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.