Archive for October, 2010

Can Off-duty Halloween Behavior Come Back to Haunt the Employee?

As if HR didn’t have enough to worry about, now comes the spectre of employees having too good a time on Halloween. Can — or should — an employee’s off-duty behavior have any bearing on an employee’s keeping his or her job?

This post was prompted by an article I read in Friday’s Washington Post in which a prominent federal employment lawyer warned federal employees that if they get “too wild” in their Halloween celebrations they could be charged with “conduct unbecoming of a federal employee.”

“Federal employees, in particular, need to use discretion while celebrating Halloween,” said John P. Mahoney, a federal employment lawyer with Tully Rinckey. “The charge is so braod that it applies to just about anything and can even lead to your termination in a serious case.”

But what about in the private sector? It’s hard to believe that any HR director would care that much about what their staff does on Halloween or any other holiday, but in case they did care, in many states they would be barred from doing anything about it.

As the free legal website, nolo.com notes “In the private sector, a number of laws prohibit employers from intruding into their employees’ lives outside of work. Some state constitutions specifically provide for a right to privacy, which prevents private employers from looking into their employees’ off-duty activity. Some states, including California, have laws prohibiting employers from taking any job-related action against a worker based on that worker’s lawful conduct off the job.”

But how much is really private anymore? Information can move across the Internet in a matter of seconds, so a picture of a drunk or hung-over (or worse) employee in Halloween regalia can ricochet across cyberspace in a nano-second.

Even if it wouldn’t cost an employee his or her job, it certainly puts the employee in a negative light — and by extension, from the company’s point of view, the company also.

That’s just common sense — which sometimes is in short supply when all anyone wants to do is to have a little fun.

McDonald’s Franchisee Rebuked for Letter Promoting Candidates

 A recent incident involving a McDonald franchisee in Ohio suggesting to his employees that they vote for certain candidates in the midterm elections or face possible loss of benefits if the wrong persons were elected pits the First Amendment right of business owners to speak their mind versus the right of employees to be left alone and come to their own decisions as to who to vote for.

Employees of several McDonald’s restaurants in the Canton, Ohio are recently received a letter in their paychecks suggesting that they vote for three Republicans — John Kasich for governor, Rob Portman for Senate, and Jim Renacci for the House. The letter from the McDonald’s franchisee warned that employee raises and benefits would continue only “if the right people are elected. If others are elected, [they] will not.”

The executive director of the Ohio Election Commission said that the letter was a legal use of companies’ free speech rights. However, the owner of the restaurants, Paul Siegfried, apologized and said it was an “error in judgment.” A McDonald’s corporate officer said the franchisee had shown “poor judgment.”

The lesson for HR? Give your employees free reign to discuss politics and candidates among themselves, but don’t allow anyone — employee or owner — to attempt to persuade another employee to vote a particular way by insinuating that his or her benefits are at stake.

Chain Drug Stores Balk at New Debit Card Restrictions for OTC Purchases

Under the health care reform law, as of Jan. 1, 2011, over-the-counter (OTC) medications will be eligible for reimbursement under a health flexible spending account only if prescribed by a doctor. The National Association of Chain Drug Stores, which represents 37.000 pharmacies, recently asked IRS for clarification on this provision.

The association says that current inventory information approval systems cannot distinguish “between a medication for which a prescription is required and an OTC that has been prescribed.”

The IRS has agreed to postpone implementation of this rule for two weeks, but the association wants a longer day to enable modification of pharmacy IIAS systems to make the distinction.

It would also like the IRS to issue clarifying guidance that debit cards may be used to purchase prescribed OTC medications from pharmacies.

Breastfeeding Moms Get No Help From FSAs

Breastfeeding mothers now have a guarantee of leave breaks to breastfeed their children at work, but the IRS still refuses to allow the cost of breast pumps to be deemed an eligible expense under Section 213 of the Internal Revenue Code, the New York Times reported today.

Since the costs of such pumps is not an eligible medical expense, neither are they eligible for reimbursement under flexible spending accounts (FSAs) since FSAs are limited to eligible medical expenses.

It’s a Catch 22 for nursing moms and seems to run counter to the goals of the new health care reform law to hold medical costs down by encouraging back-to-basics, good lifestyle practices such as breastfeeding.

Bills introduced last year by Representative Carolyn B. Maloney, Democrat of New York, and Senator Jeff Merkley, Democrat of Oregon, would have allowed nursing mothers to claim the tax break, the Times reported. “But breast-feeding advocates say that effort, like many before, was undone by economic and cultural factors.”

Harassment Tolerated Against Home Health Care Workers, EEOC Alleges

A home health care company is liable for allowing a male client to harass its female staffers whose assignment included sleeping over at the client’s home, the Equal Employment Opportunity Commission charged recently. The suit against Beacon Hills Investment Corp., doing business as Synergy Home Care, alleges that the company allowed the harassment to continue, did not take steps to stop it, and created working conditions so intolerable that the female employees were forced to quit.

The lawsuit, filed Sept. 27, is a reminder that employers can be liable for sexual harassment under Title VII of the 1964 Civil Rights Act not only when the harassment is by supervisors or co-workers but also by customers and clients.

Under EEOC guidelines, an employer may be “responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace.” 29 C.F.R. § 1604.11(e).  For an employer to be liable for non-employee harassment, the employee must show that: (i) he or she was subjected to unlawful harassment on the basis of his or her sex; (ii) the harassment was unwelcome; (iii) the harassment was severe or pervasive enough to affect a term, condition, or privilege of his or her employment, and (iv) the employer knew or reasonably should have known about the harassment by the third-party and failed to take prompt remedial action. 

The inquiry in most non-employee harassment cases focuses on the employer’s knowledge of and response to the alleged harassment.  An employer may avoid liability by showing that, upon learning of the harassment by a third party, it took prompt, appropriate action to prevent and correct the harassment.  Whether the response was “appropriate” depends on the amount of authority and control the employer had over the non-employee.  29 C.F.R. § 1604.11(e).

According to the huntonlaborblog.com, employers can avoid this type of lawsuit by doing the following:

  • Create a no-harassment policy and avenues for employee complaints, such as an “open door” policy or an employee hotline.
  • Educate employees about how they can report harassment and that the no-harassment policy can apply equally to inappropriate conduct by third parties.
  • When a report of harassment is received, respond promptly, even if the alleged harasser is not an employee.

Journal Examines Online Personal Health Record Sites

Keeping personal health records is gaining traction as a way for patients to take more control over their health care, a development many in HR would support. With PHRs, patients can enter and store their personal health data and receive reminders of when to take medications and monitor their conditions such as high blood pressure and diabetes.

The Wall St. Journal rated three of the most popular sites in today’s edition: Google Health, WebMd Health Manager, and Microsoft Healthvault.

The Journal’s bottom line – Each PHR offers a “remarkable value for a free application, but none of three emerged as a clear winner.”

To read the full story, click here.

New Majority Vote Rule Could Propel Delta Unionization Vote

A key change in union election rules in the airline industry that went into effect in June could reverberate to organized labor’s benefit in a looming vote on whether Delta Airlines flight workers and ground workers choose to have union representation.

In a policy reversal, the National Mediation Board declared in June that unions can be formed if a majority of votes cast are in their favor. Under the old rule, unions had to receive a majority of all potential votes — including those casting no vote — in order to win recognition.

Some 20,000 Delta flight attendants will decide by Nov. 3 whether to join the Association of Flight Attendants. Separately, 30,000 ramp workers and gate and reservation agents have until Dec. 7 to decide whether to join the International Association of Machinists and Aerospace Workers.

The Wall Street Journal reports that “management has blanketed workplaces with get-out-the-vote signs and mailed glossy brochures to employees’ homes, warning that unions would bring hefty dues, protracted wage negotiations and the threat of strikes.” Unions, for their part, are “airing television ads, raffling flat-screen TVs, and distributing flyers warning that their jobs and benefits aren’t safe without collective bargaining.”

What does the contested election mean for labor-management relations more generally speaking? Probably not a whole lot, since the airlines and railroads operate under different labor laws than the rest of the U.S. economy. And, if the mid-term elections give Republicans a majority in either or both houses of Congress, prospects for the Employee Free Choice Act, which would make it easier for unions to organize in the private sector by eliminating the secret ballot, would grow even dimmer than they already are.

But stay tuned.

The New Cafeteria Plan – Fresh Goods in the Vending Machine, But Will Employees Buy It?

Before it became synonymous with a tax-favored employee benefit under the Internal Revenue Code, the term “cafeteria plan” most likely conjured up filling up one’s tray in the food line at work or school.

But now, as the Wall St. Journal reported yesterday under the headline, “The Great Banana Challenge,” a movement is on across the country to replace fatty, salty, and unhealthy fare found in many company vending machines with healthy items — fruits and vegatables.

It’s all tied in to employer wellness initiatives, which have long been seen as a way to reduce health care costs by keeping a healthy workforce.

But there are two challenges, as the Journal reported. One is the shelf-life of fruits and vegetables — they go bad far earlier than a bag of pretzels does. The other — and perhaps more resistant — is getting employees to actually buy the healthy stuff.

The Witern Group, a large maker of vending machines, is tackling the first problem “with a new machine specifically designed to dispense whole bananas and fresh-cut fruit and vegetables.” They’ve developed a new device that has two temperature zones; the top is loaded with bananas stored at about 57 degrees. The bottom zone holds packages of fresh-cut fruit and vegetables. It’s kept at about 34 degrees.

As for getting employees to actually switch from unhealthy to healthy, that’s another problem. The experience at an insurance company in Des Moines, Iowa was mixed. Though the vendor placed a transparent sticker on the front of the machine encouraing customers to “eat right” and “be healthy,” on a recent Thursday not one emloyee selected any of the trays of pineapple chunks and grapes or celery, brocolli, and carrot stocks (retail value $2.50).

Oh well. Once the new health care reform law kicks in — and if employees see their premiums rise — maybe they’ll be more serious about eating healthy on the job.

To read the Journal story, click here.

Time Off to Vote Is Guaranteed In Most States

With midterm elections looming, employees will be asking for time off in order to vote. Most states guarantee employees some time off for voting — sometimes with pay, sometimes not. So this is a good time for HR to review the law in their individual states.

Here’s the tally:

  • 23 states require paid time off (Alaska, Arizona, California, Colorado, Hawaii, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, Wyoming)
  • 8 states and Puerto Rico allow time off but it doesn’t have to be paid (Alabama, Arkansas, Georgia, Illinois, Kentucky, Massachusetts, North Dakota, Puerto Rico, Wisconsin)
  • 20 states and the District of Columbia have no specific law requiring time off to vote (Connecticut, District of Columbia, Delaware, Florida, Idaho, Indiana, Louisiana, Maine, Michigan, Mississippi, Montana, New Hampshire, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia).

In New Hampshire, if a person must be physically present at work or in transit to and from work from beginning to end of polling hours, he or she may apply to vote by absentee ballot.

States with guaranteed leave laws usually specify a maximum number of hours an employee may leave work to vote and/or give the employer some leeway in establishing work hours that are set aside for voting.

For a complete listing of voting laws, from FindLaw, click here.

“Misperceptions” Cloud Credit Report Use, Attorney Tells EEOC

Common misperceptions on what is in a credit report and how employers use the information in the report to screen job applicants threaten to diminish their utility as screening tool, a leading management attorney testified today during an open EEOC meeting.

The meeting comes on the heels of new legislation aimed at severely limiting the use of credit checks on employees. The House Financial Services Committee held a hearing in September to discuss the Equal Employment for All Act, H.R. 3149, a bill that would make it unlawful to base adverse-employment decisions against prospective and current employees on consumer credit reports. Several states have already passed laws restricting the use of credit checks in hiring.

There is a common misperception that employment credit reports include a credit score, said Pam Devata, a partner in the Labor & Employment department of Seyfarth Shaw LLP, who focuses her practice on issues related to the Fair Credit Reporting Act (FCRA) and state laws affecting background screening.

“They do not,” Devata explained. “Before an employer is able to make a decision based on a credit report, the employer must review the content of the full report to obtain credit information and assess whether it is positive, negative, or neutral. This requires more than a mere glance at a numeric score; rather, employers must conduct a thoughtful analysis of the information contained in the report.” 

Moreover, she continued, “employers rarely, if ever, make hiring decisions based on information in a credit report without giving an applicant the opportunity to explain the information on the report.”

Devata argued that adequate safeguards already exist with respect to an employer’s use of credit reports for employment purposes. These include the FCRA, the Bankruptcy Code, Title VII of the 1964 Civil Rights Act, and state laws. “Most notably, the FCRA has very stringent and detailed procedures that employers must follow before they use credit reports in whole or in part in making hiring or other employment decisions,” Devata said.

For a comprehensive look at the issues involved in employer use of credit checks, check out this story by Sara Murray in the Wall St. Journal.