WIRTW #77

Pennsylvania Senator Arlen Specter again dominates the news this week. His defection to the Democratic Party is the second biggest news story of the week. It will almost certainly provide the Democrats with the 60-member supermajority they need to defeat any filibuster for the next two years. What is less clear is whether this change will have any effect on the prospects for the EFCA, since Sen. Specter is already on record that his change is party does not equate to a change in his opposition to this controversial labor bill. For more coverage of this news, read Workplace Horizons. For a succinct but thorough summary of what exactly the EFCA is, check out Tim Eavenson at Current Employment. For news of other potential changes to federal labor laws, read Michael Fox’s Jottings By An Employer’s Lawyer on the Arbitration Fairness Act and the Fair Arbitration Now coalition that has formed to support it. And, as Christopher McKinney at the HR Lawyer’s Blog points out, the majority of American oppose forced arbitration.

Which leads us to the big (which coincidentally rhymes with pig) story of the week, the swine flu. I’ve already covered this issue, as have some of my fellow bloggers: Michael Moore at the Pennsylvania Labor & Employment Blog, Catherine Barbieri at the FMLA Blog, Michael Haberman’s HR Observations, HR World, The Word on Employment Law with John Phillips, and Dan Schwartz at the Connecticut Employment Law Blog (who I believe was first in bringing this issue to employers’ attention). CCH also has an excellent resource page covering this issue.

Natalie Beck at the Employeescreen IQ Blog has my favorite story of the week. If you are going to call off from work complaining of a migraine headache, don’t spend your day Facebooking.

Welcome to the Iowa Employment Law Blog, which this week discusses the recent EEOC guidance on caregiver discrimination.

Alaska Employment Law discusses a 9th Circuit case applying a caregiver responsibility theory to a stepmother.

Under the category, “what did you expect,” is this gem from Above the Law, detailing a former HR employee’s sexual harassment lawsuit against the publisher of Penthouse.

The Washington Labor & Employment Wire brings to everyone’s attention the Alert Laid off Employees in Reasonable Time Act, which, if passed, would amend WARN “to require notifications under the Act for mass layoffs that occur at more than one worksite for an employer.”

Frank Roche at the KnowHR Blog makes a compelling case for the softer side of human resources.

The Laconic Law Blog discusses a case dealing with the scope of Employment Practices Liability Insurance coverage.

BLR’s HR Daily Advisor advises that there are legal issues that employers must consider before implementing an employee reward program, specifically discrimination, wage & hour, and tax issues.

Richard Bales at the Workplace Prof Blog summarizes the proposed Restatement of Employment Law.

The Evil HR Lady offers some guidance on how to handle a poor-performing employee who takes FMLA leave. I’ve previously talked about how to layoff the protected.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Handling ex-employees’ data

In this morning’s Wall Street Journal, Joseph De Avila features me in an article on how companies handle a laid-off employee’s digital belongings. Mr. Avila’s article got me thinking about an interesting related issue. A business can buy a new computer for a thousand dollars. However, according to a recent five-month study commissioned by Intel, that same computer costs an average of $50,000 to replace. That Intel study found that 80% of the value inherent in a lost or stolen computer is attributed to the sensitive, confidential, and proprietary information stored on that computer.

The Business of Management reports on the the following findings from this Intel study:

• The individual losses varied from $1,213 to an astounding $975,527.

• The cost of recovery is directly related to how quickly the company learns of the loss. If the company discovers the loss the same day, the average cost is only $8,950. That average cost rises more than ten-fold, to $115,849, in the matter of just a week. 

These findings become even more important as more employees face the unemployment line through lay-offs and other job losses.

Because of the exponential increase in costs associated with even a week’s delay in recovering an ex-employee’s computer, it is incumbent upon employers to secure employees’ computers and data before they walk out the door. Some proactive steps for companies to take include:

1. Distributing to employees comprehensive electronic communication policies that cover all types of technology in use at the company (computers, voice mail, email, mobile devices, social networking, internet use, instant messaging, etc.). The policy is critical to establish employees’ expectation about proper uses for technology, and also what belongs to the employee and what belongs to the employer.

2. Once an employee leaves employment, voluntarily or involuntarily, immediately shut-off their network access and secure the return of all company-owned technology, files, and data.

3. Consider what information of the former employee is worth keeping and what can be destroyed. For example, in professions where communications with clients are important (like law, sales, or finance), companies might keep emails and contact data.

4. Lastly, to quote myself from Mr. Avila’s article: “If they think an employee has stolen anything, they will look for that…Companies fearing lawsuits from disgruntled former employees may have their IT department or an outside firm search through the emails, too.”

I generally do not preach draconian employment policies. A business, however, cannot be too careful with securing its data and information. Leniency and lax policies can result in the loss of information and data that can prove very costly to recover.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Swine flu: panic versus preparedness

There is nothing our media likes more than a good panic. So, it is somewhat with a grain of salt that I take a lot of this week’s coverage about the swine flu. Is it real disease? Yes. Are people getting sick? Yes. Are people dying? Yes. However, we must also place these broad-based realities into context. The United States has over 300,000,000 people. As of this morning, there have been a mere 65 confirmed cases. Each year, the regular flu kills 36,000 Americans. So far, the swine flu has resulted in only 1 fatality.

Instead of panicking about the swine flu, the best advice is to simply prepare your workforce to prevent its spread and assist employees who become ill. The Center for Disease Control recommends the following six-step protocol:

1. Plan for the impact of a pandemic on your business:

• Identify a pandemic coordinator and/or team with defined roles and responsibilities for preparedness and response planning. The planning process should include input from labor representatives.

• Identify essential employees and other critical inputs (e.g. raw materials, suppliers, sub-contractor services/ products, and logistics) required to maintain business operations by location and function during a pandemic.

• Train and prepare ancillary workforce (e.g. contractors, employees in other job titles/descriptions, retirees).

• Develop and plan for scenarios likely to result in an increase or decrease in demand for your products and/or services during a pandemic (e.g. effect of restriction on mass gatherings, need for hygiene supplies).

• Determine potential impact of a pandemic on company business financials using multiple possible scenarios that affect different product lines and/or production sites.

• Determine potential impact of a pandemic on business-related domestic and international travel (e.g. quarantines, border closures).

• Find up-to-date, reliable pandemic information from community public health, emergency management, and other sources and make sustainable links.

• Establish an emergency communications plan and revise periodically. This plan includes identification of key contacts (with back-ups), chain of communications (including suppliers and customers), and processes for tracking and communicating business and employee status.

• Implement an exercise/drill to test your plan, and revise periodically.

2. Plan for the impact of a pandemic on your employees and customers:

• Forecast and allow for employee absences during a pandemic due to factors such as personal illness, family member illness, community containment measures and quarantines, school and/or business closures, and public transportation closures.

• Implement guidelines to modify the frequency and type of face-to-face contact (e.g. hand-shaking, seating in meetings, office layout, shared workstations) among employees and between employees and customers (refer to CDC recommendations).

• Encourage and track annual influenza vaccination for employees.

• Evaluate employee access to and availability of healthcare services during a pandemic, and improve services as needed.

• Evaluate employee access to and availability of mental health and social services during a pandemic, including corporate, community, and faith-based resources, and improve services as needed.

• Identify employees and key customers with special needs, and incorporate the requirements of such persons into your preparedness plan.

3. Establish policies to be implemented during a pandemic:

• Establish policies for employee compensation and sick-leave absences unique to a pandemic (e.g. non-punitive, liberal leave), including policies on when a previously ill person is no longer infectious and can return to work after illness.

• Establish policies for flexible worksite (e.g. telecommuting) and flexible work hours (e.g. staggered shifts).

• Establish policies for preventing influenza spread at the worksite (e.g. promoting respiratory hygiene/ cough etiquette, and prompt exclusion of people with influenza symptoms).

• Establish policies for employees who have been exposed to pandemic influenza, are suspected to be ill, or become ill at the worksite (e.g. infection control response, immediate mandatory sick leave).

• Establish policies for restricting travel to affected geographic areas (consider both domestic and international sites), evacuating employees working in or near an affected area when an outbreak begins, and guidance for employees returning from affected areas (refer to CDC travel recommendations).

• Set up authorities, triggers, and procedures for activating and terminating the company's response plan, altering business operations (e.g. shutting down operations in affected areas), and transferring business knowledge to key employees.

4. Allocate resources to protect your employees and customers during a pandemic:

• Provide sufficient and accessible infection control supplies (e.g.hand-hygiene products, tissues and receptacles for their disposal) in all business locations.

• Enhance communications and information technology infrastructures as needed to support employee telecommuting and remote customer access.

• Ensure availability of medical consultation and advice for emergency response.

5. Communicate to and educate your employees:

• Develop and disseminate programs and materials covering pandemic fundamentals (e.g. signs and symptoms of influenza, modes of transmission), personal and family protection and response strategies (e.g. hand hygiene, coughing/sneezing etiquette, contingency plans).

• Anticipate employee fear and anxiety, rumors and misinformation and plan communications accordingly.

• Ensure that communications are culturally and linguistically appropriate.

• Disseminate information to employees about your pandemic preparedness and response plan.

• Provide information for the at-home care of ill employees and family members.

• Develop platforms (e.g. hotlines, dedicated websites) for communicating pandemic status and actions to employees, vendors, suppliers, and customers inside and outside the worksite in a consistent and timely way, including redundancies in the emergency contact system.

• Identify community sources for timely and accurate pandemic information (domestic and international) and resources for obtaining counter-measures (e.g. vaccines and antivirals).

6. Coordinate with external organizations and help your community:

• Collaborate with insurers, health plans, and major local healthcare facilities to share your pandemic plans and understand their capabilities and plans.

• Collaborate with federal, state, and local public health agencies and/or emergency responders to participate in their planning processes, share your pandemic plans, and understand their capabilities and plans.

• Communicate with local and/or state public health agencies and/or emergency responders about the assets and/or services your business could contribute to the community.

• Share best practices with other businesses in your communities, chambers of commerce, and associations to improve community response efforts.

A business’s size and the nature of its operations dictate the need for any or all of these steps. For more information on preparing your business for cases of the swine flu, I recommend the CDC’s micro-site on workplace planning for pandemic flu and OSHA’s Guidance on Preparing Workplaces for an Influenza Pandemic.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Charging for work uniforms

More and more businesses are looking to cut costs anywhere they can. Many require their employees to wear a certain uniform. Can they pass on the costs of the uniforms to their employees?

Generally speaking, there is no law that forbids an employer from mandating that its employees pay for required work uniforms. There are two important exceptions to this general rule: minimum wage and OSHA.

1. Minimum Wage.

The added expense from the uniforms cannot reduce the employee’s effective hourly rate below the minimum wage. Currently, Ohio’s minimum wage is $7.30 per hour. For example, if an employee is paid $8 per hour, and works a 40-hour week, the employer could charge up to $28 that week for uniforms. Any charge greater than $28 would illegally reduce the employee’s hourly rate below $7.30 for the week.

2. OSHA and Personal Protective Equipment.

Employers must also be careful if the uniforms include items that are required for employees’ personal safety. Recently enacted OSHA rules prohibit employers from requiring employees to pay for required personal protective equipment. Employers must pay for most required safety equipment. The only exceptions are non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots), non-specialty prescription safety eye wear, logging boots, and everyday clothing.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

What’s your five? A question for my readers and fellow bloggers.

As a member of the Ohio Chamber of Commerce’s Employment Law Committee, I was asked to respond to the following questions:

What would you say the top 5 labor & employment issues are that HR professionals and employers (large and small) would like to know more about or are struggling with in this economy?

What can be changed/done to make such labor & employment issues less onerous for employers?

Here’s my list:

1. Job losses, job creation, and managing workforces to ensure, as best as possible, as much work as possible for as many people.

2. The risk of increased unionization in the face proposed federal legislation and a down economy.

3. Layoffs and the litigation risks that flow from them.

4. The threat and proliferation of wage and hour litigation.

5. Rising health care costs.

Figuring out what can be done to fix these problems is a much harder question to answer. Any program designed to aid employers has to start and end with training and education. Being proactive is the best measure to guard against these potential problems.

To my readers and fellow bloggers, if you had to list the top 5 labor and employment issues facing employers in 2009, what would they be? Perhaps more importantly, what can be done to limit or temper these issues for businesses? I’m very interested in what everyone has to say. Please comment. If you post on your own blog, please email a link. I’d like to update this post next week with everyone’s thoughts.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #76

Courtesy of Anthony Zaller at the California Employment Law Report, the link of the week is How to Nail and Interview. The author of that site posted a fake job on craigslist for a marketing position and recorded the interviews. Hilarity ensued. My personal favorites are #9, in which the applicant is caught off-guard when pressed on her inappropriate Facebook page, and #13, where the applicant hoped her willingness to “do anything” would score her the job. It is definitely clicking over and watching some of the videos.

In other news, from Martha Neil at the ABA Journal is a story about two Dominos Pizza employees who thought it was a good idea to perform inappropriate acts on customers’ food and post the videos on YouTube. Not only were they fired, but they are also facing criminal charges for food tampering.

Nick Fishman at the EmployeescreenIQ Blog has more on Ohio’s attempt to ban the use of credit reports in employment decisions.

George’s Employment Blawg reports on a $17.5 million verdict in a trade secret theft case.

The Laconic Law Blog tells how an employee’s use of profanity directed at his employer cost him any protection against retaliation.

Tim Eavenson at Current Employment uses news of 2 recent EEOC settlements to instruct on preventing HR catastrophes.

Michael Haberman at HR Observations makes an observation workplace privacy and social networking.

Finally, this week brought us oral argument in Ricci v. DeStefano, which will decide whether the city of New Haven violated Title VII when it declined to certify the results of an exam that would have make disproportionately more white applicants eligible for promotion than minority applicants. In layman’s terms, is it discriminatory to void a test that disproportionately favors white applicants over minority applicants. For very detailed analysis of these issues and the Supreme Court oral argument, read Dan Schwartz at the Connecticut Employment Law Blog and Marcia McCormick at the Workplace Prof Blog.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Employers should be planning for the Employee Free Choice Act

Even the most ardent supporters of the Employee Free Choice Act agree that passage in its current form is unlikely. The Cleveland Plain Dealer quotes Ohio Sen. Sherrod Brown:

Although Brown backs the legislation in its current form, he says it won’t get enough votes for passage in the Senate now that former backers including Pennsylvania Republican Sen. Arlen Specter have withdrawn their support.

He said he expects a compromise will be reached to continue the secret-ballot elections, but require them to be conducted swiftly and handled in a way that doesn’t inordinately favor businesses.

Despite these delays and possible changes, employers should be vigilant about preparing for its passage in one form or another. As Texas attorney Michael Maslanka points out on Law.com, “Some version of EFCA will be the law no later than next year at this time. Advice: Avoid ostrich-like attitudes of self-delusion.”

What can you do, as employers, do to keep your heads out of the sand? Plan on attending KJK’s next Breakfast Briefing, How to Stay Union Free in a Union-Friendly World. The event will be held May 13 from 8 a.m. to 10 a.m., and it is totally free. If you would like to attend or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.