Posted by marykeating on May 26, 2011 under Collective rights, Workplace privacy | 
The National Labor Relations Board has again pursued a company for firing employees over their facebook postings.
Here is how it began. An employee of a non-profit, Hispanics United of Buffalo (NY), apparently stated that some of the coworkers weren’t doing enough to help the non-profit’s clients. Another employee posted that comment on her facebook page, and several coworkers weighed in, complaining about the work load and other workplace related conditions.
Hispanics United fired five employees who had complained on facebook. The NLRB believes that they were engaged in “concerted activity.” Under the National Labor Relations Act, employees are protected from complaining about workplace conditions “in concert,” meaning as a small or large group. This law protects the rights of employees to form unions, but also behavior short of such formal organization. Many employers forget that they are covered by this law, and announce rules against sharing information on pay, for example, or talking to each other.
Employers seem very testy lately about how they are portrayed on facebook, twitter and websites. Employees’ rights to complain publicly (and in concert) need to be related to workplace conditions to be protected activity; for example, gossiping about a boss’s private life is probably not protected (unless it affects the terms and conditions of employment).
The case is scheduled to be heard on June 22. The last such NLRB complaint was settled.
Posted by marykeating on May 19, 2011 under Maryland wage law, Pending legislation, Unemployment compensation, retaliation |
Here is another update on new laws signed by the Governor.
HB 1228 tweaks the unemployment law to allow for the maximum chance of getting full federal funding of extended unemployment benefits. To meet federal standards, the state law needed to alter the definition of an economic downturn triggering the extnsion.
SB 551 prohibits an employer from retaliating against an employee making an oral or written complaint, or testifying in an action relating to Maryland’s wage laws. The law clarifies that taking adverse action in retaliation means not just firing the employee but demoting, or threatening to fire or demote the employee, or taking any other adverse action “that would dissuade a reasonable employee from making a complaint, bringing an action, or testifying in an action under” the law. A violation of the law is a misdemeanor.
HB 211 changes the name of the Maryland Commission on Human Relations to the Maryland Commission on Civil Rights, effective October 1.
Posted by marykeating on May 17, 2011 under Employment benefit issues |
Yesterday two cases under ERISA showcased the limited remedies available to participants and beneficiaries of employee benefit plans. Regardless of their reliance on the benefits, employees often have an uphill battle to gain the benefits, and they are not entitled to anything extra, other than attorney’s fees, if they win.
ERISA is the law that governs pension and other employee benefits. It requires internal administrative appeals to be used before an employee or a beneficiary goes to court. The appeals are decided by company personnel, or by outside administrators hired by the company, so they seldom favor the employees.
In the first case, heads they win; tails she loses. The Fourth Circuit just turned down an appeal by a mother suing for the proceeds of her daughter’s life insurance policy. The mother had taken out a life insurance policy on her daughter, as a dependent child. After her daughter was murdered, she put in a claim for benefits under the policy. The insurance company denied the benefits, on the basis that a child could be covered only up until the age of 19, or 24 if enrolled full-time in school. The child was 25 at the time of her death. (Debbie McCravy v. Metropolitan Life Ins. Co.)
The court ordered the return of the premiums paid for the life insurance only. It cited other circuit courts also refusing to award the face value of a life insurance policy, but only the return of wrongfully withheld premiums.
When the insurance company is caught overcharging for insurance that it will not honor, it just repay the premiums. When it is not caught, it gets to keep them. There are no consumer protection-type remedies to influence the companies to catch the overpayments: when the rules say someone is ineligible for insurance, the companies should not keep the money and should notify the employee.
But yesterday the Supreme Court issued an opinion in another case under ERISA, arising out of CIGNA’s alteration of its pension plan. Like many companies, CIGNA became alarmed at the cost of its promises to pay certain benefits to retirees, based on their years of service and last salary. Many of these defined benefit plans were constructed on assumptions of high rates of interest on pension funds, and sometimes just plain “irrational exuberance.” To save itself from having to pay for these benefits, CIGNA changed the plan to a cash balance equal to what each employee had already earned, and additional annual contributions. It basically changed the plan to an IRA, and seeded each person’s fund based on how long the employee had been with the company.
The employees objected to the new plan, and claimed that CIGNA had not given proper notice of the change in benefits. The description of the plan touted it as employee-friendly, an enhancement, and not a cost saver for the company. None of these statements was true. The trial court ordered CIGNA to pay benefits under a plan as reformed by the court.
The Supreme Court sent the case back for another look, based on a complex discussion of the history of trust law principles and how it relates to the statute. The upshot is that the District Court may still impose a revised pension plan, but based on different authority. And unlike the Fourth Circuit’s take, the issue of notice is key to the holding.
Posted by marykeating on May 14, 2011 under Discrimination in employment, Employment at will, workplace bullying |
A study published by CareerBuilder reports that a large proportion of American workers have been bullied on the job. Most reported bullying by an immediate or higher up boss, while others cite coworkers and customers as the antagonizers. An interesting aspect of the survey breaks down the type of conduct included in bullying. Some were on a personal level, such as gossiping, yelling, and belittling the employee’s work in public. Others were tied more directly to the job, such as someone stealing credit for another’s work, forcing him or her to do jobs outside of the job description, wrongly accused of making mistakes, and holding the employee to different standards from the others. Women were more likely to have felt bullied than men, by a 34 to a 22 percent difference.
None of these behaviors can actually help the workplace, yet often nothing is done to root it out unless the target of the bullying can connect it to illegal discrimination. Human resources departments should have the power and the interest in preventing the recurrence of bullying, even if the bully must be fired. Victims of bullying often suffer mental and even physical illnesses, and take off time from work. When they are at work, their resentment or sense of futility at working hard can prevent the employer from getting their best work. Collaboration diminishes if an employee has his or her ideas stolen or ignored.
Even if Maryland eventually passes the anti-bullying legislation, only the most severely affected workers will have a right to take action. But the existence of the law may change how employers view erratic or mean-spirited behavior.
Posted by marykeating on May 10, 2011 under Federal wage and hour law, Wage and hour issues |
The Department of Labor offers a free application for the IPhone and IPod Touch to enable employees to track their hours.
Under federal wage law, the employer has the obligation to keep good records about the hours worked by employees. Failure to keep good records is a violation of the law, and is supposed to penalize the employer in the event of a dispute over whether an employee has been paid appropriately. In reality, though, poor or falsified records can favor the employer. Although the employer has the burden of proof to show that an employee is exempt from overtime, or was paid for all hours worked, often the employee has no contrary proof. So if the employer claims that the employee took an hour lunch every day, the employee may have no more than his recollection that about three days a week he got no lunch break.
With the new app, an employee can keep daily records of his or her own. The Department is also making paper work calendars available. Other technological versions are being considered.
Posted by marykeating on May 9, 2011 under Economic situation, Sex-based discrimination, Uncategorized, Wage and hour issues |
Last week’s Department of Labor study on Women’s Employment During the Recovery provides a framework for understanding how the female workforce is recovering from the recession. The good news: the unemployment rate among women is lower than that of men. Part of that disparity results from the fact that women are more likely to be employed in the public sector. In addition, more women have college educations than do men, though more college educated men are working full time.
Women are underrepresented in some sectors, such as engineering, computer science, and architecture. Some of the areas expected to have the highest growth rates over the next few years, other than health care, still have a distinctly male focus.
The report collects and analyzes a large amount of data, including a dispiriting analysis of the cumulative effects of the wage gap. It then discusses the initiatives designed to give women more opportunities in male-oriented jobs, enforce equal pay laws, and increase workplace flexibility.
Almost two thirds of mothers are in the workforce.
The hurdles that face a truly equal workplace can look too tall to leap over. But we mothers can change the mindsets of the children who will join the companies and institutions, so that they do not expect pay or assignments to be based on gender, family responsibilities, or race.
Posted by marykeating on May 5, 2011 under Collective rights, Wage and hour issues |
Today a new US Department of Labor regulation goes into effect that dramatically changes the acceptable method of calculating overtime pay. One of the strange quirks of the overtime law permits payment of half-time pay for overtime hours when an employer uses a fluctuating work week method of calculating pay. Under this system, a salaried employee who is not exempt from overtime, and whose number of hours may fluctuate from week to week, may be paid half of the salary rate for the hours over forty. This type of pay system is common with firefighters, for example, whose work weeks are not based on a normal 8 hour work day, five days a week, but rather change from week to week and include long stretches on the job. The Department’s new rule provides that an employer may not use the fluctuating work week method if the employer gives bonuses or premium payment to the workers.
The premium payments often are offered for working unpopular shifts, such as overnight work or on major holidays.
The rule also clarifies certain rules for tipped employees. Many tipped employees, such as wait staff, receive a very low minimum wage with the expectation that the tips will raise the individuals’ pay to at least the federal minimum wage. An employer may pay as little as $2.13 per hour. The regulations make clear that the employer may not use the tip credit unless the employee actually receives the tips used for the tip credit, and the tip credit may not be used where the employer keeps some of the tips.
Posted by marykeating on May 4, 2011 under Discrimination in employment |
Last week the Department of Labor announced its internal emphasis on preventing discrimination. In addition to the categories covered by the federal anti-discrimination law, the department also is prohibiting discrimination on the basis of sex, including gender identity and pregnancy, and status as a parent.
In adding status as a parent and sexual orientation, the Department exceeds the minimum requirements of Title VII and other anti-discrimination laws applicable to the federal government. The Secretary also stated her intention to make the Department of Labor a “model workplace, free from unlawful discrimination and harassment, which fosters a work environment that fully utilizes the capabilities of every employee.” While its employees monitor other workplaces for violations, it is fitting that the department from the top down commits to a professional and non-discriminatory workplace.
