Nevada Expands Parental Leave Requirements

Effective August 15, Nevada has expanded its parental leave entitlements for employees who wish to attend or participate in school activities of their children.

AB 243 allows parents, guardians and custodians of children in private or public schools up to 4 hours of unpaid leave per school year for each child.

The law requires employers who have 50 or more employees to grant that unpaid leave.

More detailed information from Rick Roskelley of Littler Mendelson.

California Labor Complaints – 2008

The California Department of Fair Employment & Housing released its statistics for 2008 last month, and there are some ominous signs that all employers should know:

  1. Complaints to the DFEH increased by more than 15% in 2008 (3,000 more complaints);
  2. Disability claims were most frequently filed, followed by retaliation, sexual harassment and age discrimination;
  3. In fact, disability claims comprised more than 36% of all claims;
  4. Prosecutions of employers increased by 28 percent.

California also has a disproportionate ratio of total employee complaints – one out of every 5 complaints in the country is from California.

Time to get your house in order!

And a good analysis of these statistics is found from Christopher Olmstead of Barker Olmsted & Barnier.

English Only In The Workplace? Bad Idea

It’s very tempting for employers to mandate their employees speak only English during working hours.

It’s also – in most cases – very wrong.

The EEOC provides some examples where English-only would be justified by business necessity:

  • For communications with customers, co-workers, or supervisors who only speak English.

  • In emergencies or other situations in which workers must speak a common language to promote safety.

  • For cooperative work assignments in which the English-only rule is needed to promote efficiency.

  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with co-workers or customers.

If you wish to mandate an English-only workplace, we strongly suggest you review the policy with an employment attorney prior to implementation.

It’s not worth it!

Wage & Hour Enforcement On The Rise

We’ve written previously on the increase in wage & hour claims by employees. Now, the federal Department of Labor is joining the fray.

The DOL has proposed hiring 200 new investigators in their wage & hour division for the 2010 budget. This will bring investigation staffing up to the levels last seen in 2001.

Audit. Prepare. Be proactive. It’s better than having to react to an investigation or claim.

More information from Ford & Harrison.

Employers and Social Media

Most employers can’t get enough ‘inside’ information on their employees. The temptation to spy on employee’s social media sites (Twitter, Myspace, Facebook) is great.

Don’t do it!

There’s a case coming before a New Jersey court later this month. Employees at a local restaurant created a password-protected myspace chat room, where they could (on their own time) comment and vent on the issues of the day.

The owner apparently got an employee to spill the password, and found out the ‘inside information’.

Whether this case has legal merit is another argument for another day.

But ethically and realistically, don’t spy. If worktime is wasted on social media, have your IT person prevent employees from using them. But spying can only get you into trouble.

Avoiding EFCA and Leading Better

The EFCA is designed to make it easier for employees to organize into a union. Although the bill has lost some momentum recently, the possibility of your business turning into a union shop is stronger now than at any time since the NRLB was enacted in 1935.

If you don’t want your workforce subject to the demands of a union, what do you do?

In 2008, Kenexa Research Institute published a report of a study made of 10,000 U.S. workers. Each participant was asked to agree or disagree with a list of statements about their employers. A significant percentage of those favoring unions responded negatively. Although there were also negative responses from the employees who were not in favor of unions, the number of negative responses was substantially lower. The following are statements for which the “pro-union” employees had a significantly more negative view as compared with employees who did not favor unions:

  1. My organization shows a commitment to ethical business decisions and conduct.
  2. I have confidence in my company’s senior leaders.
  3. When my company’s senior management says something, you can believe it is true.
  4. Where I work, ethical issues and concerns can be discussed without negative consequences.
  5. My manager treats me fairly.
  6. Senior management is committed to providing high quality products and services to external customers.
  7. My company enables people from diverse backgrounds to excel.
  8. My manager treats me with respect and dignity.
  9. Management shows concern for the well-being and morale of team members.
  10. Senior management demonstrates that employees are important to the success of the company.
  11. I feel free to try new things on my job, even though my efforts may not succeed.
  12. My company supports employees’ efforts to balance work and family/personal responsibilities.

How do you know if your employees agree or disagree with those statements? Many employers believe wrongly that their employees are satisfied, but with little evidence to back that up. Remember, employees will tell you what they think you want to hear.

Get an employee assessment/360 degree survey done right away. At a minimum, it will provide a road map to show you how to improve your business.

And at most, it may help you avoid unionization of your workers.

When At-Will Works

At-will employment – the concept that employer or employee may terminate their relationship at any time, for any reason – is subject to so many exceptions that people frequently despair. Depending on the state, at-will can be exempted for such things as violations of public policy, discrimination, or a ‘contracted’ employee.

Montana is the only state that does not follow the at-will doctrine for general employment. However, an employee in Montana who is still within the company-determined probationary period (or, if the company does not have a probationary period, the first six months of employment) can still be termed under what is essentially an at-will relationship.

HOWEVER – there’s good news. Done properly, at-will can benefit the employer. The most important thing is to mention at-will every time (or at least most times) an employee or job candidate signs a document.

Case in point – Radio Shack. A former employee alleged that Radio Shack terminated her for medical reasons. But the employee:

  • First, expressly agreed with the terms of her “Preliminary Online Application” that, if employed by the Company, she would be employed at-will. The document also provided that if she was hired, her at-will employment could only be modified by a separate written document signed by the employee and an executive officer of the Company.
  • Second, in her formal “Application for At-Will Employment,” the plaintiff again agreed to these same terms.
  • Third, in acknowledging receipt of her “Team Answer Book,” the plaintiff signed a form confirming her at-will employment status with the Company.
  • Moreover, there was also evidence of a personnel record noting the plaintiff had taken a leave of absence, which stated that “The below named person is an AT-WILL employee and no information on this form shall change the employment status.”

That’s a lot of documentation to support the at-will concept. And a good reminder with what to do is here, from McGuire Woods LLP.

Age Discrimination And Pay Reductions

Age discrimination lawsuits are increasing rapidly. The trend of terminated employees contemplating and filing lawsuits are also on the increase.

If you want to terminate an employee for poor performance, then do so. But don’t use a layoff as an excuse. And if you replace a terminated employee with a younger one, make sure that you’re doing so for proper business reasons only.

Case in point: George Carras, who was in his early 60s, worked as the chief financial officer for a shoe importing business. When management said it was terminating him because of financial pressures, he offered to take a steep cut in pay, down to $60,000. The company rejected his offer and laid him off.

Then Carras found out that his younger replacement was making more than $60,000. When he sued for age discrimination, he told the court it was obvious that economics really hadn’t been the true reason for his termination. The trial court dismissed his case, but Carras appealed.

Now the 2nd Circuit Court of Appeals has reinstated the lawsuit and Carras will get a chance to persuade a jury that his former employer fired him because of his age and not because the company was having financial troubles. (Carras v. MGS 728 Lex, No. 07-4480, 2nd Cir., 2008)

Thanks to Labor Center Blog and Business Management Daily.

Nevada Minimum Wage(s) Increase on July 1

Nevada has a fairly unique minimum wage rule. Actually, it’s not one rule – it’s two.

Starting July 1 – employers who offer their employees qualified health benefits will pay a minimum wage of $6.55 per hour.

Employers who don’t offer qualified health benefits will pay a minimum of $7.55 per hour.

The details here from Fisher & Phillips.

Wage & Hour Issues Dominating Employment Laws

One of the management trends we previously identified for 2009 is the additional assault of wage & hour claims by employees.

It is clear that – in a down economy – terminated employees employment elsewhere (at least not quickly). With time on their hands, those former employees are talking to their friends and attorneys about the ‘abuse’ they had working for their former employer – you.

In the meantime, attorneys LOVE wage & hour claims. They are relatively easy to prove, are frequently not understood by employers, and the opportunity for a class action is available.

So – what do you do?

First, audit your operations.

Second, read this article by John Skousen of Fisher & Phillips – some excellent practical advice for all employers.