Archive for August, 2012

IRS Won’t Play Post Office Anymore for Missing Retirement Plan Participants

Are you trying to locate a missing participant from your retirement plan? Don’t expect any help from the IRS.

The agency today issued a revenue procedure saying it is discontinuing its practice of “letter forwarding” to missing retirement participants and the like. With the advent of alternative searching resources such as the Internet, the IRS said, there’s no longer a need for its service.

Apparently the IRS–which started this practice in 1994–just got tired of the whole thing.  From now on, it will forward requests only for what it considers “humane purposes.” Helping someone realize a financial benefit–like recovering money due them from a retirement plan–isn’t one of those.

If you’re looking for somone for a specified humane purpose, such as informing them of a relative’s illness, the IRS won’t charge you for a single request. But if you are trying to reach a mass audience–50 or more–it will charge you.

Read for yourself Rev. Proc. 2012-35.

GOP Platform Opposes Card Check, Supports National Right to Work Law

Opposition to card check and support for a national right to work law are two key features of the platform approved this week by the Republican National Convention meeting in Tampa.

The platform is a statement of the GOP’s views on the workplace, and what the party would enact if it had complete reins of the government.

Under card check, a union could declare majority support in the workplace if 50 percent of the workers indicate on a card that they want union representation.  It would replace the secret union ballot, which unions fought for but now claim has been corrupted by employer coercion of workers.

The GOP vehemently opposes card check.

The platform also calls for:

  • enacting the Secret Ballot Protection Act;
  • enforcing the Hobbs Act against labor violence; and
  • passing the Raise Act to allow all workers to receive well-earned raises without the approval of their union representative.

The platform also demands an end to Project Labor Agreements, calls for repeal of the Davis-Bacon Act, which it says costs the taxpayers billions of dollars annually in artificially high wageson government projects. It also supports the right of states to enact Right-to-Work laws and encourage them to do so to promote greater economic liberty.

“Ultimately, we support the enactment of a National Right-to-Work law to promote worker freedom andto promote greater economic liberty,” the document continues. “We will aggressively enforce the recent decision by the Supreme Court barring the use of union dues for political purposes without the consent of the worker.”

Finally,  the document concludes, “To safeguard the free choice of public employees, no governmentat any level should act as the dues collector for unions. A Republican President will protect the rights of conscience of public employees by proposing legislation to bar mandatory dues for political purposes.”

EEOC Charges Hospice With ADA Violation in Nurse’s Firing

Saying it tried unsuccesfully to settle the matter, the Equal Employment Opportunity Commission this week charged Mercy Hospice, a member of the Trinity Home Health System, with violating the Americans with Disabilities Act by firing a disabled nurse rather than provide her a reasonable accommodation.

The EEOC claims that Mercy Hospice in Bloomfield Hills, Mich., terminated  Patricia Barriger when she tried to return to work from a medical leave of  absence.  Instead of providing her with a  reasonable accommodation, however, the company discharged her claiming she was an inactive employee who was not entitled to an accommodation.

The EEOC was not buying that explanation. The  ADA protects employees, even if they are on medical leave,” explained EEOC  Trial Attorney Nedra Campbell.   “Employees like Ms. Barriger who are capable of working, with or without  a reasonable accommodation, should be allowed to continue despite their  disabilities.”

New Law Grants Reemployment Rights to TSA Officers Called to Active Duty

The often-maligned Transportation Security Administration now has to abide by the Uniformed Services Employment and Reemployment Rights Act, guaranteeing that TSA officers returning from active military duty can return to their old jobs.

On Aug. 16, President Obama signed HR 3670, amending the Aviation and Transportation Security Act containing the USERRA expansion.

When Congress created the TSA following the 9/11 terrorist attacks, it designated the transportation security officers (TSOs) employed by the TSA as a special class of federal employee considered integral to U.S. national security. This designation exempted TSA employees from certain employment laws, such as USERRA, and gave it broad authority to hire, fire and promote officers.

The new law removes that exemption, meaning the TSA will be required to comply with USERRA, which requires employers to provide eligible employees with the protection of reemployment (and the protection of job benefits, seniority, etc.) when an employee volunteers or is called to serve in the uniformed services.

The protections apply to National Guard members, reservists, and veterans who work as TSOs, and who are not assured that if they comply with USERRA they will be able to return to their civilian jobs after a military deployment.

Employers Can Get Off OSHA’s Severe Violator List

Repeat safety offenders can remove themselves from the government’s “severe violator enforcement program” through two steps, the Occupational Safety and Health Administration announced last week.

According to the announcement, the program, or SVEP, has been in effect since 2010. The list includes companies that “demonstrate indifference to their responsibilities under the Occupational Safety and Health Act with willful, repeat or failure-to-abate violations.”

To get off the government’s bad list, here’s two things a company must do:

First, wait three years from the date of the final disposition of the SVEP inspection citation items including: failure to contest, settlement agreement, Review Commission final order, or court of appeals decision.

Second, pay all final penalties, obey and complete all settlement provisions, and not receive any additional serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.

EEOC Says Burger King Employee’s Religious Rights Violated by Attire Rule

A Burger King in Grand Prarie, Texas violated the Title VII rights of a teen employee by not letting her work in a skirt, as required by her Pentacostal faith, the Equal Employment Opportunity Commission charged on Aug. 22.

According to the lawsuit, the employee, Ashanti McShan, informed the franchise owners that she needed to wear a skirt and they accepted. But when she reported for work on the first day, management said her attire was unacceptable and fired her.

Accommodating Ms. McShan’s religious beliefs would have been simple and cost the company nothing,” said EEOC Trial Attorney Meaghan Shepard. “Management’s failure to comply with federal law deprived this teenage girl of the opportunity to work during her senior year of high school.”

Read more.

Chrysler Liable for Punitive Damages for Ongoing Harassment of Plant Employee, Seventh Circuit Decides

A case this week out of the U.S. Court of Appeals for the Seventh Circuit illustrates that an employer’s initial response to a hostile work environment may not get it off the hook for damages if the harassment continues and the employer doesn’t ratchet up the response.

Chrysler Corp. didn’t do enough to prevent continuing harassment of a Cuban-American Jewish employee, and therefore, it is liable for punitive damages, the appeals court held this week.

The court summarized that between 2002 and 2005, Otto May, a pipefitter at Chrysler’s Belvedere Assembly Plant, was the target of racist, xenophobic, homophobic, and anti-Semitic graffiti that appeared in and around the plant’s paint department.

In reponse to May’s complaint, the head of human resources at the subject plant met with two groups of skilled tradesmen (like May) and reminded them that harassment was unacceptable. In addition, a procedure was implemented to document the harassment, efforts were made to discover who was at the plant during the periods when the incidents likely occurred, and a handwriting analyst was retained and used.

Despite these efforts, the harasser or harassers were never caught.

A jury concluded that May carried his burden and awarded him $709,000 in compensatory damages and $3.5 million in punitive damages.

In reviewing the case, the appeals court noted that it does not “sit as a super-personnel department.” However, it must assess the response of the actual human relations department.

That response was inadequate, the court concluded.

Speaking to the issue of punitive damages, the court said this:

 “If it was negligent to respond to weeks and months of death threats with a pair of meetings and documentation, what happens when that inadequate response does not improve over the course of a year? Two years? Three years? At some point the response sinks from negligent to reckless, at some point it is obvious that an increased effort is necessary, and if that does not happen, punitive damages become a possibility. The facts in this case do not force us to hazard a precise rule about when sticking with the same inadequate strategy becomes reckless. May’s harassment continued for years, the threats were extremely serious, and there was scant evidence of an increased effort over time.

And that was enough to warrant punitive damages, the appeals court concluded.

Read the case here.

Gay Man Files Title VII Suit Against Library of Congress

Title VII of the 1964 Civil Rights Act does not prohibit discrimination on the basis of sexual orientation, but that isn’t stopping some employees from asserting that as a basis for recovery. A recent case filed against the Library of Congress in Washington, D.C. may put the reach of Title VII further to the test.

The auditor, Peter TerVeer, alleges that his supervisor, John Mech, subjected him for over a year to a hostile work environment, including quoting biblical passages condemning homosexuality. He also is accusing the agency of retaliating against him when he filed a complaint with the agency’s equal employment opportunity office.

Among other infractions, the lawsuit charges that Mech was hostile to TerVeer when TerVeer pressed the “Like” button on a Facebook page called “,” which supports same-sex parents fighting anti-gay bullying. Mech’s daughter sup[posedly saw TerVeer’s page and posted the comment “Don’t tell me you’re weird like that.”

The agency has 60 days to file a response to the lawsuit in court. And we’ll see where it goes from there.

Here’s a copy of the complaint.

Training Video Company Compiles Workplace Fatalities Data

We’re good at counting the war dead, but not so good at counting persons killed on the job. Maybe if we knew the magnitude of the problem and publicized it more, worker safety would get the attention it deserves from corporate leaders and politicians.

As with most other workplace issues, HR often gets called first when there’s a safety issue. So it’s vital to have accurate data.

Matthew Pelletier, director of public relations at C&S Safety Training Videos, has given me permission to reprint a workplace safety infograph that his company has compiled. It’s revealing about in which states the most workplace deaths occur, what are the most common ways in which injuries happen, what are the most dangerous occupations. And much more.

I cannot vouch for the reliability of the data, but it seems to me a good place to begin the discussion of what more should be done to ensure safe workplaces for American workers.

Here’s a link to the infograph.

Multiple Discipline Not Allowed for Same Misconduct, North Dakota Supreme Court Says

Piling on when a government employee has already been disciplined for misconduct is not allowed under North Dakota law, that state’s supreme court ruled recently.

Only one action of discipline is allowed per violation, the state supreme court ruled in a case in which an employee was disciplined for allegedly groping a female co-worker, then was denied a pay raise, and finally terminated.

The termination went too far, the state supreme court said, because the agency did not have authority to discipline the employee more than once for his alleged misconduct.  Moreover, the court said, “it is fundamentally unfair to reopen the issue and increase the punishment when the same misconduct is the sole basis for the increase in punishment.”

Here’s the full opinion.