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).

2009 EEO-1 Survey Reminder

The filing deadline for the 2009 EEO-1 Survey or Employer Information Report EEO-1 is September 30, 2009. Most private employers with 100+ employees and certain federal contractors are required to file this form with the U. S. Equal Employment Opportunity Commission's Joint Reporting Committee (EEOC). The EEOC uses the data to support civil rights enforcement and analyze employement patterns within companies, industries, and regions. Companies failing to comply will be reported to the United States District Court. At such time fines and penalities can be assessed for each day report is not filed. Also, failure to comply by a Federal contractor or subcontractor may result in termination of the Federal government contract and debarment from Federal contracts. Find out if you're required to file. Have questions about the 2009 EEO-1 Report? Go to www.eeoc.gov.

Health Care Reform & Small Businesses

THE ECONOMIC EFFECTS OF HEALTH CARE REFORM ON
SMALL BUSINESSES AND THEIR EMPLOYEES

EXECUTIVE SUMMARY

Small businesses play an important role in the U.S. economy and are a strong driver of job growth and innovation. But small businesses are severely disadvantaged by the current U.S. health care system relative to their larger counterparts. A new report by the Council of Economic Advisers (CEA) examines the challenges faced by smaller firms under the current health care system, and the likely impacts of health care reform on small businesses and the workers they employ. Key findings of the report include the following:

Small businesses are crucial to the economy.

• Small businesses are an important source of job growth in the United States. Firms with fewer than 20 employees accounted for approximately 18 percent of private sector jobs in 2006, but nearly 25 percent of net employment growth from 1992 to 2005.
• Small businesses account for a large majority of jobs in start-ups, a key source of innovation and economic growth.

The current health care system is not working well for small businesses and their workers.

• The U.S. health care system imposes a heavy "tax" on small businesses and their employees. Due to high broker fees, fixed administrative costs, and adverse selection, small businesses pay up to 18 percent more per worker than large firms for the same health insurance policy. Some of these higher costs are passed on to small firm employees in the form of lower wages, and some eat into the profits of small businesses that could otherwise be used for research and development and for much-needed investments. This implicit tax disadvantages small firms in both the market for the best workers and the market for their products.
• Because of their higher health care costs, small businesses are far less likely to provide health insurance for their workers than larger businesses. Only 49 percent of firms with 3 to 9 workers and 78 percent of firms with 10 to 24 workers offered any type of health insurance to their employees in 2008. In contrast, 99 percent of firms with more than 200 workers offered health insurance. Consistent with this pattern, 29 percent of non-elderly adult workers at firms with fewer than 25 employees were uninsured in 2007. In that same year, just 10 percent of workers in firms with 500 or more employees were uninsured. Workers at small firms that do offer health insurance also tend to have less generous plans than workers at large firms.
• The fraction of small firms offering health insurance has been declining in recent years. From 2002 to 2008, the fraction of firms with 3 to 9 employees offering health insurance to their workers declined from 58 to 49 percent.

Health care reform as envisioned in current draft legislation would reduce the current burdens on small firms and their workers.

• Small businesses that meet certain criteria would be able to purchase health insurance through an "insurance exchange" – allowing them to choose among a multitude of plans that would provide better coverage at lower costs than they could find in the current small group market.
• Many small businesses that provide health insurance for their employees would receive a small business tax credit to alleviate their disproportionately higher costs and encourage coverage. The tax credit would be targeted to those firms with employees whose average wages fall below a certain threshold.
• The current reform options include financial incentives for medium- and large-sized firms to provide health insurance coverage through so-called "pay-or-play" provisions. Firms with payrolls or employment levels below a certain threshold, which would include the vast majority of small businesses, would be exempt from the pay-or-play provisions.
• The creation of an insurance exchange would also provide better and lower-cost options for workers in small businesses that do not offer health insurance. Low-income individuals and families would receive sliding scale subsidies to help them purchase insurance. Additionally, health insurers would not be allowed to screen potential enrollees for pre-existing conditions.
• The proposed reforms could help spur entrepreneurial activity by increasing the incentives for talented Americans to launch their own companies, and could increase the pool of workers willing to work at small firms. Further, successful reform would reduce the phenomenon of "job lock," in which workers are reluctant to leave a job with employer-sponsored health insurance out of fear that they will not be able to find affordable coverage. Small firms that are unable to provide health insurance for their employees bear the greatest cost of this phenomenon.
• Reductions in absenteeism and improvements in worker productivity resulting from better health outcomes because of expanded coverage would particularly benefit small businesses.

This article was taken from the Executive Office for the President Council of Economic Advisers - to review the full report go to www.whitehouse.gov/.../Health-Care-Reform-and-Small-Business

Missouri and Illinois Minimum Wage Increases

Missouri

The current Missouri minimum wage of $7.05 per hour will increase to $7.25 per hour on July 24, 2009. The increase is triggered by an increase to the federal mimimun wage from $6.55 an hour to the new rate of $7.25. The Missouri rate must equal the higher federal rate.

Illinois

The Illinois minimum wage rate increases to $8.00 form $7.75 per hour effective July 1, 2009. The minimum wage rate for tipped employees increase from $4.65 to $4.80.

The increase to the federal minimum wage may also impact facilities in states other than Missouri and Illinois and employers should verify what impact, the increase to the federal minimum wage will have on their organization.

Employee Handbook

The employee handbook is an important tool used by employers to communicate to its employees the company philosophy, history, goals, work rules and policies, procedures, and benefits. The employee handbook outlines the expectation of management and serves as a reference source for employees.

The handbook assists in protecting the organization from claims of discrimination and unfair treatment. It can also assists in the area of unemployment. It can provide proof that the organization had a policy against a particular conduct that was communicated to all employees.

When developing policies for a handbook, statements should be clear and concise. Employers should to be careful in their word selection for their policies so they do not create an employment contract giving up their at will status. A disclaimer statement should be placed in the employee handbook to decrease the chances of it being viewed or interpreted as a contract.

There should always be a disclaimer in the handbook to revise policies at management's discretion. Always have an attorney review the handbook prior to issuing it to employees.

The Handbook can cover the following topics:

• Equal Employment Opportunity
• Benefits
• Time Off
• Compensation
• Progression
• Employment Guidelines
• Standards of Conduct
• Workplace Health and Safety
• Payroll and Record keeping
• Termination
• Employee Acknowledgement

You should review and update polices and handbooks to make sure you are in compliant. Things you should keep in mind when reviewing your handbook:

• Are your documents complaint with new laws
• Are they contemporary
• Do they cover emerging issues; new technologies, new protected classes
• Consider a stand alone policy on retaliation.

HR Management/ Recruitment, Retention & Training

There are a number of challenges to modern human resources management, including managing diversity, minimizing sexual harassment, proper hiring and firing just to name a few. However three factors that are most challenging because they can minimize or reduce factors like these are recruitment, retention, and training. In an era of increased competition, cost-cutting and the need for talented human resources to retain competitive advantage, more and more organizations are recognizing the importance of sound recruiting and hiring. Such competition among firms for recruiting the best and brightest job candidates means new methods of recruiting must be employed to have an advantage over other firms. Because of this, more organizations are relying on technology to help recruit employees. The use of electronic technologies such as Craigslist, Careerbuildrs, Monster, SHRM, and many other sites are no longer cost prohibitive. Such methods save recruiters from wading through paperwork, while saving the company money as compared to print advertisement in newspaper publications and other conventional methods of recruiting. Such methods also enable a firm to reach out to passive candidates as well as those actively seeking employment. However, recruiting through such technologies requires staff development to train recruiters to take advantage of electronic technologies and software to find new candidates. These types of methods are expected to increase in use in the future, and those firms that rely on traditional more costly and limited means of recruiting may not be able to remain competitive in attracting and retaining the most qualified candidates.

Paying for Employment Discrimination

For decades many employers have had to pay significant amounts of money to resolve EEO charges and lawsuits. But illegal employment discrimination continues to be expensive for employers, whether based on race, gender, age, disability, religion, or other factors. Some example of claims settled include the following:

• Target Corporation paid $95,000 to an employee with multiple sclerosis for refusing to transfer her to a vacant position because of her disability.
• The Stillwater Minnesota School District paid $1.12 million to settle age-bias claims for reducing early retirement incentives based on age.
• Verizon Communication settled a pregnancy bias case by paying $48.9 million for denying female employees leaves of absence for pregnancy and newborn care.
• Wal-Mart spent $315,000 to settle race and sexual harassment claims by five women at a Flordia store and now Wal-Mart is in the news again faced with yet another claim of workplace discrimination for women.
• Red Robin restaurant chain paid $150,000 to settle a religious discrimination suit filed by a food server fired for not concealing religious-faith tattoos.
• And the list goes on-and-on,

These examples illustrate that employers must constantly be aware of and address worker discrimination issues. As part of HR management, equal employment likely will be a major concern as more employees are added who are covered under various EEO laws and regulations and as we continue to downsize and force employees out due to economic conditions.

How do you handle layoffs, conduct terminations, perform disciplinary action, etc? It is imperative that all HR managers, staff managers and supervisors understand state laws and regulations to avoid discrimination lawsuits. All managers and supervisors should be properly trained on the current laws and regulations.

Why HR Is Not Always Respected!!!!!!

I recently polled a group of non-HR professionals. The group consisted of matures born before 1945, baby boomers born 1945-1965, generations Xers born 1966-1980 and Yers 1981-1990. The poll was intended to capture each generations perspective of HR in their organizations. Some indicated that HR is a necessary evil a bureaucratic force that enforces unnecessary rules, resists creativity, and stands in the way of needed changes. Other criticisms included: Why are performance appraisals so useless? Why is HR always involved in cutting jobs and terminating valuable employees? Why is HR always taking the side of management and going at the command of upper management. Several indicated that HR management is necessary due to the large number of government regulations. Many wondered why HR insists on treating everyone equally, which leads to protecting poor performers rather than working on retaining good performers.

What non-HR professionals fail to realize is that legal requirements are complex in nature and HR must be cautious. Their role of protecting corporate assets against the laws put HR in the role of being "good cop"/"bad cop." HR must straddle the fence protecting the rights of the employee and the employer.

What must HR do to be respected. Often employees attempt to determine what they believe HR's role is or should be in the organization. Some managers believe HR should be finding the best hires, nurturing the stars, and enhancing a productive work environment. However, several managers indicated HR places to much time and energy on the administration of personnel policies and practices which companies are increasingly outsourcing to contractors. It's been said that HR managers are seen as more concerned about activities than results. They tell how many people were hired, the number of performance appraisals completed, and whether employees are satisfied with their new hire orientation. But too seldom does HR bridge those details to employee, managerial, and business performance measurement and metrics.

Despite, many of these criticisms, HR can be respected if done well. There are many companies that bring HR into the realm of business strategies giving HR a seat at the table and respecting the role they play and contributions they make to the strategic direction and success of the organization. HR should be a special part of any organization, which means viewing the people and their talents as an opportunity for creating greater organizational competitive advantages. But in many companies, the opportunity is seen as wasted, and that is why HR is not highly respected.

I've been in the field for over 27 years and have watched HR change from administrative to strategic; outsourcing those administrative functions that do not add value...allowing staff to develop more strategically. Twenty-Seven years ago HR did not have a seat at the table and now that we have a seat...What do we do with it? Does a seat at the table bring new challenges for HR management? Does a seat at the table gain respect?

Please share your thoughts!