by Katharine Field

On March 21, 2008, the Department of Homeland Security (DHS) issued a supplemental proposed rule related to its controversial “Safe Harbor” regulations issued in August 2007. The August 2007 final rule expanded the legal definition of “constructive knowledge” by creating new legal obligations for employers upon receiving a Social Security Administration (SSA) “no-match” letter. (For a more detailed summary of the August 2007 final rule, please see our prior story, Safe Harbor Regulations Regarding No-Match Letters.) The Safe Harbor regulations were blocked from enforcement on October 10, 2007, by a federal injunction issued by Judge Charles Breyer of the Northern District of California in October 2007.

Click to read more ...

By Yendelela Neely

On March 31, 2008—almost three years to the day of the United State’s Supreme Court’s 2005 ruling in Smith v. City of Jackson—the Equal Employment Opportunity Commission (“EEOC” or the “Agency”) issued a notice of proposed rulemaking announcing the Agency’s intent to amend its age discrimination regulations to reflect the issues addressed by the Court in that decision.  The proposed rules both implement aspects of the decision as well as also go beyond the Smith v. City of Jackson decision to rule on an issue of disagreement among the circuits. 

Click to read more ...

by Chris Richardson

On February 27, the Seventh Circuit handed down a decision that will bring new attention to the lightly litigated, but significant, “association” provision of the Americans With Disabilities Act (ADA). Title I of the ADA not only protects qualified individuals with a disability against employment discrimination, but also protects applicants and employees from discrimination based on their relationship or association with an individual with a disability.

In Dewitt v. Proctor Hosp., Phillis Dewitt, a nurse manager with an excellent employment record, was nevertheless terminated by an Illinois hospital allegedly due to escalating medical costs from her husband’s cancer. When Ms. Dewitt’s husband’s medical claims started showing up in quarterly reports highlighting claims over $25,000, Ms. Dewitt’s supervisor began confronting her about the costs, even suggesting that Ms. Dewitt consider less expensive hospice care for her husband. The Seventh Circuit, partially reversing a lower court decision, held that Ms. Dewitt could pursue a claim for “Association Discrimination” under the Americans with Disabilities Act.

Click to read more ...

Progressive States Network, a formidible organization spearheading a number of employment-related issues at state and local levels, reports that the District of Columbia has approved a measure to require employers to provide paid sick leave on the following scale:

• seven days of paid leave at firms with 100 employees
• five days at firms with 25-99 employees
• three days in firms with 24 or less employees
• a pro-rated amount of sick days off for part-time workers

The organization also reports that the New Jersey State Senate has passed a measure that would:

authorize six weeks of paid family leave during any 12-month period to allow employees to care for an ill family member, newborn or recently adopted child. Employees would receive two-thirds of their regular weekly pay, up to $524 per week. The leave would be funded through contributions made by all employees in the state of 0.14% of earned wages (roughly a quarter per week for minimum wage workers) into the State Disability Fund; the Fund would then distribute the funds to an estimated 38,000 people per year once the system is up and running.

These efforts follow the organization's success in helping pass a paid sick leave ordinance in San Francisco and, of course, compliment the broader efforts to pass the Healthy Families Act on a national level.

See also:  Paid Sick Leave

by Chuck Rice

In what we presume is an effort to accomodate employers and unions who would otherwise decide the issue by the now-uncertain card check procedure, on February 26, 2008, the National Labor Relations Board (NLRB) published a proposed rule that would create a new type of “consent” union certification election under the National Labor Relations Act (NLRA). 

Click to read more ...

Compensation consultant Ann Bares, Managing Partner of Altura Consulting Group, writes an outstanding blog on compensation and benefits issues. Among other things, she does a great job of tracking trends. Here are some of her recent observations:

Click to read more ...

Today’s British Psychological Society’s Research Digest blog notes an interesting new study finding that “ [a]spects of the environment that indicate danger - from flashing lights to a mere exclamation mark - lead us to make faster and more extreme judgements about fairness.” The researchers opine: “when we sense a threat, and what they call the 'human alarm system' is activated, we tend to form faster and more extreme reactions, with justice-related decisions being no exception.”

Perhaps other symbols can influence judgments as well. Maybe when immigrants see a U.S. flag, they quickly form strong opinions that the environment is safe and fair. That is apparently what the NLRB’s General Counsel had in mind when he made his much-maligned announcement that the U.S. flag would be displayed at all NLRB elections.

Click to read more ...

A reader calls our attention to a proposed bill that would have a dramatic impact on the worplace.  We will add it to our watch list.

The "Working Families Flexibility Act" (S. 2419 / H.R. 4301), if enacted, would provide employees with an annual right to apply to his or her employer for a modification of the employee's work hours, schedule, or work location. The Act would require an employer to meet with an employee to discuss the requested modification within fourteen days. Thereafter, within fourteen days of the meeting, the employer would be required to provide the employee with a written decision regarding the requested modification. If the modification is denied, the employer would be required to state the grounds for the denial and may propose an alternative modification.

If the employee is dissatisfied with the employer’s decision, the bill would permit the employee to request reconsideration and, the bill would require: “ the employer and the employee shall hold a meeting to discuss the request for reconsideration.”

Click to read more ...

Our friend Seth Borden has a nice article about Senator Barack Obama’s relationship with organized labor. Seth points to an article in the Investors’ Business Daily, in which the Senator makes his relationship pretty clear:

"So I owe those unions. When their leaders call, I do my best to call them back right away," he wrote, adding, "I don't consider this corrupting in any way. . . . I got into politics to fight for these folks, and I'm glad a union is around to remind me of their struggles."

Dan Schwartz, now of Pullman & Comley, reports that a hearing was held this week on Senate Bill 60, which would give victims of workplace bullying the right to bring suit against the perpetrator or an employer who “has knowledge that any person has subjected an employee of such employer to an abusive work environment and has failed to exercise reasonable care to prevent and promptly correct the abusive conduct.” The bill defines “abusive conduct” as:

conduct or a single act of an employer or employee in the workplace that is performed with malice and is unrelated to an employer's legitimate business that a reasonable person would find hostile or offensive considering the severity, nature and frequency of the conduct or the severity and egregiousness of the single act. Abusive conduct includes, but is not limited to, (A) repeated infliction of verbal abuse such as the use of derogatory remarks, insults and epithets; (B) verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; or (C) sabotaging or undermining a person's work performance.

Mr. Schwartz  also links to some recent articles discussing workplace bullying legislation. He can be counted on to keep us posted on developments in Connecticut.

Additional Reading:

• States Consider Legislation to Cut Office Bullies Down to Size