New Swine Flu Resources for Employers Available
The U.S. Government has set up this new website, PandemicFlu.gov, to provide "One-stop access to U.S. Government swine, avian and pandemic flu information." It has posted a great deal information to help employers and employees reduce the risk of infection on its workplace planning page.
The Centers for Disease Control has posted this H1N1 Flu (Swine Flu) Page with links to helpful and up-to-date information on the swine flu, how it spreads, and how employers can help employees reduce the risk of contracting the flu.
The Department of Labor's Job Accommodation Network has issued a fact sheet titled "Considering the Needs of Employees with Disabilities During a Pandemic Flu Outbreak" (click to download).
IRS Form W-4, Form I-9 Now Available in Spanish
After some delay, here it is: the 2009 IRS Form W-4, Spansh Version (click to download). Click here instead if you need the 2009 IRS Form W-4 in English .
Also, you can click to download the current Form I-9 (Employment Eligibility Verification) in Spanish. Note, however, that the Spanish version may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements. Click here to download the Form I-9 in English.
President Obama Announces NLRB Nominations
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Last Friday, President Obama announced his intention to nominate Craig Becker and Mark Pearce as Members to the National Labor Relations Board (NLRB), the government agency that administers the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector. Click Here to read the White House Press release.
Normally the Board has five members, three from the President's party and two from the other, but right now the Board has only two members, one Democrat and one Republican. Both of these nominees are Democrats, meaning the next will be a Republican. Here's what the White House has to say about each:
- Craig Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He graduated summa cum laude from Yale College in 1978 and received his J.D. in 1981 from Yale Law School where he was an Editor of the Yale Law Journal. After law school he clerked for the Honorable Donald P. Lay, Chief Judge of the United States Court of Appeals for the Eighth Circuit. For the past 27 years, he has practiced and taught labor law. He was a Professor of Law at the UCLA School of Law between 1989 and 1994 and has also taught at the University of Chicago and Georgetown Law Schools. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.
- Mark Gaston Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. Pearce in 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law. Pearce has taught several courses in the labor studies program at Cornell University’s School of Industrial Labor Relations Extension. He is a Fellow in the College of Labor and Employment Lawyers. Prior to 2002, Pearce practiced union side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, NY. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University.
If affirmed by the Senate, these appointments, along with NLRB Chair Wilma Liebman, will give the NLRB a solid pro-labor majority for the next four years. Regardless of what happens with the Employee Free Choice Act, you can safely expect major changes in labor law, as the Obama Board likely charts a much different course than the Board did during the Bush years.
Oregon Moves to Keep Its Disability Law in Tune With the ADA
The Oregon Legislature is taking steps to keep Oregon's disability discrimination laws consistent with the federal Americans with Disabilities Amendments Act (ADA). Last week, Senate Bill 874 passed out of the Senate Judiciary Committee on a 4-1 vote. SB 874 will amend existing Oregon disability law to adopt the changes made to the ADA in 2008 through the ADA Amendments Act (ADAAA).
SB 874 contains four key changes to make Oregon law consistent with federal law:
- prohibiting discrimination against individuals “regarded as” disabled whether or not their perceived impairment is perceived to limit a major life activity;
- construing the term "disability" in favor of broad coverage;
- considering an impairment that is episodic or in remission to be a disability if it would substantially limit a major life activity when active; and
- determining whether an impairment substantially limits a major life activity without regard to the effects of mitigating measures except ordinary eyeglasses.
Oregon has, with a few exceptions, consistently kept its disability discrimination laws consistent with the ADA. Because of that, we expect SB 874 (or something very similar) to become law. The Stoel Rives World of Employment will continue to keep you updated.
10 Worst Employees of 2008
Every employer and HR manager is sure they have dealt with the worst employee of all time, but how do your experiences stack up? Compare your most dreadful employees to this list of the 10 worst employees of 2008, courtesy of Careerbuilder.com.
If you haven't heard yet, these two Domino's employees are topping the list of the worst employees for 2009. Yikes!
Age Discrimination Claims on the Rise
According to the Wall Street Journal, discrimination filings with the Equal Employment Opportunity Commission (EEOC) went up 15 percent in 2008 compared to 2007, and age discrimination suits in particular showed a dramatic 29 percent increase over the previous year. Click here to read the WSJ Article.
The conventional wisdom is that discrimination claims go up in a down economy -- more people lose their jobs through layoffs or heightened performance standards, and a certain percentage of those affected will file discrimination claims. That doesn't necessarily explain the spike in certain types of claims, however, such as the recent increase in age discrimination claims.
So why the spike in claims? It could be as simple as an aging workforce, but we suspect more is at work. In a troubled economy, many employers focus their layoffs on more highly-compensated employees, and that can have a greater impact on older workers (while specifically targeting older workers for layoff is unlawful, it may be lawful to select higher-paid workers). Also, older workers have a harder time finding replacement employment, and that might lead them to file claims against their former employers rather than move on.
These are challenging times for employers, and now more than ever it pays to be careful when conducting layoffs and terminations.
It's okay to tell your boss where to stick his job - in New Zealand
We love New Zealand! It's land of Peter Jackson, Flight of the Conchords, Crowded House, and Steinlager beer. It's also the land of being able to tell your boss where to stick your job and getting away with it.
According to the New Zealand Employment Relations Authority, a man did not resign his employment when he told his boss to "stick his job up his arse." According to the Authority, a fair and reasonable employer would not have interpreted that comment as a resignation, but rather as an emotional outburst as part of a heated exchange. You can read the full story here.
Of course, that's New Zealand; here in America, if telling the boss to take his job and shove it isn't a resignation, it's probably insubordination and enough to get fired over. But that doesn't mean we don't have a rich tradition of telling off the boss in this country. If you need a reminder, here's the classic song from Johnny Paycheck:
If Johnny Paycheck isn't your cup of tea, or if you want to hear the entire song in only one minute and twenty-four seconds, here's the Dead Kennedys version:
Nevada Minimum Wage Increase Effective July 1, 2009
Nevada's minimum wage will increase effective July 1, 2009, pursuant to state law that requires the Nevada Labor Commissioner to adjust the minimum wage to reflect increases in the cost of living.
The minimum wage for employees who receive qualified health benefits from their employers will increase from the current $5.85 per hour to $6.55 per hour, while the minimum wage for employees not receiving health benefits will increase from $6.85 per hour to $7.55 per hour. Click here to download the Nevada Labor Commissioner's 2009 Minimum Wage Bulletin.
IRS, DOL Publish New Info on COBRA Subsidy
Today the Department of Labor expanded its FAQs on the COBRA subsidies included in the American Recovery and Reinvestment Act of 2009 (ARRA). Click here to read the DOL's new COBRA FAQs.
Wondering what the tax implications of the subsidy are, or whether the person asking for the subisidy is truly eligible? Click here to read the IRS's Premium Assistance for COBRA Benefits. If that doesn't answer your tax questions, click here to visit the IRS's ARRA page.
As a reminder, employers can click here to download the new model COBRA notices.
Sick to death of COBRA and need to relieve the stress it's caused? Click here to visit Orisinal - a site full of calming, zen-like computer games.
And finally, click here to visit the Stoel Rives World of Employment's complete COBRA coverage.
Supreme Court: Arbitration Provisions in Collective Bargaining Agreements Enforceable on Statutory Claims
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Today the United States Supreme Court issued a decision of paramount importance to union employers, holding that arbitration clauses in collective bargaining agreements (CBAs) are enforceable as to statutory claims. Click here to read the decision in 14 Penn Plaza LLC v. Pyett.
In Penn Plaza, several union members asserted claims against their employer under the Age Discrimination in Employment Act, alleging that they were reassigned to different positions because of their age. The employer moved to dismiss their suits on the basis that the CBA required union members to submit any claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures. Those motions were denied by the lower courts.
In a 5-4 decision, the Supreme Court reversed, holding that a CBA provision that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. Because employment-related discrimination claims are "conditions of employment" under the National Labor Relations Act, they are subject to mandatory bargaining. The court also emphasized that arbitration is an adequate means to resolve statutory claims as well as alleged contract violations.
The Penn Plaza decision reverses a long line of court cases holding that union members cannot be required to arbitrate statutory claims. This is a great outcome for union employers, who can now require union employees to arbitrate statutory claims -- generally a more cost-effective and expedient method of resolution. If your CBA does not contain such a provision (or if the provision does not provide for arbitration as the exclusive means to resolve statutory claims), you might want to consider proposing such a provision in your next contract negotiations.
