On August 20, 2009, Lowe’s Home Improvement settled a sexual harassment and retaliation suit brought by the U.S.  Equal Employment Opportunity Commission (EEOC) on behalf of three employees at its Longview, Washington store for $1.72 million.  EEOC v. Lowe’s Home Improvement Warehouse Inc., W.D. Wash., No. 08-331 (consent decree approved Aug. 20, 2009).

Among the many allegations in the litigation, the EEOC alleged that the female employee was sexually assaulted by a store manager and the two male employees were harassed by managers and co-workers for allegedly being gay.  The two also said they were not promoted and were ultimately discharged due to discrimination.

The three-year consent decree requires Lowe’s to provide comprehensive training to management, non-management, and human resources employees in all Washington and Oregon stores.  Employees will be trained on what constitutes harassment and retaliation, and on their obligation not to harass or retaliate against any individual.  Managers and supervisors will be trained on what constitutes harassment and retaliation, their obligation to provide a discrimination-free work environment, and their responsibilities if an employee complains about harassment or retaliation, or if they observe it.  Human resources personnel will be trained on what constitutes harassment and retaliation, how to institute policies and practices to correct past discrimination and prevent future occurrences, informing complainants about the outcome of internal investigations, and the steps Lowe’s will take to assure a discrimination-free workplace in the future.

In addition to the comprehensive training and monetary relief, the consent decree requires Lowe’s to revise its sexual harassment and anti-retaliation policies, issue an anti-harassment statement to all employees in Washington and Oregon, revise its method for tracking employee complaints of harassment, and report regularly to the EEOC on harassment and retaliation complaints which arise in Washington and Oregon stores during the term of the decree.

Company Officials Plead Guilty to Submission of False I-9 Forms

Related posts:

1. Washington Law Updates for July 2009
2. Washington Law Updates for May 2009
3. Understanding Workplace Retaliation

Employers’ Obligations Under USERRA

USERRA was enacted in 1994 to protect service members from being disadvantaged in their civilian careers due to serving in the uniformed services.  USERRA covers virtually every individual in the country who serves in or has served in the uniformed services.  Unlike many employment laws, USERRA applies to all employers in the public and private sectors, including federal employers, regardless of size.  It requires an employer to grant unpaid leaves of absence for employees called into military service.  Employees may elect to use accrued vacation pay, annual leave or other accrued paid leave during military leave, but an employer may not require them to use it during that time.  Upon returning from military service, USERRA grants eligble employees the right to reemployment.  USERRA provides protection for veterans with disabilities requiring employers to make reasonable efforts to acommodate the disability.

The rights provided under USERRA include:

• Non-discrimination based on military status;
• Reinstatement rights to the position and pay that the employee would have held had the employee remained continuously employed;
• Continuation of medical benefits for service under 30 days;
• Optional continuation of medical benefits;
• All seniority, rights and benefits upon return to work as if the employee had remained continuously employed; and
• Protection from discharge upon return to work, except for cause, for a period of time.

Exceptions under limited circumstances:

• Changed circumstances such as an intervening reduction in force that would have included the absent employee;
• The individual is no longer qualified, despite the employer’s reasonable efforts to qualify the employee; or 
• The employee was employed for a brief, non-recurrent period.

USERRA Enforcement

While individuals may file private lawsuits against employers under USERRA, they also may file a complaint with the U.S. Department of Labor (DOL).  If the DOL believes a complaint has merit, it tries to resolve the complaint with the employer voluntarily. If efforts toward a voluntary resolution fail, the DOL refers the complaint to the U.S. Department of Justice (DOJ).  If the DOJ is satisfied that the claimant is entitled to the rights or benefits being sought, it has authority under USERRA to appear on behalf of a claimant in a suit filed in federal district court.

The DOJ’s Civil Rights Division has given high priority to the enforcement of service members’ rights under USERRA.  This is evident in the number of lawsuits DOJ has filed in 2009.  As of July 2009, the DOJ has filed 18 lawsuits and obtained 18 settlements under USERRA on behalf of service members.  The number of lawsuits filed is up signficantly from 2007 and 2008, when seven and eleven lawsuits were filed, respectively.

The types of lawsuits brought in 2009 range from an employer’s failure to promptly re-employ service members who suffered injuries to an employer’s failure to afford the service member an opportunity for advancement.  In March 2009, a judge entered a $1.3 million judgment against an employer after a jury found the employer liable for constructively firing a reservist called to active duty after the 9/11 attacks. 

In light of the government’s increased focus on compliance with USERRA, employers who have employees entering or returning from service should make sure their policies and procedures incorporate the requirements of USERRA into them.  Employers should also ensure that they are also complying with additional state laws that may apply.   

USERRA Resources:

U.S. Department of Labor website
U.S. Department of Justice website
Equal Employment Opportunity Commission (EEOC) website

No related posts.

Shared-work programs offer employers an alternative to layoffs.  The program allows an employer to reduce the work hours of its full-time employees, while the employees collect partial unemployment benefits to replace a portion of their lost wages.  Seventeen states offer some type of shared-work program:  Arkansas, Arizona, California, Connecticut, Florida, Iowa, Kansas, Massachusetts, Maryland, Minnesota, Missouri, New York, Oregon, Rhode Island, Texas, Vermont and Washington.

Each state’s program is a little different, but they have common attributes.  In Washington State, a business must submit an application and participant list.  An employer must reduce the weekly work hours of its participating employees by at least 10 percent, but not more than 50 percent.  The health benefits that an employer provides to its employees must continue as though the employer did not reduce its work hours.  The employer must designate a company representative to manage its shared-work plan.  If the company is represented by a union, the collective-bargaining agent must approve the plan in writing for the participating employees.   Your state labor department’s website, such as Washington’s Employment Security Department, will get you started on seeing if this program meets your needs. 

As with anything, there are benefits and costs associated with shared-work programs.

Benefits:

• The employer avoids the expense of rehiring and retraining later
• The employer avoids the anger and drop in productivity associated with layoffs
• The employer avoids severance payments
• Employees get to keep their jobs and they receive replacement wages for a portion of what they’ve lost
• The state reduces the number of laid off workers

Costs:

• Employers will have higher unemployment insurance tax rates
• Employees will burn through their unemployment insurance benefits

On August 7, 2009, Senator Jack Reed (D-RI) introduced the Keep Americans Working Act (S. 1646).  For a period of two years, the bill would provide states with temporary financing for 100 percent of the work-share benefits paid to employees for up to 26 weeks.  The bill has been referred to the Senate Committee on Finance.

No related posts.

Related posts:

1. Is Your Business Prepared for an H1N1 Outbreak This Fall?

In a survey conducted by SHRM from April 29 through May 5, 2009, 462 randomly selected HR professionals from SHRM’s membership, were asked, “What, if anything, is your organization doing or planning to do to reduce the spread of the H1N1 virus in the workplace?” Here are some of the top strategies:

• Monitoring the H1N1 virus situation by following the guidance from the Centers for Disease Control and Prevention (CDC), the World Health Organization (WHO), etc. = 70%
• Educating employees on flu prevention measures = 63%
• Developed an employee communication strategy related to the H1N1 virus  = 57%
• Making hand sanitizer, other disinfectants, masks and other flu prevention tools readily available across the organization = 54%
• Frequently disinfecting common areas in the office = 52%

With the possibility of a significant portion of the workforce being absent due to illness or caring for ill family members, it is important that employers be able to take care of their employees while continuing business operations.  Twenty-four percent of the respondents in the SHRM poll stated that they were planning on setting up telecommuting options for employees if there is an H1N1 outbreak in their local area/region.

Employers must balance their obligation to maintain a safe workplace with other legal obligations.  Employers must take into consideration that many employees will be eligible for FMLA leave, other contractually based leave rights, and protection under federal and state disability and benefit protections.  Whistleblower protections under benefit laws, safety regulations, and discrimination laws may be raised.

Additionally, swine flu may be compensable under state workers’ compensation laws if the employee’s job exposes him or her to a greater risk of contracting the condition than the risk to which the general public is exposed, and the employee’s job duties caused him or her to contract the condition. If an employee with swine flu believes that it is work-related, employers should have the employee fill out an accident report, the employer should promptly submit the information to its workers’ compensation carrier for further investigation. 

In order to avoid company liability during an H1N1 outbreak, managers on the front line will especially need the education and support of the executive team and human resources personnel to handle a much wider range of employment law issues.

As an employer, waiting until an H1N1 crisis occurs is waiting too long.  By waiting, an employer will miss the opportunity to take proactive preventative steps.  The time to prepare is now.

Online Resources on Swine Flu:

www.pandemicflu.gov/ one-stop access to U.S. Government avian and pandemic flu information
www.cdc.gov/ the Centers for Disease Control and Prevention website
www.who.int/  the World Health Organization website

Related posts:

1. Centers for Disease Control and Prevention Updates H1N1 Guidance for Businesses

PROS

1.     An Employer Saves Money

• The employer won’t pay for benefits, including health and disability insurance, vaction time, sick days, overtime and retirement plan-benefits.
• The employer won’t pay the employer’s share of social security and medicare taxes and won’t contribute to state and federal unemployment insurance funds.
• The employer won’t have to pay for training for an independent contractor.  Independent contractors already have experience in their fields and require no specific training from employers.

2.    Flexibility

• An employer doesn’t have the issues of hiring and firing and morale.
• An employer can hire an independent contractor for a specific task or project, knowing that the independent contractor will be gone when the job is finished.  This is especially beneficial if the employer’s workload fluctuates.
• The employer gets specialized expertise for a short period of time without having to pay for training.

3.    Reduced Exposure to Some Lawsuits

• Independent contractors are not subject to many laws designed to protect employees, including overtime and minimum wage requirements.
• An employer is not subject to complaints for job discrimination and wrongful termination.

CONS

1.    An Independent Contractor Can Sue for Negligence

• If an independent contractor is injured on the job then the independent contractor can sue.  Typically, when an employee is injured on the job, s/he can’t sue because they are covered by workers’ compensation.

2.    Less Control

• Independent contractors can decide when, where and how the work is done. They don’t have to follow any instructions, and the only control the employer has over the work is the end result.
• Independent contractors decide how much their work is worth.
• An employer can’t count on any given contractor to be available when needed for a new project.  Additionally, a qualified independent contractor may be difficult to find compared to regular job candidates.

3.    Misclassifying Can Be Economically Devastating

• Any number of state and federal agencies might audit a business if it believes it has misclassified employees as independent contractors.
• If an independent contractor is misclassified the employer will be required to pay the IRS all back taxes owed, with interest plus a penalty of up to 35% of the tax bill.
• At the state level, an employer could attract the attention of its state’s unemployment compensation or workers’ compensation agency if a worker it classified as an independent contractor applies for benefits.  An employer could also face an audit from its state’s tax agency.

Before deciding to hire an independent contractor for its business needs, an employer should find out about the legal differences between an independent contractor and an employee in the state where it’s located.  If an employer doesn’t find out the rules before making the decision, it may find itself with heavy penalties down the road that far outweigh the benefits it received from hiring independent contractors.  An employer should never hire someone as an independent contractor if it plans to treat them as an employee.

NOTE:  The use of independent contractors is on the radar of Congress.  On July 30, 2009, Rep. Jim McDermott (D-WA) introduced H.R. 3408 to amend the Internal Revenue Code of 1986 to modify the rules relating to the treatment of individuals as independent contractors or employees, and for other purposes.

Related posts:

1. Washington Law Updates for May 2009

1.  Failing to regularly update your handbook.  An employee handbook is a living document that needs constant examination and revisions.  A factually inaccurate handbook or one that is not representative of actual practices can be as problematic as statements that are illegal.  It is a good idea for an employer to update its handbook at least once a year.

2.  No disclaimer.  An employer should print a disclaimer stating that the handbook does not constitute an employment contract.  An employer also wants something in the disclaimer that says that it is not a complete description of the employer’s policies and procedures. To cover your bases, the disclaimer should be in the front and the back of the handbook, in a larger font and in bold.

3.  Not using straighforward language.  An employee handbook should be written on a level that all employees will understand.  If the handbook is too vague or too technical it may not serve its purpose. 

4.  Neglecting to detail anti-harassment and discrimination policies with reporting procedures.  Employee handbooks provide an excellent means of conveying the company’s equal employment policies and practices for how alleged violations must be reported.  As Supreme Court decisions have illustrated, well-drafted policy and complaint procedures to deal with harassment and discrimination issues will serve as a useful tool in limiting employer liability. 

5.  Not taking into consideration federal, state and local laws.  An employee handbook should not just focus on federal law requirements.  Often state laws provide greater employee protections (which is true for the state of Washington in many instances) than federal laws.  An employer should also include relevant municipal ordinances.

6.  Being too specific.  A handbook should be a set of guidelines for the employees to follow.  If a handbook includes lists or examples of behavior, it should be made clear that they are for illustrative purposes and are not exhaustive.

7.  Ineffectively communicating the handbook to employees.  An employer should never assume that employees will become familiar with the handbook on their own.  Employers should set aside some time to discuss its contents with employees and answer any questions they may have.  A review of the handbook should be included during the new employee orientation.

8.  Failing to obtain an employee’s acknowledgment.  An employer should have employees sign an acknowledgment to ensure that all employees have received, read and understand the handbook.  The acknowledgment should contain language that employment is at-will and the employer retains the right, in its sole discretion, to modify, alter or amend the handbook at any time.  The signed acknowledgment should then be placed in the employee’s personnel file.

9.  Including language and buzzwords that are ticking time bombs.  Policies should avoid words such as “only,” “always,” “shall” or “will” or phrases such as “termination only for cause,” promises of job security (”permanent” employee).  An employer should use more flexible words such as “may,” “usually,” “generally” and “typically.”  These words give more flexibility in interpreting and applying policies.

10.  Not having the handbook reviewed by a lawyer.  An employer should have an attorney who is well-versed in employment law review its employee handbook.  An employment lawyer may identify areas that are not currently in the handbook but should be included, identify changes in current verbiage to make the handbook legally compliant, and pinpointing policies that should be eliminated.

Remember, a well-crafted and up-to-date employee handbook can be used as an effective tool to minimize both litigation and liability.

Related posts:

1. Avoiding Mistakes in Performance Evaluations

Washington Gov. Christine Gregoire has signed a new law, SB 6158, that pushes back the effective date of Washington’s paid family leave law.  The law was originally intended to go into effect on October 1, 2009 but will now go into effect on October 1, 2012.  The delay in implementing the program is due to budget shortfalls.

The law will create a state-run insurance program.  Under the program employees who take time off from work for the birth of a child or to care for a newly adopted child will receive up to five weeks of family leave insurance benefits.  The maximum weekly benefits will be $250 per week.   In order to qualify for the benefits, an employee must have worked at least 680 hours during the employee’s “qualifying year” and provided written notice of the intent to take leave.  Part-time employees will be eligible for a pro-rated payment.  

Only two other states, California and New Jersey, have paid family leave programs.

Domestic Partnership Law Update

The Office of the Secretary of State for the state of Washington stated that the sponsors of Referendum 71, the challenge to the Domestic Partnership law, have scheduled an appointment to bring in their petition by the July 25 deadline.  However, the sponsors didn’t say how many signatures they have.  120,577 valid voter signatures are required to qualify for the state’s fall ballot.

If the referendum is submitted the new law won’t go into effect on July 26, 2009.  Instead the law will be on hold until the vote is held on November 3.

Unemployment Exemption for Service Member Replacements

On July 26, 2009 an amendment to Washington’s unemployment insurance law, RCW 50.29.021 goes into effect.  The amendment exempts an employer from being charged for unemployment compensation to workers hired to temporarily replace Armed Forces members called to active duty.

Federal and state law require that members of the Armed Services, including the National Guard and Reserves, who are called to active duty and serve honorably generally must be reinstated in their civilian jobs when that active duty ends if they make a request to their former employers.  Without the amendment to the unemployment law, if an employer hired a worker to fill the service member’s job during the period of active military duty, that worker would be entitled to unemployment benefits when the service member was re-employed and the benefits would be charged against the employer’s experience rating account.

Employers Personally Liable for Not Paying Wages

In Morgan v. Kingen, Wash., No. 81202-1 (July 2, 2009), the Washington Supreme Court was asked to determine whether bankruptcy under Chapter 7 liquidation is a valid defense for not paying wages.

Gerald Kingen (CEO) and Scott Switzer (CFO) established Funsters Grand Casino Inc. in 2001.  One year later, in 2002, Funsters voluntarily filed for protection under Chapter 11 of the bankruptcy laws.  Kingen and Switzer were unwilling to provided additional capital to satisfy the casino’s debts and wages owed.  Because of their unwillingness, the court converted the Chapter 11 proceedings to Chapter 7 liquidation.

State wage and hour laws make employers liable for violations, including failure to pay wages due.  If the violation is willful, the person or persons responsible for payment may be held personally liable.  The employees sued for back wages and the King County superior court held that Kingen and Switzer were personally liable.  The court of appeals upheld the trial court ruling.  The Washington Supreme Court held in a 6-3 decision that Chapter 7 doesn’t protect business owners from the requirement that they pay employees wages owed when the failure to pay was willful.

Seattle Adds Veterans to Protected Classes

The City of Seattle amended its anti-discrimination ordinance to include veterans to its list of those protected from discrimination in employment.  The Seattle City Council unanimously passed the amendments on June 15, 2009.  Mayor Greg Nichols signed the amendments to the anti-discrimination ordinance on June 22, 2009.  The amendment prohibits discrimination against honorably discharged veterans, as well as any member of the Armed Forces, on the basis of military status.

Federal and state laws already provide protection against discrimination against veterans.  According to Seattle City Council President, Rich Conlin’s website, “advocates for veterans and the state legislator who authored the state anti-discrimination statute encouraged the city to adopt similar provisions” because it can be difficult to access the remedies provided under federal and state laws.

Related posts:

1. Washington Law Updates for September 2009
2. What Are An Employer’s Legal Obligations to Returning Veterans?
3. Washington Law Updates for May 2009

1.  Waiting for the Performance Evaluation to Give Feedback

Performance management is a daily supervisory responsibility and integral to management.  It is a mistake for a supervisor to perceive the performance evaluation process as an isolated event rather than an ongoing process.  If proper goal setting, coaching and feedback are done periodically, then the results of the performance evaluation will not be a surprise to the employee.

2.  Over Emphasizing Recent Performance

A superivsor should not allow a recent event to color the perception of the employee’s performance for the entire period.  Over emphasizing recent performance can lead to an inaccurate and unfair assessment.  Instead, a supervisor should take notes throughout the performance period so that s/he is not relying on a faulty memory.

3.  Too Subjective

A supervisor should focus on specific employee behaviors, rather than on general personality traits.  For example, do not describe the employee as “angry and emotional.”  Instead, focus on the workplace behavior that is the problem and state “you have been insurbordinate on two occasions in the past three months.  This behavior is unacceptable and must stop.”

4.  Being Too Positive or Too Negative

Some supervisors rate higher or lower than the employee deserves because s/he wants to motivate them to do better or because they think there is always room for improvement.  Some supervisors also may inflate a performance evaluation to avoid having a confrontation.  Supervisors should be sure to give bad news even if it is uncomfortable.  If a supervisor avoids telling an employee about performance problems, the employee won’t know that s/he needs to improve and the problem will persist.

5.  Being Critical Without Being Constructive

If the supervisor does not explain how the employee can improve, the employee is likely to miss the validity of what the supervisor is saying.  This does not help the employee or the supervisor.  Instead the supervisor should give specific examples of where the employee is lacking and suggestions on how the employee can improve.

6.  A One-Sided Conversation

Good supervisors remember to listen and promote two-way communication.  It is a good idea to ask employees for their comments on the performance evaluation.  If the process is interactive, employees are more likely to understand their evaluations and supervisors are more likely to understand the employee’s perception of the evaluation.

7.  Failure to Set Specific Goals and Expectations

Clarifying and discussing the performance goals for the coming year is a valuable use of a supervisor’s time and will help to ensure that there is no miscommunication and there are no suprises.  Performance goals should be set jointly by the employee and the supervisor.  Goals should be both short- and long-term.  Additionally, goals should be precise and quantifiable where possible.  For example, completing a specific project within a set time period.

The bottomline is that a performance evaluation is a tool a supervisor can use to help enhance the efficiency of the work unit.  This tool is a means to help ensure that employees are being utilized effectively.  Employees can use it as a clear indication of what is expected of them before the supervisor tells them how well they are doing, and then as feedback of how well they did.  The performance evaluation doesn’t have to be feared or looked upon as a negative experience if it is done with avoiding these common mistakes in mind.

Related posts:

1. 10 Common Employee Handbook Mistakes to Avoid

What is Workplace Bullying?

Workplace bullying is described as the repeated use of aggressive or unreasonable behavior (which can include verbal, physical and psychological forms) against co-workers.

Workplace bullies can be identified by the following characteristics:

• Emotional outbursts
• Misuse of power or authority
• Excluding or socially ostracizing their target
• Unwarranted and invalid criticism
• Humiliating or embarassing their target
• Intimidating or threatening their target
• Gossiping or spreading rumors about their target

How Can You Address Workplace Bullying?

Although this behavior may be immoral and unprofessional, it is not illegal.  Since 2003 sixteen states, including Washington, have unsuccessfully proposed legislation to address workplace bullying.  While it is unlawful under federal law for an employer to harass a member of a protected class, federal courts have not extended the law to prohibit workplace bullying toward those who do not fit into a protected group.

Unchallenged workplace bullying poisons the workplace.  It is behavior that drags down morale and can be costly in innumerable ways–higher turnover, lower productivity, more sick days, more workers’ compensation claims, just to name a few.  You should be proactive and take the following steps to address workplace bullying:

• Establish a policy addressing what is acceptable and unacceptable behavior
• Establish procedures to report and investigate claims of bullying
• Be on the lookout for bullying
• Take all complaints seriously
• Educate/train employees on what is bullying, why it is unacceptable, how to report bullying and job consequences for bullies.

No related posts.