Top Trends in Human Resources and What You Should Do About it NOW….

In May 2013, the Society for Human Resource Management (SHRM) released an eighty page Workplace Forecast identifying the top HR trends between 2003 and 2013.  Topping the chart, again for the eleventh year in a row, was the high cost of health care coverage.  The other nine contenders for first place are nothing to laugh about.   If you have had your head in the sand, maybe 2014 is the year that will make or break your business.   (Or maybe you’ll retire yourself!) The information age has allowed businesses to share stories of their successes and failures and has created valuable resources for workplace improvements and creative approaches to human resources concerns in business.   If you can’t come up with a novel idea on your own, steal someone else’s!

 Every day I am confronted with business operators who struggle with problems either created by or enhanced by government legislation.   From CEOs who are trying to avoid unionization to Administrators who experience high labor costs due to skilled worker shortages and even CFOs experiencing higher costs and reduced revenues due to government budget cuts.  Can’t a corporation catch a break once in a while?  I guess not in this day and age.  

 SHRM identifies four HR related trends that I would have never even put on the list but can understand why they are there.  All are related to the current state of government whose focus is on expanding employee rights and auditing businesses to bring in income -  to make a bigger government.    Particularly in the business of healthcare.   But that is a focus for another day since this is an “employment law blog”.   So let’s look at those HR trends identified that are causing HR managers to scratch their heads.  And let’s look at some businesses that have taken creative steps to avoid catastrophe.

 

                Three of the top ten trends involve the lack of a skilled workforce.   Either caused by Baby Boomers retiring, lack of new graduates in a specified field or increased global competition for jobs.  A Baby Boomer is  a person who was born during the demographic Post World War II baby boom (thank you Wikipedia!).  Those years were 1946 through 1964. Basically the youngest baby boomers are turning 50 this year and the oldest have been on Medicare for three years now.  Every day 8,000 baby boomers turn 65 years of age.   Only 33% of businesses have analyzed the effect that retirement of baby boomers will have on their business.   The rest of you will be scrambling.  

                Some of the best advice I found in researching this phenomena came from technology professional organizations.  I assume because if they lose their best people, they might as well shut their doors.   But there are lessons that other industries can learn from them. 

1.            Use Succession Planning to insure that as your older, more experienced staff begin to move out, you maintain the same level of knowledge in your organization.   Have your younger staff shadow your older staff to learn what they know.  Developing proper training programs will result in transferring knowledge and information from the retiree to his/her successor.  Waiting until the last few months of a retirees employment to educate the younger staff is a futile effort.    Plan ahead.

 2.            Offer a Mentoring Program where new staff can be coached by more experienced staff making the new staff more valuable, more knowledgeable of your culture and a resource who can replace a retiree.  Hands on work related experience on the job insures a trade off of knowledge which cannot be replaced by checklists and files.

3.            Implement a formal education program for new graduates.   Investing in up-front education insures staff is knowledgeable and trained in the idiosyncrasies of your specific business.  Lower your experience requirements just a tad and provide OJT. 

4.            Invest in educational programs and tuition assistance for work related degrees.   Insure that when a higher level position becomes available due to a retirement, you have a qualified candidate in the pipeline. 

5.            Consider untraditional work arrangements for baby boomers.   Offering baby boomers part time work, telecommuting, or work on an “as needed” basis can supplement the retirement income of boomers while allowing your company to benefit from their skills and knowledge. Being flexible and open minded can be beneficial to both parties.   Let’s face it, baby boomers aren’t retiring gracefully anymore, they are vacationing in Rome, rock climbing in Brazil and skiing in the Alps.   

As nearly 30% of the workforce prepares to depart, Human Resources will need to assess demographics within their organization and plan for future needs proactively.   Don’t wait until it’s too late. 

 

               

 

 

 

 

New Department of Labor Definition of Spouse Means Changes Under FMLA

I like when I get the opportunity to refresh everyone’s memory on regulatory issues while reporting a change in policy.  So in order for you to get to the “good stuff” you have to tolerate my FMLA lesson of the day.   Remember that FMLA can be invoked for a number of reasons:  

 

 A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or more of the following reasons:

·         for the birth of a son or daughter, and to bond with the newborn child;

·         for the placement with the employee of a child for adoption or foster care, and to bond with that child;

·         to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;

·         to take medical leave when the employee is unable to work because of a serious health condition; or

·         for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

Refer back to the third bullet point above.    You may have heard the recent news.  In a June decision, the U.S. Supreme Court struck down a provision of the federal Defense of Marriage Act that defined marriage as between a man and a woman for purposes of federal law. United States v. Windsor, 133 S.Ct. 2675 (2013)  Whether or not this affects your company depends largely but not completed on what state you are located in and under what state laws you are operating.   There are various designations between the states when it comes to same-sex marriage.  Some allow marriage, some allow unions permitting privileges same as marriage, while some outright ban same-sex marriage.   Massachusetts was the first state to legalize same-sex marriage in 2004.  Among those who consider it legal:  Delaware, Maryland and the District of Columbia.  But even if you are operating in a state where same-sex marriage is banned you may still be effected.  

It has recently been reported that the Department of Labor has released an internal memorandum guiding employees on the effects of this decision.  That I cannot verify.  However, I do know that the DOL recently changed it’s definition of spouse.  It now reads:

Spouse: Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.

Because of this, there are  plenty of changes going on as I write.  This expanded definition calls for revisions to federal entitlements of many people.   In order to ascertain the ramifications of this on your organization consider for a moment the impact of this decision on governmental agencies whose benefit decisions are based on marital status, more often than not.   The Windsor case itself was based upon the IRS’ assessment of estate tax for a surviving spouse who was part of a couple residing in a state where same-sex marriage was legal.  For an example, leaving your estate to your spouse in PA results in inheritance tax of 0% versus leaving it to an unrelated party which results in a tax of 15%.   The impact on government sponsored benefits will be astounding. 

But since I have no crystal ball, let’s get back to FMLA.  Until more direction is provided by the DOL, employers should be cautious not to deny FMLA leave to a same-sex couple where their state of residence is a state where same-sex marriage is legal.     Review any forms or policies you have put in place to make sure they allow for this expanded definition of spouse and pay attention to any supplemental guidance offered by the DOL in the months to come.   

 

U.S. COURT OF APPEALS FOR THIRD CIRCUIT, IN CASE ARGUED BY LOUIS J. CAPOZZI, JR., VACATES NLRB DECISIONS AND REFUSES TO ENFORCE ORDERS BECAUSE BOARD LACKED SUFFICIENT MEMBERS WHO WERE PROPERLY APPOINTED BY THE PRESIDENT

BRUCE J. BARON, ESQ.

 

On May 16, 2013, a three-judge panel of the Court issued a 2-1 panel decision on a NLRB petition to enforce its decisions in an Unfair Labor Practice proceeding that grew out of a dispute about whether Charge Nurses at a New Jersey Nursing Home were Supervisors that could not be unionized: NLRB v. New Vista Nursing and Rehabilitation, LLC.  New Vista, represented by Louis J. Capozzi, Jr., Esq., filed its own action before the Court to have the Board’s decisions vacated and enforcement denied, in part because, when the decisions were issued the Board did not have sufficient members who were properly appointed by the President to sustain its jurisdiction and authority to issue such decisions.  The National Labor Relations Act (NLRA) requires that there be three (3) properly appointed members of the Board involved in order for the Board to take any action on case.  The Court determined that, when the Board issued the first decision in the ULP proceeding in August 2011and one of its decisions reconsidering the August 2011 one, it lacked the required three because one of those voting, Member Becker, had been appointed by President Obama as a Recess Appointment when the Senate was not “in recess” and therefore that his appointment was unconstitutional and void. 

 

The Court also vacated two later Board reconsideration decisions; and, while the Court did not expressly reach the question of whether the President’s similar Recess Appointments of three (3) members of the NLRB involved in those reconsideration decisions (including two current members) were likewise unconstitutional, the Court vacated those member’ decisions on that basis.  The U.S. Court of Appeals for the D.C. Circuit expressly held that those three members’ Recess Appointments were unconstitutional in a decision on January 25, 2013. 

 

The Federal Government, on April 25, 2013, requested the U.S. Supreme Court to agree to hear and overturn the D.C. Circuit decision.  The Federal Government is likely to take the New Vista decision to the Supreme Court as well.  It is widely believed that the Supreme Court will agree to hear the cases because both are in disagreement with older decisions by three other U.S. Courts of Appeal : the 2^nd , the 9^th and the 11^th Circuit (en banc); and, the issue involves conflicting views about the constitutional authority of the President and the U.S. Senate in official appointments.

 

The Third Circuit’s decision in New Vista addresses the arguments that the Federal Government made in response to the D.C. Circuit’s January 25, 2013 decision on the President’s Recess Appointment Power under Article II, Section 2, Clause 3 of the U.S. Constitution.  The majority decision is 98 pages long, with extensive analysis of historical sources.  The dissenting opinion is 55 pages long.

 

The Third Circuit decision results in our client Nursing Facility’s Charge Nurses continuing to be excluded from the Union bargaining unit.  Our Firm has successfully obtained confirmation of Charge Nursing Supervisor Status under the NLRA on the merits in prior cases before the NLRB. 

 

Many other NLRB enforcement actions are currently stalled in the U.S. Courts of Appeal while the jurisdiction and authority of the Board’s current two (2) Recess Appointment Members is being contested.  The President has submitted nominations for five (5) Members (including three of the current Members) to the U.S. Senate for confirmation; and, hearings on those nominations began on May 16, 2013.  The Board’s ability to enforce the NLRA will continue to be limited by the Recess Appointment litigation until either the Supreme Court resolves the Recess Appointment issue or a sufficient number of Members is confirmed by the Senate instead of being Recess Appointed.

 

 

Verification of Employment Eligibility turns profit for U.S. Immigration

Don’t miss this deadline.    May 7, 2013 marks that last date on which Employers may use the one page I-9 form OMB 1615-0047 bearing the expiration date of 8/31/12.    A new form has now been released and although it bears an effective date of May 8, 2013, Employers are being advised to utilize the form immediately and toss aside any and all non-compliant forms.  The new form has been expanded to two pages and provides six pages of instructions.   There do not appear to be many changes to the form.    Space for email address and phone number have been added and the guidance provided for aliens authorized to work is much more user friendly, identifying exact documents and required information.   The Employer now completes page 2 which is virtually the same information with additional space for input.

                The new form release follows the efforts of the U.S. Immigration and Customs Enforcement office (ICE) to crack down on non-compliant Employers.   Reports indicate that during 2012, the ICE audited over 3,000 businesses, 12 times more than the number audited in 2007.  These audits have resulted in more than $13 million in fines.  Texas and New Jersey were among the states most audited.  Fines vary based on severity or type of violation.    For hiring or continuing to employ a person knowing that the person is not authorized to work in the United States, fines range from $375 per occurrence for first offense to $16,000 for third offenses.  Failure to comply with the requirements of the I-9 form carries its own penalty of $110 to $1,100 for each inaccurate form.

                Strict rules govern documents which are acceptable in order to prove employment authorization.   List A, List B and List C have not changed but recall that in order to prove employability a potential worker must present either one item from List A OR an item from both List B and C.   This means that a US Passport trumps all.   No other documents are necessary.  However, a driver’s license does not have the same power.     A driver’s license must be accompanied by another document, one from List C, which may be a social security card or a birth certificate. 

                As a reminder, you should make sure that all new hires complete a form I-9, only ask an applicant to complete the form after you make an employment offer, maintain forms for three years after the date of hire or one year after the termination, whichever is later, make certain to follow up on expiring documents, maintain I-9’s in a file other than the employee personnel file, and strictly abide by the required documents list provided by the ICE.  Yes, I said follow up on expired documents.  You can be fined for continuing to hire a person who is ineligible for employment.  

                Don’t wait for the ICE to knock at your door.  Take compliance with this directive seriously.  Implement a self-audit protocol and make adjustments to your process based upon your findings.   Incorporate this protocol into the overall compliance program of the facility.   Then you will be ready when the ICE serves you a Notice of Intent to audit (NOI).

NLRB Releases Guidance on Social Media Policies

The introduction of Social Media as a form of communication used by employees to complain about  their jobs has caused organizations world-wide to re-think their internal policies and procedures with regard to the use of and access to sites such as Twitter, YouTube and FaceBook.   Restricting the use of business equipment to “for business only” purposes covers the mainstream of accessing these sites during the work day.  However, employees are more frequently equipped with personal computers, iPads, Smartphones and Kindles.    So how can you insure that your employees aren’t jeopardizing confidential information of your company in their day to day communications?   Easier said than done.   The NLRB released some guidance on May 30^th of this year but even reading their specific analysis of employer policies doesn’t guarantee that your policy is lawful with regard to violations of the National Labor Relations Act (NLRA).    Don’t stop reading here if you are currently a non-union facility.    Protected concerted activity sometimes includes employee conduct that has nothing to do with unions directly, as when employees act together to complain about their work places and their jobs. 

                The most recent release by the Acting General Counsel at the NLRB analyzes six cases where employers have implemented policies and procedures that are unlawful in some way.   The report, titled “Rules on Using Social Media Technology and on Communicating Confidential Information” is available on the NLRB website at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies.   So if you are looking for direction on making your policy compliant, it is a good place to start.   This article touches briefly on the most common mistakes employers make in drafting their Social Media Policies.

Avoid Ambiguous restrictions.  Rules that are ambiguous as to their application and contain no limiting language or context that would clarify to employees that the rule does not restrict their protected rights to engage in concerted activity, are unlawful.  The NLRB advises that examples of clearly illegal or unprotected conduct be included in any such policy so that it is clear to the employee that on-line communications regarding protected activities are not prohibited.  In one case the NLRB found that an employer’s policy stating “offensive, demeaning, abusive or inappropriate remarks are out of place on-line” proscribed a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees making it unlawful.

Avoid overbroad definitions of permissible contents of communications.  The easiest way to explain this topic is by providing you examples of language that was all found by the NLRB to be unlawful in that it specifically encompassed topics related to protected activity.   The following are unlawful excerpts from various employment policies:

“Employees must not reveal…personal information about another employee, such as performance, compensation or status in the company”

“Don’t pick fights and avoid topics that might be considered objectionable…remember to communicate in a friendly tone” – this rule was found to caution employees against becoming part of a heated or controversial discussion which is often the tone of conversations regarding working conditions.

“Employees are prohibited from posting information regarding Employer on any social networking site including but not limited to company performance, contracts, customers…” – this statement was found to prohibit discussion about Collective Bargaining Agreements and was therefore unlawful.

  
Avoid broad restriction on the location of communications.  Where an employer prohibited employees from sharing confidential information with coworkers in the break-room, at home or in open areas and public places, the NLRB found the rule prohibited employees from discussing terms and conditions of employment virtually everywhere such discussions are most likely to occur.

Do not require completeness and accuracy of communications.  Where the employers policy stated “If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public information” the NLRB found the use of the language “completely accurate and not misleading and that they do not reveal non-public information” to be overbroad.  It would be reasonably interpreted by employees to apply to discussions about, or criticisms of the Employer’s labor policies and its treatment of employees.   That activity would be protected by the NLRA so long as the statements are not maliciously false- they may be inaccurate or misleading.   Moreover the NLRB advises that this policy does not provide any guidance as to the meaning of these terms by specific example or in any way limit the term to exclude protected activity so it is also unlawful as being overly broad. 

Do not require employees to report inappropriate communications.   Where employers implemented policies requiring employees to report “unsolicited or inappropriate electronic communications” the NLRB found that the requirement was overly broad and that employees would reasonably interpret this to restrain the exercise of their protected rights to communicate with fellow employees and third parties (such as a union) regarding terms and conditions of employment.   Another employer’s policy requiring the reporting of “unusual or inappropriate internal social media activity” was found to be broad enough to encourage reporting of union activities and therefore unlawful.  Provisions that threaten employees with discharge or criminal prosecution for failing to report unauthorized access to or misuse of confidential information were found unlawful as the provisions could be construed as requiring employees to report a breach of the confidentiality rules, which had previously been found to be unlawful. 

Do not require employees to obtain prior authorization before posting.  One employer implemented a policy that “when in doubt about whether the information you are considering sharing falls into one of the prohibited categories, DO NOT POST.   Check with the employer’s legal counsel to see if it’s a good idea” was found unlawful.  The NLRB has long held that any rules that require employees to secure permission from an employer as a precondition to engaging in protected activity violates the NLRA.

Do prohibit violations of trademarks and copyrights.  An employer’s policy prohibiting employees from posting photos, music, videos, quotes and personal information was found unlawful where obtaining the owner’s permission was required.  Although the employer has a proprietary interest in its trademarks and logos, the NLRB found that an employee’s non-commercial use of the employer’s logo while engaging in protected activities would not infringe on that interest.  The NLRB allows employees to post pictures of concerted activity which may include photographs of picket signs containing the employer’s logo.   To the extent the employer advised employees to comply with trademark and copyright law, the policy was found to be lawful.

Do not make a general disclaimer to offset otherwise unlawful restrictions.  The NLRB found that the employer’s use of a general disclaimer did not cure the otherwise unlawful provisions of the Employer’s social media policy because employees would not understand from the disclaimer that protected activities are in fact permitted.  The employer’s policy stated “This policy will not be construed or applied in a manner that improperly interferes with employee’s rights under the National Relations Act.”   Another employer’s disclaimer stating:  “ this policy will not be interpreted or applied in a way to interfere with the rights of employees to engage in concerted activity” was found to be in a language that would not be understood by a layperson and therefore unlawful.

Do require employee disclosures.  The employer’s requirement that employees “expressly state that their postings are their own and do not represent the employers positions, strategies or opinions” is not unlawful.  An employer has a legitimate need for a disclaimer such as this to promote its product or service, and this requirement would not unduly burden employees in the exercise of their protected rights to discuss working conditions.

Be alert to these provisions when drafting your internal policies on Social networking but also consider the language included elsewhere in your employee policies and handbooks that relates to confidentiality of information, interaction with the media, solicitation and release of company information.    Polices such as these often contain language related to the communication of information in a manner other than through on line communications but which are also subject to the National Labor Relations Act and the rulings of the NLRB.  

EEOC Enforcement Guidance – Arrest and Conviction Records in Employment Decisions

April 25, 2012 marks the date of issuance of the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.   A Question and Answer document was also released. The EEOC met publicly in July 2011 to discuss revision of the existing Guidance.  Testimony was submitted in two public meetings and hundreds of written comments were submitted by diverse groups.   The Guidance builds on longstanding guidance documents that were issued by the EEOC over 20 years ago. Documents will soon be available at www.eeoc.gov.  Materials from the public meeting, including transcripts and testimony can be found at http://eeoc.gov/eeoc/meetings/index.cfm.

             

   The Guidance updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.  Some of the topics included in the Guidance are:

1.  How and employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII
2.  Federal Court decisions analyzing Title VII as applied to criminal record exclusions,
3.  The differences between the treatment of arrest records and conviction records,
4.  The applicability of disparate treatment and disparate impact analysis under Title VII,
5.  Compliance with the other federal laws and or regulations that restrict and /or prohibit the employment of individuals with certain criminal records, and
6.  Best practices for employers.

 

                Title VII prohibits employment discrimination based on race, color, religion, sex or national origin.  A violation may occur when an employer treats criminal history information differently for different applicants, based on race or national origin (known as disparate treatment liability).  An employer’s neutral policy may disproportionately impact some individuals protected under Title VII and may violate the law if not job related and consistent with business necessity (known as disparate impact liability).

Special attention should be paid to relevant sections of this Guidance which address common personnel policies within long term care and/or other healthcare facilities.  Such as the information below related to the Use of Criminal History Information:

                The Guidance found that one survey showed a total of 92% of responding employers subject their employees to criminal background checks in order to combat theft and fraud, as well as heighten concerns about work place violence.    Health care facilities utilize this function to prevent patient/resident abuse incidents in addition to those reasons mentioned above.  Of particular interest to health care facilities should be the Guidance provided under §VII.  (Page 24 of the Guidance) This section addresses Positions Subject to State and Local Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct.
 

As an example,  Pa Code §15.141 under the Older Adult Protective Services Act  states that  facilities shall require applicants for employment to submit applications with a criminal history report, obtained within 1 year immediately preceding the date of application, and that a facility may not hire an applicant nor retain any employee required to submit a criminal history report if the criminal history report reveals a conviction under one or more of the provisions of 18 Pa.C.S. (Relating to the Crimes Code) The Guidance points out that States and local jurisdictions may have laws and / or regulations that restrict or prohibit the employment of individuals with records of certain conduct.   Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

               
             We recommend that you review your current policies related to the use of arrest and conviction records in employment decisions in light of this new Guidance and compare your organization to the examples and best practices contained within to insure that your facility is not unnecessarily exposed to Title VII claims and litigation.

United States Court of Appeals for the Third Circuit Rules in Favor of Nursing Home on Judicial Estoppel Argument in FMLA case

In an opinion filed March 29, 2012 the Third Circuit found that judicial estoppel was invoked where the Plaintiff indicated to the disability carrier that he was unable to perform the essential functions of his job in an effort to collect benefits while at the same time arguing to the employer and subsequently to the Court that he was fit to return from FMLA leave.   The Plaintiff filed for disability insurance while on FMLA leave, attempted to return from FMLA leave “with restrictions” but continued to collect disability benefits for two months following the expiration of his leave.   He subsequently claimed that he was denied reinstatement to the same or a comparable position when he showed up still not able to perform his job.

When the Plaintiff failed to return to work after the expiration of his leave, the Nursing Facility terminated him in accordance with their internal policies.   The Plaintiff showed up at work with a note indicating that he could not return to his job in a full time capacity until two months later.  When the employer indicated that he would not be reinstated, he contacted his physician for a release.   A new note was submitted indicating that he was able to return to his job “with restrictions”.     Based upon the type of position that the Plaintiff held, Maintenance Director, it was decided that he could not return to his position with restrictions as his responsibilities included lifting, pushing and pulling.  He was terminated that day.

The court used past precedent to require that the two conflicting positions of the Plaintiff be reconciled. The Plaintiff may not simply disavow a prior claim of total disability, perform an about face and assert that he is qualified.  He is required to proceed from a premise that his previous assertion of an inability to work was true.  

The Plaintiff argued that it was the Nursing Home that informed him that he was unable to do his job or return to work, yet the evidence showed that a statement was submitted by his physicians monthly on his behalf to the insurance carrier indicating that during the months after his FMLA, he was in fact not able to perform the material duties of his regular occupation. 

The Nursing Home was successful in defending itself against this claim under the Family Medical Leave Act.   Prepare your facility to defend itself against FMLA claims by implementing the necessary policies and procedures in accordance with the regulation, documenting all employee communications, tracking FMLA leave, following up with employees on leave and informing them of the consequences of not returning from leave.