Cintas’ most recent challenge to union corporate campaign falls short

I suppose Cintas Corp figured it was worth a shot, but a novel defense strategy attempted by the uniform and laundry giant in the face of unfair labor practice charges ultimately proved unsuccessful. Earlier this week, the Eighth Circuit enforced an NLRB order finding Cintas committed several violations of the National Labor Relations Act. The appeals court, like the Board below, rejected Cintas’ contention that, essentially, it was entitled to interfere and/or retaliate against employees who engaged in prounion activities because UNITE HERE has been waging an aggressive corporate campaign against the company.

The NLRB General Counsel filed a complaint against Cintas, alleging a series of garden-variety unfair labor practice charges. In a hearing before an administrative law judge, Cintas conceded its antiunion animus. It asserted in its defense, however, that UNITE HERE was carrying out an unlawful nationwide corporate campaign against the company and that the unfair labor practice charges were filed for illegitimate purposes related to this campaign; thus, any employee activity in support of the union is not protected under the Act. The union’s corporate campaign was unprotected activity, Cintas reasoned, because it involved “coercive and disloyal tactics” that were intended to force the employer into a neutrality and card-check agreement.

However, the ALJ excluded as irrelevant the evidence Cintas sought to introduce regarding the union’s corporate campaign. Whether individual employee activity was protected was to be determined based on the employees’ own conduct and motives, the ALJ reasoned, not on unrelated corporate campaign activity by the national union. To have imputed the union’s conduct to individual employees without proof of specific knowledge “would have perverted common law principles of agency and run contrary to the purposes of the Act,” he wrote. The two-member NLRB adopted this position, and held the ALJ did not abuse his discretion by refusing to admit the evidence about the corporate campaign.

The Eighth Circuit affirmed and enforced the Board’s order. As the appeals court wrote, “We have been unable to find a reported case in which an employer has sought to use a union’s national campaign as a defense to unfair labor practice charges involving individual employee activity, and Cintas has not cited any.”

“The proper venue for Cintas to raise its allegations about the national campaign by UNITE HERE would be through unfair labor charges against the union itself,” the appeals court added.

An ongoing counterattack. The defense posture before the NLRB was not Cintas’ first challenge to UNITE HERE’s ongoing corporate campaign, launched in 2003 as part of an aggressive nationwide effort to organize Cintas workers. The company has responded with a litigation counter-offensive against the hotel, restaurant and textile workers union. Perhaps no employer has fought back so forcefully against organized labor’s corporate campaign strategy. Cintas’ efforts thus far have met with varied success.

“For the last five years, UNITE HERE and other labor organizations have carried on a campaign of negative, untrue and unlawful attacks against Cintas in an effort to extort concessions from the company,” Cintas alleged in a 2008 press release announcing the filing of a lawsuit in the Southern District of New York. (The 2008 suit consolidated an ongoing defamation suit filed by the company in an Ohio state court in 2004.) Cintas alleged violations of the federal and state Racketeer Influenced and Corrupt Organizations (RICO) statutes, claiming the unions engaged in extortion, interference with existing and prospective business relationships and deliberate attacks in order to artificially depress the value of Cintas stock, among other unlawful conduct. The state suit also alleged UNITE HERE violated Cintas’ trademark rights, including “improper use of Cintas’ trade name and trademark in various websites designed to further the unions’ extortion and reputation-destruction campaign.” (The union had created a Web site, "cintasexposed.org," featuring negative information about the uniform company, with a link to the union's Web site and a disclaimer stating its origins and purposes.)

A district court dismissed the RICO complaints. The union’s efforts to secure a neutrality agreement did not rise to the level of criminal extortion, the court found, noting that “courts have held uniformly that such an agreement provides benefits to both an employer and a union.” Further, “Cintas does not have a right to operate free from any criticism, organized or otherwise,” the court wrote. The court dismissed the trademark claims as well; given the content of the Web site and its obvious disdain for Cintas, it was unlikely that customers would be confused about the relationship between the parties. In an unpublished ruling issued last week, the Second Circuit affirmed dismissal.

DPPA claim succeeds. While Cintas was not technically a party to the litigation, a lawsuit brought by Cintas workers, filed by the law firm that represents Cintas in labor matters, and publicly hailed by the company, managed to strike a blow against UNITE HERE—and to thwart a key tactic used by labor unions to communicate with workers in their organizing campaigns.

During its organizing drive, UNITE HERE employed a tactic known as “tagging” in an effort to locate employees’ names and home addresses so the union could approach the workers outside the workplace. The union copied the license plate numbers of vehicles in Cintas’ employee parking lots and then used the numbers to obtain names and addresses of their registered owners from databases containing state motor vehicle records. A group of Cintas employees filed a class action suit, alleging the union violated the federal Drivers Privacy Protection Act (DPPA), which forbids “knowingly disclos[ing] or otherwise mak[ing] available to any person or entity: personal information... about any individual obtained by the department [of motor vehicles] in connection with a motor vehicle record.” 18 U.S.C. § 2721(a).

A district court held the union violated the federal privacy statute, granting summary judgment to the plaintiffs and awarding $5 million in damages to Cintas employees. The Third Circuit gloat.

Not just Cintas. Other employers have filed suits against labor unions alleging corporate campaign tactics have violated the law. Sutter Health, a Northern California hospital corporation, successfully sued UNITE HERE in 2006 when a jury found the union defamed the hospitals during an organizing drive. The union was ordered to pay over $17 million in damages. And Smithfield Foods is the plaintiff in ongoing litigation against the UFCW and other union defendants in a federal district court in Virginia. The company alleges RICO and state law claims, contending the defendants’ corporate campaigns damaged Smithfield’s corporate reputation and that it lost profits and stock value as a result. The defendants sought to dismiss the RICO action, claiming the extensive list of corporate campaign-related conduct alleged by the company in its complaint was merely coercive activity and not extortion. The lawsuit survived the motion to dismiss, however, and the litigation is ongoing.

No doubt the litigation counter-offensives represent an ongoing challenge for unions. On the other hand, they are a grudging nod by employers to organized labor’s success in organizing workers through such nontraditional means.

High Court to decide if SWAT officer will get Fourth Amendment slap across the mouth

On the surface, the question seems simple and pragmatic: Does a Special Weapons and Tactics (SWAT) officer have a reasonable expectation of privacy in text messages sent from his work-issued pager – a pager used to make SWAT call-outs? Never mind the fact that SWAT officers, during the execution of their law enforcement duties, must always be mindful of the Fourth Amendment rights of ordinary citizens, and thus, would likely have a better than average understanding of Fourth Amendment law and privacy rights. It would seem that the SWAT officer in Quon v Arch Wireless Operating Co, Inc (9thCir, 91 EPD ¶43,233) could not have been anything but unreasonable in believing that the personal, and sometimes sexually explicit, text messages he sent from his work pager would be shielded from review by his employer.

As anyone prosecuting or defending criminal cases knows, police communications concerning criminal activity are generally discoverable – and are often subpoenaed by defense attorneys to determine whether Fourth Amendment rights have been violated. Further, under public disclosure laws, such as the California Records Act, records related to the conduct of public business may be subject to disclosure. Add to that potential media requests for police communications in high profile cases – the kind that involve SWAT teams – and disclosure of SWAT-related communications would seem predictable.

But the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment and state constitutional privacy rights of the SWAT officer, as well as the officers he texted, when, as part of a text message overage audit, it read transcripts of the messages the officer sent on his work-issued pager.

Anything but simple. As illustrated by the sharply divided Ninth Circuit’s order denying panel rehearing and rehearing en banc, the legal issues and the interpretation of the facts in this case are anything but clear. For starters, the concurring order, written by Judge Wardlaw (who also authored the Ninth Circuit opinion), insists that the appeals court did not, in determining the reasonableness of the scope of the police department’s search in auditing the records, impose a “less intrusive means” test. Judge Ikuta, authoring the dissent, urges with equal force, that the panel, albeit without acknowledgement, did in fact apply such a test in its analysis – contrary to Supreme Court precedent. (Assuming the dissent is correct, the Ninth Circuit created a circuit split as to whether the “less intrusive means” analysis should be applied in determining the reasonableness of government activity under the Fourth Amendment.)

The concurrence and dissent also differ in their characterizations of the police department’s policies and practices related to privacy and auditing of the pagers. However, there clearly was no written policy specifically directed to the privacy of text messages transmitted by the pagers.

Certiorari granted. Today, the High Court granted the City of Ontario, California’s petition for certiorari (City of Ontario v Quon, USSCt, Dkt No 08-1332). The questions presented to the Court are:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used “less intrusive methods” of reviewing text messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

Implications for private employers? Of course, these Fourth Amendment issues arise in the context of government employment. But private employers and employees may have a stake in the outcome, too. With employees using internet forums to make sometimes disparaging comments about employers, and their frequent use of company equipment to visit favorite websites and communicate with personal acquaintances, employers will increasingly monitor such use. It seems likely that the police department’s privacy policy, or lack of a policy specifically directed to the pagers, will play a significant role in the Supreme Court’s analysis. To that extent, the outcome will be at the very least, instructive, and perhaps even, will point the way for employers seeking to avoid liability for violating employee privacy interests.

Regulatory agenda & corresponding webchat provide indications of OFCCP's enforcement focus

OFCCP Director Patrica Shiu's December 8, 2009 webchat on the agency's Fall 2009 regulatory agenda provided some indications on how the Obama Administration plans to enforce the EEO and affirmative action obligations of government contractors. In her webchat, Shiu said that the OFCCP "will vigorously enforce" the three laws under its jurisdiction - Executive Order 11246, Section 503 of the Rehabiltation Act and VEVRAA - "and will do so through both systemic and individual cases." She stated that the OFCCP "will not be exclusively focusing on systemic discrimination as we have in the past few years."

Update to construction contractor requirements. In its regulatory agenda, the OFCCP stated that it plans to issue a Notice of Proposed Rulemaking (NPRM) in January 2011 to revise the regulations in 41 CFR Part 60-4 implementing the affirmative action requirements of Executive Order 11246 that are applicable to federal and federally assisted construction contractors. In her webchat, Shui noted that the OFCCP's affirmative action regulations and goals applicable to construction contractors "were last updated about thirty years ago." "We know much has changed in the construction industry and workforce since that time," she continued. "As part of the rulemaking process, OFCCP will be reviewing barriers to equal opportunity in the construction industry including employment opportunities for women and minorities. OFCCP will also be considering how construction contractors may best ensure equal opportunities for all job applicants and employees."

VERAA and Section 503 requirements. According to the regulatory agenda, the OFCCP will publish an Advance Notice of Proposed Rulemaking (ANPRM) in December 2010 to revise the regulations in 41 CFR Parts 60-741 that implement the nondiscrimination and affirmative action provisions of Section 503 of the Rehabilitation Act of 1973, as amended. In particular, the ANPRM would strengthen affirmative action requirements by requiring federal contractors and subcontractors to conduct more substantive analyses and fully monitor their recruitment and placement efforts on behalf of individuals with disabilities. In December 2010, the OFCCP plans to issue an NPRM that would revise the regulations in 41 CFR Parts 60-250 and 60-300, implementing the nondiscrimination and affirmative action provisions of VEVRAA. The NPRM would amend the regulations to strengthen the affirmative action requirements by requiring that federal contractors and subcontractors to conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts.

Regarding the forthcoming proposals to amend the Section 503 and VEVRAA regulations, Shiu commented that the "OFCCP will seek input from stakeholders on the type of statistical or other analyses that might be used by contractors to better monitor their employment practices with respect to applicants and employees with disabilities and protected veterans." The OFCCP will also "be researching existing data on the availability of qualified individuals with disabilities and protected veterans."

The regulatory agenda and corresponding webchat show that the OFCCP will continue with, and build upon, the increased focus on EEO and affirmative action requirements in regard to individuals with disabilities and veterans that started during the Bush Administration. Moreover, the long-neglected construction contractor regulations will be getting some much needed updating. Considering the significant regulatory changes being considered by the OFCCP, stakeholders should not miss their chance to comment on these proposals once they are published. Indeed, during her webchat, Director Shiu explicity encouraged comments on the upcoming proposals. Stakeholders will have an opportunity to hear further discussions regarding these upcoming proposals during three webinars (one for each new proposal) to be hosted by the OFCCP in January 2010. In addition, OFCCP officials will be hosting town hall meetings across the country in February and March. The specific dates and times for these events will be posted on the OFCCP website.

States extend anti-discrimination protections to include sexual orientation and gender identity

Thanks to recent news reports featuring Chaz Bono talking about going through gender reassignment, issues of sexual orientation and gender identity have a more public face and some hope that means more attention. While federal anti-discrimination protections have not been expanded to include sexual orientation and gender identity, despite repeated attempts, states have continued to take on the issue.

In the past year, several states have extended anti-discrimination protections for sexual orientation, gender identity, and/or transgender status. Colorado, for example, has adopted rules to eliminate discrimination on the basis of sexual orientation, including transgender status, in employment as well as other areas. Also, employers may prescribe standards of dress or grooming that serve a reasonable business or institutional purpose, provided that individuals are not required to dress or groom in a manner inconsistent with that individual’s gender identity. Those rules became effective November 30, 2009.

Other laws regarding sexual orientation/gender identity issues passed this year include legislation in California requiring the state Department of Public Health to develop a training program for nurses, nurse assistants and physicians (working in skilled nursing facilities or congregate living health facilities) that focuses on preventing and eliminating discrimination based on sexual orientation and gender identity. Connecticut enacted a law that implemented the guarantee of equal protection under the constitution of the state for same-sex couples and the decision of the Connecticut Supreme Court, Kerrigan v Commissioner of Public Health, ConnSCt, released October 10, 2008. In addition, the law repealed a provision in its sexual orientation law specifying the construction of statute.

Delaware enacted a law prohibiting discrimination based on sexual orientation in areas including employment, public works contracting and public accommodations. Under the law, “sexual orientation” is defined exclusively to mean heterosexuality, homosexuality, or bisexuality. Religious employers are exempt, except where the duties of employment or employment opportunity pertain solely to activities of the organization that generate unrelated business taxable income subject to taxation under the Internal Revenue Code. Also in Delaware, Governor Jack Markell issued an executive order extending anti-discrimination safeguards for state employees and applicants for state jobs to all military veterans and to protect against discrimination based on gender identity or expression.

Other states, such as Michigan, have legislation working through the state legislature that would extend state anti-discrimination protections for sexual orientation, gender identity and/or transgender status. H.B. 4192 would amend the state’s civil rights act to provide anti-discrimination protections for sexual orientation, gender identity or expression. State Representative Rebekah Warren, primary sponsor of H.B. 4192, says the bill is not about special rights or special interests but about protecting "citizens and their families from being fired from a job or being denied housing because of who they are or who they love." According to a statement on her website, Warren also sees this as a way of making Michigan more competitive in the global economy. "This policy not only protects Michigan families, but also works to reverse brain drain and attract businesses worldwide without spending a dime. We simply can't afford not to do it."

Millions of laid-off workers lose health coverage as federal COBRA subsidies expire

On December 1, many of the millions of laid-off workers and dependents who received federal subsidies to help pay for health care coverage lost those subsidies and likely joined the ranks of the uninsured, according to the consumer health organization Families USA. The subsidies -- which were started last March by the American Recovery and Reinvestment Act (ARRA) but were made available for only nine months -- have enabled millions of laid-off workers and dependents to afford so-called "COBRA" premiums needed to continue health coverage from their previous employer.

Under the ARRA, the federal subsidies pay 65 percent of the cost of COBRA premiums. Nationwide, the federal subsidies for COBRA family coverage average $722 per month. Without subsidies, the report finds, nationwide COBRA premiums for family health coverage will cost laid-off workers, on average, $1,111 per month -- 83.4 percent of the average ($1,333) monthly Unemployment Insurance (UI) checks they receive. For the first recipients, who began receiving subsidies in March, the subsidies will expire on November 30. For those who started receiving subsidies after March, the expiration will be nine months after their start-up date.

"When workers lose their jobs, they often lose their health coverage as well," said Ron Pollack, executive director of families USA. "For millions of laid-off workers and their families, the federal COBRA subsidies have been a health-coverage lifeline. It is essential, therefore, that new jobs legislation extends those subsidies."

Pollack noted that pending health reform legislation would provide a permanent source of help to laid-off workers. The health reform bills pending in Congress would enable laid-off workers and their families to obtain health coverage through a newly created marketplace, called an "exchange," and families with low incomes would receive tax-credit subsidies to help pay the premiums.

According to the Families USA report, average monthly family COBRA premiums vary quite significantly from one state to another --ranging from $979 in Idaho and $989 in Iowa to $1,232 in Minnesota.

The report also indicates that average monthly UI checks vary substantially from one state to another. The two states with the lowest average UI benefits are Mississippi ($839) and Alabama ($903), and the two states with highest benefits are Washington ($1,826) and Hawaii ($1,808).

In nine states, the average family COBRA premium exceeds the average UI benefit. In Mississippi, for example, the average monthly unsubsidized family COBRA premium is 22.4 percent higher than the average monthly UI check: The average family COBRA premium in the state is $1,027, while the average monthly UI check is $839.

The eight other states in which the average family COBRA premium exceeds the average UI check are: Alabama ($1,005 vs. $903); Alaska ($1,209 vs. $1,032); Arizona ($1,111 vs. $941); Delaware ($1,209 vs. $1,125); Florida ($1,147 vs. $1,010); Louisiana ($1,013 vs. $968); South Carolina ($1,090 vs. $1,061); and Tennessee ($1,112 vs. $975).

"Extending the federal COBRA subsidy is a critical, immediate measure to protect recently laid-off workers and their families," said Pollack. "For the future peace of mind of working families, however, it is important to pass health care reform so that nobody has health coverage taken away when he or she switches jobs."

Any extension of the COBRA subsidy program will also likely make the subsidies available to newly unemployed individuals. Under the current program, people who lose their jobs after December 31, 2009, will not qualify for the subsidy.

The Congressional Budget Office and Joint Tax Committee estimated that approximately 7 million adults and dependent children would receive the COBRA subsidy in 2009. The Treasury Department is compiling data about how many workers received the subsidy, but a count of the people benefiting from the subsidy is not yet available.

That was the week that was (in employment news)

While the jury is still out on whether we can finally see a light at the end of the jobs-creation tunnel, some of the employment news out this past week wasn’t all bad, for a nice change of pace (how’s that for damning with faint praise?).

Impact of stimulus. The week began with the Congressional Budget Office’s stimulus report card, “Estimated Impact of the American Recovery and Reinvestment Act (ARRA) on Employment and Economic Output as of September 2009.” The CBO reported that between 600,000 and 1.6 million people were employed in the third quarter of 2009 who otherwise would not have been. While this number is in line with original government estimates, an important point to keep in mind is that only $100 billion of the $787 billion stimulus package has actually been spent by the federal government so far. And, the CBO noted, another $90 billion of stimulus will be coming in the form of tax reductions.

"Estimating the law's overall effects on employment requires a more comprehensive analysis than the recipients' reports provide," the CBO said. "Therefore, looking at the actual amounts spent so far (where identifiable) and estimates of the other effects of ARRA on spending and revenues, CBO has estimated the law's impact on employment and economic output using evidence about how previous similar policies have affected the economy and various mathematical models that represent the workings of the economy. On that basis, CBO estimates that in the third quarter of calendar year 2009, an additional 600,000 to 1.6 million people were employed in the United States."

Jobs summit initiative. Next up was Thursday’s jobs summit at the White House, where more than 100 CEOs, academics, small business and union leaders and local officials participated in a half-day brainstorming session with administration officials. President Obama, who indicated that some of the ideas generated could be put to work almost immediately, while others will become part of legislation for Congress to consider, emphasized the need to quickly move forward “on an aggressive agenda for energy efficiency and weatherization." Other suggestions to come from the session included tax incentives for job creation, improving the credit markets, and the use of community colleges as employee training centers.

In light of the fact that jobs creation will certainly be the key issue in 2010’s midterm Congressional elections, President Obama today continued the theme as he launched a month-long “White House to Main Street” tour in Allentown, Pennsylvania, to be followed by next Tuesday’s invitation-only speech at the Brookings Institution.

Jobless rate: good news/bad news. Tentative feelings of relief greeted today’s announcement by the Labor Department that the unemployment rate fell to 10 percent from a 26-1/2 year high of 10.2 percent in October, as nonfarm employers cut “only” 11,000 jobs. In addition, the government revised job losses for September and October, which showed that 159,000 fewer jobs were lost than previously reported. November's data was the strongest since December 2007, when jobs increased by 120,000.

Reuters reported that improvement in the labor market last month was broad based, with four sectors, including the government, adding jobs. Manufacturing payrolls fell 41,000 after dropping 51,000 in October. The construction sector shed 27,000 jobs, while the service-providing sector added 58,000 workers. Professional and business services added 86,000, while education and health services increased payrolls by 40,000. Temporary help employment rose by 52,400.

Although government data strongly suggested that the labor market may be close to turning the corner, not everyone was immediately willing to don their rose-colored glasses. As Economic Policy Institute (EPI) Director Larry Mishel noted in Tula Connell’s AFL-CIO Now Blog, he would not interpret this decline as the beginning of an ongoing reversal in the unemployment rate. In fact, he said, the jobs situation likely will worsen for up to the next 12 months. One reason: “There is a backlog of people who dropped out of labor force who will come back in—up to 3 million jobless workers. And when they start looking for jobs again unemployment will rise.”

EPI economist Heidi Shierholz acknowledged that layoffs are still high but have gone way down from where they were. “The hiring of temporary workers has increased for the past three months, which is an indicator that employers are testing the waters to increase staff. But hours need to rise before a recovery for jobless workers is really in sight—and so far, the number of hours worked remains flat, hovering at 33 hours per week since summer—the shortest on modern record,” she said.

So, are we really starting to see some improvement on Main Street? Sure, the economic experts and pundits all have their opinions—but one thing’s for certain: it’s way past time for both the government and private sectors to come up with solutions for putting people back to work in decent-paying jobs. And it isn’t just an election that’s hanging in the balance.

Made by union members, funded by union dollars

In the current economic crisis, labor unions are looking for any possible way to shield their members from the worst that the downturn has to offer. In what has to be one of the more imaginative solutions to this near-universal problem, the AFL-CIO is thinking about financing the building of a skyscraper, one that its members will be hired to build.

In 2007, Chicago developers broke ground on a twisty skyscraper, the Spire, designed by the renowned architect Santiago Calatrava. At 2000 feet, it would not only be the largest building in the City of Big Shoulders, it would also be one the largest in the world. Open only for residences, the least expensive of which would cost a cool $750,000, the project was a symbol of an earlier, more economically optimistic time. However, since the groundbreaking, the global economic crisis has drained funds and there's been no work on the site for over a year.

Where passing cars see a large hole, the AFL-CIO saw an opportunity. "We're trying to get monies invested to get the project going, to get the spire project going," said Thomas Villanova, head of the local Building and Construction Trades Council in a recent interview with Chicago Public Radio. According to Villanova, under the proposed deal, union members would do all the work on the Spire. How much work would that amount to? Try seven-and-a-half million work hours.

It makes sense for the union. Villanova said that some locals have up to 30 percent unemployment. Members are losing their benefits, their homes, their families, because of the prolonged slump in housing construction. That grim reality makes the reported $170 million dollar investment a potentially wise move. Villanova predicts that the Spire is going to require five years of construction, resulting in the creation of thousands of jobs.

Garrett Kelleher and his firm, Shelbourne Development Group Inc., the developer for the top-bracket residential tower met recently with union leaders as talks. He hopes to borrow $170 million from AFL-CIO pension investment trusts. While the sides failed to reach an agreement in their most recent meeting, talks will continue.

Kelleher and Spire representatives have been visiting local union halls over the past few weeks in an attempt to convince union leaders to invest in the building, according to the Chicago Tribune. (http://www.chicagotribune.com/business/chi-mon-spire-1130-nov30,0,1953419.story.)

It remains to be seen whether the developer's financial troubles will prevent the deal, but if it goes through, it would provide a much-welcome boon to the union's beleaguered members.

No cell phone needed for “pretexting,” only someone’s persona

If I were to ask most people what “pretexting” is, many would probably answer, “What someone does before actually sending out a text.” In today’s text-happy world, that sounds about right, but it is not correct. In fact, pretexting is a much more sinister issue, and it is against the law. According to Pretextingandyou.com, pretexting is a data-mining scam where:

… someone assumes the guise of another person in order to establish trust and extract privatized information from an unsuspecting target, typically over the phone or through online interaction. Barring sanctioned police investigations, pretexting is illegal. Pretexting is a kind of "social engineering" that is a subset of fraud.

So why should an employee or employer have that much interest in pretexting? Well, if you are an ex-employee like Kathy Lawlor, the law regarding pretexting meant the difference between a legal investigation after she left her employer, and one that ended in a judgment against her former employer, North American Corp., for invasion of her privacy.

According to a recent story in the Chicago Tribune, Ms. Lawlor was a highly regarded sales person with North American Corp. After refusing to sign a document that would cut her commissions, she quit. Soon after, she received a letter from her former employer requiring her to pay more than $20,000 in overpayment commissions. Having a belief that it was the company that owed her money, and not the other way around, she then filed suit seeking thousands in commissions and to have her noncompete agreement lifted.

Seems practical enough, right? I mean, these types of employer/employee problems arise all the time, and so if the story stopped there, certainly there would be little to write about. However, it was the actions of the employer, after she had left its employment, that created the major issue in this case, and it was these actions that put the term “pretexting” at the forefront of her complaint.

After she left her employment, Ms. Lawlor noticed a car sitting outside her home, and only later did she discover that this was an investigator hired by her former employer. North American claimed it hired the investigator because it believed Ms. Lawlor was competing with them. Ms. Lawlor then added an invasion of privacy claim to her complaint. Through the discovery process, it was unearthed that her former employer had provided the investigator with her personal information, and the investigator, by claiming to be Ms. Lawlor, used this personal information to obtain her phone records.

This kind of cloak-and-dagger routine used by the investigator sounds less like reality and more like something out of a spy novel. Yet, to an Illinois jury, this use of “pretexting” by the employer to obtain her telephone records without her authorization was an impermissible invasion of her privacy, and it ordered her former employer to pay $1.8 million in damages.

Even with the facts of this case in mind, the question really is: Should this type of action even be against the law? Employees and former employees would resoundingly answer with a “yes,” but what about employers? Certainly no one would argue that an employer trying to obtain phone records simply for harassment purposes would be wrong, but in this instance, the employer claimed it thought the former employee was violating her noncompete agreement, and that she was disclosing business secrets to competitors.

North American argued that while it never knew what techniques were being used by the investigator to obtain the phone records, this information was pertinent to its investigation. Doesn’t an employer have the right to seek out such information in order to stop former employees from violating noncompete agreements and disclosing business secrets? If so, wouldn’t a thorough review of phone records either provide proof that such duplicitous acts were occurring, or dispel that they had occurred?

But it was not the reasons why North American wanted the records that seemed so invasive, rather, it was the methods used that tend to lend credence to the jury’s award. The fact is, because the investigators pretended to be Ms. Lawlor in order to obtain her phone records, it can certainly be argued that they crossed the line separating appropriate investigative tactics and fraudulent methods. And in doing so, every bit of information obtained could be deemed tainted, and so her former employer, who had every right to investigate Ms. Lawlor, probably had the responsibility to know how these phone records were obtained.

The simple fact is, employers have every right to protect their property, be it physical or intellectual, but employees and former employees have a right to more than simply a modicum of privacy. The use of pretexting in the aforementioned case is an example of investigative procedures that could be deemed to have “run amuck,” no matter what the cost might be to an employer. The jury’s $1.8 million verdict seems, to me, to be a cautionary tale that tells employers that they can investigate former and current employees, but fraudulent activity, like pretexting, cannot be explained away by simply making a claim that it was done without their knowledge. However, with North American appealing the jury verdict, there may be more on this case in the future.

AFL-CIO’s Trumka unveils five-point jobs plan

As part of the Economic Policy Institute (EPI)’s “Spotlight on the Jobs Crisis" panel, held last week in Washington, DC, AFL-CIO President Richard Trumka noted that an official unemployment rate of 10.2 percent, which rises to 17.5 percent when including the underemployed, demands that a bold, quick action is needed to put people back to work. Coinciding with President Obama’s upcoming December summit on jobs creation, the AFL-CIO has unveiled a five-step jobs initiative.

While Trumka noted that the recovery package passed earlier this year was a critical and important step because it pulled the economy back from the brink of what he was convinced would have been a depression, he contended that two million jobs need to be created just to keep up with population growth.

“Of course, while we work on creating two million jobs right now, we can’t lose sight of the big picture,” Trumka said. “We know that we also need to keep working on deeper reform measures to ensure that we are rebuilding our economy on a solid foundation - we need the Employee Free Choice Act to guarantee workers the freedom to choose a union; we need financial reform to rein in the excesses of Wall Street; and we need to fix our flawed trade policies to make America competitive again and reduce our enormous trade deficits.”

Accordingly, the following five-point jobs plan calls for the following:

(1) Extension of unemployment benefits, food assistance and health care for the unemployed. These benefits are critical not only to the unemployed, but to maintain personal spending that will save and create jobs throughout the economy.

(2) Repair our broken infrastructure. Every dollar spent on infrastructure employs workers all down the supply chain in construction, manufacturing, design and engineering - and we need to be sure these dollars create U.S. jobs and develop badly needed U.S. industrial capacity. And we need to invest in good green jobs - green technology, energy-efficient retrofits of public buildings and the smart power grid.

(3) Boost aid to state and local governments to maintain vital services and prevent more layoffs. Without additional funding, our public safety, our health needs and our children’s educations will suffer.

(4) Create jobs that put people to work in our communities meeting pressing needs. These are not replacements for existing public jobs. They must pay competitive wages and should target distressed communities.

(5) Put TARP funds to work for Main Street. If small businesses can get credit, they will create jobs.

“Doing nothing is not an option,” Trumka emphasized. “If we don’t act, everything will be worse -- including our federal budget deficit. We will be out there every day, working with the other groups here today, with business leaders and elected officials at every level, mobilizing and helping the White House and Congress get this done.”

Buyer beware. Employer, too.

In anticipation of Black Friday—the feverish, day-after-Thanksgiving shopping mayhem that marks the onset of the holiday gift-buying season and the shift in retailers’ fortunes from red to a profitable black—OSHA has issued crowd-control guidelines to help retailers protect their employees during major sales events. “Crowd-related injuries during special retail sales and promotional events have increased during recent years," said Jordan Barab, acting assistant secretary of labor for OSHA. “Many of these incidents could be prevented, and this fact sheet provides retail employers with guidelines for avoiding injuries during the holiday shopping season.”

The agency’s recommendations came in response to last year’s Black Friday tragedy, in which an employee was trampled to death at a Long Island Walmart store. The temporary worker was killed in the November 2008 incident when he was asphyxiated after being knocked to the ground and trampled by a crowd of 2,000 shoppers surging into the store for the retailer's annual day-after-Thanksgiving sale. OSHA cited Walmart for inadequate crowd management, including failing to provide employees with the necessary training and tools to safely manage a large crowd of shoppers, thus exposing workers to the danger of being crushed. The citation carried a proposed fine of $7,000, the maximum allowable penalty for a serious violation. In exchange for agreeing not to prosecute Walmart for the incident, the district attorney required the company to implement a statewide crowd-management plan for post-Thanksgiving Day events at each of its 92 New York stores, among other conditions.

According to OSHA, Walmart had not used the crowd-control measures recommended in its recent guidelines. Among them: Employ trained security personnel or police officers on site. Set up barricades or rope lines for pedestrians and crowd control well in advance of customers’ arrival, arranged so that the line does not start right at the store entrance. Explain approach and entrance procedures to the arriving public. Don’t let more customers into the store when it’s at maximum occupancy. Don’t block or lock exit doors.

A few weeks ago, with the approach of the 2009 season, Walmart released a statement assuring shoppers that customer and employee safety is a top priority for the retailer and that store-specific safety plans have been implemented at all of its U.S. stores. “As an added measure, most of our U.S. stores will be open 24 hours for our post-Thanksgiving Day events. Our in-store specials will be available in all U.S. stores starting at 5:00 a.m,” the November 11 press release noted.

But expanded store hours won’t do much to quell the danger, according to one analyst, who said the hordes of shoppers often are incited by retailers’ admonitions that the goods featured at “low-low prices” in their sales ads are meagerly stocked. “We saw the stampede at [the] Wal-Mart store in New York last year,” Burt Flickinger, managing director of consulting firm Strategic Resource Group, told CNN.com. “The stampede happened because so many of the deals were advertised as limited supply.”

Yesterday Walmart issued another press release boasting its pending bargains. “Hit the Stores Friday Morning: $3 sleepwear for the family, a $298 laptop and more,” the retailer announced. “Walmart’s day-after-Thanksgiving event from 5 a.m. to 11 a.m. highlights the gifts moms want for their family. All items are available in limited quantities. Sorry, no rainchecks.”

Next up: the cyber-rush
The crowd-leery shoppers, the faint of heart, will wait out the weekend. They'll make the mad dash on Monday, from the comfort of their cubicles. They are on your payroll, no doubt.

“This year, 53.5 percent of workers with internet access, or 68.8 million people, will shop for holiday gifts from work,” says the National Retail Federation. (The retail trade group released its own guide for stores on effective crowd management in anticipation of Black Friday.) And those employees plan to spend nearly two full working days (14.4 hours) on average shopping online from a work computer this holiday season, according to the second annual “Shopping on the Job: Online Holiday Shopping and Workplace Internet Safety” survey conducted on behalf of ISACA, a nonprofit association of 86,000 information technology (IT) professionals. One employee in 10 plans to spend at least 30 hours shopping online at work, the survey found.

The costs to companies of employees’ online holiday shopping is potentially staggering: One in four IT professionals estimate that their company will lose $15,000 or more per employee in productivity during this year’s holiday season. That’s not counting the threat of viruses, spam and phishing attacks, which can cost millions in destruction or compromise of corporate data.

“With the Internet now available to almost any employee in the workplace, it’s unrealistic to think that companies can completely stop the use of work computers for online shopping,” said Robert Stroud, ISACA international vice president. “What companies can and should do is educate employees about the risks of online shopping and remind them of their company’s security policy. This is especially important this year, when the convenience of shopping online may be very appealing to employees whose workloads have doubled or tripled because of downsizing.”

ISACA offered tips for employers on how the IT team can minimize the potential damage:

• Educate employees. Blocking sites can do more harm than good, causing employees to seek out less-secure ways to get around your blockade. Education works better.
• Get employees on board with learning by teaching them how to protect both their work computers and their home computers.
• Reinforce what you teach by having employees sign an acceptable-use policy every year.
• Offer a “safe zone” for holiday shopping—create an online sandbox that can be taken down after the holidays.

And hold your “bah humbug” for now. It’s not all bad, according to Phil Rist, executive vice president for strategic initiatives at BIGresearch. He tells the National Retail Federation: “Although employers may cringe at the thought of their workers browsing or buying gifts online at work, there is a potential bright side. Employees who spend ten minutes at the office completing their holiday shopping online are likely to be much more efficient than those who use extended lunch breaks waiting in line at the store and fighting holiday traffic on the way back to work.”

Employer alert: EEOC now enforcing GINA

On November 20, 2009, the US Equal Employment Opportunity Commission (EEOC) reminded stakeholders that, in the first legislative expansion of its jurisdiction since passage of the Americans with Disabilities Act (ADA) in 1990, the federal agency will assume responsibility on November 21 for enforcing Title II of the Genetic Information Nondiscrimination Act (GINA).

GINA, signed into law in May 2008, prohibits discrimination by health insurers and employers based on individuals’ genetic information. Genetic information includes the results of genetic tests to determine whether someone is at increased risk of acquiring a condition (such as some forms of breast cancer) in the future, as well as an individual’s family medical history, the EEOC advises.

Specifically, GINA:

• prohibits the use of genetic information in making employment decisions;


• restricts the acquisition of genetic information by employers and others;


• imposes strict confidentiality requirements; and


• prohibits retaliation against individuals who oppose actions made unlawful by the statute, or who participate in proceedings to vindicate rights under the law, or aid others in doing so.

The federal agency also notes that the same remedies, including compensatory and punitive damages, are available under Title II of GINA as are available under Title VII of the Civil Rights Act and the Americans with Disabilities Act.

The EEOC is charged with issuing regulations implementing Title II of GINA. On March 2, 2009, it published a Notice of Proposed Rulemaking to implement Title II with proposed regulations and received over 40 public comments in response. The final regulations implementing Title II are currently under review by the Office of Management and Budget and will be issued as soon as the review process is concluded.

A brief sampling of some of the comments submitted on the EEOC’s proposed GINA regulations reveals the following concerns and suggestions:

• The definition of “genetic information” may make GINA compliance complicated because it may be difficult to distinguish between genetic and other medical information in practice.
  
  


• Physicians’ notes to confirm an illness or need for a reasonable accommodation should fall under the exception for inadvertent acquisition of genetic information because leave is requested informally in many small businesses.
  
  


• The EEOC’s position that any genetic information obtained through a post-offer, pre-employment medical examination falls outside the exception for inadvertent acquisition of genetic information fails to distinguish between employers that receive genetic information that is unresponsive to a legitimate and narrowly tailored request, and employers that deliberately obtain such information.
  
  


• The exception for commercially and publicly available information should include personal web pages and social networking sites because they, too, are publicly available.
  
  


• Rather than using a public/private distinction, media sources should be divided based on access required or likelihood of containing genetic information, because that is more consistent with GINA’s prohibition against searching public data bases likely to contain genetic information.
  
  


• The “water cooler” exception, for information volunteered or inadvertently overheard, should make clear that an employer’s probing questions or intentional information gathering do not fall under this exception.

In the meanwhile, employers should make sure they have posted the EEOC’s updated “EEO is the Law” poster.

And remember, the EEOC is watching!

Hiring veterans presents unique challenges

Last week’s observation of Veterans Day brings to mind the special challenges involved in bringing veterans back into the civilian workforce. Currently, the federal and most state governments provide for a veterans’ preference for government jobs. Federal legislation requiring private employers to grant reemployment rights to employees who have served in the military dates back to World War II. Military leaves of absence and reemployment rights of veterans and reservists are now governed by the Uniformed Services Employment and Reemployment Rights Act of 1994, which also prohibits discrimination and retaliation based on military service.

In addition, covered federal contractors have the obligation, under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), to take affirmative action to employ and advance certain categories of veterans. In recent years, VEVRAA has been expanded to include coverage of veterans beyond those who fought in the Vietnam conflict. Last year, the OFCCP, which enforces VEVRAA (there is no private right of action under the statute), announced its Good Faith Initiative For Veterans Employment (G-FIVE). This initiative gives special recognition to federal contractor establishments for their efforts in employing and advancing veterans and strengthens partnerships between the OFCCP and other agencies and veterans groups.

Leading by example, President Obama signed Executive Order (EO)
13518, regarding the employment of veterans in the federal government, on November 9, 2009. EO 13518 establishes the Veterans Employment Initiative for the Executive Branch, which is designed to transform the federal government into the model employer of America's veterans. The EO creates an interagency Council on Veterans Employment that will advise the President and the Director of the Office of Personnel Management (OPM) on the veterans' employment initiative. In addition, EO 13518 establishes a Veterans Employment Program office within most federal agencies. These offices will be responsible for helping veterans identify employment opportunities within those federal agencies, providing feedback to veterans about their employment application status, and helping veterans recently employed by these agencies adjust to civilian life and a workplace culture often different than military service. The OPM has also been instructed to issue a government-wide strategic plan that will focus on creating leadership commitment and an infrastructure in each agency to promote continued skills development and employment success for veterans. The strategic plan will also include marketing strategies aimed at agency hiring managers as well as veterans and transitioning service members. (For more information on the initiative, go to: http://www.fedshirevets.gov/.)

So, what special considerations should employers note when seeking to hire, reemploy, and advance veterans in the workforce? Earlier this month, an insightful article was posted on Diversity-Executive.com discussing “How to Integrate Veterans Into the Workforce.” Key points made by this article include:
* those who have served in the military three years or more have considerable supervisory, budgetary and diversity experience;
* job functions should be reviewed to consider whether certain military experience may equate to certain educational degrees;
* hiring managers need to learn how to translate military positions to the language traditionally used by human resources managers; and
* including veterans in a company’s recruiting team allows veterans to learn about the company from someone who understands military culture and language.

Internet resources for hiring veterans include the US Veterans’ Employment and Training Services' “Hire Vets First” website and MilitaryHire.com.

The up-and-down economic cycle has many employees still pedaling to work…sick

There are a few inescapable truths these days: 1. Unemployment continues to rise. 2. The flu (particularly H1N1) is on many peoples’ minds. 3. No one, neither employers nor employees, knows what to make of the economic situation. So it makes perfect sense that confusion would be present in the workplace when the question of whether to report to work when sick, or when possibly sick, gets brought up.

Conventional wisdom would suggest the answer to that question is not to come to work sick, but it is just not that simple. The problem is, reports show that unemployment has increased to its highest levels since 1983 (10.2%, according to the BLS), prompting widespread fear of job-loss among employees. While employers—needing staff to come to work—are also saddled with their own fears, as several reports show that the H1N1 virus, and seasonal flu, seems to be sweeping through businesses, schools, families, etc., at a rapid pace, and this could have a very damaging effect on the workplace.

So, when combining all this information, as an employer and employee, you are left in the middle of one big quagmire: With the economy down and people still losing their jobs at break-neck speeds, should employees come to work even when sick?

Certainly, the “stay home versus go to work sick” problem has plagued many offices nationwide as fears associated with the spread of H1N1 continue. In the Baby Boomer generation, and those preceding it, it wasn’t a question of whether you would come to work sick, but rather: Why would you stay home and not come to work sick? In an article in the Chicago Tribune, Tom Gimbel, chief executive of The LaSalle Network, a recruiting and staffing firm, felt that times have changed, saying:

"Since the recession started ... it's been a more heated issue of workers really having to protect their jobs and needing to make sure they're in the office." H1N1 means that "more than ever, employers are saying now, 'If you're sick, don't come in, because it's so contagious.'"

Yet, in times of rising unemployment, can employees really be expected to stay home as the onslaught of sickness begins to creep up on them? According to the 2007 CCH Unscheduled Absence Survey, “34 percent [of employers] foster a culture that discourages employees from coming to work sick.”

Today, that 34 percent is likely higher with fears of H1N1. That fear, coupled with the fact that the cost of presenteeism (when employees come to work in spite of illness) costs employers more annually than the cost of employee absenteeism (2007 SHRM study), seems to make it clear that staying home when sick is the obvious choice. However, in spite of this information, only 34 percent in 2007 said they discourage employees coming to work sick, making it somewhat clear that many employers do not make known their preference that sick employees, or potentially sick employees, stay home.

So, are employers really broadcasting to employees to stay home from work if sick? The simple truth is, with many businesses hurting in today’s economy, the words “stay at home if sick” have probably been uttered less by employers than: our economic problems continue in this bad economy; the company has experienced a continued string of bad financial quarters; layoffs are possible; no bonuses or merit increases this year; and all holiday parties are cancelled.

When things are bad enough that a holiday party has to be cancelled, what employee wants to take that sick day? So, the solution may be communication by both parties, but it starts with the employer, who must recognize the potential threats to workplace productivity and its bottom line from having employees show up to work with flu-like symptoms, and must communicate its policy that sick employees to stay home. In addition, the employer, if need be, should also take a look at its policy of offering paid sick days to employees (see proposed Healthy Families Act bill). Conversely, it then becomes the employee’s responsibility to make use of this policy when sick and stay home, rather then bringing their illness to the workplace.

The problem remains, however, that even with all the knowledge we have about H1N1 and seasonal flu—and the information showing that the cost of coming to work sick is high—the sneezing, coughing, runny-nosed employee is still coming to work, and his or her workmates are still wondering why. The answer seems fairly clear: If you subtract the employees from the equation that do not even get paid sick days off, then you are left with the fear of job-loss for those that have sick days to use, and in today’s economy and its ever-rising unemployment rate, there is simply no pill that can alleviate that fear.

Report notes difference between perception and reality for women leaders in workplace

If so many people believe women are great leaders, why is the number of women leaders so low? Despite being “solidly entrenched” in the workforce, women “have made strikingly little progress in advancing to the boardrooms and the executive suites; in some sectors of the economy, their progress has been stalled for several years,” according to a new report issued today by The White House Project, a New York-based, nonpartisan, nonprofit organization.

The report, The White House Project: Benchmarking Women’s Leadership, attempts to “address that contradiction and offer concrete, practical recommendations.” The 132-page report reviews a survey of the “current state of women’s leadership” in ten different fields—academia, business, film and television entertainment, journalism, law, military, nonprofit, politics, religion, and sports. The organization hopes its report will help establish an “understanding of where we are, so that we may know where we need to go.”

2009 has been a great year for women to make news, according to Marie Wilson, president and founder of The White House Project. She points to the enactment of the Lilly Ledbetter bill, the confirmation of Judge Sonia Sotomayor for the US Supreme Court, and the Bureau of Labor Statistics’ announcement that women are on the cusp of overtaking men on payrolls across America as examples. “It seems that in the midst of our economic downturn, and the accompanying state of flux in politics and culture, America has been turning to its women for vision, talent and leadership.” While its good news that Americans are overwhelmingly willing to bring women into leadership roles, Wilson notes that this “comfort level” is “accompanied by the misperception that women are already leading equally alongside their male peers.”

This report, like last month’s The Shriver Report: A Women’s Nation Changes Everything, picks up on the idea of a schism between perception and reality for women in the workplace. Unlike The Shriver Report, which looked at working women in general, The White House Project focused on women and leadership.

The report is divided into sections examining the status of each field and each section features a quote from a prominent woman in that field, including Soledad O’Brien, Justice Ruth Bader Ginsburg, and Secretary of State Hillary Rodham Clinton. Sprinkled throughout each section are statistics that are sure to take some readers aback. For instance, under “Business,” the report notes that women have reached the CEO level in only four of the 14 industries covered by the Fortune 500 companies—and even in these four industries, over 95 percent of the CEOs are male. Among Fortune 500 companies in 2009, 3 percent of the CEOs were women. The single exception is the construction industry, where women constitute 9.7 percent of the work force, but 17.6 percent of the corporate officers.

In “Law,” women make up 48 percent of law school graduates and 45 percent of law firm associates but only comprise 18 percent of the general partners and 16 percent of the equity partners in private law firms. “In fact, in the legal sector, the line tracking women’s share of leadership roles follows a straighter downward path as the potential to assume a leadership role rises, than in any other professional sector in this report.”

In the “Nonprofit” sector, women dominate the staffing, comprising nearly 75 percent of the 8.4 million employees in 2005. Despite this, women hold only 45 percent of all CEO positions. That figure falls to 21 percent in organizations with budgets over $25 million.

In addition to the industry examination and analysis, the report suggests implementing six recommendations that have shown to be effective in increasing the progress of women into leadership positions.

The White House Project’s mission is to advance women’s leadership in all communities and sectors—up to the U.S. presidency—by filling the leadership pipeline with a richly diverse, critical mass of women. More information about the organization can be found on its website, http://www.thewhitehouseproject.org/.

Survey says: Gender difference can be parlayed into effective company performance

Is ability more important than personality in the workplace? How is conflict dealt with by co-workers? Do employees prefer to work in teams of mostly men or mostly women? These questions were part of a new “Style of the Sexes” survey, commissioned by an independent research agency on behalf of Cisco and Gender IQ, in an attempt to discover how men and women differ in various aspects of their work. While the results indicate that real differences do exist, they posited, organizations that seek to better understand and respect differences in the workplace get the best out of their employees and teams.

Some of their findings:

With regard to the gender makeup of teams, the majority of both men and women (88 per cent) prefer to work in roughly equally mixed teams. However, both men and women preferred working in mostly male teams (21.6 per cent) rather than mainly female teams (8.1 per cent).

Ranking the important aspects of a job, 79 per cent of women indicated that getting training is important, compared with 73 per cent of men, and 75 per cent seeking flexible hours, compared with 69 per cent of the men. The only areas that more men than women find important are chances of promotion and benefits beyond pay. Interestingly, having a role model was least important for both men and women.

How do men and women deal with workplace conflict? According to the survey, women are far more likely to have experienced conflict in the workplace: 55 per cent stated they've faced conflict compared with 46 per cent of men. In a conflict situation, men and women also respond differently: 73 per cent of the men said they would confront the situation face to face, compared with 63 per cent of the women. Women are also more likely to ask for intervention, with 59 per cent likely to talk to their manager and 39 per cent likely to report the situation to HR, compared with 52 per cent and 35 per cent of the men, respectively.

A common perception is that “women have to be better than men to succeed in the workplace.” Forty-five percent of women agreed with this statement while, in contrast, only 26 per cent of the men questioned believe this to be true. The survey also found that more than half of the men (53 per cent) view ability as more important than personality in the workplace, while only 39 per cent of women rate ability in the workplace higher than personality.

So, what are the conclusions of this survey? According to Tracy Carr, CEO, Gender IQ, "the importance of understanding differences is not to say one way is more right than another; it is about widening the acceptable range of leadership styles to create an environment where all men and all women enjoy working together and get better results.”

"While the perception still may be that women have to work harder to succeed,” Carr added, “ the good news is that the study also showed that both men and women prefer to work in mixed teams of equal proportions, so we also instinctively understand the power that both parties bring for team success.”

Dark clouds blotting out Ford's sunshiny forecast

In a classic good news-bad news situation, Ford Motor Company workers overwhelmingly rejected contract changes that would have allowed Ford to cut labor costs in the same week in which the company announced earnings of almost $1 billion in the third quarter of 2009.

Ford sought the deal to bring its labor costs in line with its automotive rivals Chrysler Group and General Motors, both of which won concessions from the union as they headed into bankruptcy protection earlier this year. But Ford's relative comparatively good fortune worked to its disadvantage. Given that Ford avoided bankruptcy, and looking at the projected earnings, the automaker's workers weren't convinced they should make more concessions, essentially saying, "You want sacrifices from us? Show us why."

It's not as though Ford was offering nothing. The company was offering workers a $1,000 bonus if they ratified the contract. But the contract also would have frozen entry-level pay and limited workers' ability to strike.

With UAW President Ron Gettelfinger's previous statement that there wouldn't be another vote if the contract changes failed, the question for Ford now has got to be, where does the company go from here?

Ford could offer a more lucrative incentive bonus package to try to lure in its reluctant workforce. It could diminish the level of concessions that it's asking its workers to make. But the one thing Ford can't do is sit idle. Industry analysts attribute part of the company's earnings to the government's cash-for-clunker program, not something that Ford can rely upon for sustained growth. And should things turn sour for the company, it's highly unlikely that a government bailout would be an option.

One thing seems certain. If the automaker doesn't do something to bring its labor costs in line with its competitors, it's not going to have to worry about how its employees will react to future profit announcements.

Live in California, unemployed, need a discount?

Responding to a very tough economic climate, many California businesses began offering discounts to state employees who had their salaries reduced when Gov. Arnold Schwarzenegger instituted reduced workweeks back in February of this year.

Several creative offers quickly sprung up: discounted museum admission; ten percent off on “Furlough Fridays” at various restaurants; and discounted resort passes.

Sensing some unfairness toward the private workforce, a San Diego area attorney sent demand letters in July threatening litigation against Sacramento area businesses. These letters claimed that providing discounts to state employees who have suffered reductions in employment is a violation of the Unruh Civil Rights Act. The attorney demanded statutory and actual damages as well as payment of his attorney fees.

Well, the California legislature responded in kind, passing a bill (S.B. 367) clarifying current law, and establishing that it is not a violation of the Act for a business to provide discounts to groups of people who have suffered a loss or reduction in employment. “Businesses should be able to confer these types of benefits without the fear of provoking litigation,” said Senator Negrete McLeod, the bill’s chief author.

On November 2, Gov. Schwarzenegger signed the bill into law. An odd law, but one worthy of note.

Will this bill be the first step towards a minimum standard of paid sick leave for employees?

Representative George Miller (D-Cal), chairman of the House Education and Labor Committee, and Representative Lynn Woolsey (D-Cal), chair of the Workforce Protections Subcommittee, announced the introduction of emergency temporary legislation November 3, 2009, that would guarantee a maximum of five paid sick days for employees sent home or directed to stay home because their employer believes they have symptoms of a contagious illness, or have been in close contact with an individual who has symptoms of a contagious illness, such as the H1N1 flu virus. The House Education and Labor Committee will hold a hearing on the legislation, called the Emergency Influenza Containment Act (H.R.3991), the week of November 16. President Obama declared the H1N1 flu a national emergency October 24.

“Sick workers advised to stay home by their employers shouldn't have to choose between their livelihood, and their coworkers' or customer's health,” said Miller. “This will not only protect employees, but it will save employers money by ensuring that sick employees don't spread infection to co-workers and customers, and will relieve the financial burden on our health system swamped by those suffering from H1N1.”

“To help control the spread of the H1N1 flu virus, workers who are sick should stay at home,” said Woolsey. “This bill will ensure that workers who are directed to stay home by their employers can do so without paying a financial penalty.” It is not clear whether the bill, which has seven cosponsors, is supported by the House leadership or Senate Democrats, according to media reports, but Miller will seek a vote on the bill as soon as possible.

Duration of leave. According to the bill's provisions, the amount of paid sick leave will be calculated based on the employee's regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work. The Secretary of Labor will be tasked with issue guidelines to assist employers in calculating the amount of paid sick leave available to employees under the emergency proposed legislation. After the first workday (or portion thereof) an employee receives paid sick leave under the proposed bill, an employer may require the employee to follow reasonable notice procedures in order to continue receiving the leave.

Among other provisions, the proposed Emergency Influenza Containment Act:

• Guarantees a sick worker up to five paid sick leave days a year if an employer "directs" or "advises" a sick employee to stay home or go home due to a contagious illness. The term "contagious illness" includes influenza-like illnesses such as the novel H1N1 virus.


• Covers both full-time and part-time workers (on a pro-rated basis) in businesses with 15 or more workers. Employers that already provide at least five days' paid sick leave are exempt.


• An employer can end paid sick leave at any time by informing the employee that the employer believes they are well enough to return to work. Employees may continue on unpaid leave under the Family Medical Leave Act or other existing sick leave policies.


• Employees who follow their employer's direction to stay home because of contagious illness cannot be fired, disciplined or made subject to retaliation for following directions; employers violating the act would be subject to the Fair Labor Standards Act.


• Would take effect 15 days after being signed into law and sunset after two years.

The Centers for Disease Control (CDC) has confirmed that H1N1 influenza is widespread in 48 states, estimating that through July 23, between 1.8 million and 5.7 million cases of pandemic 2009 H1N1 influenza have hit the United States, resulting in 9,000-21,000 hospitalizations. Miller also cited CDC estimates that a sick worker will infect one in ten co-workers. As a result, the CDC and other public health officials have advised employers to be flexible when dealing with sick employees and to develop flexible leave policies that will allow employees to stay home without fear of losing their jobs.

Paid sick leave at the forefront. The H1N1 pandemic has raised the national debate over the necessity of paid sick leave in the United States. As it stands, paid sick leave is available to approximately two-thirds of US workers, according to the Bureau of Labor Statistics (BLS). It is startling to see the leave differential between private and public sector workers. Sixty-one percent of private industry workers receive paid sick leave, yet 89 percent of individuals employed by state and local governments have access to paid sick leave. However, both the private and the public sector have one thing in common, the lowest wage workers are far less likely to receive paid sick leave than the highest paid workers. Just 37 percent in the lowest 25 percent of wage earners receive paid sick leave, while 88 percent of the high wage earners receive paid sick leave.

The District of Columbia, San Francisco and Milwaukee are municipalities that have paid leave programs, but Milwaukee's paid sick leave ordinance was declared unconstitutional. Nationally, the Healthy Families Act (S. 1152/H.R. 2460) would establish a minimum standard of paid sick leave for employees, allowing workers to earn up to seven paid sick days a year. It is currently under consideration in both by the House and Senate.

The Healthy Families Act would allow the paid sick days to be used to care for an employee's own illness or physical or mental condition, to obtain a medical diagnosis, a related treatment, or preventive care, or to care for a family member for any of the above reasons. The provision would also allow employees using the paid sick leave to recover from or seek assistance related to domestic violence, stalking or sexual assault. Workers would accrue one hour of paid sick time for every 30 hours worked in order to earn up to 56 hours or 7 days of paid sick time. Employees would begin to earn paid sick time at the commencement of their employment, but would not be entitled to use the leave until after 60 days. Paid sick leave would carry over from year to year, but may not exceed 56 hours unless the employer permits additional accrual. Employers can require workers to provide documentation supporting any request for leave longer than three consecutive days.

Supreme Court to consider validity of two-member NLRB rulings

The Supreme Court granted cert today in New Process Steel v NLRB to consider whether a two-member panel of the National Labor Relations Board has authority to hear cases and issue orders regarding unfair labor practice charges.

Dozens of Board decisions have been appealed to the federal courts of appeals on the two-member question. Decisions have been split; the current score is 3-1 in favor of Board authority. In New Process Steel, the Seventh Circuit held the plain meaning of the NLRA supported the NLRB’s delegation of authority to a two-member quorum. The First and Second Circuits joined the Seventh Circuit, holding in the Board’s favor, while the District of Columbia Circuit, in Laurel Baye Healthcare v NLRB, ruled the Board did not have statutory authority to act. Additional decisions on the issue are pending in several circuits.

The NLRB has asked the Supreme Court to settle the question. The U.S. Solicitor General filed a petition for cert in Laurel Baye on the Board’s behalf, seeking reversal of the DC Circuit’s holding. The Court instead granted cert in New Process Steel, consolidating Laurel Baye and several other petitions filed on rulings on this issue. The question presented:

“Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that `three members of the Board shall, at all times, constitute a quorum of the Board’?”

• Petition for certiorari


• NLRB’s Brief in opposition

The NLRB has been operating with only two members for nearly two years. Rather than cease functioning, Chairman Wilma Liebman, a Democrat, and Member Peter Schaumber, a Republican, have continued to issue decisions in matters on which they can agree. The Board acted on the advice of the Justice Department’s Office of Legal Counsel, which concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The Board made such a delegation in December 2007, and since that time Liebman and Schaumber, acting as a quorum, have issued nearly 500 decisions.

A decision from the High Court will bring essential clarification to the issue, the two Board members noted. “We continue to believe that our position is correct, and hope that a decision from the high court will bring some finality to these cases,” said Liebman. Added Schaumber: “It is critical to the agency’s mission that this issue be decided.”

Meanwhile, Liebman is hoping the question will soon cease to matter going forward. Three Board nominees are currently awaiting Senate confirmation. The Senate HELP Committee cleared the nominees last month, approving Democrat Mark Pearce and Republican Brian Hayes in a unanimous voice vote. The more controversial nominee, SEIU associate general counsel Craig Becker, was approved by a 15-8 vote. Liebman said she is “hopeful that they will be confirmed soon and we can resume operations as a five-member Board.” But Senator John McCain (R-Ariz) has placed a hold on Becker’s nomination, delaying a full Senate vote on the slate. That means Liebman and Schaumber will be lonely, overworked, and in legal limbo for a while longer.

Could you put that plain language into the law, please?

Isn’t it interesting that there have been so many “plain language” versions and explanatory materials for the various health reform proposals coming out of both chambers of Congress? Perhaps it’s easier to discuss “plain language” intentions rather than actual legislative provisions, especially when the text of the final product will be so massive that only the most determined (or paid to do so) among us would undertake the job of actually reading the text. Politically speaking, there is also obvious utility in providing explanatory material so that health reform can be understood by the general public. Doesn’t that seem a laudable goal for the actual bill text, too?

As pointed out in the Washington Post, there is a movement afoot to get government agencies to use language in the documents that they issue (other than regulations) that will be easily understood by intended audiences. A bill introduced earlier this year (H.R. 946) by Representative Braley (Iowa) attempts to accomplish just that – with regard to executive agencies.

But what about laws – wouldn’t it be better for laws to be written in plain language, also? I suppose that one could argue that laws are written for lawyers, but then again, everyone is presumed to know the law – “ignorance of the law is no excuse,” as they say.

The Affordable Health Care for America Act (H.R. 3962), unveiled by House Democrats on October 29, is a handy example. The 1,990-page bill was supplemented by a host of documents explaining what it says, what it means, how it’s different from earlier proposals and its intended impact.

Descriptions and summaries of this sort are necessary and informative. The average person, even assuming an intense interest in health reform, just doesn’t have time to sit down and read 1,990 pages of text. But, even so, one wonders if the bill text could have been fashioned to be as straight-forward and easily understood as the text of all the materials offered by proponents to explain it.

Section 212 is a great example. Subtitled, “Guaranteed Issue and Renewal for Insured Plans and Prohibiting Rescissions,” it states that:

The requirements of sections 2711 (other than subsections (e) and (f)) and 2712 (other than paragraphs (3), and (6) of subsection (b) and subsection (e)) of the Public Health Service Act, relating to guaranteed availability and renewability of health insurance coverage, shall apply to individuals and employers in all individual and group health insurance coverage, whether offered to individuals or employers through the Health Insurance Exchange, through any employment-based health plan, or otherwise, in the same manner as such sections apply to employers and health insurance coverage offered in the small group market, except that such section 2712(b)(1) shall apply only if, before nonrenewal or discontinuation of coverage, the issuer has provided the enrollee with notice of nonpayment of premiums and there is a grace period during which the enrollee has an opportunity to correct such nonpayment. Rescissions of such coverage shall be prohibited except in cases of fraud as defined in section 2712(b)(2) 15 of such Act.

This particular provision would fall under the “laws are written for lawyers” category – although the subtitle probably qualifies as “plain language.” The problem is that one must trust that the subtitle conveys the general meaning of the provision because there is no way to know what the provision actually means just by reading the text.

But perhaps we shouldn’t worry because, according to the explanatory material provided by the bill’s proponents, “the Affordable Health Care For America Act will stop insurance companies from denying coverage to Americans with pre-existing conditions such as heart disease, cancer or diabetes and from hiking up rates or dropping coverage for those who get sick.” Section 212 probably falls somewhere under this explanation – you just can’t take it to court.

Are your federal law postings up to date?

As employers well know, posters aren’t just for teenagers’ rooms. Recent legal developments have required updates to employer’s posting requirements designed to inform employees of their rights under federal EEO and labor laws. On October 22, 2009, the EEOC posted on its website a revised "Equal Employment Opportunity is the Law" poster that reflects current federal employment discrimination law, including two new laws – the Americans with Disabilities Act Amendments Act of 2008 (effective on January 1, 2009) and the Genetic Information Nondiscrimination Act of 2008 (effective November 21, 2009). The revised poster also includes updates from the Department of Labor. The updated EEOC poster is available in English, Arabic, Chinese and Spanish. Up to 10 copies of the poster may be ordered from the EEOC's website at http://www.eeoc.gov/posterform.html.

Employers covered by the Fair Labor Standards Act must post the Department of Labor’s minimum wage poster, WHD Publication 1088, in each of its establishments. The federal minimum hourly wage increased to $7.25 per hour on July 24, 2009, the last of three scheduled increases put in place by The Fair Minimum Wage Act of 2007. Accordingly, the Labor Department’s Wage and Hour Division revised the poster in July 2009 to reflect the latest minimum wage increase. However, the agency has indicated that the July 2007 version of the minimum wage poster, which reflects the 2007 amendments to the Fair Labor Standards Act, is still valid and employers may continue to post that version.

For federal contractors, the Beck postings are no longer required, but a new, broader posting requirement is on the way. President Barack Obama issued an Executive Order (EO) on January 30, 2009 revoking an EO issued by former President George W. Bush that required non-exempt federal contractors and subcontractors to post a "Notice of Employee Rights Concerning Payment of Union Dues or Fees." The notice that had been required by Bush's EO 13201 was limited to informing employees of their rights under the decisions of the US Supreme Court in Communications Workers of America v Beck [109 LC ¶10,548, 487 US 735 (1988)], and related cases. In EO 13496, Obama replaced Bush's mandate with a broader obligation requiring federal contractors to inform their employees of all their rights under the under federal labor laws, including the National Labor Relations Act.

On Monday, March 30, 2009, the Department of Labor published a final rule, effective that date, rescinding the Beck posting regulations (74 FR 14045). On August 3, 2009 the Labor Department issued a notice of proposed rulemaking and request for comments on its regulation to implement President Obama's EO 13496 (74 FR 38488). The proposed rule contains the content to be required for the posting. The comment period on the proposed rule ended on September 2, 2009; thus, a final rule should be issued late this year or early next year.

Can workers be required to take the H1N1 vaccine?

With the H1N1 flu widespread in 46 states, and the vaccine lagging, President Obama declared the outbreak a national emergency on Saturday, October 24. The National Law Journal (via Law.com, subscription required) is reporting that more lawyers are receiving questions from employers about mandating swine flu shots for workers.

“Employers should not mandate that people get vaccinations, but they should strongly encourage it," said Steve Biddle, who heads San Francisco-based Littler Mendelson's recently formed H1N1 practice group. Yet, John Michels Jr., a partner in Chicago's Baker & McKenzie, said that in private employment, "the law is pretty well established" regarding an employer's right to mandate vaccinations. If an employer can establish the shots are job-related and a business necessity, such vaccinations can be a legitimate job qualification. However, he said, “employees may be able to challenge the newness of the H1N1 vaccine.”

Employers should not forget to review the EEOC’s guidance on pandemic preparedness in the workplace.

It’s a woman’s world? Study shows more women are working, but society’s failed to keep pace

The change ain’t a-comin’, it’s here. At least according to a recent report on working women and society released by the Center for American Progress and California First Lady Maria Shriver, among others. Yes, society has changed. The question is what we do about it. The Shriver Report: A Woman’s Nation Changes Everything reviews the changes working women have caused in society and laments the fact society has not adapted as quickly or completely as needed.

According to the report, the majority of American families no longer follows the traditional male breadwinner, female homemaker model. Today, women are half of all U.S. workers and mothers are the primary breadwinners or co-breadwinners in nearly two-thirds of American families. Quite a change from a generation ago where women made up only one-third of all workers. The report points to a Rockefeller/Time nationwide poll that concluded that the “battle of the sexes” is over and has been replaced by “negotiations between the sexes” about a variety of topics including work, child care and elder care. Seems that, while men have generally accepted women working and making more money, both sexes are concerned that the changes are leaving children behind since there’s no longer a wife staying home to fulfill the traditional homemaker role.

Both sexes “agree that government and business are out of touch with the realities of how most families live and work today. Families need more flexible work schedules, comprehensive child care policies, redesigned family and medical leave, and equal pay,” according to the report that aims to spark conversation about the transformation to society and to get policymakers and political leaders to focus on the implications of those changes.

The report is comprised of essays and reports written by prominent professionals about different facets of women in the workplace and their impact on society. The first chapter, no doubt, also provides some of the “glitz.” Written by Maria Shriver, the chapter plays off her political ties with a historical look at the transformation of American women since President John F. Kennedy, her uncle, asked First Lady Eleanor Roosevelt to chair the first Commission on the Status of Women in 1961.

Among the chapters promising to be provocative are The New Breadwinners, which finds that even though “women are now half of workers and mothers are breadwinners or co-breadwinners in the majority of families, institutions have failed to catch up with this reality;” Invisible Yet Essential: Immigrant Women in America looks at the work once done primarily by unpaid wives of male breadwinners that is now being done by immigrant women (namely, child and parental care, home maintenance, food production and cleaning). Also, there’s Has a Man’s World Become a Woman’s Nation?, which finds that, while most men are on the path to accepting greater gender equality and relish the earnings women bring into the family, some still struggle with the “idea of widespread employment of women and mothers as it has made them question their very notion of masculinity.”

One chapter sure to spark interest is Family Friendly for All Families: Workers and caregivers need government policies that reflect today’s realities. This chapter explores the implications of government policy affecting workers and caregivers. The authors argue for a “reevaluation of the values and assumptions underlying the nation’s workplace policies and social insurance system” so they reflect the actual – not outdated or imagined – ways that families work and care today.

No doubt this chapter will spark more discussion on the impact of the enactment of the Lilly Ledbetter Fair Pay Act, the revision of the Family and Medical Leave Act (FMLA), and the EEOC’s decision to recognize discrimination against caregivers under Title VII and the ADA without creating a new protected category. Were these changes enough to reflect or fulfill workers’ needs for child care, elder care, etc., or were they simply the beginning of an onslaught of legislation employers will need to worry about implementing?

Inouye, defense contractors to assault victims: "Not so fast"

Updating an earlier series of blogs, it has been reported recently that an amendment that would prevent the government from working with contractors who blocked the access of assault victims to the courts may be watered down or ripped out entirely from a larger defense appropriations bill.

According to the Huffington Post, Senator Daniel Inouye, (D-Hi), a career recipient of $294,000 from the same defense and aerospace contractors who would benefit from the Senator's decision, is considering removing or weakening the provision offered by Sen. Al Franken (D-Minn.) and passed by the Senate 68-30.

The report says that the contractors are "putting on a full-court press on this amendment." Why, you ask? Apparently, the contractors are concerned that the language in the Franken amendment would leave them overly exposed to lawsuits and would pose an ongoing risk that their lucrative contracts might dry up.

Rather than attempt to bridge the divide between those who believe that victims of rape should have their day in court, regardless of arbitration agreements they may have signed and those who don't, the Senate is considering removing the Title VII claim provision, thereby preventing victims of assault or rape to bring suit against the employer who may have contributed to their assault.

What could be done to stop this? Well, very little apparently. Since Inouye chairs the committee responsible for the bill, he can simply remove the provision and no one can prevent it. So, chalk up another victory for the power of money in politics and, if you're so inclined, spare a thought for employees who, it appears likely, will be unable to receive their day in court if they happen to be assaulted while in the employ of firms that mandate arbitration agreements.

Make no mistake, in the end, that's what this fight is about. Employers like Halliburton will fight tooth and nail to avoid having to litigate such cases and little wonder why; it's cheaper to arbitrate, the awards are substantially lower and the employee is still the David facing off against the Goliath, only less well-armed. If Inouye strips the provision, it appears that $294,000 goes along way towards taking the slingshot out of David's hand.