October 2009 Archives

October 27, 2009

FMLA Amendments in Defense Authorization Bill

It looks like the military family leave provisions of the FMLA are about to be amended. The National Defense Authorization Act of 2010, which is currently awaiting the President's signature, includes the Supporting Military Families Act. (You can find it at Section 565 of this massive piece of legislation, about 120 pages in.)

This provision would make four key amendments to the FMLA:

  1. Qualifying exigency leave would be available to family members of those in the regular Armed Forces as well as those in the National Guard or Reserves. This type of leave allows family members to take some time off to handle important matters (such as setting up temporary childcare, drafting a will, or making financial arrangements) relating to a child, spouse, or parent's impending call to active duty military service. If this bill passes, family members of career military personnel who are deployed would also have the right to take qualifying exigency leave.
  2. Qualifying exigency leave would be available to family members of all those deployed to a foreign country. In other words, the bill removes the requirement that a member of the National Guard or Reserves be serving "in support of a contingency operation." This would expand the number of employees eligible for this type of leave.
  3. Family members would be eligible to take caregiver leave to care for a veteran suffering a service-related serious illness or injury, as long as the veteran was a member of the Armed Forces, National Guard or Reserves within five years of requiring care. This new provision is intended to allow leave to care for a family member with an injury that might not manifest right away, such as post-traumatic stress disorder. Currently, the FMLA allows military caregiver leave only for current service members.
  4. Military caregiver leave would be available when a family member has a preexisting serious illness or injury that is aggravated by active duty in the military. The law currently allows caregiver leave only for serious illnesses or injuries incurred while on active duty. It seems possible (to me) that this new provision could be interpreted to allow multiple 26-week periods of leave for the same injury -- first, when the service member is initially injured, and later if the service member returns to active duty and aggravates the injury. This scenario is something the current regulations explicitly disallow.
October 21, 2009

Will COBRA Subsidy Be Extended?

As the end of the year approaches, Congress and President Obama are considering whether to extend several important economic benefits to help ease the effects of the recession. For instance, the tax credit for first-time homebuyers, an $8,000 credit that one economist says will have resulted in 400,000 home sales during its tenure, is set to expire on December 1, 2009. Unemployment benefits are another topic of discussion: The House of Representatives has already passed a bill that would provide an additional 13 weeks of unemployment benefits in states with unemployment rates of at least 8.5%. The Senate is considering a different approach, which would extend benefits for 14 weeks in every state, and by an additional six weeks in states with higher unemployment.

And what of the COBRA subsidy, by which the government picks up almost two-thirds of the tab for continuing health insurance for workers who have lost their jobs involuntarily? (Learn more about the subsidy in this article.) The subsidy, which lasts for nine months, applies only to employees who are fired or laid off by the end of this year. According to Workforce Management, the percentage of eligible employees who actually enroll in COBRA has doubled since the subsidy went effect. The White House has said that it is considering  seeking an extension of the subsidy. So far, however, Congress doesn't appear to have taken up any legislation that would effect this change. If Congress doesn't act, workers who are fired or laid off after the first of the year will once again have to pay the full cost of continuing health insurance -- and, given the statistics above, many are likely to decide that this is a luxury they can't afford.  

October 14, 2009

Working Fewer Hours for Less Pay

Layoffs have been much in the news for more than a year, and with good reason: Unemployment has reached 9.8%, and is expected to continue growing in the months to come. But lost jobs aren't the only employment story of the economic downturn. Many struggling companies are trying to get more for less -- more work out of their employees for less money, that is. When companies combine layoffs with pay cuts and hour cuts, the inescapable result is that remaining employees have to work harder for less pay.

As statistics show: The Bureau of Labor Statistics (BLS) has released its latest figures on what it calls "labor productivity," a measure of employee output per hour as compared to the cost of that labor. Here's the good news: Employee productivity is up by 6.6% in the second quarter of this year. (Way to go, people!) The bad news is that we realized this improvement not by boosting overall productivity -- which actually declined by 1.5% -- but by working faster. Work hours declined by 7.6% in the same period. (This decline encompasses hours lost both to reduced work schedules and to layoffs.) In fact, the New York Times reported today that pay cuts -- which are often tied to reduced hours -- are more common now than at any time since the Depression.

Even those at the bottom of the economic ladder are facing declining wages: Colorado has said that it will have to cut the minimum wage from $7.28 an hour to $7.24 an hour as a result of deflation. Colorado is one of ten states in which the minimum wage is tied to inflation. This type of legislation is typically intended to protect low wage workers by making sure that the minimum wage keeps up with the cost of living. But when the cost of living drops, these laws requires the minimum wage to drop along with it.   

October 6, 2009

Supreme Court Term Begins: Disparate Impact on the Docket (Again)

The Supreme Court began its 2009-2010 term yesterday. As a number of news reports have pointed out, there are a lot of business cases on the docket this time around, including a challenge to the accounting review board created by Sarbanes-Oxley. There are also a few cases with labor or employment implications on the docket, including a couple of arbitration cases (Union Pacific Railroad Co. and Stolt-Nielsen S.A.) and an ERISA dispute (Conkright).  

And just last week, the Court agreed to hear Lewis v. City of Chicago, a disparate impact case involving racial disparities in the results of a written test given to firefighter applicants. (Sound familiar?) This time around, Black applicants are suing the city of Chicago for using the results of a written test -- which they allege had a disparate impact based on race -- to decide whom to hire.

The issue in Lewis is when the plaintiff-applicants should have filed their charges of discrimination with the EEOC (which is a prerequisite to filing a lawsuit; plaintiffs who don't file a charge with the EEOC or a similar state agency may not sue under Title VII). The Seventh Circuit Court of Appeals found that the applicants filed their charges too late and entered judgment for the city. 

Plaintiffs have 300 days after their claim "accrues" to file a charge of discrimination with the EEOC. In Lewis, the plaintiffs learned their test results (which divided applicants into the categories of "well qualified," "qualified," or "not qualified") and were told that they were unlikely to be hired unless they fell into the "well qualified" category. At about the same time, the city announced that it was likely to hire only a third of those who fell into the well qualified category in the next three years. 

The plaintiffs filed their charge more than 300 days after they received their test scores and learned how the city planned to use them, but within 300 days after the city actually started hiring based on those scores. The Seventh Circuit found that the plaintiffs' claims accrued when they learned their test scores, because that event determined whether or not they would be hired. Other Circuits have reached a different conclusion, finding that plaintiffs don't have to file charges within 300 days after a policy is announced, but only within 300 days after that policy is relied upon to make an employment decision. Presumably, the Supreme Court agreed to hear the case in order to clear up the issue.   

October 2, 2009

Stop Honking! Can't You See I'm on the Phone?

That was one of my favorite bumper stickers a few years ago -- and it's even more appropriate today, as more and more employers, states, and now even the federal government are regulating what drivers may do with their cell phones. Just last week, President Obama signed an executive order prohibiting federal employees from texting while driving whenever they are working, whether they are using government-issued phones and cars or not.

State legislators, sometimes in response to well-publicized and horrific crashes, have banned texting in 18 states; it's also banned in the District of Columbia. Although no state currently bans all drivers from using a cell phone, six states require drivers to use hands-free devices if they want to talk on the phone, and almost half of the states ban all cell phone use by new drivers. (You can see state-by-state charts on these issues at the Governors Highway Safety Association website.)

Studies have consistently shown that driving while distracted is very dangerous. An interesting research project by the National Highway Transportation Association and the Virginia Tech Transportation Institute studied the behavior of actual drivers by putting video and sensor equipment in 100 cars for one year. And it was a very eventful year indeed: The drivers put more than two million miles on their cars, had 82 crashes, 761 near-crashes, and more than 8,000 "critical incidents," in which the driver either got to close to something or someone (like a pedestrian or parked car) or had to swerve or brake to avoid a crash. Among other things, the study revealed that:

  • Dialing is dangerous, but . . . Although dialing a cell phone is significantly more dangerous than simply talking or listening on the phone, the number of accidents and near-accidents attributable to each activity were about the same because drivers spend so much more time talking on the phone than dialing it.
  • Bugs in the car cause a lot of trouble. Certain activities that we all know (or might guess) are dangerous, such as reading, putting on makeup, and dialing a cell phone, increase the risk of an accident by a factor of three. Having an insect in the car increases the risk by a factor of seven. And don't try to swat it: Reaching for a moving object in the car increases a driver's risk of having an accident by a factor of nine.
  • Experience counts. Drivers with more years of experience had far fewer crashes and near-crashes than less experienced drivers.
  • Better drivers just seem nicer. Better drivers -- those with fewer crashes and near-crashes -- scored higher on tests that measure extroversion, openness to experience, agreeableness, and conscientiousness.
  • Some people are just really bad drivers. A relatively small number of drivers caused most of the problems. 27 of the drivers in the test were responsible for almost 75% of the crashes and near-crashes. One of them had 15 incidents in one year.

Given the facts on distracted driving, the increasing number of governments that ban texting and hand-held devices, and the potential for liability, many employers now prohibit employees from texting or using cell phones while driving, or require employees to use hands-free equipment. If your company wants to do the same, you can find sample policy language on these issues in my book, Smart Policies for Workplace Technologies.   


October 1, 2009

The Secret Ingredient at Cafe Gratitude

Those of us who live in the Bay Area are familiar with Cafe Gratitude, a small chain of raw food restaurants. These restaurants have a particular atmosphere and culture, one that feels very familiar to me as a local child of the 60s and 70s. I think of it as "control-freak hippie," an apparently easy-going presentation with a very strident center. (As in, "Hey people, I think it would be really cool if we could all DO THIS EXACTLY THE WAY I WANT RIGHT NOW!") 

A game created by the founders, called Abounding River, is available to play at the many shared tables, so diners can explore "Being Abundance" and discover a "Spiritual Foundation that opens up to a whole new way of looking at money and resources" (quotes from the Cafe's website). Everything on the menu is called "I am [positive adjective]", such as "I am worthy," "I am present," or "I am dazzling." And that's what you have to call it when you order: If you try to get away with, "I'd like the pesto pizza," you will be gently encouraged to call it by its true name ("you mean, 'I am sensational'?"). And when your pizza arrives, the server smiles, looks you in the eyes, sets it in front of you, and says, "you are so sensational!" The staff is friendly, the atmosphere is warm, and there are rules.  

As the East Bay Express recently reported, the Cafe's philosophy and culture stem from the Landmark Forum (which grew out of est (Erhardt Seminar Training)), a "transformative learning" program whose graduates sometimes recruit others in ways so insistent that it can feel like proselytizing.

As some Cafe employees have discovered: According to the Express article, all employees are "encouraged" to attend the Landmark Forum, a weekend-long introductory course, and all managers are required to go -- and pay for it. Managers hold daily "clearings," "during which employees answer a series of questions before 're-creating' each other in a process aimed at freeing the workers to be present and alive in the moment for the job" (quote from the Express article). 

Would you like a side of "I am litigious" with that? Because there could be some employment law problems here, as the article also points out. First of all, employers that require employees to attend training sessions have to pay for it -- twice. The employer has to pay the cost of the training, and then has to pay employees for the hours they spend doing it. Then there's the potential religious discrimination problem: Whether or not the Landmark Forum or the owners of Cafe Gratitude would describe their philosophies as "religious," the belief in human potential -- that we create our own reality -- may itself conflict with a religious view that a higher power does the creating. And, if an employer fires or disciplines those who don't share the company's official belief system or complain about feeling pressure to adopt it, an experience one employee described in the Express article, a retaliation claim may not be far behind.