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Almost exactly two years after President Obama signed the Patient Protection and Affordable Care Act (PPACA) into law, the statute’s validity came under scrutiny during oral argument before the U.S. Supreme Court. On the second of three days of argument, the justices focused on the constitutionality of the law’s individual mandate requiring most U.S. citizens to buy health
insurance or pay a penalty (HHS v. Florida, U.S., No. 11-398, oral argument 3/27/12). Observers have offered various predictions on how the Supreme Court will rule on the law and its individual responsibility requirement, but an actual decision is not expected for several weeks or months. 03.27.2012

The Department of Homeland Security’s U.S. Citizenship and Immigration Services announced on March 27 proposed revisions to Form I-9, Employment Eligibility Verification, and published a notice inviting comments on the changes. The key changes, according to USCIS, include expanded Form I-9 instructions, a revised layout, and the addition of optional data fields to collect the employee’s email address and telephone number. 03.27.2012

Recent reports about a U.S. Army sergeant accused of killing 17 civilians in Afghanistan have sparked concerns among employers and raised questions about returning veterans and post-traumatic stress disorder (PTSD).

Officials at a consulting service funded by the Department of Labor’s Office of Disability Employment Policy are reporting that news of the tragedy led to an uptick in calls from employers concerned about workplace safety.

Beth Loy, a principal consultant with the Job Accommodation Network (JAN), a free, confidential consulting service based in Morgantown, W.Va., said one of the most difficult challenges for employers involves having to deal with misconceptions and stereotypes about veterans and the possibility that they are affected by PTSD.

“When something happens like what recently happened in Afghanistan … employers tend to get afraid,” Loy said. “But oftentimes PTSD is very easy to accommodate.”

For example, an employee diagnosed with PTSD might need an accommodation as simple as an electronic scheduler, a noise-cancelling headset, or sound barriers placed around a cubicle, she said.

“Many individuals with a diagnosis of PTSD work without any type of accommodation,” Loy said. “If an employer contacts us, we can talk about myths, stereotypes and say, ‘Here is [an accommodation] that was low-cost and easy to implement. It’s not as difficult as you might think.’ ”

PTSD is common among military veterans, according to America’s Heroes at Work, a DOL project that addresses employment challenges faced by returning military service members and veterans living with traumatic brain injury and PTSD.

The organization noted on its website that data from the Rand Corp. suggest about one in five service members who return from deployment operations in Afghanistan and Iraq have symptoms of PTSD or depression.

More generally, America’s Heroes at Work said studies suggest about 8 percent of the U.S. population, or about 24 million people, will develop PTSD at some point in their lives. In addition, based on the ADA Amendments Act of 2008, which expanded the definitions of what is considered a disability, it is possible that PTSD is very likely to be covered under the [amended] Americans with Disabilities Act. Therefore, employers should consider complying with all of its requirements.

In the Equal Employment Opportunity Commission’s Veterans and the Americans with Disabilities Act (ADA): Guide for Employers, a revised version of which was issued last month, EEOC noted that “it is illegal for an employer to refuse to hire a veteran because he has PTSD, because he was previously diagnosed with PTSD, or because the employer assumes he has PTSD.”

In addition, an employer’s obligation with respect to treatment of military veterans is broader under the Uniformed Services Employment and Reemployment Rights Act than they are under the ADA. When an employer has an employee returning from military leave with a disability, the first thing employers should realize is they may have obligations that go beyond what they typically had trained for under the ADA. 03.26.2012

Federal Express (FedEx) has agreed to pay $3 million to settle a hiring practices lawsuit that it discriminated against 21,635 job applicants based on their sex and national origin.

Under the terms of a conciliation agreement signed March 21 between FedEx Corp. and DOL’s Office of Federal Contract Compliance Programs, the Memphis, Tenn.-based company will pay back wages and interest to applicants that two of its subsidiaries—federal contractors FedEx Ground Package System Inc. and FedEx SmartPost Inc.—rejected for entry-level package handler and parcel assistant jobs, according to DOL’s statement.

The signing of the conciliation agreement ended a seven-year investigation and represents the largest single financial settlement negotiated by OFCCP since 2004. In signing the agreement, Fedex admitted no wrongdoing and stated that it believed the DOL’s position was not supported by law. Fedex further stated that the allegations made by the DOL were based on computer statistical analysis rather than individual complaints or investigations.

The conciliation agreement calls for the two FedEx companies to pay a total of $3 million in back wages and interest to 21,635 applicants who were rejected for jobs at 22 FedEx Ground facilities and one FedEx SmartPost facility. FedEx also has agreed to extend job offers to 1,703 of the affected workers as positions become available, according to DOL. In addition to the financial remedies and job offers, FedEx Ground has committed to correcting discriminatory hiring practices, implementing equal employment opportunity training and self-monitoring.  03.24.2012


A new guidance memo from the deputy director of the Labor Department’s Occupational Safety & Health Administration (OSHA) calls for increased attention by agency compliance officers and investigators to whether disciplinary and safety programs violate safety regulations.

The memo from Deputy Assistant Secretary of Labor for Occupational Safety and Health Richard Fairfax, dated March 12, focused on workers who face retaliation for reporting on-the-job injuries or illnesses and safety incentive programs that discriminate against workers who notify employers about injuries and illnesses.

“Reporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination under section 11(c)” of the Occupational Safety and Health Act, Fairfax told the agency’s regional
administrators and whistleblower program managers.

Later in the memo, Fairfax addressed safety incentive programs. “If the incentive is great enough that its loss dissuades reasonable workers from reporting injuries,” the memo said, the employer is violating rule 29 CFR 1904, and a referral for a recordkeeping
investigation should be made.

OSHA already has told employers in the Voluntary Protection Program that before their participation will be renewed, their safety incentive programs need to be reviewed to determine whether they discourage reporting. 03.24.2012

A court ordered a Chinese restaurant in Sunnyvale, CA., to pay $404,000 in unpaid wages and liquidated damages after a Labor Department investigation revealed that the restaurant forced workers to return their paychecks and subsist only on their tips, the Labor Department announced Mar. 15 (Solis v. United Buffet Inc., N.D. Cal., No. 11-4194, default judgment entered 2/29/12).

Judge Ronald M. Whyte of the U.S. District Court for the Northern District of California ordered United Buffet Inc., which does business as the Crazy Buffet restaurant, and its manager, Zhou Ni, to pay 32 employees a total of $201,950 in back pay and an equal amount in liquidated damages.

The judge Feb. 29 approved DOL’s request for a default judgment after the defendants refused to pay $44,570 in unpaid minimum wages and $157,380 in overtime compensation that resulted from violations of the Fair Labor Standards Act’s minimum wage, overtime, and recordkeeping provisions, DOL said.

According to the Labor Department, United Buffet issued paychecks to restaurant employees but then required the waiters to return their wages, allowing them to keep only their tips.

The employer also did not pay for hours they worked exceeding 40 in a week, even though employees’ worked an average of 60 to 72 hours per week, DOL said. In addition, the employer falsified employees’ time and pay records, DOL said.

The judge also granted an injunction barring United Buffet from committing future FLSA violations and an injunction forbidding it to continue to withhold unpaid compensation. The employer did not appear at the court proceedings. 03.24.2012

As you may be aware and may have practiced, it isn’t uncommon for potential employers to scan through the Internet looking for information on potential hires. However, many job seekers are getting better at applying privacy setting to their social media accounts.

This past week, it was reported in the Associated Press that a number of employers are now asking applicants to hand over login credentials to their email accounts, social networking websites and other online services.

The American Civil Liberties Union (ACLU) immediately condemned the practice calling it “an invasion of privacy” and insisting that “people are entitled to their private lives.” Senator Richard Blumenthal of Connecticut agreed with the ACLU concerns and is now drafting a bill to make such actions illegal. Like other banned employment practices such as administering polygraph tests to screen applicants, Blumenthal believes that requiring access to a person’s private internet accounts should be illegal.  03.24.2012

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

In what may be a rare case of a man claiming discrimination based on his age and gender, a veteran California weatherman is suing CBS Corporation and Los Angeles television affiliates KCAL and KCBS for age and gender discrimination, saying the network only wants to hire sexy young women to give the weather reports.

In a suit filed recently, 20 year veteran meteorologist Kyle Hunter, who has a bachelor’s degree in geosciences and broadcast meteorology as well being certified by the American Meteorological Society, is claiming he was passed over for meteorologist jobs
at KCBS and KCAL because he was over 40 and a man.

Hunter, who has recently been a weatherman on San Diego TV, alleges that in 2010 he was in the running to replace longtime KCBS weatherman Johnny Mountain, but instead the station hired a younger woman, Jackie Johnson, even though Hunter was more qualified and experienced. He also applied for Johnson’s old job at KCAL, where he claims he was passed over for a younger woman whose age and gender he claims were key considerations in the hiring decision.

Hunter says he received an email from KCAL management saying there “was not an opening” before the station hired Evelyn Taft, who had been a weather reporter in Florida but was not certified by the American Meteorological Society, according to the suit.

The lawsuit alleges that the stations hired young, attractive women to induce more men to watch their prime time newscasts. Hunter is being represented by famous attorney Gloria Allred.  03.19.2012