March 11, 2010

Arbitration Restrictions for Federal Contractors : Just the Beginning?

Filed under: Employment Law — Tags: , — Jane @ 12:53 pm

Dramatic changes may be coming regarding the use of mandatory arbitration agreements in the workplace.

The recent Department of Defense Appropriations Act (the “Franken Amendment,”) significantly narrowed  the use of mandatory arbitration in employment agreements between defense contractors (and subcontractors) and their employees or independent contractors.

At present, the legislation applies to defense contractors, but all federal contractors could be next.  In fact, the proposed Arbitration Fairness Act would restrict mandatory arbitration for all types of employers.

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March 5, 2010

HR Fact Friday: Determining Independent Contractor Status: 5 Resources for Employers

Appropriately classifying individuals as employees or independent contractors can be more complex than it appears. One complexity involved in determining independent contractor status, notes Attorney James Coleman, a partner in the Washington, D.C., office of Constangy, Brooks and Smith, is that the Internal Revenue Service (IRS), the Fair Labor Standards Act, Title VII of federal civil rights law, and some state-level regulations each define such contractors in slightly different ways.

(more…)

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February 17, 2010

Around the States

Filed under: Employment Law — Jane @ 2:50 pm

Colorado’s minimum wage will drop slightly ($.03/hour) in 2010— the first decrease in any state’s minimum wage since the federal minimum was adopted in 1938.  Colorado is one of 10 states that base minimum wage on inflation.

Washington’s “Everything But Marriage Law” has taken effect after a November referendum  approved it.  The law seeks to provide registered domestic partnerships (same sex and some opposite sex partners)  the same rights and benefits under state law as accorded traditional marriages. Washington employers should review their benefits programs, policies and practices to ensure compliance with the new law.

A new Cleveland ordinance prohibits businesses from denying employment or housing on the basis of gender identity or gender expression.

The California Division of Labor Standards Enforcement (“DLSE”) has issued an opinion letter (DLSE Op. Letter 2009.11.23) stating that while employers can’t deduct an exempt employee’s salary for partial day absences, they can charge employee leave balances.

Previously exempt employees’ leave could only be charged in 4 or more hour increments. The federal Department of Labor has permitted this practice for some time.  This is a great development for California employers.

Effective January 1, 2010, an Oregon law became effective which prohibits employers from requiring employees to attend meetings to learn about the company’s union views.

The law also requires that all Oregon employers post a related notice advising employees of their rights.

Oregon now requires certain employers to have automated defibrillators on site.

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February 10, 2010

IRS More Aggressive Regarding Employment Taxes

Filed under: Employment Law — Tags: — Jane @ 1:28 pm

State and federal tax agencies around the country are aggressively seeking more revenue to deal with burgeoning budget deficits.

The IRS is planning to institute its first Employment Tax initiative since 1984.  It intends to audit 6000 companies looking for:

  1. Misclassification of employees as independent contractors,
  2. Problems with reporting tips,
  3. Issues regarding underreporting of compensation of officers and owners in S corporations and
  4. Problems with reporting fringe benefits such as car allowances, club memberships, payment for equipment and tools, and personal use of company owned vacation property.

All employers should closely review their pay and benefits practices.  The trend of government looking for more and more tax revenue will likely escalate.

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February 8, 2010

Discrimination Claims Based on Disability, Religion and National Origin Increase

Filed under: ADA & Disability — Jane @ 9:29 am

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that 93,277 workplace discrimination charges were filed in fiscal year 2009.  That’s the 2nd highest total ever.

Over $376 million dollars were collected for discrimination victims. Discrimination charges based on disability (up 10%), religion (1% increase) or national origin (up 5%) hit record highs.

Age claims reached the 2nd highest level ever.  A change last year in the ADA which, in effect, expanded the definition of disability may be driving some of the increase in ADA claims.

The most frequent types of charges continued to be those based on race (36%), retaliation (36%) and sex (30%).

Several types of discrimination can be included in a single claim. The high number of complaints may be due to a number of factors, including the economy, increased diversity, and demographic changes.

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February 3, 2010

IRS Mileage Rate Takes a Dip January 1st

Filed under: Employment Law — Tags: — Jane @ 10:51 am

Employers that reimburse employees for business use of a personal automobile should be aware that the IRS mileage rate will drop from 55 cents/mile to 50 cents/mile on January 1, 2010.

The mileage rate for 2010 reflects lower transportation costs compared to a year ago.   It’s important to note that if employers continue reimbursing employees at 2009’s 55 cents/mile, they will have to warn employees that they’re receiving five cents/mile in taxable income – this could mean they could end up owing more in taxes on April 15th the following year.

Whatever your company decides, it’s important to inform employees about the new rate and the company policy for mileage reimbursement.

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January 22, 2010

HR Fact Friday: Job Bias Claims Based on Religion & Disability Rise

The number of workers claiming job discrimintion based on disability, religion, or national origin surged to new highs last year, as federal job bias complaints overall stayed at near record levels.

The Equal Employment Opportunity Commission (EEOC) said Wednesday that charges of disability discrimination rose by about 10% to 21,451 claims, the largest increase of any category.

The increase coincided with changes to the Americans with Disabilities Act (ADA) last year that made it easier for people with epilepsy, diabetes and other treatable conditions to claim they are disabled.

Overall, the EEOC received more than 93,000 discrimination claims during the 2009 fiscal year, a 2% decrease from the record set in 2008, but still the second highest level in the commission’s history.

As in previous years, claims based on race, sex and retaliation were the most frequent.

Since the ADA was enacted in 1990, a series of Supreme Court rulings have generally exempted from its protections those with partial physical disabilites or impairments that can be treated with medication or devices such as hearing aids.

Legislation signed into law by President George W. Bush before he left office directs courts to apply the definition of disability more generously.

Charges of discrimination based on national origin rose by about 5% to 11,134 claims, while religious discrimination claims rose less than 1% to 3,386 claims.  Allegations of race discrimination remained the most frequently filed complaint, accounting for about 36% of all filings last year.

The EEOC said the near-historic level of complaints overall may be due to a number of factors, including economic conditions, increased diversity and demographic shifts in the work force. Employees also may be more aware of their rights and could be taking advantage of changes at the EEOC to make it easier to file a discrimination charge.

The EEOC enforces federal laws prohibiting employment discrimination.

Source: Yahoo Finance, Equal opportunity Commission (http://www.eeoc.gov)

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January 8, 2010

HR Fact Friday: Workplace Bias Claims 2nd Highest Ever in 2009

Filed under: Employment Law — Tags: , , , — Paul @ 8:52 am

The Equal Employment Opportunity Commission (EEOC) received 93,277 workplace discrimination claims in 2009, down 2.2% compared with the previous year, the agency said Wednesday, January 6.

The number of claims filed in 2009 was the second highest after 2008, the EEOC said, and monetary relief obtained for victims totaled more than $376 million, slightly lower than 2008’s $376.6 million.

“The latest data tell us that as the first decade of the 21st century comes to a close, the commission’s work is far from finished,” said Stuart J. Ishimaru, acting EEOC chairman, in a statement. “Employers must step up their efforts to foster discrimination-free and inclusive workplaces or risk enforcement and litigation by the EEOC.”

The number of charges alleging age-based discrimination in 2009 reached 22,772, the second highest ever after 2008. In 2009, monetary benefits awarded to victims from those charges reached $72 million, compared with nearly $83 million in 2008.

The most frequently filed discrimination allegations in 2009 were based on race (36%), retaliation (36%), and gender (30%), which the EEOC said followed recent trends. Some claims included two or more types of discrimination.

For information on 2009 enforcement and litigation statistics from the EEOC, visit www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

Source: Business Insurance, a sister publication of  Workforce Management.

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January 6, 2010

Is It OK to Set Up Video Cameras in an Employee’s Office?

Filed under: Employment Law — Tags: — Jane @ 2:49 pm

The California Supreme Court addressed the issue of whether an employer could install surveillance cameras, in an office shared by 2 employees, to catch whoever was accessing pornographic sites at night.

The 2 employees, who weren’t suspects, worked during the day and were not told about the camera as it was feared that they would gossip about it.

The camera was only activated at night.  They discovered the camera and sued for invasion of privacy, arguing that the camera itself invaded their privacy and that they had a reasonable expectation of privacy.

The court found that an employee’s privacy expectations depend on the circumstances.  They are different if one works in an open area rather than in an office.

The court determined that the employees did have a reasonable expectation of privacy, that video cameras are particularly problematic and that the fact that no notice was given was troubling.

However, the court reasoned, this intrusion into privacy was justified for business reasons.

Additionally it was very restricted, with cameras activated after hours, pointed only at the work station, used for a short period of time, and with the knowledge of only a few people.  Given that the employer operated a residential facility for abused and neglected children also weighed on the court’s decision. [Hernandez v. Hillsides]

This case provides some good reminders for employers including:

  • Privacy law is complicated and evolving.  Contact an attorney before you start taping or monitoring employees.
  • Employees do have expectations of privacy, although, in some instances they can be limited.
  • The best practice is to notify employees of any surveillance.  Requiring a signed acknowledgement isn’t a bad idea either. Such a document reduces or negates an employee’s privacy expectations.
  • Employers should use the least invasive type of monitoring possible.
  • Sound business justification is necessary.

Develop some solid policies before undertaking any surveillance.

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November 16, 2009

$1.3 Million Religious Discrimination Case

Filed under: Employment Law — Jane @ 3:11 pm

In a religious discrimination case, the Equal Employment Opportunities Commission has announced a judgment of $1.3 million against communications giant AT&T. The Arkansas case was brought by the EEOC on behalf of two customer service reps who were suspended and fired after attending a Jehovah’s Witness convention. Both men had requested a day of leave to attend the convention, something they had done annually.

While you aren’t likely to find yourself in a million dollar religious discrimination lawsuit, the case serves as a reminder to ensure that managers understand the surrounding issues and that appropriate policies and procedures are in place to prevent any such discrimination.   Increasing workforce diversity makes this increasingly important.  In fact, the number of religious discrimination charges filed with the EEOC has risen significantly in recent years.

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