Posted by marykeating on September 30, 2009 under Unemployment compensation | 
Today is “c-day” for unemployment rates. That is, the State is required to, and will, calculate the rates that employers must pay on their payroll, so that the unemployment coffers don’t dry up. This recalculation was predictable, of course, but with employers not quite ready to take the leap of faith to rehire people, it is difficult to swallow another tax increase. The tax rate may triple even for employers with good claims, according to the Baltimore Sun.
For the unemployed, though, keeping the safety net going is critical. It is helpful for the rest of us, too, since the rise in foreclosure rates helps no one. The maximum weekly benefit, for those who previously earned at the top of the salary scale, will rise to $410 next week.
Posted by marykeating on September 29, 2009 under Uncategorized, Workplace privacy |
As I mentioned before, an employee can’t be certain that use of the employer’s computers will remain private. Employers are worried about the loss of trade secrets, such as customer lists and pending contracts. They also are concerned by the amount of nonproductive time that people spend on the computer. A new study just reported that one-third of the large employers surveyed have personnel dedicated to reading outgoing email. A higher proportion report monitoring outbound email. Employers also monitor social websites, and look for evidence of their employees leaking sensitive information, or badmouthing them.
Email is seductively easy, and that delete key seems permanent. Yet deleted files are not too hard for an expert to recover, and outgoing emails can be intercepted and copied if the employer’s computer is set up that way. Personal messages should be sent from home, or from a personal hand-held device.
Even if the employer does not actively monitor outgoing email, employees need to separate their private and job lives. This is more difficult when the employee’s main computer is a company-provided laptop. But I’ve seen many instances when an employee is suddenly terminated, and cannot get access to saved emails, personal financial information, list of favorite websites, and other personal letters or writings. The employer now has access to all of that, and may well decide to take a look. I’ve also seen employees fired for personal use of the employer’s computer systems, especially if the personal use includes dirty jokes, pornography, racist jokes, and similar content that makes the employer nervous, for good reason.
Protect yourself – keep your private life private, and review that company policy manual on computer usage.
Posted by marykeating on September 28, 2009 under Unemployment compensation |
The New York Times hit another graphic home run with the simple and dramatic illustration of the competition for jobs during this recession. On average, according to its analysis of Bureau of Labor Statistics, there are six unemployed people for each job opening. Even government openings are down, despite certain areas in which the government is hiring.
Since not all jobs are alike, there are regional differences in these statistics. In addition, a major source of pain shows up in the drop in open manufacturing services positions. Many of these jobs do not require specialized certificates or education, and so career-switchers can think about manufacturing openings (as opposed to an open registered nurse position, for example). But competition remains fierce.
This state of affairs makes the unemployment insurance extension all the more necessary.
Posted by marykeating on September 25, 2009 under disability discrimination |
Maybe we are all fatigued. Not from the swine flu, I hope, but from the endless overplayed news stories. It’s only September, though, and smart people are genuinely worried that this illness could infect a large swath of the population. (I’m somewhat comforted by one story that theorized that people who lived in the 1950s were probably exposed then to this very strain, and will be fine. Good, my kids will need me when they’re sick.) Other than taking precautions like stocking antibacterial supplies, what can employers do? The EEOC has just published a helpful list of ADA-Compliant suggestions, together with problem areas to avoid.
- Telecommuting. Some employers may want to expand or revisit the telecommuting option. Allowing more people to telecommute can slow the spread of the virus, as well as permit workers who need to stay near sick relatives to get some work done. Employers need to guard against imposing or denying telecommuting in a discriminatory way however. In addition, telecommuting may qualify as a reasonable accommodation under the Americans with Disabilities Act.
- Sanitary practices. Employers may also impose requirements, such as handwashing, use of masks, use of special tissue disposal containers, to impede the spread of contagious diseases. If any requirement would implicate a disability, however, the employer needs to take reasonable steps to accommodate the employee.
- Medical Tests and Questions. This area is frequently a touchy one for employers. They know generally that there are rules against asking about disabilities, rather than an employee’s ability to perform the essential functions of the job. But does that include the flu? Even in a pandemic? The EEOC guidance is interesting here, reminding employers that they can ask how an employee would be affected if schools were closed (contrasted with asking if they or family members are sick). And an employer may test a new hire, after the offer is made, if all new hires in the same situation are tested.
- Disabled Employees Vulnerable to Swine Flu. The swine flu is a temporary condition, and therefore not the sort of ailment that the ADA is designed to protect. It must be remembered, though, that certain chronic conditions may exacerbate the danger posed by swine flu, such as respiratory conditions, asthma and the like. The employer needs to be sensitive to a disabled employee needing an accommodation because his (or a family member’s) disabling condition makes the swine flu more serious.
- Family and Medical Leave Rights. The Fourth Circuit has already held that the flu is a serious illness subject to FMLA protections. For an employee with more than a year’s service with an employer of 50 or more employees, taking time to care for oneself or a family member with swine flue is protected activity under the FMLA, if all other requirements are met.
Posted by marykeating on September 17, 2009 under Federal wage and hour law |
The Fair Labor Standards Act requires overtime pay for non-exempt employees who work more than forty hours in a week. A nonprofit organization in Florida is being sued for refusing to pay overtime to a worker who regularly logged more than 70 hours per week, as an “assistant manager” of a Ronald McDonald House. The article is intriguing because the lawyers are unusually candid. The plaintiff’s lawyer worries that some may criticize his client for suing a nonprofit with such a noble mission, while a management side lawyer admits that nonprofit organizations are more likely than for profit companies to violate these laws, saying that “nonprofits tend to treat most workers as exempt from overtime regulations.” The management side lawyer quoted in the article, Michael Casey III, of Becker, Epstein & Green, is not this defendant’s lawyer – the suit was just filed on September 10.
Although religious organizations have some special exemptions, nonprofits as a group are held to the same standards as other employers. Given that they often work with volunteers, too, these organizations may tend to treat their employees as freely available for off the clock work. Nonprofits need to mark a bright line between their paid workers, who should be able to choose how to spend their free time, and volunteers. The good news is that local nonprofits have reported that donations have not taken a nose-dive with this economy. Instead, it appears that people who still have jobs are even more sympathetic than ever to the plight of the less fortunate. The bad news is that costs for all employers continue to rise, affecting nonprofits and for-profits alike.
To avoid costly lawsuits, charitable organizations need to treat their employees fairly and try to fill in the funding gaps with increased fundraising, or volunteer help. Under the Fair Labor Standards Act, an employee is usually entitled to recover double the unpaid wages, as well as attorney’s fees, for wage and hour violations.
Posted by marykeating on September 14, 2009 under Sex-based discrimination |
Last year the EEOC sued the Baltimore supermarket chain, Mars Super Markets, Inc., in the United States District Court in Baltimore, alleging sex discrimination. It accused the supermarket of refusing to permit women employees from becoming meat cutters in its deli departments. After a clerk in the Dundalk store was refused the job, the EEOC investigated and discovered a pattern, and filed suit in federal district court.
Mars agreed to settle the case earlier this month. In addition to paying a settlement of $275,000 to several women who were illegally denied these jobs, Mars agreed to train its supervisors in avoiding discrimination, to offer meat cutter jobs to women who had previously been denied them, to develop meat cutter job descriptions, to keep better records, and to post notices about the employees’ rights.
This case is a little unusual in its pattern of discrimination. It seems that most employers have caught on to the laws against gender discrimination, and the complaints of discrimination are often based on subtle indications of bias. In this case, though, the supermarket is accused of applying a blanket prohibition against women becoming meat cutters. Why – because men are thought to have superior physical strength? Or some notion that it’s a masculine job? In any event, Mars is taking detailed steps to prevent the same prejudices from barring women from performing this job.
Posted by marykeating on September 13, 2009 under Government contractors |
The United States Chamber of Commerce tried and failed to convince the United States District Court for the District of Maryland to issue an injunction against the implementation of the e-verify system. The Fourth Circuit just refused to overturn the decision. That means that most government contractors will now include in their contracts clauses requiring that new and existing employees pass the e-verify test. The idea is to confirm citizenship or legal working status before the employee can be paid under the government contract.
So, why did the Chamber of Commerce object to this? One complaint, of course, is the cost of doing the verification in time and training. Employers need to keep the same paper records as before, but now have to supplement with the e-verify checking. At first, all government contracts of $3,000 or more would be required to comply. Now the threshold is $100,000 for prime contracts, but subcontractors of $3,000 or more must agree to confirm the legal status of their employees. Secondly, the Chamber challenged the “requirement” of using the e-verify system itself. The Court held that because the regulation applies only to government contractors, it remains voluntary. The companies can choose not to do business with the government, and in that way can avoid the e-verify system. Third, the e-verify system tosses up a fair amount of false problems. Perfectly legal employees are flagged by the system, causing more time and effort to fix. Think the first couple of years after 9/11 at airports, when lots of people were stopped for reasons the airports were not allowed to reveal.
Since the regulation is now in effect, here is what it requires. A contractor has to enroll in the e-verify program within 30 days of the contract award, and then check everyone who will work on the contract within 90 days after that. Contractors already in the program must run the check within 30 days. Employers have to check new hires within three days of their hire.
Given the Court’s analysis, the fear that the e-verify system will spread to the entire universe of United States workers is premature. The use of the system will require congressional action, not just a presidential executive order.
Posted by marykeating on September 7, 2009 under Unemployment compensation |
The headlines continue to report, cautiously, that we are out of the recession. But the effects of the recession are still with us. And the recovery has not extended to job creation, at least not yet.
Today’s New York Times explains that unemployment data can be misleading since the percentage of the unemployed counts only those who are actively searching for work. The article focuses on four people, typical of many, who lost their jobs and after numerous fruitless searches for new work, have essentially given up. They may stay home with the kids, go back to school, retire, or simply hang on until times get better. Others are working part-time, but would work full time if they could. If the jobless rate included the “discouraged” and the “marginally attached to the labor market” categories, unemployment would stand at 11%, rather than 9.7%.
The last local report from the Bureau of Labor Standards for Baltimore/Towson is from May; so it does not show any bright spots. For those employed though, state-wide average compensation rose by 2.5% from June 2008 to June 2009.
Posted by marykeating on September 4, 2009 under Wage and hour issues |
In a previous post, I commented on the steps Maryland is taking to combat the misclassifications of employees as independent contractors. While the state and federal tests are not identical, the basic tests are the same. If an employer exerts control over the place, manner, and hours of work, the person is likely an employee. Independent contractors often have their own places of business, equipment, and are hired to perform a specific function or job, not put in a certain number or hours.
In the gray areas, though, it may be tough to make the final call. You can read the IRS training manual, a 160-page report that should be able to answer most questions. The Internal Revenue Service has simpler guidelines on its website as well. You may not know, though, that IRS will give an opinion on a specific situation, if asked by the employer or the employee/independent contractor. Exercising this degree of due diligence will negate any accusation of bad faith or exploitation.
One main reason that employers may misclassify a worker as an independent contractor is to avoid paying FICA taxes, which amounts to 7.65% of the compensation. An independent contractor pays that amount as self-employmetn tax. A worker who has been misclassified can file a form with his or her taxes that shifts the responsibility for that 7.65% to the employer. The explanation is here.
Posted by marykeating on September 2, 2009 under Collective rights, Federal wage and hour law, Maryland wage law, Wage and hour issues |
Did you see this, or hear it on NPR? A new study shows that many minimum wage workers are denied wages they have earned. The study surveyed workers in the most populous three cities, New York, Chicago, and Los Angeles. It found frequent, ongoing violations of the wage and hour laws, with the worst offenders in these industries: apparel and textile manufacturing, personal and repair services, and in private households. Illegal practices included paying a wage lower than the minimum wage, forcing workers to work off the clock, and denying overtime pay. Some of these violations are easier to hide when employers pay a flat daily or weekly rate to the employees, no matter how many hours are required.
In addition to the type of industry, the study identified several other factors that linked more strongly with wage violations. Not too surprisingly, the rate of violations are higher for employers paying by cash, as opposed to company check. Smaller employers are also more likely to pay their employees too little. Finally, those companies with a package of benefits were more likely to abide by the wage laws.
The study’s authors concluded that
“Employers that offer health benefits, provide paid time off, and give regular raises are following a business model where investing in workers leads to greater productivity, lower turnover, and other benefits for the company.”
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What to do about a violation
I have seen an increase in complaints about employers denying an employee’s last paycheck, and keeping poor records, leading to denial of overtime pay. The employer has an obligation to keep records of employee hours worked, and has the burden of proof to disprove an overtime or minimum wage claim. Still, courts have difficulty with the concept that the plaintiff worker should not have to prove his claim, and often that burden of proof is not applied correctly. Employees who witness wage issues should keep a careful daily log of their work hours, and make written complaints when they are not paid.
The Maryland wage and hour division is no longer unstaffed, and will pursue claims against employers. If an employee cannot get satisfaction, contact a lawyer. Although some of these claims are not large, state law permits a court to triple the damages for a failure to pay wages without a legitimate dispute, and allows reasonable attorney’s fees. Also, if there is one violation, chances are good that many employees are being underpaid, increasing the chances that a lawyer will take the case. The Fair Labor Standards Act also permits court access to enforce wage and overtime claims.
