduct is unwelcome and must stop. Employees should also report harassment to management at an early stage to prevent its escalation.

Employer Liability for Harassment

The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.

When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.

Statistics

In Fiscal Year 2006, EEOC received 23,204 charges alleging harassment as an issue. EEOC resolved 22,408 charges alleging harassment in FY 2006 and recovered $59.8 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).