Archive for December, 2011

Redesigning Jobs to Keep Employees Working

Here’s a feel good story to end 2011. The Wall St. Journal reported this week that more employers are redesigning jobs to minimize the wear-and-tear on workers in jobs requiring heavy physical exertion.

Some of the companies leading the way include:

  • Duke Energy Corp., which offers a special stretching program for its line technicians before they start a shift;
  • Harley Davidson Inc., which has trainers standing by to ice down inflammation s between shifts at one of its engine plants;
  • Unimin Corp., which now uses pumps to transport silicate material to reach a mixing tank; employees used to have to carry 40-pound buckets of the material down a narrow catwalk.

These changes make common sense, especially as the workforce continues to age. The Bureau of Labor Statistics projects that 24 percent of the U.S. labor force or about 40 million people will be 55 or older in 2018, up from 18 percent in 2008.

OSHA Socks It to Railroad That Fired Whistleblower

Employers should know better than to fire a worker for reporting a safety violation. The Occupational Safety and Health Administration frowns on such things, as Union Pacific Railroad recently found out the hard way.

Earlier this month, OSHA ordered the Nebraska-based company to immediately reinstate an employee in Idaho who was terminated after reporting a work-related injury. The agency also ordered the company to pay $300,000 in back pay, compensatory and punitive damages, and attorney’s fees.

The employee filed a whistleblower complaint with OSHA, alleging suspension without pay and then termination 23 days after notifying the company of an on-the-job injury.

OSHA’s investigation found reasonable cause to believe that the disciplinary charges and termination were not based on the complainant breaking a work rule but on the complainant reporting an injury to the railroad, in violation of the Federal Railroad Safety Act’s whistleblower protection provisions.

Union Pacific Railroad Co. was found to have similarly violated the FRSA in four other cases since 2009.

OSHA also ordered the company not to retaliate against the employee for exercising his statutorily-guaranteed rights.

U.S. Low in Paid Vacation Entitlement, New Survey Shows

Americans value their leisure time, especially this week, when commuter parking lots are less congested, as many take advantage of this time of year to take vacation leave.

But a new survey puts this country behind others when it comes to a minimum number of employer-provided vacation days.

According to human resources consulting firm Mercer, the U.S. lags behind countries that have laws requiring a minimum number of vacation days.

The United Kingdom and Poland sit atop the list, with 28 and 26 minimum required days, respectively. But the low ranking of the U.S. is somewhat deceiving. The same survey found that the average employee who has been with his or her company for 10 years receives 15 days of paid vacation.

Survey Finds Negative Company Image Caused Job Applicants to Look Elsewhere

Employers should start taking online reviews about them more seriously, a new survey suggests.

Negative information about an employer on a social media or corporate-review website may turn off prospective job applicants, a survey by the Corporate Executive Board found.

Fifty-six percent of respondents lost interest in a potential employer because they read something negative about it, the survey reported. The board surveyed some 4,000 people who had looked for a job in the previous 12 months.

Negative comments tend to revolve around issues such as poor pay, difficult managers, and toxic work cultures, said Brian Kopp, a managing director at CEB.

So this is a golden opportunity to correct the record, and to address those negative comments–and make cultural changes to reverse the company’s negative image.

New Year’s Present for Employees: Minimum Wage Increases in 8 States

Starting Jan. 1, 2012, some minimum wages worker in the U.S. will not only continue to get a payroll tax cut but also their basic wage will go up.  Continuation of the payroll tax cut is courtesy of the U.S. Congress, which in a last-minute decision extended the cut for 2 months.

Minimum wage increases are set for these eight states–Arizona, Colorado, Florida, Montana, Ohio, Oregon, Vermont and Washington.

Rates in these states will range from $7.64 per hour (in Colorado), to $9.04 (in Washington) in 2012. Meanwhile, the federal minimum wage remains at $7.25. Eighteen states and Washington, D.C. now have minimum wage rates above that.

Volkswagen, Union Say Nien to 24-Hour Connectivity

How well would this go over in the United States? An employer and union agree not to allow employees to receive e-mails when they’re not working.

That’s what happened this week in Germany. Volkswagen and its labor union agreed that the company will deactivate staff members’ BlackBerry devices outside of work hours.

The agreement applies only to the company’s nonexecutive employees. They won’t be able to  receive e-mails via BlackBerry except from a half hour before they start work until an hour after they finish.

Trying to get executive employees to agree to such a thing might be mission impossible in Germany or anywhere else.

NLRB Postpones Poster Requirement for 3 Months

A holiday gift for employers from the National Labor Relations Board. The agency has postponed for 3 months a requirement that employers post notices of employee rights under the National Labor Relations Act. Those rights include the freedom to organize workers into unions to bargain with employers over working conditions.

Business groups are fighting the rules in court, so the board decided to postpone the rule’s implementation to give time for those legal challenges to play out.

The new implementation date will be April 30, 2012. Unless, of course, another event intervenes to causwe yet another postponement.

11th Circuit Upholds Judgment for Public Employee Fired for Gender Identity Disorder

The U.S. Court of Appeals for the Eleventh Circuit, based in Atlanta, ruled this month that a public employee fired from her job because she has gender identity disorder may seek damages for violation of her constitutional rights under the Fourteenth Amendment.

The plaintiff, Vandiver Elizabeth Glenn, was fired from her job as an editor in the Georgia General Assembly’s Office of Legislative Counsel. She sued under 42 USCS 1983, which prohibits denial of rights to public employees.

A federal district court ruled in her favor, and the appeals court affirmed.

Importantly, the appeals court found that “discrimination against a transgender individual because of her gender non-conformity is sex discrimination.” The court also stated that “[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.”

Although the issue addressed was employment discrimination against public sector employees, it is likely private sector employees in comparable situations will cite to this opinion as favoring them.

Title VII of the Civil Rights Act, which applies to private sector employers and employees, prohibits sex discrimination, but no federal court has extended that prohibition to discrimination against transgenders.

We’ll see if the 11th Circuit opinion changes that.

Hearsay Evidence Now Admissible to Stop Workplace Violence, California Appeals Court Holds

A California intermediate court has just given employers an additional evidentiary weapon to protect employees from violence in the workplace. Last week the court ruled that “all relevant evidence” must be considered in such proceedings, including otherwise inadmissible hearsay evidence. The case is Kaiser Foundation Hospitals v. Wilson, Nos. D058491 & D058492 (Dec. 5, 2011)).

As employment law attorney Marget Gillepsie of Littler Mendelson has noted, “employers have been caught in a Catch-22 in wanting to take action to protect the workplace while not being able to obtain declarations from those with the most direct knowledge of the threats to the workplace. In those situations, employers have presented declarations from human resources or management representatives with information provided to them, and inevitably have faced objections to such declarations as constituting inadmissible hearsay.

The appellate court’s decision in Kaiser now has removed this entire dynamic from workplace violence proceedings, finding that the trial court must consider all relevant evidence—including hearsay evidence—in determining whether to issue a workplace violence injunction.

Read more of her analysis.

Settlement With American Apparel Includes $20K for ADA Education

American Apparel, a large clothing manufacturer, has agreed to pay $60,000 to settle an allegation of disability discrimination, including $20,000 for a worker rights and employer responsibility educational program, the Equal Employment Opportunity Commission announced this week.

The EEOC charged American Apparel, a clothing manufacturer employing thousands of workers at its production facilities in Los Angeles and in stores throughout the country, with firing an employee while he was on leave because of a disability.

Under the settlement, American Apparel will pay $40,000 in backpay to the victim, and also contribute $20,000 two ADA seminar seminars in conjunction with Los Angeles-based nonprofit organizations.

Read more.