NLRB Judge Orders Reinstatement of Workers Fired Over Facebook Comments

Love it or loath it, Facebook and other social media are here to stay, and it perfectly natural that employees should see these media as a forum for venting their complaints about their co-workers and employers.

The National Labor Relations Board has handed employees a victory in the ongoing debate over whether posting comments on their employers on Facebook is protected activity under federal labor laws.

The National Labor Relations Act makes it illegal to interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the NLRA.  This Section specifically grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection[.]”  The issue in this case was whether the postings on Facebook constituted protective activity.

Administrative Law Judge Arthur Amchan ordered Hispanics United of Buffalo, a nonprofit social services organization, to reinstate five employees who were fired after posting Facebook comments about their working conditions.

The judge agreed with the employees that the exchange was protected concerted activity under the NLRA because it was a discussion among co-workers regarding terms and conditions of employment, including their job performance and staffing levels. The fact that the workers “were not trying to change their working conditions and . . . did not communicate their concerns” to HUB was irrelevant, the judge ruled.

Read the full decision here.

Invisible Out Front: EEOC Charges Restaurant Chain With Age Discrimination

If you’ve been to Texas Roadhouse Restaurants and seen only younger-looking people in “front of the house” positions like hostess and server, it’s no accident, the Equal Employment Opportunity Commission says.

Earlier this month the EEOC charged the Kentucky-based chain with engaging in a pattern-or-practice of discrimination by not hiring violating persons over 40 years of age for “front-of-the-house” positions such as servers, hosts and bartenders.

The EEOC filed its pattern-or-practice suit against the Kentucky-based chain in U.S. District Court for the District of Massachusetts.

According to the EEOC’s press release on the case:  “The EEOC alleged that Texas Roadhouse has hired significantly few “front of the house” employees 40 or older in age. In addition, Texas Roadhouse allegedly instructed its managers to hire younger job applicants. For example, Texas Roadhouse emphasized youth when training managers about hiring employees for its restaurants. All of the images of employees in its training and employment manuals are of young people.”

The Commission also alleged that Texas Roadhouse’s hiring officials have told older unsuccessful applicants across the nation that “there are younger people here who can grow with the company;” “you seem older to be applying for this job” and “do you think you would fit in?” Officials also said that the restaurant was “a younger set environment;” “we are looking for people on the younger side… but you have a lot of experience;” and “how do you feel about working with younger people?”

Connecticut Bans Use of Credit Scores to Make Employment Decisions

In this economy, employees and job applicants have enough to worry about without having to be concerned that their credit scores might be misused. So it should come as some relief to employees and job applicants in Connecticut that that state has passed a law making it illegal in most instances from using credit score information to make employment decisions.

By the latest count, Connecticut joins Hawaii, Maryland, Illinois, Oregon and Washington in enacting credit history laws.

Employers are allowed to continue using credit reports if:

• the employer is a financial institution;
• the report is required by law;
• the employer has a reasonable belief that the employee has engaged in specific activity that constitutes a violation of the law related to his employment; or
• the report is substantially related to the employee’s current or potential job or the employer has a bona fide purpose for requesting or using information in the credit report that is substantially job-related.

Remember, the federal Fair Credit Report Act provides protections against credit score misuse at the federal level.

Design Flaws Led to Demise of CLASS Act

On Friday it was reported across the country that the Obama Administration was withdrawing the CLASS Act, a part of the health care reform law that would have allowed employees to purchase a long-term care benefit.

Whether this is simply one part of the law coming undone, or whether it will lead to further unraveling of the law, is unknown.

But everyone agrees that the plan was not financially sound.

One of the best analyses I’ve read of what went wrong is by my fellow blogger Christine Roberts, who got into the nitty-gritting in her post on the E is for ERISA blog. I highly recommend it if you want to understand why this part of the law flamed out.

DOL Gives Contractors More Time to File Vets 100/100-A Form

Federal contractors can have until Dec. 30 to file the Vets 100 or Vets 100-A Form online, the U.S. Department of Labor announced recently.

The Vets 100 is the form contractors must fill out and submit with data on their affirmative action efforts for veterans. It applies to contractors with contracts of $25,000 or more. The Vets 100-A is for contractors with contracts of $100,000 or more.

The DOL had planned to begin accepting electronic submissions of VETS
100/VETS-100A forms on Aug. 1, 2011. However, there are currently technical
problems preventing contractors from carrying out these submissions. The
Department is aware of this issue and is working to correct it. It was initially
anticipated that the problem would be resolved within 60 days. This has been
extended a further 30 days. Accordingly, the Department anticipates that the
electronic filing system will go online Nov. 1.

To address the delays in reporting caused by these technical problems, the Department will not  initiate enforcement actions against contractors who submit the
VETS-100/VETS-100A from Nov. 1 through Dec. 30.

Unless a further update is given or other recognized exceptions apply, the Department may initiate enforcement actions against contractors who do not submit
VETS-100/VETS-100A forms by Dec. 30, 2011.

Blogger Explores Linkage Between Occupy Wall St. Demonstraters and Employee Benefits

Is there a linkage between the Occupy Wall Street demonstrations and employee benefits? Maybe so, says fellow blogger Dan Macy, who notes that the financial markets directly affect benefits.

And he’s not just talking about executive perks like company aircraft, but also other benefits funded through securities and derivatives. And that doesn’t just mean retirement benefits but other benefits, too.

So employers should pay attention to what is going on on the street, Macy advises. Read more of his commentary here.

 

 

Employee Health Care Costs Will Exceed $10,000 Next Year, Report Says

Further confirmation that health care costs are eating into employees’ wages.  Aon Hewitt, a leading HR and benefits consulting practice, reported this week that overall health care costs will top $10,000 per employee in 2012, a 7 percent increase from 2011.

The exact figure? $10,475.

Next year, employees are expected to contribute $2,306 on average to health care premiums, an 11 percent jump from 2011. In addition, they will pump in an average $2,275 in out-of-pocket costs.

Aon Hewitt hopes that given this bleak picture, employers will prod their employees to get more involved during benefit enrollment season.

Ways of doing so include: encouraging employees to take responsibility for their health; and increase employee accountability to manage health care usage and expenses.

For more tips, go here.

Financial Incentives, Psychology at Play in Workplace Weight Loss Programs

What mix of financial incentives and carrots and sticks will motivate employees to lose weight? That’s the issue in an article in today’s Washington Post that tracks results from employer wellness programs across the country.

With chronic disease and manageable conditions such as obesity driving health care costs skyward, there’s plenty of incentive on all sides to take action.

But what’s the right action to take is the subject of some debate.

In this article, you’ll read about programs like HealthyWage, which stages contests of teams of employees at different locations to see who can lose the most weight.

Money talks. People like financial incentives for leading healthier lifestyles.  So some employers offer prizes or reduced premiums for meeting certain health lifestyle goes. But other research shows that “deposit contracts,” i.e. betting your own money on the ability to lose weight worked better than financial incentives.

And so the debate goes on. Here’s your chance to compare these programs with what you are doing to improve your employees’ health–and ultimately your company’s bottom line.

Florida Poised to Launch Health Insurance Exchange for Small Businesses

Despite the talk of repealing the health care reform law, little by little the law is being implemented. One of the main features of the law is the insurance exchange where consumers can shop for health care plans that meet their needs at an affordable price.  If they work as planned, the exchanges have the potential to cover more of the uninsured as insurers compete for new customers.

States are supposed to have such exchanges up-and-running by 2014 or risk having the federal government fill the void and establish an exchange for the state.

Against that backdrop, Florida is about to become the third state to launch a health insurance exchange, behind Utah and Massachusetts.

As an article in the Washington Post pointed out, there are significant differences between the Florida exchange and the type that will be available in all statses under the Affordable Care Act.

• Florida’s exchange is open only to small employers (50 or fewer employees), not individuals.

• The federal law provides subsidies to help lower-income individuals buy coverage through the exchange, and tax credits to some small businesses that cover their workers. Florida does not.

• The federal law requires health plans to offer certain “essential health benefits.” Florida does not.

“Health plans would pay the exchange 2 percent of the premium for every policy sold through the program, and agents would pay $300 a year to sell policies through the exchange,” the Post reported.

 

 

Joint Employers of Injured Worker Must Bear Workers’ Compensation Costs, Mass. Appeals Court Holds

The Massachusetts Appeals Court held last month that two companies that employed a drywall installer were his joint employer for workers’ compensation liability purposes.

The companies hired the claimant, Leo Whitman, to work on a project rehabilitating distressed residential properties. Whitman was injured when scaffolding fell on him, leaving him temporarily disabled.

Whitman brought his claim for workers’ compensation benefits against both companies, neither of which maintained workers’ compensation coverage for him. Each company considered him an independent contractor.

An administrative law judge ruled that he was an employee, not an independent contractor, and that the companies were his joint employer, responsible for providing him workers’ compensation benefits.

The appeals court said these rulings rested on adequate findings and a proper understanding of the law.

“Since Whitman worked jointly without coverage for two employers, both employers
must bear the burden or detriment of noncoverage,” the court said.

You can access the decision from the court’s website. Type in the name Whitman in the party search field.