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.