The posting requirement has created a firestorm among employers.  It is designed to overcome the anti-union environment.  Some employees believe that they have no right to talk among themselves about the conditions of the workplace, and that some workplaces are non-union, and they have no right to try to change it.

The first postponement required the poster to be on employer memo boards by January 31.

As of now, the poster must be used by April 30, 2012.  The rule is pending a court challenge to the requirement, so further postponements or even a withdrawal of the requirement could occur.

The Civil Rights Tax Relief Act, introduced last week, is designed to make the tax treatment fairer in two ways.  One would treat emotional and physical injuries caused by the discrimination as not taxable.  This is how personal injury cases treat monetary compensation for pain and suffering.  There is no logical reason why money for an auto accident should be tax free while money for discrimination should be taxed.

The second prong would let the employee use income averaging to stretch out the payments that are intended to make up for lost compensation.  The employee would pay tax on the backpay and front pay, but all at the tax rate that would apply if the income were apportioned by year.  In other words, the employee is not immediately sent to the top tax bracket for the one year in which he received the payment meant to compensate for seven years of discrimination.

Interestingly, the bill enjoys the support of both employee advocates and business groups.  Settlements and sometimes awards are made with the tax consequences in mind.  If the tax consequences are eased, settlements will be easier to reach, and can be lower if the tax consequences are not so severe.

A new bill introduced in Congress would outlaw the use of unemployed status when hiring.  Under that bill, an employer would be forbidden from considering unemployment, or publicly stating that it would only consider currently employed people for job openings.

As with all failure to hire cases, proof will not be easy.  When someone is discriminated against on the job, the events of discrimination may be frequent, or at least witnessed by someone whom the employee knows.  When someone applies for a job, he is unlikely to have friends on th inside.  Unless the interviewer makes his bias obvious, the applicant can seldom tie his failure to get the job to illegal discrimination.

If the link can be made, though, this law does ease the damage proof.  The person who suffered the discrimination can claim $1,000 per day, or the actual damages from the failure to hire, along with compensatory and punitive damages.

Obviously Congress is busy now with other things (or so we hope).  But there is probably not a strong constituency against this bill, except that some factions don’t like any new causes of action.

The Workplace Bullying Institute has prepared an excellent action plan, with the first goal to preserve the victim’s health and self-esteem.

If leaving the job is probably inevitable, then the employer should be made aware of the situation, and the employee should insist that it be fixed – all the while, of course, remembering that the employer is unlikely to get rid of the bully.  The action plan reminds us that some employers may want to get rid of the bullies.  The ones that don’t can’t be trusted to care about the welfare of their employees.  And the employee who was targeted for bullying should make a public statement about the situation, leaving in disgust that it was allowed to continue.

The Workplace Bullying Institute is also responsible for the movement to introduce anti-bullying legislation at the state level.  Maryland considered the law in March; I testified on its behalf.  Although the law did not make it out of committee in Maryland’s General Assembly this year, we are hopeful it will be reintroduced and given a favorable report next session.  See also my prior post.

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.

• A simple addition to the Wage Payment and Collection Act goes into effect on October 1.  It reads as follows:

“An agreement to work for less than the wage required under this subtitle is void.”

I believe this is already implied in the law.  Yet, it is helpful to state it outright, since not everyone understands that minimum wage is required.

• Job Applicant Fairness Act

As of October 1, 2011, Maryland employers may not inquire into the credit of an employee or an applicant for employment.  Exceptions include banks, credit unions, investment advisor positions, or any other job in which another law requires a credit report, such as someone needing a security clearance.  Another large exception involves an employer pulling a credit report for jobs in which there is a realistic concern about the employee’s access to money.  The exceptions are listed, and include management position, access to money or a corporate credit card, or has access to trade secrets.

The most unfortunate compromise is that the enforcement mechanism for violations is limited to filing a written complaint with the Commissioner of Labor and Industry.  Still, the knowledge that in most cases an applicant’s credit history is off-limits should help the chances of people with poor credit.  The persistent recession has hurt many people financially, and credit ratings have suffered.  That does not mean that they would not be ethical, diligent employees.

• Change in disability benefits law.  This is an enormous change in disability insurance practice.  Effective for policies sold or renewed beginning on October 1, 2011, an insurance company may not reserve sole discretion to itself to interpret the terms of the policy, or to provie standards of review that are inconsistent with the laws of the state.

The law as originally proposed would have made all discretion illegal.  That kind of change would have made an enormous difference in fights over coverage, but this is a step in favor of the person who has made a claim for disability coverage.

Maryland’s Representative Donna Edwards has introduced H.R. 631, the Working for Adequate Gains for Employment in Services Act, to increase the minimum wage for employees living off tips.  The acronym is “WAGES.”

The law would increase the minimum wage to $3.75 beginning 90 days after the law is enacted, then after a year increase it to $5.00 per hour, then mandate that in two years it rises to and remains at 70% of the prevailing minimum wage rate.

The bill has been referred to the Committee on Education and the Workforce.

The counter argument is that a person with debt pressures is more likely to embezzle.  It seems that all people could use more money; a past history of theft is a better indicator of thieving tendencies than someone who has tried and failed to stay current with obligations.

Still, in case there is any validity to the fear that people with poor credit are a danger to client’s money, financial institutions are given some leeway.  The bill introduced into the General Assembly gives exceptions in several circumstances, such as when the person is applying for work at a bank whose deposits are insured by a federal agency, someone registered as an investment advisor with the SEC, or if some law requires the employer to consider the applicant’s credit history.  In addition, if the person has been given an offer of employment, and the credit report is needed for a reasons other than denying employment, discharging the person, or determining pay or other terms of employment, the employer may request it.  Presumably such reasons are related to jobs in which the person has the largest opportunity to embezzle.

While finding space may not always be easy for an employer, hence the limitation to larger employers, many employers may be pleased to find that productivity is not necessarily affected.  During my own bouts of working and pumping, I found that I could at least read during these breaks.  Many employees may have similar ways to use the time in some productive way with the use of audio podcasts, for example.

The policies are supposed to be announced as soon as they are ready.  Since some federal agencies already have them in place, that theoretically should not take long.

The employer’s point of view often hinges on the possibility that the credit report may flag someone with a history of money problems, which may indicate the embezzler-to-be.  There are some problems with this logic.  First of all, many employees are not in the position to deal with the employee’s money.  Secondly, skilled embezzlers probably do not have money problems of the kind that show up on credit reports.  Third, the use of credit reports weeds out African-Americans and Hispanics at a disproportionate rate, according to the EEOC.  It may also hurt recently divorced women, young workers, and people who have had large medical bills.

Speakers at the hearing mentioned that the Fair Credit Reporting Act has safeguards, including requiring the applicants to authorize the check, and requiring the employer who used the report to reject the application to say so.  Cold comfort to an applicant faced with a sign this or else ultimatum.

http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm

Using such a blunt tool does not belong in a meritocracy.  A law pending in Congress, the Equal Employment for All Act, would add safeguards but still allow use of credit reports to screen applicants for a few categories of jobs, such as national security and financial institution supervisors. It is languishing in the House, although a hearing was held by the Subcommittee on Financial Institutions and Consumer Credit.