September 2007 Archives

September 27, 2007

What Do Employees Really Want?

A recent study by the Society for Human Resources Management (SHRM) reveals that what keeps employees satisfied with their jobs aren't the things HR professionals think keep employees satisfied. According to the survey, the top contributors to employee job satisfaction are "benefits" and "compensation/pay." HR professionals ranked "relationship with immediate supervisor" as number one, "compensation/pay" as number two, and "benefits" as number four.

That employees value compensation and pay isn't surprising, but the importance of benefits may be. In addition to the rising cost of health care, aging employees may be worrying about funding their retirement. At the other extreme, Gen Yers may be focused on balancing their work and personal lives. The SHRM survey found an increase in all types of benefits, including health care benefits (programs such as chiropractic insurance, prenatal programs, and smoking cessation programs), retirement benefits (including investment advice), flexible working benefits (like compressed workweeks, eldercare referral services, and company-supported childcare centers), and time off (for personal days, paid adoption leave, or a time bank of sick leave).

Addressing these concerns may seem like a headache, but there's another way to approach it: it's a chance to offer new and different benefits that are guaranteed to be appreciated by a diverse workforce. And many of these benefits are mutual--for example, allowing an employee to telecommute may increase productivity, while offering preventative health care programs can help reduce health care costs and lost work time. At the same time, you're satisfying talented employees who are expensive to replace.

Alayna Schroeder

September 24, 2007

Hire My Avatar! I Mean, Me - Recruiting Employees in the Virtual World

To what length will your company go to recruit top talent? Some companies, it seems, are willing to enter a whole new world--a virtual one, that is. A recent article reveals that some organizations are using Second Life, an online "3-D virtual world," to recruit and interview applicants. Interviewers and interviewees choose avatars ("your persona in the virtual world") and arrange meetings that require them to master virtual world skills like climbing stairs, shaking hands, and even getting dressed.

Maybe I'm old-fashioned, but I'm not ready for a virtual world to take the place of the real one. If your company is thinking about jumping on the Second Life bandwagon, consider a few important factors.

First, not everyone will want or be able to use Second Life--for example, applicants with visual or other physical disabilities, or even older applicants who may be less likely to join Second Life (the average age of a Second Life "resident" is 30). For legal and practical purposes, you'll want to make sure applicants have access to other recruiting and interviewing methods.

Second, consider how long it takes to learn to use Second Life. A successful applicant said it took him about a day and a half to learn the basics (like not walking into virtual walls)--and of course, you and every other interviewer will have to learn those skills too. Unless it's something you expect to do often, it may not be practical.

Third, are the skills the candidate needs to navigate in Second Life relevant to the position? If you're hiring for a high-tech position, perhaps. Otherwise, you may not find the best candidates this way--it's hard to see a lot of accounting professionals or equipment operators using Second Life, for example. And it's never wise to make employment decisions based on skills unrelated to the job--like keeping your avatar virtually seated.

Finally, don't undervalue a face-to-face meeting. Yes, communicating through avatars may put a candidate at ease and limits (but doesn't eliminate) your ability to distinguish between applicants based on legally-protected classes like race or age. But often, you'll want to see how a candidate reacts to stressful situations--like a job interview. For many positions, you'll want to make sure the applicant presents well and has good people skills, both almost impossible to judge online. Also, the virtual interviewee doesn't get the benefit of seeing the work environment or getting a feel for the company culture. The best practice, if you interview in the virtual world, is to follow up with an in-person meeting--between actual, carbon-based life forms--to make sure the candidate meets your needs.

If you want to learn more about the basics of hiring an employee, Attorney Fred S. Steingold's The Employer's Legal Handbook is a good place to start.

Alayna Schroeder

September 24, 2007

No-Match Letters a No-Go: Hearing Coming Up on New Regulations

Employers have long been confused about what, exactly, they are supposed to do when they receive a "no-match" letter: a letter from the Social Security Administration stating that the Social Security number reported for an employee (usually on IRS Form W-2) does not match the government's records. Although a no-match letter might mean that the employee's work authorization documents - which the employee must present as part of the I-9 process -- are inaccurate or even falsified, it could be issued for other reasons too, such as typos or errors in the government database. What's more, employers are told that they must accept documents that "reasonably appear to be genuine"; asking for more or different documentation could be illegal discrimination on the basis of national origin or citizenship status.

The Department of Homeland Security (DHS) issued new regulations to explain what employers should do if they receive a no-match letter. Although employers aren't legally required to follow these rules, those who do can take advantage of a safe harbor provision, which protects them from legal liability if an employee turns out not to have proper work authorization. These rules were scheduled to go into effect on September 14, 2007, but they didn't. A federal judge in San Francisco issued a temporary restraining order prohibiting DHS from enforcing the rules and even from sending out packets to employers explaining what will be required. The judge found that the plaintiffs who filed the lawsuit challenging the rules - including the AFL-CIO and the ACLU - had raised serious questions as to whether the new rules are legal or exceed the authority of the DHS and the Social Security Administration.

On October 1, the court will hear arguments as to whether it should issue a preliminary injunction, extending the prohibition on enforcing the rule. The plaintiffs have filed their papers, as has the DHS; now it's up to the judge to decide what will happen next.

Lisa Guerin

September 19, 2007

"Kid Nation": Summer Camp or Sweatshop?

The controversy over CBS's new program, "Kid Nation," is only the latest installment in the continuing debate over what it means to be a star of reality TV. Ever since 1992, when "seven strangers" first agreed to "have their lives taped" on MTV's long-running hit, "The Real World," commentators have been arguing over whether those featured in these shows are workers -- and, therefore, entitled to be paid for every hour they spend in front of the cameras. In the case of "Kid Nation," the question is particularly important: If these children were working, then CBS was obligated to follow child labor laws in its production.

On "Kid Nation," 40 children, ages 8 to 15, spend 40 days in the high desert of New Mexico, trying to turn a ghost town (actually a movie set used for westerns) into a functioning town that's run by kids. An early sign of possible trouble for the show came in the form of a complaint from a parent, who said that her child was spattered with hot grease while cooking, and other children needed medical attention after accidentally drinking bleach. Soon after, some started wondering in print whether this show was such a good idea after all.

Whatever you think of the show from an entertainment standpoint, the child labor law issue is troubling. Our child labor laws reflect our beliefs that children of a certain age should generally go to school, be protected from hazardous conditions, and be protected from overlong work days. Although the rules are typically quite a bit less strict for child actors and entertainers, New Mexico didn't make this distinction until after the show wrapped. So how did these kids end up working 14+ hour days, during the school year, with no tutor on set, doing strenuous activities like hauling wagons and cleaning outhouses, in conditions that allowed them to drink bleach and get burned by hot oil?

Because they weren't employees, but simply lucky participants in a special adventure, compared to "summer camp" by the show's executive producer. According to Mark Andrejevic, a professor at University of Iowa, (and author of the excellent book, where people grow and learn about themselves." And this is exactly the way some involved with Kid Nation saw it: A parent of one of the children who drank bleach explained that the show was an opportunity for her son to meet kids from other backgrounds.

The obvious problem with this interpretation is that money does change hands: Not only were the children paid (each received a "gift" of $5,000, plus the opportunity to earn more cash), but also the people who created and produced the show earned salaries, and are ultimately working to make money for the television network. When people are paid for their labor, and the fruits of that labor generate profit for the company that signs the checks, that doesn't look like "camp": It looks like work.

The Writers Guild of America says that adults who worked on the show -- including producers and camera operators -- were also victims of wage and hour violations. And here's an interesting twist: Among the workers who were allegedly underpaid were writers. That's right: These purportedly unscripted programs, which we are told feature real people "keeping it real," have writers. Enough writers to file not one, but two class action lawsuits a couple of years ago against several companies and networks, including the production companies behind "My Big Fat Obnoxious Fiancé," "The Real Gilligan's Island" and the never-aired "Seriously, Dude, I'm Gay." Not necessarily the people I would choose to script my journey of self-discovery, but maybe that's just me.

Lisa Guerin

September 18, 2007

What General Petraeus's Testimony Means for Employers

General David Petraeus, in his recent testimony before Congress, spoke out against a rapid withdrawal of American troops in Iraq. And President Bush, in his speech to the nation on September 14, spoke of a gradual reduction in forces (from the current level of 169,000 to 130,000, the level in Iraq before the "troop surge") by July of 2008. The ultimate timetable for drawing down the troops remains to be seen, but one thing is clear: American troops will continue to serve in Iraq for the foreseeable future.

Many of those troops will be members of the National Guard, whose members typically hold down civilian jobs when not serving in the military. More than 400,000 members of the National Guard have been called to serve in Afghanistan and Iraq. And those who employ Guard members are called on to shoulder part of the burden: the Uniformed Services Employment and Reemployment Rights Act ("USERRA") requires these employers to ease the reentry of Guard members into the workforce by holding their jobs for up to five years (with all promotions and raises they would have gotten had they not been deployed), providing the necessary training to bring them up to speed when they return, and protecting them from termination except for good cause for up to a year. (A great resource for information about USERRA, including excellent tools and tips for employers, is Employer Support for the Guard and Reserve.)

Returning National Guard troops are at risk. At a conference in August 2007, researchers from the Walter Reed Institute of Research indicated that Guard members who face financial difficulties as a result of their deployment are six times more likely to suffer from post-traumatic stress disorder. Guard members are also more likely to be married and tend to be older than regular enlisted troops, both factors that increase the possibility of problems upon return. All in all, guard members face unique challenges when they are asked to leave their families and jobs to serve in the military. Although complying with USERRA can strain company resources, it serves the very worth goal of helping service members make a successful transition back to civilian life.

Lisa Guerin

September 17, 2007

Red Carpet Smiles: Allowing Fired Employees to Exit Gracefully

There were a couple of familiar faces missing from the red carpet at the Emmys this year. That's because the TV Guide Channel replaced familiar commentators Joan and Melissa Rivers with "Dancing With The Stars" alums Lisa Rinna and Joey Fatone.

Apparently, the relationship between the TV Guide Channel and the Rivers ended amicably--right? After all, when asked about Joan and Melissa, Lisa Rinna had nothing but praise. And TV Guide Channel President Ryan O'Hara wished them the best. Of course, most of us read between the lines. And the normally loquacious Joan Rivers hasn't spoken about what really transpired--yet.

We all understand the need to respect former employees' reputations when they leave our organizations involuntarily. How do we deal with the fallout of losing an employee? What do we tell customers and coworkers? What do we allow these individuals to tell prospective employers about why they're no longer with us?

The best answer about what to share with others is probably "as little as is necessary." For example, unless there's a good reason to reveal details to co-workers -- perhaps because the employee has made a credible threat of violence -- it's best to be tight-lipped. Doing otherwise doesn't only risk legal liability for defamation -- a claim that's difficult to prove but can nonetheless be expensive to litigate -- it causes other employees to doubt whether you're trustworthy and respectful. After all, if you'll tell them information about co-workers, they'll worry that you'll also reveal information about them to others.

When it comes to references, you'll probably be tempted to be similarly tight-lipped. But consider how helpful it is to get an honest reference from a former employer. Don't mislead a prospective employer by only highlighting the positive characteristics of a former employee's work when there are negative ones that need to be addressed as well. But do consider that an employee who wasn't right for your company or in a specific job assignment may do just fine elsewhere. After all, while Joan and Melissa might not be best as red carpet commentators, they may be just perfect as red carpet bloggers.

If you need information on how to handle reference requests for former employees, check out Dealing With Problem Employees, by Amy DelPo and Lisa Guerin (Nolo).

Alayna Schroeder

September 17, 2007

Expressing Breast Milk at Work

Several states have passed laws that recognize the importance of allowing working mothers to express breast milk in the workplace. These laws usually require employers to provide the time (not necessarily paid) and proper facilities for expressing breast milk.

Perhaps the legislative movement is driven, in part, by the growing number of women who are breastfeeding. Though the numbers are on the rise, the CDC says current numbers fall short of goals. Apparently, these goals are largely based on the health benefits of breastfeeding.

That's why it's ironic that the National Board of Medical Examiners won't allow a nursing mother additional breaks and proper facilities to express breast milk during a physician licensing exam. Harvard-educated Sophie Currier wrote a letter to the Board requesting the extra time and a private location to plug in an electric breast pump. A Board representative responded that it could make accommodations for disabilities covered by the ADA--but expressing breast milk wasn't one them. The Board offered Ms. Currier access to a testing room, with a monitor and glass walls, to express breast milk during regularly-scheduled breaks, but wouldn't allow longer or additional breaks or a private location for that purpose.

Obviously, a law granting rights to lactating employees won't apply to Ms. Currier (Massachusetts, where she's taking the exam, doesn't have such a law, anyway). But her experience reminds us that it's worthwhile to provide the necessary time and space to lactating women even if it's not legally required. An employer who does so will engender goodwill (or maybe even make Working Mother's list of 10 Best Companies for Breastfeeding), which can be particularly important for an employee who is reintegrating into the workforce after an absence. Also, the employee avoids physical problems, like breast engorgement and mastitis (an infection caused by blocked milk ducts) that could result in lost work time.

If your state has a law about expressing breast milk in the workplace, make sure your company complies with the law. And if not, consider whether it's good business practice to provide this benefit anyway.

Update, September 27, 2007: A Massachusetts appeals court judge ruled that Sophie Currier can take additional time during the exam to express breast milk. The judge said the extra time would put Ms. Currier on equal footing with men and nonlactating women taking the exam.

Alayna Schroeder

September 17, 2007

The Workplace Microwave Debate

The smell of burnt popcorn wafting from the employee break room or cafeteria can be irritating or nauseating. But it turns out it can be even more serious: A Colorado man who ate microwave popcorn twice a day for ten years may have developed a serious lung condition from the fumes.

Employees set up on both sides of the "what can go in the microwave" issue--those staunchly in favor of an "anything goes" policy, and those vocal about limiting offensive odors. Should you get involved? Some employers post signs about what's appropriate (ours at Nolo reads, "If you are going to microwave odiferous food, please be considerate of your coworkers and our customers and use the back kitchen")--and with good reason, employers don't want bad smells to reach customers or irritate working employees.

But with the newest information about the health effects of popcorn fumes, you may have employees concerned about their health, too. If your company has an "anything goes" approach to the break room microwave, give concerned employees a fumes-free break spot of their own. And keep these smells out of work areas--for example, by not allowing employees to have personal microwaves in their workspaces, or requiring them to spend break time in designated areas. Workplace injury claims are expensive and time-consuming; if a few simple changes can help avoid these claims, it's worth a little employee grumbling.

Who knows? Maybe someday workplace microwave fumes will be regulated like smoking is today. In the meantime, do what you can to respect employees on both sides of the debate--and save your own popcorn for the movie theater.

Alayna Schroeder

September 17, 2007

Sexual Harassment, Retaliation Trial Against Isiah Thomas

There's trouble in the garden -- Madison Square Garden, that is. The coach of the New York Knicks, former Detroit Pistons star Isiah Thomas, is accused of sexually harassing Anucha Browne Sanders, a former team vice president. Browne Sanders claims that Thomas called her crude names and made unwanted sexual advances towards her. And that's not all: Browne Sanders also claims that she was fired in retaliation for complaining about the harassment. (For a nice summary of the details of the complaint, see the New York Times article, "Sexual Harassment Case Against Thomas Is Set to Open," by Richard Sandomir.")

Retaliation claims can be especially dangerous - and expensive - for employers. An employee can win a retaliation case even if she can't ultimately convince a jury that she was sexually harassed. If the employee can prove that she was fired or otherwise faced negative consequences for complaining of harassment, that's a separate violation of the antidiscrimination laws.

One of the interesting things about this case (aside from a witness list that includes the team's star point guard, Stephon Marbury) is that the Chairman of the Garden admitted (in a deposition) that Browne Sanders could have kept her job had she not asked other employees to remember incidents that would have supported her claims during the Garden's investigation of her sexual harassment complaint. (The defendants also claim that Browne Sanders had performance problems.) Browne Sanders claims that this was protected activity under the antidiscrimination laws; the defendants claim that she was tampering with the investigation. Ultimately, a jury will decide whose interpretation is correct.

The lesson here for employers? Tread very carefully when you're considering discipline against an employee who has made a complaint -- especially a complaint that alleges sordid details against a well-known figure and is sure to make the newspapers. Particularly if your reason for discipline has anything to do with the complaint or the underlying incidents, you can expect a plaintiff's lawyer to be very interested.

Lisa Guerin

Update: On October 2, 2007, the jury awarded $11.6 million in punitive damages to Browne Sanders. The breakdown: $6 million for the hostile environment sexual harassment claim and $5.6 million for the retaliation claim (the jury has yet to decide how much Browne Sanders should receive for lost wages and other economic damages). These damages are to be paid by Madison Square Garden and James Dolan, chairman of the parent company to the Knicks and the Garden. The jury couldn't reach a decision on whether Thomas should also pay punitive damages. The defendants have vowed to appeal.

Also, for managers who want to learn more about investigating complaints about employees, check out my book The Essential Guide to Workplace Investigations: How to Handle Employee Complaints & Problems (Nolo).

September 14, 2007

About This Blog

Welcome to Nolo's Employment Law Blog. We'll cover court cases, new legislation, and current events that affect the world of employment law. We'll also look for the employment lessons to be learned from less obvious sources, from TV shows to sporting events.

The blog is written by Lisa Guerin, a senior legal editor at Nolo. Lisa has practiced employment law in government, public interest, and private practice, where she represented clients at all levels of state and federal court and in agency proceedings. Lisa is the author or coauthor of several Nolo books, including The Essential Guide to Family and Medical Leave, The Essential Guide to Workplace Investigations, Create Your Own Employee Handbook, and Dealing With Problem Employees.

The opinions expressed in this blog do not necessarily reflect the views of Nolo, its clients, or its partners. This blog provides legal information, not advice. Consult a lawyer if you want professional assurance regarding how the law applies to your situation.