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Online Seminar

At this point, most of us know or should know it’s dangerous to use a cell phone while driving. However, how many of us think that it’s also dangerous to text or talk on your cell phone while you’re walking?

A You Tube video of woman falling into a Pennsylvania shopping mall fountain went viral in January 2011 with 1.5 million views. She was texting and walking at the same time. Although most people thought the video to be very funny, the reality of this situation is that we’re seeing more and more examples of “distracted walking” which sometimes has resulted in fatal accidents where pedestrians have been hit by cars and trains.

According to recent studies, “distracted walking” is a growing safety concern. According to an article this past summer by the Associated Press, reports of distracted walkers treated at emergency rooms has more than quadrupled in the past seven years. According to data collected by the Consumer Product Safety Commission, in 2011 alone, 1,152 people were treated for “distracted walking” injuries. In most cases, however, any statistics produced are most likely a gross underestimate since emergency room
workers do not always ask patients if they were using a mobile device at the time of their accident.

With smartphone technology today that has every available app at your fingertip, it has become an obsession/compulsion with people everywhere to be staring and/or doing something with their mobile phones. You can see this absolutely everywhere in plain sight – in malls, airports, train stations, streets, etc.

With the common usage of mobile smartphone devices for work, employers and employees need to pay attention to the alarming growth of distracted walking accident. And we may be approaching a point where we’ll have to address this issue in our policies.

The issue for employers is that, like distracted driving, distracted walking poses a real safety and workers’ compensation risk. Employees who use tablets, cell phones and other mobile devices in the field create growing numbers of safety risks for employers such as distracted walking incidents. Other environments may present an even greater risk such as those in which workers
operate loud, dangerous machinery. Even office workers are at risk for distracted walking accidents, especially in fast-paced, high traffic areas.

Employers need to start thinking about warning employees of the dangers of distracted walking. In high-risk areas, employers should consider making mobile device usage off-limits and add safety limitations to social media and network, equipment and Internet usage policies. Employers should also consider adding distracted walking to a safety policy. 09.18.2012

In a recent National Labor Relations Board (NLRB) decision (Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, Case 34-CA-012421), the NLRB invalidated certain COSTCO personnel policies protecting the dissemination of employee health information and personal identifiers.

COSTCO has several rules regulating employee speech that prohibit employees from posting or distributing materials on company property, discussing other employees’ private matters (such as leaves of absence), and sharing or transmitting employees’ sensitive
financial and other personal information. The Company also prohibited employees from electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement” and prohibited employees from leaving the employer’s premises without permission. Employees who violated these rules could be subject to discipline, up to and including termination.

The United Food and Commercial Workers union challenged these rules by filing unfair labor practice charges. Aside from the electronic positing rule, the administrative law judge (ALJ) held that the challenged rules regulating employee communication violated Section 8(a)(1) of the NLRA because the unit employees could reasonably construe the language of the rules to prohibit protected concerted activity under Section 7 of the NLRA.

The ALJ held that the employees would not reasonably construe the electronic posting rule as regulating and thereby prohibiting Section 7 activity. Rather, the employees would reasonably infer that the purpose of the electronic posting rule was to
create a “civil and decent workplace.” Therefore, the ALJ dismissed that complaint allegation.

Costco and the counsel for the NLRB’s General Counsel filed exceptions to the ALJ’s decision with the four member panel (Board) heading the NLRB’s judicial functions. On September 7, 2012, the NLRB issued a decision affirming the findings of the ALJ that most of the challenged employee communications rules violated Section 3(a)(1) of the NLRA. However, the NLRB reversed the ALJ regarding the electronic posting rule and held that it is unlawful because it could reasonably tend to “chill” employees in the exercise of their Section 7 rights.

According to the NLRB ruling, several policies in COSTCO’s nationwide employee handbook must be modified or rescinded because they violate federal labor law. It is unlawful for employers to maintain rules that interfere with protected activity or even “chill” employees in the exercise of rights guaranteed under the National Labor Relations Act.

At issue in this case were rules that went too far by, for example, prohibiting employees from distributing material on company property without authorization and sharing or electronically posting various types of information, including details about their terms and conditions of employment and critical statements about the company.

The specific policies ruled illegal by the NLRB are typical of those in many, if not most, employee handbooks. Among the invalidated rules were those that forbid employees from discussing or sharing private or otherwise sensitive information such as sick calls, leaves of absences, FMLA call-outs, ADAaccommodations, workers’ compensation injuries, employee personal health information, payroll, credit card and social security numbers, employees’ names, addresses, telephone numbers and email addresses.

Also, the NLRB struck down Costco’s rule prohibiting employees from electronically posting statements that “damage the Company…or damage any person’s reputation” because, read broadly, it prohibited negative statements
about how Costco treated its employees. 09.18.2012

In late August 2012, the San Francisco Public Health Department announced that rates will rise 9 to 13 cents an hour per employee for San Francisco’s pay-or-play health coverage option.

The 2013 health care expenditure rate for large employers—those with 100 or more workers—is $2.33 an hour for each employee, up from $2.20 an hour this year. For medium-size employers—those with 20-99 workers—the 2013 rate is $1.55 an hour, up from $1.46 an hour this year. The rates will take effect Jan. 1, 2013.

The San Francisco Health Care Security Ordinance passed in 2006. The ordinance caused a stir, with businesses arguing that the city could not implement the law without violating the Employee Retirement Income Security Act. After several rounds in the federal courts, the U.S. Court of Appeals for the Ninth Circuit found that the law was not preempted by ERISA and thus could be implemented.

Under the ordinance, employers deposit money with the city on behalf of their employees. The money is used to fund health care. Employees are enrolled in either Healthy San Francisco, in which workers receive a 75 percent discount on program participation fees, or a medical reimbursement account, in which out-of-pocket medical, dental, or vision costs are reimbursed.

Covered workers are those who:

(1) are entitled to be paid the minimum wage, (2) have been employed by their employer for at least 90 calendar days, and (3) perform at least eight hours of work per week within the geographic boundaries of San Francisco.

To be eligible for the Healthy San Francisco program, employees must be: (1) San Francisco residents with a combined family income at or below 500 percent of the federal poverty level (e.g., 2012 federal poverty level is $11,170 for household of 1 and $19,090 for household of 3); (2) uninsured for at least 90 days; (3) ineligible for public insurance programs such as Medi-Cal, Healthy Families, or Healthy Kids; and (4) between ages 18 and 64.

Small employers with 19 or fewer employees and nonprofit organizations with fewer than 50 workers are exempt from the employer spending requirement.

Healthy San Francisco enrollment reached 47,285 as of July 29, the most recent figure available. 09.18.2012

The autumnal equinox arrived on Saturday, September 22, 2012, marking the official arrival of fall when the sun is positioned directly over the equator of our tilted Earth. The autumnal equinox, or fall/autumn equinox, is one of two times during the year when the length of day and the length of night are just about equal. From this point forward through the start of winter
in later December, each day will get shorter in the northern hemisphere.

With season being opposite on either side of the equator, the autumnal equinox in the northern hemisphere is the vernal or spring equinox in the southern hemisphere. A happy spring to those of you in Australia, New Zealand, South Africa, Argentina, Chile, Brazil, etc.

The fall equinox began this year on Saturday, September 22nd at 11:49 pm Japan Standard Time; 2:49 pm Universal Time or GMT; 10:49 am Eastern Daylight Time; 9:49 am Central Daylight Time; 7:49 am Pacific Daylight Time; and 4:49 am Hawaii-Aleutian Standard Time.

In Japan, the arrival of fall is a national holiday, Autumnal Equinox Day or “Shuubun no hi” which not only marks the seasonal change but also for paying respect to deceased family members.

In addition to the arrival of fall, another important date/time reminder is the end of daylight saving time in the U.S. This will be coming up on the first Sunday of November (November 4, 2012) at 2:00 a.m. with our clocks moving back one hour.  09.18.2012

Upcoming Seminars

September 2012
October 2012