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Online Seminar

As most New York employers are aware, the first annual notice to all employees required by the Wage Theft Prevention Act (“WTPA”) must be distributed by February 1, 2012.

The WTPA went into effect on April 9, 2011 and requires that all New York state employers provide a written notice to employees of their rate(s) of pay, designated pay day, the employer’s intent to claim allowances (like tip or meal allowances) as part of the minimum wage, and the basis of wage payment (whether paying by hour, shift, day, week, piece, etc.). The law requires that the notice contain the employer’s “doing business as” names, and that it be provided at the time of hiring, annually on or before February 1st of each year of employment, and within 7 days of a change if the change is not listed on the employee’s pay stub for the following pay period. The notice must be provided in the employee’s primary language, as identified by the employee, through translated notices provided by the Department of Labor.

With the written notice provided, the employer needs to receive an acknowledgement of receipt from each employee. In the case where an employee refuses to sign the acknowledgement of receipt, an employer should note the employee’s refusal on its copy of the notice.

Along with the annual February 1 notice, a notice is also required at the time that an employee is hired.  01.31.2012.

The Department of Labor (DOL) Wage and Hour Division on January 30 issues new proposed regulations under the Family and Medical Leave Act that would further explain the military family leave provisions and incorporate some special provisions for airline flight crews.

The new proposed regulations are in response to the National Defense Authorization Act for Fiscal Year 2012 which amended the FMLA to extend the military caregiver leave entitlement to eligible family members of certain veterans and to extend the qualifying exigency leave entitlement to eligible family members of the Regular Armed Forces.

The major provisions of the new rules include: (1) the extension of military caregiver leave to eligible family members of covered veterans with a serious injury or illness; (2) a flexible, three part definition of serious injury or illness of a veteran; (3) the extension of military caregiver leave to cover serious injuries or illnesses that result from the aggravation during military service of a pre-existing condition for both current service members and veterans; (4) the extension of qualifying exigency leave to eligible family
members of members of the Regular Armed Forces; (5) inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all service members (National Guard, Reserves, Regular Armed forces); (6) the addition of a special hours of service eligibility requirement for airline flight crew employees; and (7) the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

Presently, the DOL is soliciting comments on the new rules and may make further changes prior to the final release.  Additional information can be found on the Department of Labor’s website (www.dol.gov.opa/media/press/whd/WHD20120177.htm).      01.31.2012

9:30 amto11:30 am

Please join us on Wed., Feb. 22, 2012 for a seminar on Labor Law & Human Resources Management Practices (Basics & Recent Updates) – conducted in Japanese by Mr. Akira Takahashi, HRM Partners, Inc. 

This seminar will be conducted between 9:30 a.m. and 11:30 a.m.  The location will be at 825 3rd Avenue, 2nd Floor, New York, NY 10022.

This is a “no charge” seminar.  However, due to limited seating, you must contact Mr. Ryota Mitsugi at rmitsugi@hrm-partners.com.

9:30 amto12:00 pm

Please join us on Fri., Feb. 24, 2012 for a seminar on Rethink Basics of Human Resources Management Practices in the US – conducted in Japanese by Mr. Munero Ueda, HRM Partners, Inc.

This seminar is held in conjuction with PASONA N.A. Inc. and will be conducted from 9:30 a.m. to 12:00 p.m.  The location for the seminar will be at Hilton Irvine/Orange County Airport at 18800 MacAuther Blvd., Irvine, CA 92612.

This is a “no charge” seminar. However, due to limited seating, you must contact PASONA N.A., Inc. directly to reserve seating.

Telecommuting or telework is a work relationship when employees perform work at home or some other off-site location rather than in a central work location.  The term,
“telecommuting” was first coined in 1973 to describe alternative work arrangements in which work that is customarily done in an office is done at home or at some other off-site location.

The original and most common telecommuting arrangement involves workers at home linked to their offices through telephones, fax machines, and personal computers. Employees normally divide their time between the employer’s office and the home office. This arrangement works especially well for persons whose work involves mostly
reading and writing and very little interpersonal communication. Of course, today there are variations of the original work-at-home model including employees who might work from a satellite work center, nomadic executives who travel extensively and maintain control over projects through the use of telephone, fax, and modem-linked computers and employees who work entirely outside of the office and not necessarily just at home.

Depending on who you count as a telecommuter, the number of telecommuters ranges from between 2.5 million (those who consider home their primary place of work) and 44 million (includes anyone who works at home at least once a year). The 44 million number is interesting in that it would suggest over 30% (U.S. adult working population in
late 2011 was 140 million) of the working population telecommutes at some point in a year.

A more recent study, however, by WorldatWork  conducted in 2010 and titled, “Telework 2011 – A WorldatWork Special Report,” takes a more practical view of telework and finds it in wide use. The study defined teleworkers as anyone who has worked an entire day at least once a month. Using this definition, the study found that 26 million workers telecommuted in 2010 or nearly 20% of the U.S. adult working population.

And this number has actually declined since 2008 when there were about 34 million telecommuters. The reason for the decline, however, according to the WorldatWork study was a combination of factors including fewer workers in the workforce overall due to high unemployment, higher anxiety surrounding job security and a lack of awareness of telework options.

Overall, the WorldatWork study found that even as the total number of teleworkers decreased between 2008 and 2010, the percentage of people who teleworked more often than once a month increased. In 2010, 84% of teleworkers did so one day per week or more, up from 72% in 2008. In addition, the study also found that the use telecommuting or telework was being used in various ways and not just one. This includes: (a) Ad hoc or occasional telework (e.g., employee is waiting at home for a repairperson); (b) Telework scheduled once a month; (c) Telework scheduled once a week; and (d) Full-time telework.

In March 2011, Telework Exchange, a public-private partnership focused on demonstrating the tangible value of telework, announced the results of its National Telework Week, an effort that encouraged employees to telework during the week of Feb. 14-18, 2011. Underwritten by Cisco Systems Inc., the post-Telework Week report found that during that week, 39,694 employees teleworked, 86 percent of whom worked for the federal government. They collectively saved $2.7 million in commuting costs, and gained back more than 148,000 hours by not commuting. Teleworking two days a week translates to a $3,439 annual raise and saves 200 hours a year for employees not commuting
every day, the report said.

Also, sixty percent of organizations surveyed by the Telework Exchange said that management is more open to and encouraging of telework than it was one year ago. More than three-fourths (76 percent) of employees said they accomplished more while teleworking, and the employers involved reported increased employee work/life balance and

The majority of telecommuters are mid- to upper-mid-level professionals, administrators, technical employees, and clerical employees. Positions that have adapted well to telecommuting include typing, data entry, writing, editing, and telemarketing because they involve a great deal of independent work and frequently require little face-to-face contact with other people.

Some companies prepare a list of jobs designated for telecommuting. Others allow a manager and an employee to discuss adapting an individual job to a telecommuting arrangement.

Generally speaking, telecommuting programs are very flexible and accommodate a variety of different work styles. Sometimes, employees are free to work hours that are convenient for them, as long as they establish core hours during which the employer and co-workers can contact them.

Other workers, however, cannot have such flexibility. Reservations agents, for example, must be available during a set schedule covering most or all of their workday.

The potential benefits for employers are not limited to enhanced recruitment and retention of employees. They also include the potential to lower administrative, benefits, and facilities costs.

Among the advantages of telecommuting cited by employers are the following:

  1. Telecommuting
    employees often are more productive because they are not distracted by workplace socializing or office politics.
  2. Sick leave can decrease because slightly ill employees will feel well enough to work from home, and others can work while caring for ill dependents.
  3. Overhead costs for parking spaces, office space, utilities, and supplies may decrease. Usually, telecommuters either share office space or relinquish their space.
  4. Workers who do not wish to relocate when their company moves can continue to work for the company long-distance.

Although there are many benefits to employers for establish telecommuting, such programs also present potential problems. Many employers are concerned whether they can trust employees to work continuously during scheduled production hours and to record their work hours honestly, because no supervisor is present in most telecommuting arrangements. To help compensate for the inability to supervise workers visually, two alternatives have emerged: electronic monitoring and adopting a management-by-objective philosophy.

Employers concerned with the performance of their employees outside the supervised setting today can also monitor work patterns through software packages that measure the amount of time an employee spends logged onto a company computer, the number of keystrokes of data entry, or the time a reservation agent or similar worker spends on handling calls.

There’s no one hard-and-fast telecommuting policy; each company needs to consider its own requirements when creating its policy regarding telecommuting. A good start for any new telecommuting arrangement is to get a signed telecommuting agreement between the employer and telecommuting employee that explains requirements for compliance, proprietary and confidentiality, log-in/log-out procedures, discussions on the telecommuter’s requirements to attend on-site meetings, and an escape clause that allows the company to terminate the telecommuting arrangement at any time and that the employee may be required to return to the traditional on-site working relationship.

It’s also a good idea to create a safety checklist to ensure the employee feels confident and that he or she is working under safe conditions. Employers need to manage health and safety risks arising from telecommuting such as fire, electrical problems, ergonomics, air quality, and security. Liability issues, such as snow on sidewalks, should be
addressed before telecommuting begins. The employer should also address the fact that, if necessary, their employer can inspect equipment and monitor their performance.

In addition, you should establish the positions that are eligible for telecommuting; or the tasks that can be done remotely. At the same time, make sure the policy clearly
spells out which positions will be difficult, if not impossible, to fill or hold by telecommuting.

When assembling a home office, the employer needs to determine what equipment and supplies will be provided by the company. Telecommuters often begin working with their own equipment, or their employer’s spare equipment, or use their own computers. In case of lost or stolen equipment, it might be necessary to expand the corporate liability insurance to cover accidents outside the office. If the worksite is established in the telecommuter’s home, the homeowner’s or rental insurance might be sufficient. However, the company might decide to assume any additional premium costs rather than require the employee to pay for them.

In summary, telecommuting has come a long way in the almost 40 years since it started. Although it’s not for everyone, it should definitely be an option that should be seriously and carefully considered. 01.29.2012

The National Labor Relations Board’s (NLRB) Acting General Counsel Lafe E. Solomon issued a new report on January 24, 2012 on unfair labor practice cases involving employee use of social media and online communications, reviewing 14 cases recently considered by his office and describing the conclusions he reached about the rights of employees and the obligations of employers under federal labor law.

According to Memorandum OM 12-31, which updated an August 2011 report, the acting general counsel continues to take the view that employees using social media to engage in protected concerted complaints about their employment are protected by the National Labor Relations Act (NLRA), while employees who merely air individual gripes lack statutory protection.

Solomon’s report also provides guidance for employers drafting policies on employees’ social media use. The acting general counsel considered seven cases on policy language, and found that five employers had adopted overbroad policies that violated employee rights, while one employer had a lawful provision, and another started out with an illegal policy, but managed to amend it to conform to the NLRA.

Solomon discussed several cases in which NLRB’s Division of Advice was required to determine whether employees who engaged in online complaints were protected by Section 7 of the NLRA. Names of the parties were removed from the case summaries he provided.

In one case, an employee working for a chain of home improvement stores, upset that a supervisor reprimanded her in front of a company manager, updated her Facebook status with a comment that included an expletive and the name of the employer.

Several individuals, including one co-worker, indicated on the Facebook page that they “like” the comment, but when the employee later added an online comment that the company did not appreciate its employees, her co-workers did not respond to the posting. The employee was fired due to her Facebook comments.

NLRB held in Meyers Industries, 268 N.L.R.B. 493, 115 LRRM 1025 (1984), that an employee acts in concerted activity if the worker acts “with or on the authority of other employees and not solely by and on behalf of the employee himself.”

Solomon concluded that the home improvement company employee was not protected by the NLRA, observing that she “had no particular audience in mind when she made that post, the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action, and the post did not grow out of a prior discussion about terms and conditions of employment with her coworkers.”

On the other hand, an employee working for a collections agency was engaged in concerted activity when she posted a Facebook status update with an expletive complaining that a supervisor had reassigned her without good cause. The employee’s posting was followed by an online dialogue that included expressions of support by other employees, who added their own criticism of the employer and even discussed a possible class action against the company.

In the collections agency case, Solomon said, “the Charging Party’s initial Facebook statement, and the discussion it generated, clearly involved complaints about working conditions and the Employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which encompasses employee initiation of group action through the discussion of complaints with fellow employees.”

NLRB held in Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 176 LRRM 1044 (2004), that an employer violates Section 8(a)(1) of the NLRA if it maintains a work rule that employees would reasonably understand to prohibit NLRA-protected activity. Solomon applied the principle in seven recent cases, paying close attention to the
language of employer policies on social media use or public comments by workers.

In the case of the home improvement store that lawfully fired an employee, Solomon found that the store’s social media policy was unlawful. The policy instructed employees they should generally avoid disclosing their employment on social media unless they are discussing employment terms and conditions in an “appropriate” manner.

Solomon found that the rule implicitly prohibited “inappropriate” discussion of employment conditions and that employees would reasonably interpret it as forbidding conduct protected by Section 7 of the NLRA.

The same policy contained what Solomon described as a “savings clause”—a statement assuring employees that the policy would not be interpreted or applied in a manner that would interfere with their NLRA rights, which were briefly described.

But the acting general counsel said the savings clause did not justify an otherwise unlawful policy. An employee could not reasonably be expected to know that the clause would protect conduct the policy otherwise indicated would be “inappropriate,” he concluded.

In another case cited in the report, a company that operates clinical testing laboratories had a broadly worded prohibition on disclosure of confidential, sensitive, or nonpublic information that Solomon found unlawful. The policy failed to give employees a context or examples that would clarify their right to engage in Section 7 activity, and would require employees to obtain company approval before engaging in protected acts, he said.

Solomon also found that the testing company unlawfully maintained a policy prohibiting use of the company’s name or service marks outside the regular course of business unless management approval was obtained first.

The acting general counsel said restricting the use of a company name and logo in “protected concerted activity, such as in electronic or paper leaflets, cartoons, or picket signs” would interfere with employee rights under the act.

“Although an employer has a proprietary interest in its service marks and in a trademarked or copyrighted name, we found that employee use in connection with Section 7 activity would not infringe on that interest,” the acting general counsel concluded.

He found that the employer’s legitimate interest in avoiding public confusion about its name or identify and the public’s interest in not being misled “are not remotely implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity.”  01.29.2012

A federal district court in New York has granted preliminary approval to a $99 million proposed settlement of a nationwide wage and hour class action against Novartis Pharmaceuticals Corp. potentially benefiting more than 7,000 current and former sales employees, representatives for both sides announced Jan. 25 (In re Novartis Wage & Hour Litig., S.D.N.Y., No. 06-MD-1794, preliminary approval of settlement 1/25/12).

The proposed settlement, which stems from a pair of 2006 lawsuits filed under the Fair Labor Standards Act and California and New York laws, is pending before Judge Paul A. Crotty in the U.S. District Court for the Southern District of New York. Crotty granted preliminary approval Jan. 25 and has scheduled a May 31 fairness hearing.

The proposed agreement covers five subclasses of Novartis sales representatives who allege they were denied overtime pay in violation of the FLSA and state laws. 01.29.2012

Big news coming out of the the Walt Disney Company regarding dress code changes. The Company just announced that it has updated its famous dress code — known as the Disney Look — to allow employees to grow more facial hair. But the rules still forbid visible tattoos, body piercings (other than the ears for women), “extreme” hairstyles or colors. (Shaved heads are OK for men, but a no-go for women.)

Starting from February 3, 2012, employees can show up to work with a beard or a goatee without worry, as long as it is shorter than a quarter of an inch. Soul patches are still not allowed.

The company has enforced rules that have earned it a reputation as having one of the strictest dress codes in the corporate world. Its ban on facial hair started when Disneyland opened in 1955.

And the dress code has become part of the Disney corporate lore. In 2000, the company allowed mustaches, as long as they didn’t extend beyond the corners of the face. Until 2010, women were required to wear pantyhose with skirts and couldn’t wear sleeveless tops. Even now, straps have to be at least 3 inches wide. 02.25.2012

California’s injury and illness prevention program (IIPP) requiring employers to have a written plan to avert and reduce workplace hazards has failed to reduce  fatalities and injuries, according to a recent RAND Corporation draft report released on January 12, 2012.

RAND Corp. researchers studied manufacturing, transportation and  public utilities, wholesale trade, and health care in the first evaluation of  the program’s effects on worker injuries in California. Since 1991, California employers have been required to have a program to reduce injuries, and every inspection must assess compliance with IIPP requirements.
The report said the California Commission for Health, Safety, and  Workers’ Compensation asked RAND to assess the impact of the IIPP on  injuries. To most safety professionals, the elements of the mandatory prevention plan “are all obvious ingredients of a good safety program. Despite that agreement, there is surprisingly little good research that confirms their effectiveness,’’ the draft report said. “Moreover, it is not at all clear that a mandate to adopt these practices will result in the same outcomes as when they are adopted voluntarily,’’ the 127-page draft for the commission said. Firms “may do as little as they can get away with and, depending upon the enforcement effort, that could include doing nothing at all,’’ the draft report said.
The report, which is out for comment through Feb. 21, is intended to inform policy in California and in the federal program under the Department of Labor’s Occupational Safety and Health Administration, which has made the adoption of a similar national requirement a top priority, the researchers said.
Section 3203(a) of Cal/OSHA regulations requires every employer to “establish, implement, and maintain an effective Injury and Illness Prevention Program.’’ The researchers said workplaces without a written prevention plan had more violations than those with a written policy. Overall, noncompliance with some part of the regulation was found in 34 percent of nonunion establishments in the sample and in 15 percent of the unionized establishments. Establishments inspected more frequently, which tend to be larger ones in more hazardous industries, had better compliance with the IIPP in their first inspection after the plan became effective, the researchers said.
Researchers “failed to find any clear impact of the IIPP on the total fatality rate in California. We did find sizable effects when the specific subsections of the IIPP were cited, but this occurred in only 5 [percent] of inspections.’’ The recordable injury rate dropped 26 percent in the year after an employer was cited, the researchers said. Using that 26 percent figure, researchers found “on average, an annual reduction of 0.29 injuries at a workplace with 30 employees and 0.96 at a workplace with 100 when they implement
the specific subsections of the IIPP.’’
Following a decline in IIPP violations in the first two years after effective date, the number of violations per inspection remained fairly constant both for Section 3203(a) (IIPP) and its specific subsections. “Thus, either due to lack of information or lack of deterrence, newly inspected establishments are no more likely to have written programs now than 20 years ago,’’ the report said. Once cited for an IIPP violation, however, researchers said the likelihood of finding another IIPP violation at that establishment declines substantially.
Cal/OSHA annually inspects 8,000 to 10,000 of some 700,000 establishments in California. The two largest categories of inspections are planned inspections targeted primarily at high-hazard industries and inspections made in response to complaints and reports of serious injuries. The average penalty per inspection is slightly higher in California than for federal OSHA and much higher than in other states, researchers said. “It appears, however, that the very high penalty per serious violation, and the prospect of an employer-friendly appeals board, has led to a much higher rate of contested violations than in other states,’’ the draft report said. The higher rate of contests “is consequential’’ as employers cannot be required to abate violations until resolution, in a process that usually takes months, the report said. 01.25.2012

The number of charges filed under federal anti-discrimination laws hit new record highs in fiscal year 2011 according to a report filed by the Equal Employment Opportunity Commission (EEOC) on January 24, 2011.  There were nearly 100,000 charges were filed with EEOC during 2011 with the agency securing more than $450 million for workers through administrative enforcement and litigation.  Charges against employers most commonly involved claims of retaliation (alleged in 37,334 charges), followed closely by race bias (alleged in 35,395 charges), according to statistics provided.  01.25.2012