Archive for February, 2011

Survey Reports Increase in Number of Supervisors Who Are Temporary Employees

 Don’t look now, but your new boss could be a temporary employee. A new survey by the Institute for Corporate Productivity said that more than 9 percent companies use temporary workers in management functions to a “high” or “very high extent.”
The trend is especially prevalent at “low-performing companies,” that is, those with low revenue growth, market share, profitability, and customer satisfaction. Almost 16 percent of these companies reported that they frequently use temporary employeres as managers, compared to 7 percent of high-performing companies.
Perhaps the high-performing companies have more confidence that they can hire permanent managers.
In some cases, said Lorrie Lykins, director of research services for the institute, companies are looking for someone to shepherd reorganizations, layoffs or other transitions, and it is less painful to have a temporary management do that.
But don’t forget that temporary employees, even managers, have many of the same rights and protections under employment laws as do permanent employees. For more information, click here.

Gay Teacher Terminated For Blog Post on Same-Sex Relationship

A part-time professor at a Catholic college in Philadelphia was terminated Feb. 18 when the college discovered a posting on his blog discussing his involvement in a same-sex relationship for 15 years.
The Rev. James St. George was terminated after he made “public statements of his involvement in a gay relationship with another man for the past 15 years,” a statement from Chestnut Hill College said.
The college hired St. George in 2009 to teach Bible studies and other subjects; starting on March 1, he was to teach courses in theology and justice as well as world religions.
St. George apparently belongs to a branch of Catholicism that vows no discrimination on the basis of sexual orientation and performs commitment ceremonies for gays.
If the professor decided to challenge his firing under Title VII of the 1964 Civil Rights Act, he might run up against two exceptions to the law’s ban on religious discrimination: (1) the exception that allows religious institutions to discriminate in hiring and firnig decisions in favor of persons who hold religious views consistent with the employer’s mission, and (2) the “ministerial” exception.
Here’s an excerpt from Equal Employment Opportunity Commission guidelines on the first exception:
“Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious. Factors to consider that would indicate whether an entity is religious include: whether its articles of incorporation state a religious purpose; whether its day-to-day operations are religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether it is not-for-profit; and whether it affiliated with, or supported by, a church or other religious organization.”
Courts also recognize a “ministerial exception” to Title VII based on “the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority.”
As the guidelines make clear, however, “the exception applies only to employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction.”

What HR Can Learn From Lincoln

Abraham Lincoln is already securely in our pantheon of presidents because of his compassion, wisdom, steady hand in the Civil War, determination to unite the country, and his freeing of the slaves.

Now we can add to that list his management skills. Or so Lincoln historian Harold Holzer would have us believe.

Writing in this week’s Federal Coach column in the Washington Post, Holzer noted these Lincoln-esque qualities that current managers might wish to emulate:

  • See and Be Seen. Lincoln ventured from the White House regularly to mingle with his workforce, including periodic visits on horseback to the Army during the civil war;
  • Lincoln made good use of current means of communication, issung “public letters” in the newspaper, giving federal employees and citizens “an idea of why he was doing certain things and why the government was moving in another direction”;
  • Lincoln challenged others to work because of his own work ethic; he paced the floor when he wasn’t working, and wore the worries of the country on his face.
  • Lincoln actively fought the misperception that government employees were “part of some villanous source” to direct our lives (Sound familiar?)

Lincoln didn’t have e-mail, he didn’t tweet, he didn’t even have a telephone. But he made the best use of the instruments at his disposal, including setting a positive example.

He got involved; he didn’t govern from a distance.

That’s an important lesson for all managers, be they on horseback or not.

Deferred Compensation Now Preferred Over Bonuses at Banks and Securities Firms

Deferred compensation is becoming the reward of choice for executives at banks and securities firms, displacing bonuses, a study by New York State Comptroller Thomas DiNapoli revealed.

In 2010, financial institutions paid out $20.8 billion in cash bonuses, down from $22.5 billion in 2009. $34.3 billion in bonuses were paid in 2006, considered the “golden age of bonuses,” the Wall St. Journal reported.

DiNapoli calculated the cash-bonus figures using New York state personal income-tax data. The numbers reflect cash bonuses and deferred compensation for which taxes have been prepaid. The report excludes stock options that haven’t been realized and other forms of deferred compensation.

But no need to feel sorry for Wall Street firms because cash bonuses are on the wane. Base salaries have also increased, reducing bonuses as a proportion of compensation.

“Cash bonuses are down, but that’s not an indicator of weakness on Wall Street,” DiNapoli said in a statement.  “Wall Street is changing its compensation practices in response to regulatory reforms adopted in the aftermath of the greatest financial meltdown since the Great Depression.”

Health Care Law Individual Mandate Is Constitutional, D.C. Federal Judge Holds

Congress was within its constitutional authority to regulate interstate commerce when it included a requirement in the health care reform law that individuals purchase insurance or pay a fine, U.S. District Court Judge Gladys Kessler ruled on Tuesday.

With this ruling, Kessler becomes the third federal district court judge to rule in favor of the law’s constitutionality; two other judges have found that the law is not constitutional.

“Congress had a rational basis for its conclusion that the aggregate of individual decisions not to purchase health insurance substantially affects the national health insurance market,” wrote Kessler.  Persons who don’t purchase insurance “will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives,” she added.

The rational basis test is the least demanding of the tests to determine a law’s constitutionality. So if higher courts apply the same test, that has to be a good sign for the law’s continuation.

Each ruling by a lower court is laying out the arguments pro and con, paving the way for the inevitable appeals court rulings and most likely culminating in the U.S. Supreme Court getting the last word.

That ruling might not come so quickly, though, as there is no indication the justices will take up the case under an expedited appeals process. Rather, it appears the cases will have to wend their way through various courts of appeals before the justices issue a definitive ruling.

NLRB Judge Orders Company to Reinstate Striking Workers, Resume Negotiations

The National Labor Relations Board still has some influence despite attempts by the Republican majority in the U.S. House to deny it continued funding.

The Washington Post reported last week that an administraive law judge ordered a Maryland-based firm to resume talks with a union and reinstate its striking workers.

Daycon Products must reinstate its workers and resume bargaining with Local 639 of the Teamsters Union within 14 days of his ruling, NLRB Judge Joel P. Biblowitz held.

Daycon improperly walked away from talks “at a time when there was no impasse in its negotiations with the Union,” Biblowitz said.

A parallel proceeding is pending in U.S. District Court in Greenbelt, where the NLRB is asking the court to compel Daycon to rehire the stirking workers while the board’s decision was pending. The judge has not yet ruled in that proceeding, which would apply while the company appeals the ALJ’s decision.

Right-to-Work Bill in Indiana Prompts Threat of Walkout

Like their counterparts in Wisconsin,  democratic members of the Indiana legislature are considering a walk out in protest an anti-union bill.

The bill, which passed a committee of the Republican-controlled legislature, would change state law so that private-sector workers would not longer be required to pay dues or belong to a union that bargains on their behalf. Under current Indiana law, if a union bargains for a group of workers at an employer, all workers covered by that contract must belong to the union.

To pass the full house, the bill would need two thirds or 67 of the 100 House members present to vote.

The bill would exclude members of the construction industries, whose unions and management argued that the unions play a critical role in training and apprenticeships.

Republians have a 60-40 majority in the house, so they would need an additional seven Democrats present in order to hold a vote.

Maybe Indiana and Wisconsin Democrats could trade residences, living in each other’s state until this whole thing blows over.

HHS Issues New Health Care Providers’ “Conscience” Rule

Doctors and nurses who do not want to perform abortions or sterilizations may refrain from doing so without fear of losing their jobs, under the latest version of the health care providers “conscience” rule issued by the Omama Administration on Friday.

The conscience rule has existed in one form or another for 30 years. The Bush Administration issued a revised rule in December 2008, as it was preparing to leave office, that some interpreted as expanding the range of activities covered by the rules to include providing birth control pills, caring for gay men with AIDS and performing in-vitro fertilization for lesbians or single women.

After receiving 300,000 comments, the Obama Administration determined that the rule went too far in bringing in additional procedures under its scope while at the same time not clearly delineating a procedure for alleging violations.

Under the new rule, doctors and nurses who don’t want to perform abortions or sterilizations can’t be compelled to, and if they feel their rights are being violated, they can complain to the Office of Civil Rights in the U.S. Department of Health and Human Services.

Issues of this sort tend to be made into political footballs, subject to additional revision when an administration of a particular political or ideological profession takes over.

So don’t be surprised if this rule is “clarified” again some day.

You can read the rule here. It will be published in the Federal Register on Feb. 23 and take effect 30 days later.

House Republicans Try to Zero-Out NLRB

Yes, as in deny the National Labor Relations Board any funding. Under the “open rules” the House of Representatives adopted for the debate over a continuing resolution to fund the government, members have been able to introduce and have live debate on all sorts of amendments.

One of those amendments would have eliminated money for the NLRB, the chief federal agency for resolving union-management disputes. Fortunately, cooler heads prevailed and the amendment was rejected 250-176, with 60 Republicans joining 190 Democrats in opposition.

Still, the fact that such an amendment could garner 176 votes is pretty scary and reflective of the anti-labor hostility that many Republican elected officials bring to the table.

For all of its faults, the NLRB at least tries to level the playing field by protecting worker rights to act collectively, join unions, and bargain over wages and working conditions.

What would the GOP propose as an alternative? That we go back to the days of anything goes and we settle labor disputes by force?

EEOC Hearing Considers Legality of Not Hiring Unemployed Persons

Can an employer claim business necessity against a charge that its refusal to hire persons who have been unemployed has a disparate impact on protected groups under Title VII of the 1964 Civil Rights Act?

Considering the growing number of long-term unemployed during the current economic turndown–those out of work 26 weeks or more–this may not be an academic question any more.

That’s the question the Equal Employment Opportunity Commission posed at a public hearing yesterday. The commission began hearing anecdotal reports of the practice last summer, in the news and from worker-advocacy groups gathering examples of help-wanted ads that said only individuals who currently had jobs should apply, said EEOC chairwoman Jacqueline Berrien.

Now the EEOC is considering what’s to be done about that, if anything. The Wall St. Journal reported that it isn’t clear what the EEOC will do to address the issue, or “to what extent it is authorized to act.” Also, EEOC and Labor Department officials don’t have much data on whether the practice is widespread.

But that may not stop enterprising plaintiffs’ attorneys from taking up this cause.

To learn more about this issue and testimony from employer and employee representatives at yesterday’s hearing, have a look at Jon Hyman’s write-up on the Ohio Employer’s Law Blog.