Archive for June, 2011

New Disability Retirement Rules To Go Into Effect in D.C. Suburb

Starting July 1, 2012, it’s going to be harder for some public employees in Montgomery County, Maryland to qualify for disability retirement payments.

Under a change enacted this week by the County Council, a two-tiered system will distinguish truly incapacitated workers from those who can find a job doing something else. The new rules also prohibit employees who are about to get fired for misconduct from receiving a service-connected disability package.

The changes are meant to rein in a system that some critics feel is too generous to public employees whose injuries might not be that severe.  Over the past eight years, reported the Washington Post, 226 public safety employees retired on service-connected disability, repreenting 77 percent of such county employee retirements.

Read more here.

OSHA Launches Interactive Tool To Help Employers Record Injuries

Unsure whether an injury or illness is work-related and needs to be recorded? The federal government’s main workplace safety agency has a new web site it says can help.

The Occupational Safety and Health Administration has launched an interactive tool designed to help employers comply with their obligations to record work-related injuries. The Recordkeeping Advisor stimulates an employer’s interaction with a Recordkeeping rules expert.

According to the OSHA announcement, “The Advisor relies on the users’ responses to questions and automatically adapts to the situation presented. Responses put into the program are strictly confidential and the system does not record or store any of the information. The Advisor helps employers determine:

  • Whether an injury or illness (or related event)
    is work-related
  • Whether an event or exposure at home or on
    travel is work-related
  • Whether an exception applies to the injury or
    illness
  • Whether a work-related injury or illness needs
    to be recorded
  • Which provisions of the regulations apply when recording a work-related
    injury or illness

Read more here.

EEOC Charges Abercrobmie & Fitch Violated Muslim Employee’s Rights

The Equal Employment Opportunity Commission filed suit yesterday against Abercrobmie & Fitch, alleging that the clothing retailer violated Title VII of the 1964 Civil Rights Act when it fired a Muslim employee because she wore a hijab, a religious head scarf.

According  to the EEOC’s suit, in October 2009, Umme-Hani Khan, a 19-year-old Muslim woman,  started working at the Hollister store (an Abercrombie & Fitch brand  targeting teenagers aged 14 through 18) at the Hillsdale Shopping Center in San  Mateo, Calif. As an “impact associate,”  she worked primarily in the stockroom. At  first she was asked to wear headscarves in Hollister colors, which she agreed  to do. However, in mid-February, she  was informed that her hijab violated Abercrombie’s  “look policy,” an internal dress code, and was told she would be taken off  schedule unless she removed her headscarf while at work. According to the EEOC, Khan was fired on Feb.  23, 2010, for refusing to take off the hijab  that her religious beliefs compelled her to wear.

“Ms. Khan held a low-visibility position, willingly  color-coordinated her headscarf with the store’s brand and capably performed  her stockroom duties for four and half months until a visiting manager flagged  her hijab as a violation of their ‘look  policy’,” said EEOC San Francisco District Director Michael Baldonado. “What undue burden did this retail giant face  that prevented them from allowing her to practice her faith? Moreover, what kind of statement of  intolerance are they sending to their teen customers?”

Maybe there’s something in the West Coast water, because this is the second time in two years that the EEOC has sued the retailer for allegedly violating the rights of Muslim employees. Last year it was its refusal to hire a Muslim job applicant because she wore a head scarf.

Read more about the EEOC’s cases here.

New York Same-Sex Marriage Law’s Impact on Employers

What will the impact on employers be of New York’s same-sex marriage law? The law, which Governor Cuomo signed late Friday night, takes effect July 24.

Any time a same-sex marriage law passes, it means employers have to review their benefit plans to make sure same-sex couples receive the same level of benefits as their heterosexual counterparts.

While doing a search, I came across this seminar designed to help New York employers navigate this new terrain.

HR Policy Association Lobbies Against Pay Disclosure Requirement

Lobbying intensified last week as Congress considered a repeal of a requirement that companies disclose the difference between what they pay their executives and what they pay the typical worker.

The requirement is part of the Wall Street reform law, which directed the Securities and Exchange Commission to write regulations implementing it.

And who’s leading the charge against the requirement? None other than the HR Policy Association, which representatives HR executives at 325 large companies. It says that the requirement is burdensome and wouldn’t be meaningful anyway because a number of factors affect pay differences.

They’ve achieved partial success so far. Last Wednesday, a House committee approved a bill that would repeal the disclosure requirement.

For an insightful column into the executive pay issue generally, see today’s column by Steven Pearlstein in the Washington Post. Whether you agree or disagree with him, he makes many cogent points, which is why he’s one of my favorite columnists.

Medical Marijuana Law Doesn’t Protect Employee Who Failed Drug Test

An employee’s use of medical marijuana does not excuse her failing a mandatory drug test imposed by her employer,  the Washington Supreme Court held recently.

The case involved a woman who failed a pre-employment drug test for a firm that handles customer service for Sprint. The woman, who had a valid medical-marijuana authorization from a doctor, sued. The company said its contract with Sprint mandated drug testing and did not make any exceptions for medical marijuana.

In a 8-1 vote, the court ruled that state law allows employers to prohibit medical marijuana use on the job, but does not address its use outside of work. The majority opinion said that because medical marijuana use is illegal under federal law, the state’s Human Rights Commission, which investigates cases of employee discrimination, cannot pursue claims related to medical-marijuana use.

Read more about the case here.

NLRB Proposes Faster Elections Following Union Organizing Campaigns

In another move seen as favorable to unions, the National Labor Relations Board on Tuesday proposed new rules to shorten the time between when unions gather enough petitions to hold an election and the time the election is held–giving employers less time to mount an anti-union campaign.

“The proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing, ” said a statement on the NLRB’s website.

If finally adopted after a public notice-and-comment process, the proposed amendments would:

  • Allow for electronic filing of election petitions and other documents.
  • Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
  • Standardize timeframes for parties to resolve or litigate issues before and after elections.
  • Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
  • Defer litigation of most voter eligibility issues until after the election.
  • Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
  • Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
  • Make Board review of post-election decisions discretionary rather than mandatory.

Read the NLRB’s fact sheet on the proposed rules here.

The development follows on the NLRB’s filing of an unfair labor complaint against Boeing over its decision to open a production plant for its Dreamliner aircraft in right-to-work state South Carolina after a series of work disruptions at its Washington State facility.

Oklahoma Antidiscrimination Act Is Now Exclusive Remedy for Discrimination and Retaliation

Oklahoma’s antidiscrimination law has been amended to make it the exclusive remedy for employment discrimination and related retaliation claims.

The bill signed by Governor Fallin on May 18 eliminates common law causes of action for these injuries, including potentially unlimited damages for emotional distress and egregious violations.

The changes were prompted by an Oklahoma Supreme Court ruling that the state constitution requires employers of any size be subject to some type of liability for employment discrimination.

That will still be the case, so even a the sole employee of an employer with have a remedy under the Antidiscrimination Act. That law will now be the only remedy available.

For a closer look at the changes, which take effect November 1, go here.

Restauranteurs Complain They Had No Opportunity to Comment on Changes to Tipped Credit Rules

The restaurant industry filed suit recently to stop the U.S. Department of Labor from implementing new regulations on reporting requirements for tipped wages. The suit, filed June 17 by the National Restaurant Association, Council of State Restaurant Associations and the National Federation of Independent Business, alleges that DOL violated the Administrative Procedure Act by not having a comment period prior to issuing a final rule.

The tip credit is the portion of tip income that federal law allows employers to apply toward their obligations to pay tipped employees the minimum wage. Employers are not permitted to claim a tip credit unless they meet certain conditions, including informing employees of the employer’s intent to take a tip credit under section 3(m) of the Fair Labor Standards Act.

The 2011 Final Rule containing the new tip-credit-notice rules went into effect May 5. Employers were given 30 days to comply but no time to comment

For more details on the suit and what’s at stake, click here.

Supreme Court: Women Can’t Bring Class Action Against Wal-Mart; Potential Claims Do Not Have Enough in Common

Retailers are breathing easier throughout the U.S. today in the wake of the U.S. Supreme Court’s ruling that up to as many as 1.5 million past and current female employees of Wal-Mart cannot bring a sex discrimination class action against the company.

In a 5-4 ruling, the court held that the claims of the women do not have enough in common to proceed against the company. The women had argued that Wal-Mart discriminates against women in hiring, promotions and job opportunity, and had attempted to lump all claims together into one massive class action.

However, the majority ruled that the claims of the women were not common enough.

Plaintiffs “wish to sue about literally millions of employment decisions at  once,” wrote Justice Scalia for the majority. “Without some glue holding the alleged reasons for all  those decisions together, it will be impossible to say that examination of all  the class members’ claims for relief will produce a common answer to the crucial  question why was I disfavored.”
Here’s key language from the syllabus of the court’s opinion on a sociologist’s analysis asserting that Wal-Mart’s corporate culture made it vulnerable to gender bias, which the court said was the only evidence of  a general discrimination policy.

“The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of giving local supervisorsdiscretion over employment matters. While such a policy could be the basis of a Title VII disparate-impact claim, recognizing that aclaim “can” exist does not mean that every employee in a company with that policy has a common claim. In a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction. Respondents’ attempt to show such direction by means of statistical and anecdotal evidence falls well short.”

So, forget these massive actions. Discrimination victims will have to seek relief on a case-by-case basis or there might yet be an opening for smaller class actions.

Fellow blogger Jon Hyman, as always, has a thorough, insightful analysis of the decision on his blog.