Long-Term Unemployed in Today’s Workforce

With more than 14 million jobless Americans, there is an ever growing amount of candidates who have been unemployed for 6 months and more, making it even more difficult to rejoin the workforce.  

From the New York Times: Legal experts say that the practice probably does not violate discrimination laws because unemployment is not a protected status, like age or race.

The Equal Employment Opportunity Commission recently held a hearing, though, on whether discriminating against the jobless might be illegal because it disproportionately hurts older people and blacks.

Some states, such as New Jersey, are already passing laws to prevent employers from posting job ads that bar unemployed candidates from even applying.  

However, even in job candidates aren’t being initially disqualified because of their unemployment status, they are being disqualified due to credit or other background checks required by the company.  

“I worry that unemployment may eventually come down, not because older workers who have been unemployed for a year or two find jobs,” Professor Shimer, a labor economist at the University of Chicago, said, “but because older workers finally give up and drop out of the labor force.”  

Read the New York Times article

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FMLA Disputes Require a Third Opinion

The result of a new Family Medical Leave ACT (FMLA) shows that a second opinion may not be enough to reject employee leave.  

When the accused employer did so, the Minnesota court ruled in favor of the employee, stating that the company had violated the employee’s FMLA rights and unlawfully terminated the employee over the dispute.  

According to attorney Francine Breckenridge from the firm Strasburger & Price, “employers cannot use a second opinion alone to reject a workers’ FMLA leave request.”  

In addition, Breckenridge explains that employers are required to pay for the second and third medical opinions — and the medical providers rendering the opinions cannot be connected to the employers.

Read the HR Morning news article

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Unintended Discrimination against Older Workers in the Workplace

Age discrimination can be tricky in the modern workforce. For instance, you could be discriminating against your older, more experienced employees without even realizing.

And knowing how these cases are viewed by a court of law is important to protect yourself and your organization down the line.  

In an interesting post on The HR Café blog this week, here’s a situation that many managers could easily find themselves facing:  

You’ve got an older employee named Joe on your team. It’s your job to maximize productivity, and his performance has fallen. It seems clear to you that Joe’s age is preventing him from meeting the demands of his job.

 

Can you transfer him to a lower-paying job he can handle?

  

Read the HR Café Blog article

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A Former Employee Files a Harassment Case against Wal-Mart

In Arkansas this week, a fired employee has filed a lawsuit for harassment against Wal-Mart Stores, Inc. The employee, who currently resides in Oklahoma, alleges that Wal-Mart is forcing him to an Arkansas court as part of a 4-year-old trade secret violation case.  

One of their computer security specialists, Mr. Gabbard had been suspected of copying documents from work. Wal-Mart asserts that he has retained confidential information after he left the company, which directly violates the employee agreement on sharing trade secrets.  

From the Wall Street Journal, Mr. Gabbard is believed to still have company documents based on postings he made on his website as recently as a month ago and on a forensics investigation of his computers, which show that he copied corporate files before leaving.    

He had been previously fired from Wal-Mart for monitoring phone conversations between other employees and a New York Times reporter. Also, he shared confidential information about a board discussion he heard through the surveillance system about a corporate sex-discrimination suit and secret plan to boost their stock price by spinning off of Sam’s Club.  

Read the Wall Street Journal article

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Discriminating against the Unemployed?

Several companies won’t even consider unemployed job candidates when they’re recruiting new talent. Last year in Atlanta, Sony Ericsson was in the media spotlight for such discriminatory practices, because their job listings specifically stated: “No unemployed candidates will be considered at all.”  

 

However, they’re not alone. While it is illegal to discriminate due to age, gender, or disability, it is still not breaking the law to turn away unemployed individuals for work. This discrimination against the unemployed could not come at a worse time. The Recession left at least 4 million people unemployed for a year or more.  

 

Pros

Employers have good reason to rule out the unemployed, because it can be assumed that hiring an out-of-work individual means investing in a significant amount of training so he/she can succeed in the role.

 

The longer an individual is out of the workforce, the harder it would probably be to acclimate to the job, deal with everyday stress and interpersonal conflicts, and his/her skills would likely be out of date.  

 

Cons

On the flip side, advocates for the unemployed argue that there is no basis for negative inference for people who are out of work. Many lost their jobs due to no fault of their own. Companies have had to downsize, lay out departments, go out of business, and so on.  

 

According to TIME Magazine, New Jersey recently became the first state to adopt a law making it illegal to post job listings that make current employment a condition of applying or being hired. Now, several other states are considering similar laws.  

Read the Time Magazine article

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Demand Grows, But Hourly Pay Drops for Interns This Year

Employers are putting pressure on their internship programs to support their operations this year. From the National Association of Colleges and Employers, businesses are expecting to increase internship hiring by at least 7%.  

However, while the demand for interns is rapidly rising, the competitive wages they can offer interns is getting lower. The average hourly rate, right now is $16.68 per hour, which has greatly dropped since last year. Instead, companies are opting to pay interns with perks like free lunches, travel stipends, and school credit.  

Considering your own internship program, do you know if you meet the federal criteria?  

HR, and especially small business owners, should keep in mind that the U.S. Labor Department’s Wage and Hour Division has rules to prevent you from taking advantage of unpaid interns, when you can’t afford to hire new full-time employees.  

• The internship should model training that would be given in an educational environment
• The internship experience is designed for the benefit of the intern, not the company
• The intern does not displace regular workers, but works under supervision
• It is communicated clearly in advance if/when the intern will not receive wages  

Read the Wall Street Journal article

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National Labor Relations Board Sides with Employees Who Complain on Facebook

Earlier this week in Buffalo, NY, the U.S. National Labor Relations Board (NLRB) sided with five employees who were fired shortly after criticizing their organization publicly via Facebook.  

In this complaint against Hispanics United of Buffalo reconfirms the agency policy that labor law gives employees protection to discuss the conditions of their employment with other people, which should include social media sites.  

An NLRB spokeswoman said Wednesday that at least three other complaints have been issued from regional offices since the American Medical Response case. All of those appear to have been settled, she said. Some charges that have been investigated have been dismissed.  

Read the Wall Street Journal article

Could Your Wellness Program Be Violating the Americans with Disabilities Act?

Wellness programs are a great way to boost employee morale and promote the whole work and life balance at an organization. But could financial incentives for a wellness program be a negative issue for employees with disabilities?  

According to a recent court ruling in Broward County, Florida: It is not a violation of the Americans with Disabilities Act (ADA) for an employer to require employees to participate in a wellness plan, or face a $20 surcharge on insurance premiums.  

As stated by the U.S. District Court for the Southern District of Florida, “The wellness program is not a subterfuge; it was not designed to evade the purpose of the ADA. Rather, it is a valid term of a benefits plan that falls within the ambit of the ADA’s safe harbor provision.”  

Related to this case on wellness program incentives in the past, the EEOC has loosely suggested that any wellness program that is mandatory or involves a penalty violates the Act.  

While no guidelines have been issued at this point, employers and HR should be cautious and check with a legal expert about this wellness incentive.  

Read the Tech Republic article

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Chipotle Undergoing Investigation on I-9 Compliance

Just this week, Chipotle Mexican Grill restaurants went under a massive federal investigation of the company’s employment practices regarding immigrant workers.  

U.S. Immigration and Customs Enforcement agents visited 20 to 25 outlets in several states, and had interviewed supervisors and investigated their legal paperwork including I-9 forms.  

According to the Wall Street Journal article, the ICE has been investigating Chipotle for a while now. Last December, for instance, Chipotle laid off more than 400 workers in Minnesota immediately following an Immigration and Customs Enforcement audit on their employee records. Particularly, these federal audits require the employer to provide I-9 forms to attest each worker’s eligibility status in the U.S.  

“If agents are interviewing workers at stores, clearly they are looking for information that goes beyond the I-9 audits,” said Victor Cerba, a former general counsel at ICE who is now a partner at Jackson Lewis LLP. “An audit can be a purely paper process when there is nothing unusual with the company.”  

Read the Wall Street Journal article

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Disability Law Changes to Impact Small Businesses

According to BusinessWeek, in 2010, there were 25,165 disability discrimination charges filed with the EEOC, up from 21,451 charges in fiscal year 2009. Now starting in May, numerous small businesses will be impacted by a few major amendments to the Americans with Disabilities Act.  

The new regulations specify a whole list of impairments that the EEOC recognizes, including: deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. In September 2008, the ADA was officially amended, and now these changes will be enforceable.  

However, instead of placing the burden of providing proof solely on the employee, the revised Act seeks to hold employers responsible. The message is clear that instead of an employer or HR focusing on whether an employee is disabled, they should focus on the potential discrimination and accommodation they can make available.  

For small businesses, this compliance may cost them more money and resources to respond to claims.  

The EEOC estimated that up to 38 million disabled people may be impacted as a result of these changes, plus businesses may end up spending between $60 million to $180 million to provide reasonable accommodation and any legal costs.  

Read the BusinessWeek article  

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