Summer is here for all of us in the Northern Hemisphere. And for those of us in the U.S., we unofficially consider summer anytime between Memoria Day (celebrated May 28th this year) and Labor Day (September 3rd this year). During this period, there’s more people scheduling week-long time off in addition to just a day here or there to create a few more long weekends. If you’re a regular traveler, you’ll definitely see more families traveling in the airports especially during June, July and August.
Whatever your summer plans are (family vacation, a few extra Fridays off, catching up on reading, sports, etc.), make sure to have a safe one.
The law of retaliation is one that continues to expand and evolve as federal and state legislatures continue to expand the rights of individuals who make complaints in the workplace about perceived unlawful action taken by employers. The courts interpreting cases involving retaliation have often taken a broad view of the kind of activity that employees engage in that will be subject to the anti-retaliation provisions of numerous federal and state laws.
The Equal Employment Opportunity Commission (EEOC) reported statistics in January 2012 for the year 2011 showing
retaliation claims rising faster than any other category of complaint. Over a 10-year period between 2001 and 2011, retaliation claims (all statutes) rose by 68% and retaliation claims (Title VII only statutes) rose by 54%. Although other types of claims (disability & National origin) have grown as well, the retaliation claim numbers should be a concern to employers. The attached charge displays EEOC complaint statistics over a 14 year period.
What is retaliation? Based on U.S. laws, it is any adverse action that an employer takes against an employee in response to a
complaint that person has made about discrimination or harassment. It can also apply to employees who exercise their rights under laws such as workers comp, employment laws, FMLA or other leave laws. Recent court decisions have gone even further, extending the same protection to employees who participate in investigations of other employees’ complaints. The original complaint does not need to be well founded in order for the courts to determine that the employee was indeed retaliated against. Retaliation includes adverse actions such as wage reductions, disciplinary measures, demotions, negative performance
evaluations, hostile attitudes, changes in job assignments or shifts, time off without pay, and of course, terminations.
In essence, the Supreme Court as well as other courts have given broad protection to employees who complain about alleged violations of employee-protection statutes. Because these laws cover such a broad spectrum of employment law, most employers today are not prepared to understand what retaliation and thus any decision made by an employer, either well intentioned or not, can be harmful to the employer.
Does this mean that an employee who has made a complaint now gets a free ride to do whatever they want in your workplace? No — but it does make the discipline process more complex if you are going to discipline a complainant. If an employee has had a history of excellent performance reviews, makes a complaint of discrimination, and then their next review is poor, this will appear to be retaliation. Therefore, an employer will need to follow a strict progressive discipline policy when dealing with an employee whose performance starts to slip, or who disobeys company policies or procedures. In addition, the employer will need to take extra care to check their facts before acting, and make sure that any adverse action against a complainant is consistent with
With retaliation claims climbing sharply, it is crucial that employers become proactive in preventing retaliation in the workplace. The steps that employers can take to prevent such claims include educating all employees about their employment policies including sex harassment and discrimination policies and especially educating managers on how to handle complaints of discrimination in the workplace.
Memorial Day, the first of three popularly recognized U.S. summer holidays is coming up on Monday, May 28. According to holiday surveys, 95% or more of U.S. employers along with most government entities, banks and post offices recognize Memorial
Day as a paid holiday.
Although Memorial Day today is more thought of as the official marker for summer and a time to have a backyard barbeque, family picnic or trip to the beach, its past harkens to a more somber meaning. Formerly known as Decoration Day, it originated after the American Civil War to honor to dead Union soldiers of the Civil War. Even prior to this, in the Southern U.S., a practice sprang up to decorate Confederate grave, mostly during May, in Richmond and other cities during the Civil War.
By the early 20th century, the holiday began to transition to an occasion for more general expressions of memory as people visited graves of their deceased relatives in cemeteries, whether they had served in the military or not. As the 20th century moved on beyond World War II, it became a long weekend increasingly devoted to parades, shopping, family gatherings, trips to the beach as well as the famous Indianapolis 500 auto race.
From its beginning, the name for the holiday gradually changed from “Decoration Day” to “Memorial Day.” The term “Memorial Day” didn’t become more common until after World War II and wasn’t declared the official name until 1967.
Besides the extra day off, parades, concerts, barbeques, and retail shopping sales, many Americans today still observe Memorial Day by visiting cemeteries and memorials. In addition other traditions include: observing a national moment of remembrance at 3:00 pm local time, flying the U.S. flag at half-staff from dawn until noon local time and volunteer groups placing American flags on each grave at national cemeteries.
From everyone at HRM Partners, we wish you a happy, safe & restful Memorial Day holiday!
California has launched an online portal to help small business owners keep current on the state’s worker safety regulations and laws. The Small Business Portal provides easy access to the state’s free consultation services for small companies to ensure they have a safe and healthful worksites, the Department of Industrial Relations said in announcing the website April 30. A broad range of information, from how to register a business and proper payment of wages to how to comply with safety regulations, is available via the portal, the agency said. Other information helps guide employees on what steps to take if workers are injured on the job,
according to the agency. DIR Director Christine Baker called the portal “a valuable resource to small business owners,” who typically lack the resources to hire consultants. The Small Business Portal is available at http://www.dir.ca.gov/SmallBusiness/index.htm. 05.13.2012
Recently, I was watching an episode of an HBO series entitled, “Girls.” Although the series is smart, creative and funny from many perspectives, and certainly has more to do about being a 20 something and less about work, as an HR person I was suddenly getting angrily transfixed over a work issue. Basically, the main character, Hannah, who has been working as an unpaid intern in a literary agency for two years since she graduated is being exploited by her boss.
Through the support of her parents up to now, Hannah has been able to modestly live in a shared New York City rent-controlled apartment. However, her parents suddenly cut her off and tell her to go and ask her so-called employer to pay her a salary finally after two years. Unfortunately, within 30 seconds of asking her boss for a salary, he kindly points to a stack of resumes for replacing her, informs her “I’m really going to miss your energy” and wishes her luck in finding a job.
Although Hannah is a fictitious character, there are possibly hundreds of thousands of real-life Hannah’s working as unpaid interns these days. Some employment experts estimate that undergraduates work in more than one million internships a year with almost half being unpaid. In addition, a recent released report stated that about 54% of Bachelor’s degree holders under 25
last year were jobless or under-employed, the highest percentage in at least the last 11 years.
A recent New York Times article this past weekend (NYT, May 5, 2012, “Graduates Flock to Unpaid Internships) brought back to mind Hannah and her dilemma. According to the article, unpaid post-college internships have existed for decades in the film and non-profit workplaces but have more recently spread to fashion house, book and magazine publishers, marketing companies, public relations firms, art galleries, talent agencies and even law firms. Most likely, as a sign of the tough economic times, lots of companies are trying to take advantage of a situation where they need to get work done but they can’t afford it because their budgets aren’t what they used to be before the financial crash.
The NYT article goes on to describe several interns, one being an intern performing unpaid personnel work for Fox Searchlight Pictures on the film, “The Black Swan.” He’s now part of a class-action lawsuit against that company to win back pay. The article also describes unpaid interns spending long working hours performing menial task including running errands, doing coffee runs for staff and picking up people’s dry cleaning.
If you’re an employer and reading this, here’s the deal or at least the legal one. First, if you’re going to “employ” an intern to do actual work (e.g., making copies, picking up your complicated coffee order at Starbucks, making a Staples run, etc.), you can do so. However, you do need to pay them at least minimum wage. Minimum wage laws prohibit employers from hiring employees for
less than a certain hourly rate. Unpaid interns can be exempt from these rules. However, the U.S. Department of Labor makes it clear that for the intern to be exempt from minimum wage laws, he/she must get something for his or her time.
With that said, there are six “enforcement criteria” that an employer must satisfy, in order to properly classify a worker as an intern:
- The intern’s training, even though it includes actual operation of the employer’s facilities, is similar to that given in a vocational school;
- The intern’s training is for the benefit of the trainee or student;
- The intern does not displace regular employees, but rather work under their close supervision;
- The employer does not obtain or receive an immediate advantage from the intern’s activities and, on occasion, the employer’s operations may be actually impeded;
- The interns are not necessarily entitled to a job at the conclusion of the training period; and,
- The employer and the intern understand that the intern is not entitled to wages for the time spent in training.
If the criteria are not met, the intern will be considered an employee and subject to federal and state wage and hour laws including that the intern must receive compensation and the employer must deduct all applicable taxes and follow all required regulations including meal and rest breaks. From a practical stand-point, most of the unpaid internships that I have witnessed don’t even come close to meeting these requirements. Plus, this certainly doesn’t come close to meeting good corporate governance practices that everyone spends so much time talking about in their recruitment literatures.
In summary, the Labor Department has been fairly pathetic in dealing with this growing issue up to now. However, it now says that it is going after firms that fail to pay interns properly. Furthermore, it is expanding its efforts to educate companies, colleges and students on the law regarding internships.
In late April 2012, the Equal Employment Opportunity Commission (EEOC) issued new guidelines for employers on the use of arrest and conviction records by employers under Title VII.
In general, the new guidelines make it harder for employers to have a blanket policy that excludes anyone with a criminal record.
The EEOC states that while employers may legally consider criminal records for making hiring decisions, a policy that excludes all applicants with a conviction could violate employment discrimination laws because it could have a “disparate impact” on racial and ethnic minorities. Furthermore, an employer wanting to exclude applicants with criminal records would need to show that the exclusion was job-related and consistent with business necessity.
The EEOC, with the updated guidelines, is calling for employers to conduct individualized assessments of job applicants in a way
that examines the nature and gravity of the criminal offense, the time passed since the offense and the nature of the job applied for.
The EEOC is pursuing this area in many ways because of a couple of trends over the past decade. First, there has been a huge
increase of employers accessing computer-based arrest and conviction records. In 1996, 51% of employers conducted criminal back checks on applicants. Today, 90% of employers are doing so. In addition, there are numerous reports of erroneous arrest and conviction records as well as many cases that are supposed to be sealed but being released to employment screeners. The second trend is even more important. Basically, there has been a huge increase in the number of Americans who have been arrested for minor offenses, due to “zero tolerance” policing.
The EEOC guidelines make it clear that an arrest alone is not evidence of illegal conduct or grounds for employment exclusion.
Furthermore, if an applicant does have a criminal conviction, the employer must review the seriousness of the offense, the time that has lapsed since the crime was committed, and the relevance of the crime to the specific job opening.
In summary, if you have an employment policy today where you reject anyone that marks, “yes” to the question, “Have you ever been convicted of a crime?” you could be in violation of the law. The following are some practices to consider regarding the new guidelines:
- Review your employment recruitment practices. If you are rejecting every applicant simply because of an arrest or conviction, you need to eliminate this practice.
- If you are going to reject an applicant because of a criminal offense, you need to identify the criminal offense based on all evidence, determine the duration of exclusions for criminal conduct based on all evidence, include an written individual assessment of the situation including a written justification for excluding the applicant from employment.
- Make sure anyone involved in hiring and employment decision making is aware of the new guidelines and subsequent policy changes in your practices.
- When asking questions to an applicant about criminal records, limit inquiries to records for which exclusion would be job-related for the job and/or business necessity.
- Make sure that background check information is kept confidential. This includes that you need to seriously consider how you organize your personnel files so that such information as arrest and conviction records are not readily available to
any hiring decision maker requesting to review a personnel file.
The EEOC guidelines, contained in a 52-page publication, can be downloaded by going towww.eeoc.gov/laws/guidance/arrest_conviction.cfm.
Golden Week, one of Japan’s biggest holiday periods, begins in a few weeks. Golden Week is a grouping of four national holidays that starts on April 29 and ends on May 5. This is the longest holiday season for Japan which makes it equivalent to a gigantic national spring break when businesses and schools are closed and people get an opportunity to venture out on holiday. Thus, this is the week to travel and get away. Flights, trains, and hotels are often fully booked despite significantly higher rates at this time. Many companies in Japan close down for the entire Golden Week and some even close for 10 days giving employees a lengthy holiday period.
Golden Week has been celebrated over the past several decades going back to 1948 when the Japanese National Holidays law was passed which concentrated a number of holidays at the end of April and first week of May. By the early 1950’s, the leisure-based industries started noticing that people had more time during this concentrated time to see movies, eat out and travel and a popular trend was born.
The following are the national holidays that make up Golden Week:
April 29 – Showa Emperor’s Birthday or Showa no Hi. This date was the birthday of the late Japanese Emperor Hirohito, who is known in Japan exclusively by his posthumous name Emperor Showa. Emperor Showa died in 1989. Thisholiday is observed on April 30th in 2012.
May 3 – Constitution Day or Kenpo Kinenbi. This date marks Japan’s Constitution that came into being on May 3, 1947.
May 4 – Greenery Day or Midori no Hi. After the Showa emperor’s death in 1989, Greenery Day was established to honor the environment and nature. It’s another version of Earth Day in Japan and certainly appropriate as the Showa Emperor was very much into nature and the environment.
March 5 – Childrens Day or Kodomo no Hi. This holiday was originally set up for boys where their families would celebrate by flying carp-shaped streamers and displaying samurai dolls. Today, however, this national holiday is for all children where children celebrate with their parents and special foods are prepared.
Although Japanese New Year and the Bon Festival are two other popular vacation times, Golden Week is probably the most traveled holiday period for Japanese people. For those of you living in places like Los Angeles, San Francisco, Seattle, San
Diego, New York and Washington, D.C. you may notice quite a few Japanese tourists visiting during the first week of May.
Whether you’re going to or leaving Japan during Golden Week, have a wonderful holiday!
Earth Day will be celebrated this year on Sunday, April 22, 2012. This year marks the 42nd anniversary of Earth Day which was originally conceived as a day to inspire awareness and appreciation for the Earth’s natural environment.
The name and concept of Earth Day was allegedly pioneered by John McConnell in 1969 at a UNESCO Conference in San Francisco. The first Proclamation of Earth Day was by the City of San Francisco on March 21, 1970, the first day of Spring. This day was later sanctioned in a Proclamation signed by Secretary General U Thant at the United Nations where it is observed each
year. About the same time a separate Earth Day was founded by U.S. Senator Gaylord Nelson as an environmental teach-in held on April 22, 1970.
It’s probably safe to say that when Earth Day was conceived, most business looked at it as some sort of “hippie” thing. However, 42 years later, as environmental friendliness and recycling become second nature to most of us, Earth Day has moved into the limelight. Each year, an increasing number of businesses celebrate Earth Day by sponsoring workplace programs and activities that include e-waste collection and recycling. Every business has the ability to make an impact by encouraging employees to get involved. Here are just a few good and very easy ideas to think about for this coming Earth Day.
- Drive Slower. First on the list is driving! We’re sure you’ve got plenty of employees who drive. Not only encourage your employees to drive a bit slower, but start doing it yourself. It’s been proven through several studies to cut down on gasoline consumption and a big contributor what Earth Day is all about. So there, Mr. crazed, maniac driver getting road rage at those of us driving under 60 mph.
- Turn the Lights Off. No. 2 on the list is turn off the lights if you don’t need them. I’m sure you can remember some older family member in your earlier life telling you to turn off the lights. Yes, turning of the lights when you leave a room can save energy. Even though lighting technology certainly has reduced energy costs especially with the movement away from incandescent lighting to compact fluorescent and more recently to LED, you’re saving energy in the long run if you simply turn off the lights when you leave a room. Also, if you’re lucky and in an office with lots of natural light, turning off the lights during the day especially during the summer months really cools down a room.
- Use Recycle Bins Properly. Many companies have recycling bins. In most cases, people attempt to actually recycle properly by putting paper, bottles, cardboard, packaging materials, etc. in the correct bins. However, shame on those of you who set up the recycle bins and don’t manage them. It actually takes a bit education and encouragement to get a recycling program running properly. Speaking of encouragement, besides the big central recycling bins we see at most companies, there are actually small recycling containers on the market that you can purchase and put under individual desks.
- Create a More Eco-Friendly Kitchen. Some thoughts for the company kitchen include: encouraging employees to bring reusable lunch containers and reusable coffee mugs (it seems that paper cups are just as bad as styrofoam due to the energy used to make them); using a water cooler is way more eco-friendly over bottled water; replacing office paper and paper towels with paper products made from recycled material; and switching to a green office cleaning company or request that your current company use non-toxic cleaning supplies.
- Save Paper. In the office where we still crank out too much paper, most companies have adopted a “double-sided” policy when printing draft documents. However, here’s another angle, which you may or may not consider very eco-friendly. Believe it or not, using two monitors for work really does cut down on paper being printed as there’s less need to print out
documents to view for drafts. On the negative side of this, however, is that you’re adding another energy-sucking machine. However, it really works on reducing your paper needs.
- Recycle & Dispose of Old Electronics. What to do with your old computers, laptops, cell phones, etc. Consider recycling or donating old computers by arranging for a computer recycling firm to pick up old equipment or contacting local school boards to see if they are in need of computer equipment. Also, all the large retail groups along with many charitable organizations collect old cell phones to be used for military personnel overseas. And don’t forget how all easy big chains such as Staples Office Depot and Office Max have made it to recycle used toner cartridges. Last, Earth Day is a great day to get an e-waste group in to collect and properly dispose of all the old electronics equipment you have sitting around the office.
- Screen an Eco-Flick. In reverence to Mother Earth, screen a eco-film at the office. The Planet Earth Series from the BBC is a fantastic documentary series about different aspects of Earth. You can download the series on iTunes and show it at lunch.
- Green the Office. Add some green plants in the office. We keep hearing about too much CO2 emissions into the atmosphere. Plants eat CO2 and other gases and make fresh oxygen and we need more of them. In the office, plants definitely help clean indoor air by eating indoor pollutants such as formaldehyde, xylene, benzene, acetone, etc. All the stuff we pack into our offices including carpeting, furniture, ceiling tiles, printers, fabrics, paint, photocopiers, etc. continously give off these pollutants. Some of the best plants for the office that help suck up these pollutants include boston ferns, ficus, pothos, philodendrons, spider plants, dracaenas, and peace lilies. There’s scientific studies on the dramatic benefits that indoor plants add to the air you’re breathing.
HAVE A GREAT EARTH DAY ON APRIL 22ND
The U.S. Department of Labor’s Bureau of Labor Statistics (BLS) released the U.S. Employment Situation Report for March on Friday, March 6 showing national unemployment was down slightly to 8.2% from the previous month’s 8.3%.
The Report showed that job growth for March slowed sharply and it began to raise new questions about the strength of the most recent economic recovery that began during the fall of 2011. For March, U.S. employers added 120,000 new positions which are only half the job gains over the previous three month period.
In addition, the latest employment report comes at a critical period in the U.S. Presidential campaign and raises questions regarding President Obama’s re-election in November. However, research suggests that major economic reports for the upcoming summer months will likely set the most important tone for voters’ outlook for the November elections.
Total nonfarm payroll employment rose by 120,000 in March. In the prior three months, payroll employment had risen by an average of 246,000 per month. Private-sector employment grew by 121,000 in March, including gains in manufacturing, food
services and drinking places, and health care. Retail trade lost jobs over the month. Government employment was essentially unchanged. Industry job growth/decline changes between February and March 2012 by major industry categories included the following:
|Industry||Changes from Feb., 2012 to Mar., 2012||Special Note|
|Mining/Logging||1,000||Includes oil & gas extraction|
in both residential & non-residential construction
|Manufacturing-Durable Goods||26,000||Growth in motor vehicles, machinery & fabricated metal
|11,000||Growth in food manufacturing, paper & paper products &
|Retail Trade||-33,800||Declines in general merchandise stores & department stores
|Transportation & Warehousing||2,800||Growth in support activities for transportation categories|
|Information||-9,000||Declines in motion picture & sound recording, broadcast
& telecommunications categories
|Financial activities||15,000||Growth in credit intermediation & related & rental &
|Prof. & business services||31,000||Growth in services to buildings & dwellings, administrative
& support services & management & technical consulting; sizeable
decline in employment services.
|Education & health services||37,000||Growth in health care, educational services & hospitals|
|Leisure & hospitality||39,000||Growth in accommodation & food services category|
|Federal (exclude U.S. Postal Service)||No change||–|
|U.S. Postal Service||-2,100||–|
The number of people seeking initial unemployment continues to decline. New claims for unemployment benefits fell again for the
week ending March 17th to 348,000, a new four-year low as the economic recovery continues to accelerate.
The four-week average, a less volatile measure, went down to 355,000, a number last seen in 2008 prior to the last recession gearing up prior to the financial crash of September 2008. The chart below shows the four-week seasonally adjustment initial claims from January 2008 through March 17, 2012.
Applications for jobless benefits have steadily declines since the fall of 2011. The reductions coincide with the best three months in
hiring in the past two years. U.S. employers added an average of 245,000 new jobs from December 2011 through February 2012, with the unemployment rate dropping to 8.3%. Unemployment data for March is scheduled to be released on April 6.
New York and California showed the biggest improvements last week. Jobless claims dropped by 14,222 in New York and 4,696 in California because of fewer layoffs, according to the U.S. Labor Department. 03.24.2012