Stoel Rives Law Firm : World of Work Law Blog : Disabilities, FMLA, Military Leave, NLRA : Western United States

Earlier this week, a federal judge approved a $2 million consent decree, finally settling an Equal Employment Opportunity Commission (EEOC) suit alleging that the Les Schwab Tire Center violated Title VII by discriminating against women in its 420 stores in California, Idaho, Montana, Nevada, Oregon, Utah, and Washington.  Click here to download a copy of the EEOC v. Les Schwab Consent Decree. 

The consent decree comes out of a lawsuit filed by the EEOC alleging that Les Schwab had a pattern and practice of hiring men for sales and service positions (such as tire changers and brake and alignment techs), while hiring women for less-desirable administrative positions.  The EEOC also alleged that promotions to store management positions were only made from the male-dominated ranks of the sales and service employees.  The $2 million will be shared by an estimated 200 women who filed applications for sales and service positions and were turned down by the tire chain.  Les Schwab also agreed to make its best efforts to hire women into service and sales positions in proportion to their availability in the qualified applicant pool, affirm its commitment to equal employment opportunity, achieve a diverse workforce, review its recruiting and hiring procedures, and train its employees on equal employment opportunity issues.

The Les Schwab case illustrates a difficult reality that many employers face:  certain industries are, for various non-discriminatory reasons, dominated by employees of one sex.  While that is not necessarily proof of sex discrimination, the EEOC (and plaintiff's lawyers) absolutely look at such industries very, very carefully for signs of discrimination.   Employers in such industries can take steps to ensure that they don't become the next target of an EEOC lawsuit, including:

• Review application statistics to ensure that women and men are hired in proportions roughly equal to the number of qualified female and male applicants
• Review promotion statistics to ensure that women and men are promoted in proportions roughly equal to the number of qualified female and male employees
• If employees appear to be segregated by sex into different jobs, investigate why this is and ensure that it is not for discriminatory reasons 
• Ensure that your EEO policies are up to date, appropriately posted, and understood by all employees
• Provide EEO training to managers who make hiring decisions
• Partner with trade schools and colleges to actively recruit members of the underrepresented sex
• Review job descriptions to ensure that any physical requirements are job-related and necessary

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Most of us assume that if an employee swears at a manager or, he or she can be disciplined or even fired.  That assumption may be wrong, depending on the context in which the swearing occurs.  A federal judge recently held that the Federal Aviation Administration violated federal labor law when it removed a local union president from its premises after he used profanity toward his supervisor in the course of union activity.  Click here to read the opinion in  FAA and National Air Traffic Controllers Association. 

In FAA, an employee (who was also the union president) got into a verbal altercation with his supervisor over what the employee felt were insufficient staffing levels under their union contract.  In the course of that altercation, the employee told his boss:  “F*** you, I don't give a f***!”  (Imagine a certain four-letter word that rhymes with "duck.")  In response, the supervisor had the employee escorted off of the employer's premises.  A federal judge held that the employer's response violated the employee's rights under federal labor law.  The judge ruled that because the swearing occurred in the course of union activity,  it was protected speech:  “the use of profanity, standing alone, does not remove conduct or speech from the protection of [federal labor law]."   The Judge also noted that the outburst was brief, made in a normal tone of voice, and not overheard by other employees.

FAA teaches us an important lesson:  even relatively robust swearing by an employee during the course of otherwise protected activity may be protected.  The same logic behind the FAA decision could possibly apply to other types of protected employee speech:  union activity, harassment complaints, discrimination complaints, safety reports, etc. 

So when does profanity, even in the scope of protected activity, lose its protection?  There are no "bright line" rules, but courts look to several factors: 

• the volume, severity and duration of the outburst
• whether it is accompanies by threats or threatening gestures
• whether there is a workplace culture that condones or encourages profanity
• whether it is overheard by other employees
• whether the profanity is likely to disrupt workplace operations
• whether it rises to the level of verbal harassment that may violate the employer's policies
• whether it was a spontaneous outburst made out of frustration, instead of a premeditated attempt to humiliate the supervisor. 

In any event, employers should proceed with a great deal of caution before disciplining an employee who uses profanity in the course of a protected activity.  If the swearing was not in the course of a protected activity, disciplining the employee for insubordination or unprofessional behavior is relatively risk-free. 

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On my way in to work this morning, I was listening to NPR’s Morning Edition, and caught an interview with Lewis Maltby, president of the National Workrights Institute. The interview was ostensibly to promote Mr. Maltby’s new book, “ Can They Do That?” in which he discusses employment termination cases that were deemed legal, but seem, in his opinion, to be disproportionately severe or unjust.

What Mr. Maltby appeared to decry (without using the proper terminology) is the American presumption of “at will” employment—the notion that an employer may terminate an at will employee’s employment for any reason or no reason, so long as it’s not otherwise illegal. A couple of Mr. Maltby’s examples demonstrate that concept well. For example, he mentioned instances where it was permissible for an employer to terminate an employee based on the political bumper sticker on the employee’s car, and for a school to terminate an overweight teacher’s employment because the teacher did not project the correct image. As there are no laws that specifically protect individuals from discrimination based on political affiliation or weight, these terminations were in fact permissible. (I would caution, of course, that terminating an overweight employee does carry risk to the extent the employee might be considered to have a disability under state or federal law.)

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The Genetic Information Nondiscrimination Act (GINA) takes effect November 21, 2009.  Is your workplace ready?  Employers will soon be required to post a notice stating that they do not discriminate on the basis of genetic information, under proposed regulations interpreting GINA.

If you don't already have one, click here to download the full "EEO is the Law" poster, which describes all of the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information.  If you already have a copy of "EEO is the Law," then you can download and print the "EEO is the Law Supplement," which contains GINA information.  (If you don't want to print it yourself, or if you need the poster in Arabic, Chinese or Spanish, click here to order a copy from the EEOC.)

What else should employers do to prepare for GINA?  Here's a short, non-exhaustive list of things you can do to get ready:

• Add appropriate language to your EEO and anti-discrimination policies stating that you do not discriminate on the basis of genetic information;
• Review your employment applications and employee questionnaires to make sure you are not intentionally or inadvertently requesting information about an applicant’s/employee’s family medical history;
• If you need to get information about a family member’s illness for purposes of determining whether a request for leave qualifies for Family and Medical Leave Act or state law leave coverage, make sure it is limited to only what you need to know to make the determination;
• Determine whether incoming medical information you receive on an employee contains genetic information (defined as: genetic tests of an individual or his/her family members; the manifestation of a disease or disorder in family members of an individual, genetic services and participation in genetic research by an individual or his/her family member) and if so, maintain and treat the information as you would a confidential medical record for ADA purposes – i.e., maintained in a separate confidential medical file with proper limitations on disclosure.
• Make sure appropriate policies and procedures are in place to prevent inadvertent disclosure of genetic information when responding to a litigation discovery request, like a subpoena. If you require a court order compelling disclosure before releasing the information, this should protect you.
• If you are a self-insured entity, make sure that you do not request or require or use purchased genetic testing or information for purposes of underwriting or to determine an individual’s contribution/premium amounts. Note that you can use genetic test results for purposes of making a determination regarding payment, though.
• Also note that genetic information is included as “protected health information” for HIPAA purposes and should be treated accordingly.

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We expected many changes in federal labor and employment law in 2009 - for the first time in years, Democrats control the White House and both houses of Congress and have the political ability to make significant reforms.  However, not much has happened in 2009: we have only significant labor and employment bill signed into law.  To be fair, President Obama and the Congress have had other things to worry about:  a war or two, a lousy economy, health care and selecting a new White House dog to name a few.

But, the 2009-2010 legislative session is still not over, and Congress may yet pass some of the many labor and employment-related bills still pending.  Employers may want to take note, as some of these may become law before the end of the session in 2010.  Click on "continue reading" for a complete list.

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Last week The World of Work posted about fake job reference site Alibi HQ and provided some pointers for employers on how to verify the legitimacy of job references provided by job applicants.  Given that the site has numerous broken internal links, we speculated that it may be a joke.  It's not.  Picking up on our blog post, ABC News investigated Alibi HQ and competitor CareerExcuse.com (a site that also purports to provide fake job references) to determine whether the services provided are real, and sought comment from us regarding the legality of lying on employment applications. 

The results of their investigation are fascinating.

CareerExcuse.com's founder, William Schmidt, confirmed for ABC News that his service is real, and that it has "helped at least 20 people find work" by providing false job references.  Alibi HQ boasted that business has quadrupled in the current recession, but was somewhat more circumspect about the details of the company (they also provide fake landlord references and fake doctor's notes), refusing to identify the company's location because to do so "poses a security risk."  Both companies appear aware that their services tread on shaky legal ground.  Each purports to take steps to avoid liability such as not providing references to government job applicants. That's wise because lying to the government runs afoul of federal criminal law, and can carry with it up to 5 years in prison.

But what about lying to private employers?  Are the lies promulgated by these companies somehow protected because the target of the lie is a private, rather than a public, entity?  As I stated in the ABC News article, I think not.  If a company relies on the misrepresentation of an applicant and is later damaged by that misrepresentation, it very well may constitute actionable fraud.

The companies acknowledge that their services are based on "fibbing" and that they have some "moral issues." They argue, however, that the means are justified by the end--finding someone a new job.  Some commentators take the same position, arguing that these services level the playing field between the jobless and the "evil" employers. It's not that simple. Putting aside the obvious moral and ethical issues related to lying, there is a social and economic cost.  These services don't just put someone in a new job; they falsely puff up an applicant's experience to help get her get a job for which she is not qualified.  That's bad for the applicant who is ultimately found to be unqualified for the job, and costly for the duped employer.  Far from leveling the playing field, it  creates an unfair advantage over the honest applicants with actual experience who get passed over for a position because of someone who lied.

Our advice to employees: These are tough times and we know that finding a job is hard. Still, maintain your integrity and steer clear of services like these and overt resume puffery. Hang in there!

Our advice to employers: As noted in our prior post, when considering an applicant, take the time to diligently review prior job references and history to verify that the applicant has the experience he or she has advertised.

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The Department of Labor's Office of Disability Employment Policy today launched a new website that may be of use to employers seeking information on how to accommodate a disabled worker.  At www.disability.gov an employer can research the applicable law and regulations, get ideas for appropriate reasonable accommodations, and locate additional resources.  For example, clicking here will take you to information about accommodating deaf and hearing impaired workers.   And here is useful information about tax incentives for complying with the ADA.  The new site offers a myriad of social networking capabilities including a Twitter feed, RSS feeds and a blog.   The site also includes a handy multi-state guide which employers could find very useful as they work to comply with all applicable federal and state disability laws.  

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The Washington state class action by Wal-Mart employees for missed meal and rest breaks and for being forced to work off the clock finally ended this week with a payment to the workers of $35,000,000 and $10,000,000 to their attorneys.  Wal-Mart (are you surprised?) denies any wrongdoing.  For more on the lawsuit and subsequent settlement, click to read the Huffington Post's analysis or this coverage by Forbes. The settlement, which is just one of many for Wal-Mart, is another important reminder that liability for wage and hour violations can really add up.  And it adds up really fast when the class size is over 80,000 workers.

Washington employers should check with the Washington State Department of Labor and Industries for information on meal and rest break rules. 

Now, Washington Wal-Mart workers, go spend those "stimulus" dollars!  You have until August 19 to fill out your claim form.

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Are you looking for ways to hang on to staff, yet reduce costs?  Those goals are not necessarily mutually exclusive if you choose to participate in your state's workshare program.  A workshare program allows your employees to collect some unemployment benefits but continue working part time.  Here's an article from the Center for Law and Social Policy that gives additional detail.

Seventeen states have such programs:  Arizona, Arkansas, California, Connecticut, Florida, Iowa, Kansas, Maryland, Massachusetts, Minnesota, Missouri, New York, Oregon, Rhode Island, Texas, Vermont and Washington.  For a sample of a workshare law, see Section 1279.5 of California's unemployment insurance code.

Each state’s program is a little different, but they have common attributes.  We’ll use Oregon’s program as an example. 

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What's an employer to do when it is ordered to reinstate former employees, but those employees are not legally authorized to work in the United States?  Pay liquidated damages instead, according to the Ninth Circuit's recent decision in NLRB v. C&C Roofing Supply Inc. 

In C&C, the National Labor Relations Board (NLRB) alleged that the employer unlawfully fired 20 workers for engaging in union activity.  The parties reached a formal settlement that called for reinstatement of the illegally fired workers and payment of specific amounts of liquidated damages to each.  However, the employer then refused to reinstate the employees because many of them were unauthorized aliens and rehiring them would violate the Immigration Reform and Control Act (IRCA) and the Legal Arizona Workers Act, which both prohibit hiring unauthorized aliens. 

The Ninth Circuit solved the dilemma by ordering the employer to pay the agreed-upon liquidated damages, but did not require the employer to reinstate the unauthorized employees.  But how does this case square with Hoffman Plastic Compounds Inc. v. NLRB?  There, the U.S. Supreme Court held 5-4 that the board may not order back pay for unauthorized aliens, despite their firing in violation of federal labor law, because doing so would violate immigration policy expressed in IRCA.  In C&C, the Ninth Circuit dodged that issue by ruling that agreed-upon liquidated damages as part of a settlement do not raise the same issues as back pay ordered by the court, as the employees need not be "available to work" in order to receive liquidated damages.  Don't be surprised if this one gets appealed up to the Supreme Court for a determination if it really does square with Hoffman. 

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Just in time for Pride Month, Representative Barney Frank (D-MA) introduced the Employment Non-Discrimination Act of 2009 (ENDA) earlier this week. If passed, ENDA would prohibit employment discrimination on the basis of sexual orientation or gender identity.  It would also prohibit employers retaliation against employees who oppose such discrimination who participate in any investigation or  proceeding under ENDA. To read more about ENDA, check out this article from the Human Rights Campaign.

ENDA would be the first federal law prohibiting sexual orientation and gender identity discrimination.  Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of, among other things, sex; it does not explicitly prohibit sexual orientation or gender identity discrimination).  Several states already have similar protections in place, but ENDA would apply nationwide.   ENDA would exempt from its coverage small businesses (those with less than 15 employees), religious organizations, and the armed forces. 

This isn't ENDA's first trip through Congress; versions of the bill have been introduced in almost every Congress since 1994.  However, with a strong Democratic majority in both houses of Congress, a Democratic President who is feeling the heat from the GLBTQ community, and the gay rights movement riding a wave of successes in state legislatures, 2009 may well be the year ENDA becomes law. 

Employers whose policies and handbooks don't already address discrimination on the basis of sexual orientation or gender identity should consider a revision.  For an example of how one company has addressed such discrimination, click here to read IBM's anti-discrimination policy.  Click here for a state-by-state analysis of existing sexual orientation discrimination laws;

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Besides asking about applicants' educational history and employment background, the City of Bozeman, Montana is also asking job applicants for their usernames and passwords for social networking websites such as Facebook and MySpace.  Click here to read the full story from ABCnews.com. 

It has become increasingly common over the last few years for employers to research job applicants through social networking sites.  In fact, the Delaware Employment Law Blog has some very interesting results from a study on employers' use of social networking sites to screen job applicants.  Employers are rejecting job candidates based on postings on drug and alcohol use, inappropriate pictures, and even inappropriate screen names. 

But is researching applicants through Facebook, MySpace and Twitter always such a good idea?  The conventional interviewing wisdom is to avoid  personal questions that could make the hiring process appear biased.  Interview questions like "are you married?" or "do you have children?" are generally avoided, as they might make the interview appear to be making decisions based on marital status or family composition.  Social networking sites often contain the same information that a good HR person wouldn't dream of asking in a million years.  To be safer, employers might want to make reviewing Facebook part of a post-offer background check. 

Speaking of social networking, the World of Work is there.  Click here to follow us on Facebook; click here to follow us on Twitter.  Please just ignore those pictures of us from last year's office New Year's party. 

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The New York Times is reporting that President Obama will sign an order later today extending some -- but not all -- job benefits to the same-sex partners of federal employees.  According to reports, the order will come short of providing full health care coverage to same-sex partners.  Check back in with the World of Work for details as they emerge. 

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Oregon Democratic Senator Jeff Merkley has announced he will today introduce the Breastfeeding Promotion Act (BPA) in the U.S. Senate.  The BPA would  guarantee working mothers the right to breast-feed their children at their workplaces.  Click here to read about Merkley's proposal on Oregonlive.com. 

The bill is identical to one introduced yesterday in the House by Rep. Carolyn Maloney, D-N.Y. and Rep. Lois Capps, D-CA.  The law would amend Title VII of the Civil Rights Act of 1964, by  to protect breast-feeding in the workplace; provide tax incentives for employers that establish private lactation methods in the workplace; establish minimum safety standards for breast pumps; make breast feeding equipment tax deductible; and create time and privacy for working mothers to express milk.

Oregon implemented a breastfeeding law in 2007, which gives women the right to privately express breast milk in the workplace.  Employers with questions about that law may consult this helpful breastfeeding rest period fact sheet from the Oregon Bureau of Labor and Industries.  Meanwhile, the World of Work will continue to follow the progress of the BPA as it makes its way (or not) through the 111th Congress. 

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Federal contractors take note:  a new bill recently introduced in the House of Representatives aims to suspend or debar contractors found to employ unauthorized aliens.  The bill, the Border Control and Accountability Act (H.R. 1668), was introduced by Rep. Ginny Brown-Waite (R-Florida) earlier this year.  The bill also would prohibit the Department of Homeland Security from contracting with companies that do not use E-Verify.  The World of Work will continue to follow this and other legislation that may impact your workplace. 

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Under the current tax code, employer-provided health care benefits for employees, their spouses and dependent children are exempt from federal income and payroll taxes; however, health care benefits provided to unmarried domestic partners are subject to both payroll tax (for the employee) and to income tax (for the domestic partner beneficiary).  But if passed, the proposed Tax Equity for Health Plan Beneficiaries Act introduced last month in Congress would end the taxation of health care benefits of both same- and opposite-sex domestic partners. 

The Act was introduced in the House of Representatives by Rep. Jim McDermott (D-Wash.) and in the Senate by Sen. Charles Schumer (D-N.Y.)  A similar bill was introduced last year, but failed to gain enough traction to make it out of committee.  The bill might have more potential this time around, with a friendlier climate in both Congress and the White House.

To learn more about the tax laws the Act may impact, check out this article on the taxation of domestic partner benefits from the Human Rights Campaign.  The World of Work will pay attention to this and other important Labor and Employment legislation, so check back for updates!

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Judging from organized labor's reaction, Judge Sotomayor may be a pro-labor justice if her appointment is confirmed by the Senate.  "Judge Sotomayor is a sound, progressive judge who is blessed with a brilliant legal mind," said United Steelworkers President Leo W. Gerard.  Praising her nomination, AFL-CIO President John Sweeney says Sotomayor possesses a “direct and personal understanding of the struggles America’s workers endure every day.” She's also received these glowing recommendations from the SEIU, Change to Win and the Labor Council for Latin American Advancement, just to name a few.

Labor's love affair with Judge Sotomayor goes back to 1995, when she issued the injunction that effectively ended the 1994-95 baseball strike.  (In announcing her nomination, President Obama was quick to point that she singlehandedly saved the American Pastime.) 

While organized labor falls all over themselves to praise Judge Sotomayor, employers' groups are taking a more cautious approach.  The U.S. Chamber of Commerce, known to butt heads with unions over many issues (notably the Employee Free Choice Act), is still weighing whether to endorse Sotomayor.  While we don't necessarily see anything in her background to make us nervous, such a warm reception from labor unions certainly should raise an eyebrow or two. 

Meanwhile, for those who are interested, here's a clip of Judge Sotomayor speaking about her nomination:

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Every now and then we need a reminder to illustrate  the dangers of misclassifying employees as "independent contractors."  Last week, the Montana Supreme Court provided such a reminder, ruling that exotic dancers were employees, not independent contractors.  Click here to read the opinion in Smith v. TYAD Inc. d/b/a Playground Lounge & Casino. 

In Playground, the employer required each dancer to sign a contract acknowledging that she would be considered an “independent contractor" who would pay a "stage fee" to “rent” the stage and a dressing room for every night she worked. In return, each dancer would retain all tips and dance fees.  According to the Montana Supreme Court, not only were the dancers actually employees entitled to payment of minimum wage for all hours worked, but the "stage fees" were illegal kickbacks.  It held the dancers were entitled to payment of hourly wages, overtime, repayment of the "stage fees" and penalties. 

Does Playground have any lessons for the 99.99% of employers that don't employ exotic dancers?  Absolutely: all employers should be careful when classifying anyone as an "independent contractor."  Whether an individual is properly classified as an employee or an independent contractor is a complex question of both state and federal law.  Besides being held liable for back pay and overtime, employers who misclassify employees can be charged with unpaid wage withholdings and unemployment insurance premiums.  Worse yet, employers who don't pay workers' compensation insurance on misclassified employees can find themselves in a world of hurt if one of those employees sustains an on-the-job injury.  (The Playground Lounge should be thankful none of its dancers fell off the stage.)  For more information on the criteria courts and agencies use, check out this page on the IRS' Independent Contractor Status Test. 

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The Obama Administration has released its fiscal year 2010 budget request.  Among the items are several increases for the federal agencies that oversee labor and employment matters.  Here are some highlights:

• $104.5 billion to the Department of Labor, an increase of 10 percent, to increase its staff and enforcement activity. 
• $283 million for the National Labor Relations Board, an increase of 7.9 percent.
• $267 million for the Equal Employment Opportunity Commission, an increase of 6.6 percent, to increase staffing. 
• $145 million of the Justice Department's Civil Rights Division, an increase of 18 percent.
• $112 million to the Department of Homeland Security for the E-Verify program. 

Assuming they are passed by Congress, these increases reverse a long trend under the Bush Administration to cut funding to the federal agencies that enforce labor and employment laws.  Employers can expect increased enforcement of those laws by the federal government in the years to come.

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A bill introduced in the United States Senate late last month will, if passed, prohibit mandatory, pre-dispute arbitration agreements in employment.  Senate Bill 931, also known as the Arbitration Fairness Act of 2009 (AFA) was introduced by Sen. Russ Feingold (D-Wis.) and seven co-sponsors.  A similar bill, HR 1020, was introduced in the House of Representatives by Rep. Hank Johnson (D-Ga.) and 36 co-sponsors.

If passed, the AFA will amend the Federal Arbitration Act (FAA), and will apply only to disputes or claims arising on or after the date of enactment. Why the AFA?  Sponsors and supporters believe that while arbitration is a good way to settle disputes, pre-dispute arbitration agreements in employment are unfair.  For more details, click here to read Sen. Feingold's press release on the AFA. 

It would not surprise us if the AFA becomes law this term.  If so, employers will no longer be able to require employees to agree to resolve employment disputes through arbitration.  As a result, more cases will go to the state and federal courts and employers will pay more to resolve workplace disputes. 

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The U.S. Government has set up this new website, PandemicFlu.gov, to provide "One-stop access to U.S. Government swine, avian and pandemic flu information."  It has posted a great deal information to help employers and employees reduce the risk of infection on its workplace planning page. 

The Centers for Disease Control  has posted this H1N1 Flu (Swine Flu) Page with links to helpful and up-to-date information on the swine flu, how it spreads, and how employers can help employees reduce the risk of contracting the flu. 

The Department of Labor's Job Accommodation Network has issued a fact sheet titled "Considering the Needs of Employees with Disabilities During a Pandemic Flu Outbreak" (click to download). 

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Every employer and HR manager is sure they have dealt with the worst employee of all time, but how do your experiences stack up?  Compare your most dreadful employees to this list of the 10 worst employees of 2008, courtesy of Careerbuilder.com. 

If you haven't heard yet, these two Domino's employees are topping the list of the worst employees for 2009.  Yikes!

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We love New Zealand!  It's land of Peter Jackson, Flight of the Conchords, Crowded House, and Steinlager beer.  It's also the land of being able to tell your boss where to stick your job and getting away with it.

According to the New Zealand Employment Relations Authority, a man did not resign his employment when he told his boss to "stick his job up his arse."  According to the Authority, a fair and reasonable employer would not have interpreted that comment as a resignation, but rather as an emotional outburst as part of a heated exchange.  You can read the full story here. 

Of course, that's New Zealand; here in America, if telling the boss to take his job and shove it isn't a resignation, it's probably insubordination and enough to get fired over.  But that doesn't mean we don't have a rich tradition of telling off the boss in this country.  If you need a reminder, here's the classic song from Johnny Paycheck:

If Johnny Paycheck isn't your cup of tea, or if you want to hear the entire song in only one minute and twenty-four seconds, here's the Dead Kennedys version:

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Today the Department of Labor expanded its FAQs on the COBRA subsidies included in the American Recovery and Reinvestment Act of 2009 (ARRA).  Click here to read the DOL's new COBRA FAQs. 

Wondering what the tax implications of the subsidy are, or whether the person asking for the subisidy is truly eligible?  Click here to read the IRS's Premium Assistance for COBRA Benefits.  If that doesn't answer your tax questions, click here to visit the IRS's ARRA page. 

As a reminder, employers can click here to download the new model COBRA notices. 

Sick to death of COBRA and need to relieve the stress it's caused?  Click here to visit Orisinal - a site full of calming, zen-like computer games. 

And finally, click here to visit the World of Work's complete COBRA coverage. 

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The Department of Labor has published four model  notices to help employers, plans and individuals comply with the notice requirements of the COBRA subsidy provisions of the American Recovery and Reinvestment Act of 2009 (ARRA).  Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy ARRA’s notice provisions. Click on the title of each to download:

1. General Notice (Full version).   Plans subject to the Federal COBRA provisions must send the General Notice to all qualified beneficiaries, not just covered employees, who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event, AND who either have not yet been provided an election notice or who were provided an election notice on or after February 17, 2009 that did not include the additional information required by ARRA.  This full version includes information on the premium reduction as well as information required in a COBRA election notice.
2. General Notice (Abbreviated version).  The abbreviated version of the General Notice includes the same information as the full version regarding the availability of the premium reduction and other rights under ARRA, but does not include the COBRA coverage election information.  It may be sent in lieu of the full version to individuals who experienced a qualifying event during on or after September 1, 2008, have already elected COBRA coverage, and still have it.
3. Alternative Notice.  Insurance issuers that provide group health insurance coverage must send the Alternative Notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States, and issuers should modify this model notice as necessary to conform it to the applicable State law. Issuers may also find the model Alternative Notice or the abbreviated model General Notice appropriate for use in certain situations.
4. Notice in Connection with Extended Election Periods.  Plans subject to the Federal COBRA provisions must send the Notice in Connection with Extended Election Periods to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA continuation election were in effect) who (1) had a qualifying event at any time from September 1, 2008 through February 16, 2009; and (2) either did not elect COBRA continuation coverage, or who elected it but subsequently discontinued COBRA.  This notice includes information on ARRA’s additional election opportunity, as well as premium reduction information. This notice must be provided by April 18, 2009.

For more information about the COBRA subsidy, click here to read our coverage at the World of Work.  Or, click here to go to the Department of Labor's COBRA Subsidy Website. 

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The Worker Adjustment and Retraining Notification ("WARN") Act is getting a lot of airplay these days; that's the federal law that requires qualifying employers to give 60 days’ notice of a plant closing, a layoff of 500 or more people at one location, or a cut of at least one-third of the work force at a site.  But many critics of the WARN act think it doesn't go far enough because it covers only the largest layoffs by the largest employers.  Now, some economists are calling for a tougher, broader WARN Act.

We'll be watching to see if these calls for revising the WARN Act gain traction in Congress this term.  For now, there are resources out there to help you cope with the current version of WARN:

• For a basic overview of the law, here's a basic WARN Act Fact Sheet.
• For more detailed information, download the Employer's Guide to the WARN Act (a great resource and our personal favorite).
• Next, if your layoff is caused by an "act of God," you might want to download the WARN Act Natural Disaster Fact Sheet.
• And finally, you can read what the DOL is telling your employees:  the Workers' Guide to the WARN Act, and for Spanish-speaking employees, the Guía para el Trabajadores. 

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The Department of Labor's Employee Benefits Security Administration has posted answers to 10 frequently asked questions regarding the COBRA subsidies included in the new stimulus package.  Most relate to individual claims for the subsidy, but the information may be helpful to employers as well.

For more information about the subsidy, click here to read our coverage at the World of Work.  Or, click here to go to the Department of Labor's COBRA Subsidy Website. 

(Okay, this picture has nothing to do with the continuation of health care, and the FAQs don't say anything about snakes.  We just like to keep things interesting at the World of Work.)

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The Department of Labor's Employee Benefits Security Administration has just released a salvo of new forms and information on the COBRA subsidy.  Click on the titles below to download:

• COBRA Premium Reduction Fact Sheet
• Job Loss Poster (8½" x 11")
• Loss Poster (11" x 17")
• Flyer for Employers • Flyer for Employees
• COBRA Continuation Health Coverage FAQs for Employees
• COBRA Continuation Health Coverage FAQs for Employers
• IRS Information on COBRA Premium Reduction
• DOL Information Related to the American Recovery and Reinvestment Act of 2009

Keep watching the World of Work for more information on the COBRA subsidy!

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We have more information for you on the provisions of the stimulus bill affecting the Consolidated Omnibus Budget Reconciliation Act (COBRA). First, the Employee Benefits Security Administration (part of the Department of Labor) has published this website with information on COBRA continuation coverage assistance.  The Web site also includes a "Subscribe To This Page" link, allowing users to receive e-mail updates when new items are posted.  Second, in case you didn't receive it, Stoel Rives sent out this client alert last week, with more detailed information on the COBRA assistance program. 

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President Obama recently signed his fourth labor-friendly executive order, this time allowing the federal government to require project labor agreements (PLAs) on large-scale federal construction projects.  This order overturns a prior order from President Bush disallowing PLAs.  Click here to read the text of the order.  This latest action follows Obama’s three executive orders earlier this month that reversed a trio of Bush-era orders governing the way federal contractors deal with union workers.

A PLA is defined as "a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project."  PLAs are relatively common in the construction industry.  Unions tend to like project labor agreements as they streamline the bargaining process and generally set high wages and benefits, making it easier for union contractors who pay those higher wages and benefits to get the work. 

Not surprisingly, union officials are very happy about the latest order.  You can bet non-union builders and contractors aren't as happy.  Click here to read the Associated Builders and Contractors' position on PLAs. 

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We recently reported that President Obama nominated California Representative Hilda Solis as our next Secretary of Labor.  It now appears her nomination is in serious trouble.  The Senate delayed confirmation hearings after finding out that Solis' husband owed some back taxes on his auto repair business.  Whoops. 

Conservatives opposed to Solis' nomination - and her support for the Employee Free Choice Act (EFCA) - are sensing weakness and are gearing up for a major opposition to her nomination.  Labor unions, on the other hand, are calling for her to swiftly be confirmed. 

Conservatives might want to be careful what they ask for.  If Solis' nomination is withdrawn, one of the front runners to replace her is Andy Stern, head of the Service Employees International Union.  It's pretty safe to say he supports EFCA. 

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New year, new forms:  The Internal Revenue Service has released new W-4 Forms for 2009, and we have them for you right here!  Just click below to download:

• 2009 Form W-4 (English)

A 2009 Spanish version is pending approval, and we'll post it when it is available. 

As previously reported here at the World of Work, employers will be required to adopt the new Form I-9 (Verification of Employment Eligibility) by February 2, 2009.  We'd love to give you a link to download it, but guess what:  it's not available yet.  We'll keep watching and post it here as soon as it's released.

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Today's New York Times is reporting that President-Elect Barack Obama will nominate California Representative Hilda Solis as his administration's Secretary of Labor, the cabinet-level position that oversees the Department of Labor.

John Sweeney, head of the AFL-CIO (a coalition of labor unions) praised the appointment of Solis to the position.  And not without good reason:  Solis has been a champion of the Employee Free Choice Act (EFCA), which labor unions have made their #1 legislative priority for 2009.  The EFCA would , among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election.  If passed, it is expected to drastically increase union organizing and unionization rates.

Of course, if the unions are happy about the Solis pick, you can bet some employers are not.  As reported in the Times, the U.S. Chamber of Commerce, a pro-employer group, expressed "disappointment" over the selection of a labor secretary that supports EFCA, but promised to work with Solis. 

The selection of Solis should not come as a surprise:  President-Elect Obama has voiced his support for EFCA and other pro-employee legislation, and was expected to select a like-minded labor secretary.  This selection does not, however, mean that EFCA will pass without a fight.  Don't be surprised if the Republicans use their filibuster power either to delay its passage or to win some pro-employer concessions before allowing it to pass. 

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The Equal Employment Opportunity Commission (EEOC) split yesterday over whether to approve a notice of proposed rulemaking on the ADA Amendments Act (ADAAA).  The commissioners voted 2-2 on whether to approve a set of proposed rules that had been drafted by EEOC's Office of Legal Counsel.  Under the EEOC's rules, a tie vote is the same as a "no," meaning the proposed rules will not be presented to the public for comment.  (For those of you suspecting political motives, you could be right:  the two Republican Commissioners voted in favor of releasing the rules, and the two Democrats voted no.) 

What does this mean?  The ADAAA will go into effect January 1, 2009 without any interpretive regulations to help us navigate the new law.  The ADAAA requires the EEOC to create new regulations, but does not set any deadlines.  When the EEOC does make new regulations, it will publish them and allow public comment for 60 days before the regulations may take effect.  And if the Commissioners remain deadlocked, it make take an appointment from President-Elect Obama to break the tie. 

For more information on the ADAAA, check out the World of Work's ADAAA Archives. 

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Washington employers get ready to give your minimum-wage employees a raise:  effective January 1, 2009, Washington's minimum wage will increase to $8.55 per hour, allowing Washington to maintain the highest minimum wage in the country.  For more information, click here to read the Department of Labor and Industries' Press Release.  Washington's current minimum wage is $8.07 per hour.

As previously reported in the World of Work, Oregon's minimum wage will increase to $8.40 also effective January 1, 2009.  Following voter initiatives, both Oregon and Washington now tie their minimum wages increases to the Consumer Price Index. 

The federal minimum wage is now $6.55 per hour, but will go up to $7.25 per hour effective July 24, 2009.  For information on minimum wages in other states, check out this interactive map of the United States showing minimum wage rates, available from the U.S. Department of Labor. 

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In case you missed it, Barack Obama will be the next President of the United States!  And both houses of Congress will be controlled by Democratic majorities.  Wondering what this will mean for labor and employment law?  So are we!  But we've gone a step further and made some educated guesses on what to watch out for.

• The Employee Free Choice Act (EFCA).  The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election.  If passed, it is expected to drastically increase union organizing and unionization rates.  The World of Work will be watching this one very closely.  
• The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act  (RESPECT).  No, it's not an Aretha Franklin song.  The "RESPECT" Act would reverse the NLRB’s recent rulings that clarified the requirements to be a "supervisor" under federal labor law. RESPECT would dramatically increase the number of employees who could unionize. Sock it to me!
• The Paycheck Fairness Act and the Equal Remedies Act.  These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court’s recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press viable claims going back much further in time.
• The Civil Rights Act of 2008.  The proposed amendments to the civil rights laws would make numerous changes including removal of damage caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
• The Employment Non-Discrimination Act (ENDA).  ENDA would amend Title VII to add sexual orientation as a protected class. 
• The FOREWARN Act. This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
• Minimum wage.  President-elect Obama has also expressed his support for raising the minimum wage to $9.50 per hour by 2010.
• Family and Medical Leave Act (FMLA).  President-elect Obama has also indicated his support for expanding the Family and Medical Leave Act to cover companies with 25 or more employees (currently 50).

The World of Work will be watching this legislation closely and will bring you updates as they occur.  For more information now, check out this update on pending legislation from Stoel Rives.
 

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Yesterday the Department of Homeland Security (DHS) issued a supplemental final rule regarding employers' obligations upon receiving a "no match" letter from the Social Security Administration (SSA).  (A "no match" letter states that an employee's reported Social Security number appears invalid).  The final rule is identical to the department's previous rule, which was blocked from implementation by a California federal district court; however, DHS said it hopes that additional explanatory material provided in the rule will address the issues raised by the court.  For more information, read DHS's press release. 

Under the final rule, the SSA will be required to include in all no-match letters information telling employers that they are required to resolve discrepancies or risk legal liability.  The rule also provides employers with a "safe harbor" provision, which provides steps employers may take when they receive a no-match letter.   DHS will not use anemployer's receipt of a no-match letter as evidence to find that it violated the law by knowingly employing unauthorized workers as long as the employer follows the safe harbor rules.  For text of the final rule, click here. 

The final rule will not be effective until published in the Federal Register, and even then it will not go into full effect until the federal court lifts its injunction against the rule - assuming the court is convinced the final rule is lawful.  Stay tuned to the World of Work for further updates. 

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The U.S. Congress is currently considering legislation that would impose significant penalties on employers who improperly classify employees as "independent contractors" to avoid paying for benefits. 

The Employee Misclassification Prevention Act (S. 3648) was introduced in the Senate on September 29, and is sponsored by Senators Edward M. Kennedy (D-Mass.), Barack Obama (D-Ill.) and John Kerry (D-Mass.).   Features of the bill include:

• Amending the Fair Labor Standards Act (FLSA) to prohibit the misclassification of an employee as an independent contractor, providing for liquidated damages and civil penalties of up to $10,000. 
• Requiring employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification.
• Requiring state unemployment insurance agencies to audit employers who misclassify employees.
• Allowing the Department of Labor and the Internal Revenue Service to share information on cases where employers misclassify workers. 
• Requiring the Department of Labor to perform targeted audits focusing on employers in industries that frequently misclassify employees.
• Directing the Department of Labor to establish a Web site that summarizes the rights of employees under the FLSA and other federal laws.

A companion bill, H.R. 6111, was introduced in the House in May.  Don't expect this bill to become law as long as President Bush is in the White House, but with a likely democratic majority in Congress and a new President, passage of the bill appears very likely.  Employers should be aware of the existing risks of incorrectly classifying employees as "independent contractors," including claims for unpaid overtime, minimum wage claims, benefits claims, workers' compensation liability, and tax penalties. 

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As expected, President Bush yesterday signed the ADA Amendments Act ("ADAAA") into law, significantly expanding the scope of the Americans with Disabilities Act.  The final version of the law can be downloaded here.  The World of Work has been actively covering the law as it wound its way through Congress, and you can follow our reporting here. 

The ADAAA goes into effect January 1, 2009.  To help you get ready, Stoel Rives is offering free seminars on the ADAAA in its Portland, Boise and Seattle offices on December 2, 2008.  For more information and to register, click one of these links: 

• Seattle:  click here.
• Portland:  click here.
• Boise:  click here.

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This week the Ninth Circuit Court of Appeals ruled that the Legal Arizona Workers Act (LAWA) is not preempted by the federal (IRCA).  Rather, the court held, LAWA falls within the scope of the “savings clause” of IRCA’s express preemption provision as a “licensing law” and is therefore enforceable.  A coalition of human rights and employers' groups challenged the law on several grounds, all of which were rejected by the Ninth Circuit.  To read the court's opinion, click here:  Chicanos Por La Causa v. Napolitano. 

LAWA allows Arizona state courts to suspend or revoke business licenses of employers who intentionally employ "unauthorized aliens," and also required Arizona employers to use the E-Verify System to check applicants' eligibility for employment.  Arizona employers should review this Notice to Employers from the Arizona State Legislature for more information.

Now that the Arizona law has been upheld (and assuming the U.S. Supreme Court does not hear further challenges), the World of Work expects anti-immigration groups to push for similar laws in other states. 

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The ADA Amendments Act ("ADAAA") was passed by the U.S. House of Representatives earlier today.  For more information, read the House's Press Release.  As reported previously by the World of Work, the same version of the bill was recently approved by the U.S. Senate. 

The next stop for the ADAAA is the White House.  President Bush previously indicated he has some misgivings about the ADAAA, but given the broad bipartisan support that carried the bill through Congress, he is expected to sign it into law.  (Keep in mind, it was George H.W. Bush that signed the original ADA.) 

Assuming it becomes law, the ADAAA will greatly broaden the scope of the ADA.  Some highlights of the ADAAA:

• Reverses several Supreme Court decisions that have seemingly narrowed the coverage of the ADA, restoring what the drafters perceive to be the original Congressional intent
• Broadens the definition of disability, including what it means to be “substantially limited in a major life activity
• Clarifies that accommodations are not be required if an individual is merely "regarded as” having a disability
• Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability
• Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability

The World of Work will let you know as soon as we receive word on what the White House intends to do.  Stay tuned!

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In the first case of its kind before a federal circuit court, the Seventh Circuit Court of Appeals held recently that an employer violated Title VII for terminating a female employee who underwent in vitro fertilization treatments.  To read the opinion in Hall v. Nalco Company, click here. 

The employer terminated the employee citing “absenteeism—infertility treatments.”  It then replaced her with a female employee who was incapable of becoming pregnant.  The employee sued, alleging her termination violated the Pregnancy Discrimination Act (PDA), which amended Title VII to include pregnancy and childbirth as bases for discrimination.  The employer argued that the termination was for a gender-neutral reason:  infertility.  However, the Seventh Circuit held that there was evidence the termination was for her gender-specific quality of childbearing, in violation of Title VII.

Despite Hall, employment actions based on infertility are not unlawful as long as they affect men and women equally.  For example, employers may lawfully exclude all treatments for infertility from their health benefit plans.  Employers should beware, however, of adverse treatment of a particular infertility-related procedure that affects women only.  Just as an employer may not discriminate against women because of pregnancy or maternity leave, it may not discriminate against women who undergo in vitro fertilization.  For more information on avoiding pregnancy discrimination, read this fact sheet from the EEOC. 

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The U.S. Department of Labor today issued this proposed rule that would change the methods the government uses to measure workplace exposures to toxic substances and hazardous chemicals.

Under the proposed rule, the DOL will require that before agencies can issue rulemaking dealing with health issues, they first must solicit input on studies, scientific information, and data on frequency, intensity, and duration of worker exposure.  Rulemaking agencies, such as the Occupational Safety and Health Administration and the Mine Safety and Health Administration, will be required to publish an advanced notice of proposed rulemaking soliciting public information when developing risk assessments for health standards regulating occupational exposure to toxins and chemicals. 

The proposed rule is already under attack by congressional Democrats, who describe the rule as a "secret regulation" that could have "a profound negative impact on the health and safety of American workers."  The DOL will accept public comments on the notice of proposed rulemaking until Sept. 28. 

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Here's something to be watching:  a bill currently winding its way through Congress is likely to bring significant changes to the Americans with Disabilities Act.  The bill, knows as the ADA Amendments Act ("ADAAA"), will greatly broaden the scope of the ADA. 

Some highlights of the ADAAA:

• Reverses several Supreme Court decisions that have seemingly narrowed the coverage of the ADA, restoring what the drafters perceive to be the original Congressional intent
• Broadens the definition of disability, including what it means to be “substantially limited in a major life activity
• Creates a list of per se "major life activities"
• Clarifies that accommodations are not be required if an individual is merely "regarded as” having a disability
• Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability
• Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability

The ADAAA passed the House of Representatives on June 25, 2008 by a vote of 402-17.  The bill was introduced to the Senate on August 1, and reports are that at least 70 Senators have vowed to support the bill.  A vote is expected when the Senate reconvenes in September.  No word yet from the White House on whether President Bush will sign the bill into law, but it seems to have a veto-proof majority. 

To read an official summary of the ADAAA, click here.  To read the full text of the current bill, click here.  Stay tuned to the World of Work for updates on this landmark legislation. 

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According to a recent study, plaintiffs in civil lawsuits should be more willing to settle their cases, and perhaps defendants should stick to their guns and take more cases to trial. 

The study (as reported in this New York Times article), concludes that when plaintiffs reject the defendant's settlement offer and go to trial, they end up with a worse result 61% of the time.  Defendants fare far better:  only 24% of the time do defendants receive a worse result at trial than they would have had the plaintiff taken their last settlement offer.  In 15 percent of the cases, both sides were right to go to trial — the defendant paid less than the plaintiff demanded but the plaintiff won more than the defendant offered.

The full results of the study will be published in the September Journal of Empirical Legal Studies.  We'll be waiting to see if the full published study makes any recommendations specific employment litigation. 

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