It's Your Business

2010 Mid-Term Victory for the Republicans-Does It Mean a Victory for Business?

melissaroush — Mon, 06 Dec 2010 19:12:08 +0000

The victory confetti that fell on November 2^nd has since been swept up, but now that the confetti dust has settled what does this mean for your business? No matter whether you were happy or upset with the election results, it is important to understand how this could affect your business. Many Republican candidates were carrying the banner of anti-healthcare reform sentiment as the driving force in their campaigns, which political pundits believe led to the Republican’s regaining control of the House. However, with Democrats still holding the Senate and the White House the experts predict gridlock rather than repeal of healthcare reform or in the alternative a push of anti-employer legislation. Status quo may not be a bad thing for business in this volatile marketplace. The problem is Congress is the least of businesses’ worries. Here are some other things to consider:

· Federal agencies will probably ramp up rule-making and enforcement in 2011.

· The Department of Labor will likely push its new regulatory and enforcement strategy Plan, Protect, and Prevent which will require employers to implement self-monitoring plans to identify and remedy law violations.

· Recent push for educating workers through public service announcements and other marketing to encourage the filing of a myriad of claims against employers.

· The EEOC has seen a rise in staff levels since Obama took office to handle increased enforcement and deeper investigation and issued regulations on the American with Disabilities Amendments Act and Genetic Information Non-Discrimination Act.

· Department of Labor partnered with the American Bar Association to assist workers in filing wage and hour claims.

This is just the beginning of another busy year for businesses on the employment law front.

Learn more about the 2010 Mid-Term Victory for the Republicans and Does It Mean a Victory For Business in an upcoming webinar in January.

Melissa Roush is an employment law attorney in Austin, Texas who highly recommends an audit of your employment policies and procedures. The Federal Government is coming and they want more of your money–be proactive! Contact Melissa at (512) 523-8388 or melissa@msroushlaw.com

1099 Soon To Become the Most Despised Number in Business

melissaroush — Mon, 06 Dec 2010 18:22:53 +0000

The Senate on its second attempt failed to repeal the provision of the Healthcare Reform Bill that requires all businesses, charities, and state and local governments to file 1099 forms if the purchase $600 or more in goods from another business after December 31, 2011. While this might help Best Buy and other suppliers make their yearly numbers with an end of year push to make purchases to avoid this impending paperwork nightmare, it does not look like there is any hope that businesses will be able to avoid the burden of compliance with this provision of Healthcare Reform. As a result, businesses need to start now to implement processes and procedures to deal with this new 1099 requirement to ensure that next holiday season Form 1099s won’t be the only holiday paper they will be seeing.

1-800-HELP ME SUE MY EMPLOYER

melissaroush — Mon, 06 Dec 2010 18:19:15 +0000

In 2009, Hilda Solis, the Secretary of Labor made it clear that the Department of Labor was coming after businesses stating, “Make no mistake about it the Department of Labor is back in the enforcement Business.” Vice-President Bien announced last week at the Middle Class Task Force Event at the White House that the Federal Government was going to make it easier for workers to find an attorney when they believe their rights have been violated.

The American Bar Association has partnered with the Department of Labor (DOL) to represent workers in complaints that are received by the Wage and Hour Division, such as minimum wage or overtime claims or wrongful denial of family medical leave. The Wage and Hour Division handles internally 20,000 of these types of complaints each year; however there are thousands more claims that they are unable to review. Starting this month, the DOL will make available a toll free number that will connect individuals they are unable to assist with an American Bar Association approved attorney that will provide legal services on a contingency fee basis. This means that workers will be able to retain attorneys to represent them in their many grievances at no cost. If this new service is effectively administered I anticipate that we will see an increase in Wage and Hour cases.

My firm recently represented a business in which a lawsuit was filed over less than $100 in alleged unpaid overtime! Even if an employer decides to pay the $100, whether or not it is due, it will usually cost much more in attorney’s fees on both sides just to get the case dismissed. As is the case with many clients that the Firm represents recently this was the first time in the history of the business that they had been sued.

The best way to protect your business is to proactively audit your practices. With employment laws, rules and regulations changing rapidly it is imperative that businesses do a yearly review of its practices and procedures. The Federal Government has made it clear with this partnership and many other actions that it is coming after businesses.

GINA Turns One Year Old – Blow out the Candles

melissaroush — Mon, 06 Dec 2010 18:16:53 +0000

Close to its one year anniversary that the Genetic Information Non-Discrimination Act (GINA) took effect the Equal Employment Opportunity Commission issued the Final Rule implementing this legislation. GINA prohibits the use of genetic information in making employment decisions, disclosure of and acquisition of genetic information by employers and retaliation against employees who complain about genetic discrimination.

Many employers probably have ignored this new law, thinking it does not apply to them, “I don’t require my employees to have genetic testing.” Hopefully, at a minimum these employers updated their EEOC posters last year with information for its employees about GINA. However, what many employers don’t realize is they are inundated with genetic information from their employees for example: Secretary Sue tells you she needs to take off work for her aunt’s funeral that passed away due to cancer. Journeyman Joe completes a post-offer employment physical and the doctor asks for his family medical history. Manager Mom requests Family Medical Leave to care for a parent that just had a stroke. All of these are every day examples of an employer obtaining genetic information, some of which is now illegal under GINA and some of which is not.

As a general rule, employers cannot request or obtain genetic information. The most common form of genetic information encountered in the work place is information regarding family members’ health conditions. The EEOC recently provided additional guidance to assist employers in the implementation of GINA. First, attempting to allay the fears of employers pointing out GINA “is concerned primarily with protecting those individuals who may be discriminated against because employer thinks they are at increased risk of acquiring a condition in the future.”

The two key areas employers will likely encounter deal with are post-offer medical evaluations and Family Medical Leave requests.

The EEOC has been very clear that employers must not request or require employees to provide genetic information, including family medical history during a medical evaluation relating to employment. Additionally, employers need to advise the healthcare providers in advance not to request genetic information, including family medical history during a employment medical evaluation.

On the other hand it will not be illegal for employers to obtain family medical history as a part of the certification process under the Family Medical Leave Act when an employee is seeking leave to care for a family member with a serious health condition.

Furthermore, the EEOC confirmed that inadvertent acquisition of genetic information is not illegal. However, employers under certain situations should provide a warning to employees against providing genetic information. The regulations provided the following language for such notices: “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

Then finally, if you do obtain genetic information employers must keep it confidential and it must be kept separate from the employees personnel file. It may be kept in the same file as medical records covered under the ADA.

The key for businesses in complying with GINA is to review all of its practices and procedures to ensure that it is GINA compliant and it administers these many everyday business practices in compliance with the law.

Employees LOL at Boss on Facebook & OMG U Can’t Do Anything!

melissaroush — Thu, 11 Nov 2010 17:07:14 +0000

Making fun of the boss and complaining about work was reserved for the water cooler, now it has spread to Facebook, My Space, Twitter and the like. What may have occurred in the workplace has taken on a whole new meaning, as an employee’s rants about work on the internet are available for the world to see and impacts the marketability, branding and the perception of customers and prospective customers. In other words, it impacts the bottom line $$$. Employers have responded to the advent of social media, probably with attorneys whispering in their ear, with policies and procedures regarding acceptable and unacceptable uses of social media relating to the workplace. Violations of social medical policies and procedures could lead to reprimands, including possible termination. Problem solved-right? WRONG!

The National Labor Relations Board has filed a complaint and set a hearing against the American Medical Response of Connecticut alleging unfair labor practices regarding an employee who alleges she was terminated for criticizing her supervisor on Facebook. According to the Board this constitutes “protected concerted activity” under the National Labor Relations Act. A hearing has been set for January 2011 before an Administrative Law Judge. This ruling will likely have a ripple effect across the country and could lead to claims of unfair labor practices by employees who are reprimanded or terminated as a result of off work activity on Facebook or another social media sites.

With only approximately 12% of the workforce in American unionized, many employers may not be taking notice of this lawsuit, but they should! The National Labor Relations Act prohibits employers from disciplining or otherwise retaliating against non-supervisory, non-management employees who engage in “concerted activity” for the purpose of “mutual aid and protection”. What many employers do not realize is the National Labor Relations Act covers both union and non-union employers. It restricts employers from disciplining non-supervisory or non-management employees for participating in “concerted activity”. That does not necessarily have to be a petition to form a union, it includes activity that is intended to improve working conditions or wages. Improving work conditions may include complaining about a supervisor on Facebook in the near future.

Employers need to revisit their social media policies to ensure they are not too broad, resulting in getting caught in the net of the NLRA and other privacy laws.

Coffee Talk or Stump Speech: Would you like some controversy with your donut?

melissaroush — Fri, 29 Oct 2010 00:16:10 +0000

These mid-term elections are filled with many incendiary issues, such as immigration, gay marriage, and abortion to name a few. These fun topics provoke strong opinions on one side or the other. Unfortunately a seemingly innocent conversation with people you spend most of your day with can easily cross the line to perceived harassment or hostile work environment. Employers are required to protect employees and prohibit hostile work environment or harassment on the basis of race, sex, national origin, religion or gender.

What starts as a simple conversation regarding immigration, could easily be misconstrued as perceived harassment based upon national origin. Even employees that do not engage in any conversation or discussion could allege discrimination.

The key for employers is to adopt a policy and procedure that restricts this type of political speech at work. Once created the policy should be abided by anytime there are violations and address any political storms that are brewing in the work place.

Melissa Roush is an employment law attorney in Austin, Texas who highly recommends an audit of your employment practices. The Federal Government has given its agency’s money to come after companies! Contact Melissa at (512) 523-8388 or melissa@msroushlaw.com

Elephants, Donkeys and the Zoo that Elections Can Create in the Workplace

melissaroush — Fri, 29 Oct 2010 00:14:37 +0000

The battle in Washington D.C. can quickly spread to your workplace during election season. Political pundits opine that this year’s mid-term election has inspired a new wave of political activism not seen in the past, which is great for politics, but might not be so great for the workplace. Your most outspoken employees will probably be the first to evoke the First Amendment to support their ability to express their political view wherever and whenever they desire. However, these First Amendment protections are against government infringement. Employees at a private sector company do not have a constitutional right to free speech. Furthermore, employees can be terminated for expressing their political beliefs as long as their termination does not violate a Federal or State Law. (Some states, California for example has protections for employees based upon their political affiliations). Does that mean that you should start firing employees for expressing political view? It is probably not the best idea. However you should implement clear policies and procedures for employees regarding what they can and cannot say and do to minimize political disruption at work. This not only will give you a policy and procedure to implement if you have an employee that is causing issues in the workplace, but will also give your employees guidelines to follow so they understand the rules of the road. Without rules and guidelines to follow any workplace discussions over politics can easily turn into a war.

Is There a “Two Hour” Holiday on Election Day?

melissaroush — Fri, 29 Oct 2010 00:12:50 +0000

Whether you have employees that are political advocates or just want the “two hour” voting time off from work, employers need to understand their rights and responsibilities relating to allowing employees time to vote. Hopefully, you do not have to deal with this issue and your employees early voted. If that’s not the case what are you required to do?

It is a Class C misdemeanor under Texas Election Law for an employer to refuse to allow an employee to be absent from work on election day for the purpose of attending the polls to vote. So is an employer required to provide the two hours off that your employees are asking for to vote? Not necessarily. An employee must have two consecutive hours during while the polls are open to vote. If they do not have that before or after work hours, then an employer must allow the employee time off to vote. This time should be paid time off for the employee to attend the polls. The law provides that an employee may not be penalized for exercising their right to vote. The term penalty includes a loss or reduction in wages.

Practically what does this mean for an employer? In Texas, the election polls are generally open from 7:00am until 7:00pm. Therefore, if you have an employee that works from 8:30am to 5:30pm, they would not have two consecutive hours. Therefore, an employer needs to give the employee time off work to vote. The easiest way to solve this issue would be to reschedule the employees hours on election day to ensure the employee has two hours to vote, e.g. 8:00am-5:00pm. Letting the zoo out early for 30 minutes on one day is less scary than the tigers coming after your company after the fact.

Is the Time Clock Just the Beginning of Chasing the Rabbit?

melissaroush — Thu, 14 Oct 2010 17:47:12 +0000

On Wednesday October 13, 2010 the Supreme Court wrestled with the meaning of the word “file”. Kevin Kasten filed suit against his employer after being terminated. Mr. Kasten made multiple verbal complaints about the illegal location of the time clocks in his factory. The Fair Labor Standards Act anti-retaliation provisions provide that “an employee who file(s) any complaint is engaged in protected activity.” An employer may not retaliate against any employee for participating in protected activity. So the question is whether an oral compliant constitutes “filing” as required under the Act. The 7th Circuit Court of Appeals held that a complaint must be written to constitute protected activity, therefore his oral complaints do not give rise to a potential retaliation claim.

The Department of Labor disagrees with the conclusion of the 7th Circuit and encourages a broad of interpretation of the anti-retaliation provision. It is the Plaintiff’s position that the term “any complaint”, includes “oral complaints”

Thankfully for business owners, the Supreme Court is not taking the interpretation of the word “file” lightly. Justice Sotomayor wondered about the employee at a cocktail party who sees a supervisor and complains of a wage-and-hour violation. Furthermore, in a previous employment case under Title VII the Supreme Court, with the same 5-4 spilt (Republican v. Democrat appointees) took the term “file” literally. However, the Court also pointed out during oral argument the number of other Federal laws with similar anti-retaliation provisions allow for oral complaints.

This case will likely have ramifications beyond the Fair Labor Standards Act and it should remind employers to take all reports of potential unlawful activity seriously, especially if you are considering taking adverse action against a reporting employee.

Retaliation claims are on the rise under all areas of employment laws. Under a anti-retaliation provision an employee is protected against an adverse employment action, termination, demotion, change in pay, even change in working conditions, could be considered adverse. Even if the underlying claim is unfounded, an employer could be held liable for retaliation.

Does this mean that you are held paralyzed by your employees, especially the squeaky wheel that complains about everything? Not necessarily, but you should definitely look before you leap and take adverse employment action against an employee. (Even though I am a little bias, you should probably consult an attorney!)

Melissa Roush is an employment law attorney in Austin, Texas who highly recommends a review of your employment policies and procedures in this era of increased laws and enforcement. Contact Melissa at (512) 523-8388 or melissa@msroushlaw.com

Health Reform: To Insure or not to Insure

melissaroush — Thu, 14 Oct 2010 00:03:53 +0000

On September 30, 2010 the Principal Financial Group announced that it planned to stop selling health insurance. Supporters and detractors of the health reform may interpret this action in a number of ways. Daniel J. Houston, a senior executive at Principal stated “Now scale really matters. We don’t have a significant concentration in any one market.” Principal’s 840,000 subscribers will be covered by UnitedHealth Group’s insurance plans in the future. “They (UnitedHealthcare) are clearly going to be a long-term player in this market,” Mr. Houston said. Recently there have been other announcements made by insurers such as discontinuing selling child-only policies. State regulators say some insurance companies are already threatening to leave particular markets because of the new law. And some regulators in states like Maine and Iowa have asked the Obama administration to give insurers more time to comply with some of the new rules.

On one side the business decision reflects a change in the competitive landscape prompting reassessment. Others may ask “how can I keep my existing coverage if they go out of business?” The chief consideration for any business relates to how to comply with the law and remain cognizant of financial implications of those decisions. “What you’re seeing is the beginning of some serious math and some posturing,” said Len Nichols, a health economist and policy expert at George Mason University. While some insurers, like Principal, are choosing to leave the business rather than make the necessary investments to stay, others may be simply trying to delay some of the new rules or overturn them, he said.

State insurance commissioners are raising concerns regarding the discontinuation of coverage. For example, in the case of child-only policies, the new rules require insurers to offer coverage to even those children who are seriously ill, leading some insurers to balk at the idea that they will be forced to cover too many sick children. Aetna, Cigna and WellPoint, among others, have said they will stop selling new policies in some states. “It’s just going to drive the little guys out,” said Robert Laszewski, a health policy consultant in Alexandria, Va. Smaller players like Principal in states like Iowa, Missouri and elsewhere will not be able to compete because they do not have the resources and economies of scale of players like UnitedHealth, which is among the nation’s largest health insurers. Mr. Laszewski is worried that the ensuing concentration is likely to lead to higher prices because large players will no longer face the competition from the smaller plans. “It’s just the UnitedHealthcare full employment act,” he said. While this drama unfolds the best thing to do is watch for all the changes and updates to the implementation this reform.