On June 17th, 2010, a divided US Supreme Court held that the National Labor Relations Board (NLRB) lacked authority to act when three of its five seats were vacant, a decision with the potential to invalidate more than 600 decisions issued by the NLRB over the past 27 months. The 5-4 decision in New Process Steel, LP v. NLRB is expected to have far reaching implications for employers.

The Two-Member NLRB
The NLRB decides cases arising under the National Labor Relations Act, which governs relations between organized labor and private employers. Normally, the Board is comprised of five Members, but its authorizing statute, 29 USC §153(b), provides that the power to issue decisions may be delegated to a quorum of three Members. In late 2007, the Board was comprised of four Members – Wilma Liebman, Peter Schaumber, Peter Kirsanow and Dennis Walsh. Before Member Walsh’s term expired near the end of 2007, the four Members delegated their powers to Members Liebman, Schaumber and Kirsanow as a three-Member quorum. On December 31, 2007 Member Kirsanow’s term expired, which left only a two-Member Board composed of Chairman Liebman and Member Schaumber.

The remaining two Members took the position that they still retained statutory authority to issue decisions because they represented a two-member quorum of the three-member group to which the Board’s powers had been properly delegated. Further, the remaining two Members also contended that it was in the public’s interest to avoid a shut-down of the Board by allowing the two-Member Board to continue to decide cases.

The Court’s Decision
The Supreme Court disagreed with these arguments. Writing for the majority, Justice Stevens stated that Congress has the power to change the NLRB’s statutory authority and authorize a two-member Board, but “until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect”. The full text of the Court’s decision can be read here.

Impact of the Court’s Decision
According to a June 17, 2010 press release from the NLRB Office of Public Affairs, losing parties have sought Federal Court review of dozens of the two-Member Board’s decisions. Other cases involving the same challenge to the Board’s authority are still pending before the Federal Courts: five are before the Supreme Court, and 69 others are before the lower appellate courts.

The Board expects that these will now be remanded to the current, four-member Board for reconsideration. The Board has not stated, however, what action it will take regarding the decisions issued in cases that were not appealed to the Federal Courts on the grounds that the two-Member Board lacked authority to issue decisions. It remains to be seen whether those decisions will also be subject to reconsideration by a proper quorum of at least three Board Members. Such a process would tie up the Board with old cases for years to come. Employers who may be inclined to celebrate that potential outcome today should temper that by remembering that the now four Member Board has two additional Union-friendly Members appointed by President Obama, so the outcome of any such reconsideration could end with the same, or more onerous, results.

Article courtesy of Worklaw® Network firm Bullard Smith.

Towards the end of my active litigation career I can remember a woman coming into my office that wanted to sue the law firm she had worked at for wrongful termination. Long story short: she worked for a named litigation partner at a local firm for 15 years. Feeling a bit unappreciated, she put her word out to the grapevine that she was hoping for greener pasture. Apparently,  at the same time, a partner at another firm lost his legal secretary with little notice. He was desperate for a replacement and put his word out to the grapevine and therein they met. A few days later they met for lunch. She is a pleasant woman and obviously knew what she was doing given her work history. So he hired her on the spot.

Then the “problems” began. Apparently she wasn’t as quick as his previous legal secretary. Within 3 months she was let go for her non-productivity. That’s when she walked into my office.

So here was a woman over 40, raising some kids on her own, steady job for 15 years, promises of green pasture and then out on the streets 3 months later without so much as a “sorry.” How would you feel if that was you…or your sister? How do think 12 jurors might feel about law firms who treat people this way?

The “old” Don would have loved to mess with this firm. They weren’t especially nice to me on a case I had litigated against them a few years prior. If I could have somehow squeezed past all the motions to dismiss, etc. and taken it to a jury it would be game over. However, this being the kinder and gentler me, and someone who has learned that litigation is a poor substitute for the taking of personal responsibility and moving on, I asked a different set of questions. Like “What was your responsibility in all of this?” “Were you crystal clear about what it took to be a success in this position or did you simply have your fingers crossed?” (As Mary Kay so famously stated “Most folks spend more time planning their vacations than their careers.”)

What does a litigation secretary do 80% of the day? Type. Did the firm or partner have a typing test requirement? Of course not. So what do you think the typing standard was for that job to be a success in it? The client was astute enough to say “My guess is the speed met by the previous legal secretary.” And what was that? Who knew? When I asked what her typing speed she said approximately 80 words per minute in a test she took herself some years ago. (Just an OK typing speed for a high-end legal secretary. I never hired under 100 wpm.) When I tracked down the previous legal secretary she said at least 100 wpm.  So there you have it. This legal secretary was a failure the first day on the job and nobody knew about it!

How many employees, not just legal secretaries, are failures on their first day of hire? Fact is, there is no substitute for testing on all aspects of employee performance. For example, you can do an online typing test of your existing secretaries to generate a hiring benchmark and to see who may need some additional training. Here’s an example of one such test: http://www.previsor.com/pdf/FactSheets/Fact_Sheet_Typing.PDF. While you are it, have the attorneys and legal secretaries create a substantive knowledge test too. If it’s a litigation secretary test their procedural knowledge. If it is a secretary to an estate planning attorney you can test for the relevant knowledge there too. I bet half of all applicants and half of all employees will do better than the other half.

There you have it. A simple formula: Test for it if it’s important to you. The failure to do so will guarantee failed employees.

Here is a great HBR article that is a follow up to one that caused much stirring among HR folks a few years back. http://blogs.hbr.org/taylor/2010/06/why_we_shouldnt_hate_hr.html. Take a look at the comments I added to the article below it.

The health care reform law, now generally referred to as the Affordable Care Act, established a program to provide claims reimbursement to group health plans providing coverage to early retirees. If your group health plan does not offer coverage to retirees, the program does not apply to you.

The Early Retiree Reinsurance Program provides $5 billion in temporary funding for the Secretary of Health and Human Services (HHS) to reimburse group health plans for claims paid to provide benefits to early retirees, their spouses or surviving spouses, and dependents. Generally, group health plans are eligible for an 80% reimbursement of claims paid between $15,000 and $90,000. The program began on June 1, 2010, and only claims paid for medical expenses incurred after June 1, 2010 will qualify for the reimbursement. The program is scheduled to expire in 2014, once the health benefit exchanges are open for business.

To file a request for reimbursement, employers and group health plans must submit an application for reimbursement to HHS. Over the weekend, the Secretary of HHS released her first “draft” of the Early Retiree Reinsurance Program application. You can get a copy of it here:

www.hhs.gov/ociio/Documents/application.pdf

HHS expects to make a “final” application available later this month after it has the administrative infrastructure in place to handle the claims submission process. 

Over the weekend, HHS also released a fact sheet and other information about the program on the HHS website. The fact sheet can be found among the Early Retiree Reinsurance Program details here:

www.hhs.gov/ociio/regulations/#early_retiree

We’ll be sure to let you know as soon as the “final” program application form is available. Please contact your LMV attorney if you have questions about the Early Retiree Reinsurance Program or any other facet of the Affordable Care Act at (205) 326.3002.

Article courtesy of Worklaw Network firm Lehr, Middlebrooks & Vreeland, P.C. (www.lehrmiddlebrooks.com).

For COBRA Notices It’s Déjà Vu All Over Again
 
If you’re responsible for administering your company’s COBRA compliance program, the last few months may seem like a scene out of the movie Groundhog Day. Let us assure you that you’re probably not reliving the same COBRA nightmare on a daily basis, but monthly perhaps.
 
As most of you know, the latest in a series of extensions–4 to be exact–of the COBRA subsidy expired on June 1, 2010. The Senate left for its Memorial Day recess last week, deferring any action on a bill that would extend the COBRA subsidy. The American Workers, State, and Business Relief Act of 2010 (HR 4213) would have extended the COBRA subsidy to employees experiencing an involuntary termination through November 30, 2010. 
 
Earlier this year, both the House and Senate passed separate versions of a bill that would have extended the subsidy to involuntary terminations occurring through December 31, 2010, but in an effort to win votes from a handful of suddenly budget-conscious House moderates on the eve of the Memorial Day recess, Democrat leaders agreed to an amendment scaling back the benefit extension by one month.
 
Despite the amendment, House leaders feared they still could not secure enough votes to pass the bill before the recess and so they removed entirely the COBRA subsidy extension language from the bill, which then passed the House.
 
House members continue to debate a possible COBRA subsidy extension, but with the Senate in recess until June 7, we do not expect any significant action on the COBRA subsidy until Senators return.
 
The ultimate fate of the COBRA subsidy is now uncertain. Congress could go forward with an extension of the same 15-month and 65% subsidy, it could shorten that extension or reduce the duration or level of the subsidy, or simply let the COBRA subsidy program expire. Democrat leaders in the House have publicly discussed each of these options.
 
With this much uncertainty–again–we recommend taking a wait and see approach with your COBRA notices for involuntary terminations. If Congress extends the subsidy in any way, DOL will require employers to send out new COBRA notices reflecting the new eligibility dates. Rather than acting on your current reading of the Congressional tea leaves, we recommend putting your current COBRA notice program on hold for any involuntary termination occurring on or after June 1, 2010. As you know, employers have 30 days to notify their plan administrator of an employee termination (and the plan administrator–even if it’s the employer–then has 14 days to send a COBRA notice to qualified beneficiaries), so holding that process until the legislative picture is clearer still gives employers sufficient time to send out whatever notice may be required by any extension Congress passes. 
 
To learn more about COBRA go to http://www.dol.gov/ebsa/COBRA.html.

This update was provided by Worklaw Network firm Lehr Middlebrooks and Vreeland (www.lehrmiddlebrooks.com).

“Happiness [at work] pays, especially when you are under pressure. It’s a valuable resource, which not only generates career success, but differentiates you from your colleagues, too.” 

- Jessica Pryce-Jones
Author, Happiness at Work

This issue discusses:

• Editor’s Column: What I’m Looking for in Great HR
  
• The Importance of Job Descriptions
  
• Got an Opinion?
  
• FMLA and Your Personal Exposure as a Manager
  
• Harassment from the Get-Go
  
• Retaliation and Mixed Motives
  
• ADA – Side Effects of Medication
  
• Alcoholism No Excuse for Poor Attendance
  

We have also provided you with the Form of the Month

Please click here to view the newsletter in PDF format.

Editor’s Column: What I’m Looking for in Great Human Resources

I’m in a unique situation: I’m an experienced employment lawyer and an expert in HR practices. I’ve had the opportunity to give more than 250 presentations to CEOs through the Vistage organization. I also ran a monthly forum for senior HR executives for four years. In this mastermind group, all members had to be SPHRs (a high-end HR designation) make more than $80,000, and report directly to their CEO for at least seven years. So, given my expert background of knowing the law, the needs of business owners, and the human resource function, what am I looking for in great HR?

To begin with, I want somebody who’s excited about the job – who wants to be really good, if not great at it. Someone who’s willing to give it their best every day and not settle for mediocrity. In many organizations, the person in the HR role doesn’t have a formal HR background. The CFO, bookkeeper, or owner might be managing the basic HR functions such as payroll and benefits administration. As companies grow toward the 100-employee range, they start bringing on full-time HR executives. I know companies with 25 employees that have a full-time HR executive, and I know companies with 300 employees that still don’t have one! Regardless of whether the HR person wears three hats or one, I also want them to think and act strategically.

To be strategic, the HR manager should follow these guidelines:

1. Be clear about ownership’s vision and goals for the organization. In turn, HR will work on those aspects of human resources that will help grow the company toward this vision or goal. Let me give an example: Perhaps cash is tight. There’s no forecast for hiring new personnel, at least for some time. Ownership is more concerned about survival than anything else. The main focus then becomes: How can we help our existing workforce become more productive and grow the bottom line? If survival is the primary concern of management, this has to be the primary concern of the human resource executive, too.
   

   On the other hand, perhaps your company is in growth mode – with management focused on bringing on people in the right seat of the bus as quickly as possible to service growing demand. If that’s the case, then the HR executive has to focus itself on doing the best possible job of hiring. Quickly.
   

2. Focus on constant improvement. On average, the most educated HR executive is the best HR executive. So, the question becomes: How much time do you spend studying the HR function? If you’re doing HR full time, 50% of your educational efforts should be in this area. If you’re doing it a third of the time, then maybe 15% of your learning has to be in this area. So, while I might be preaching to the choir, how many of you read this entire newsletter every month? How many of you attend our excellent monthly Webinars? How many of the Special Reports and White Papers on HR That Works have you taken the time to read? All of the tools necessary to be a learned HR executive are readily available on HR That Works.
   

   Learning requires discipline. I’ve disciplined myself to read a book a week, review every case that comes out in the employment law field, read the newsletters and blogs of eight different employment law firms, and read a number of HR magazines every month. I do HR full time – and that’s what someone who wants to become an expert has to do. To get this volume of reading done, I discipline myself to do it for an hour a night. It’s something I look forward to, realizing that, not only do I enjoy learning, but it will have a bottom line impact on my career. The most successful executives I’ve met over the years are voracious learners. That’s exactly what I want my HR executive to be.
   

3. Become proactive. In my experience, most HR functions are “reactive:” We need to do payroll, hire and terminate employees, issue a COBRA notice, etc. Proactively, we should be engaging in compliance, communication, and skills training, surveying, auditing, and similar activities that will help to strengthen and grow the department and company over time. How many proactive projects has your HR department done during the last year? My mantra is simple: Start with one proactive item a month – not something you “have” to do, but something you “should” do to help improve the company.
   

If you face any challenges in meeting these goals, don’t hesitate to contact me. Because I usually spend my time on hotline calls dealing with negative scenarios, I enjoy helping our Members create positive outcomes for their company and careers. Got a bright idea? Want to get your head checked? Then give me a call at (800) 234-3304, toll free.

The Importance of Job Descriptions

A recent case brought against Friendly’s Ice Cream in Maine shows the importance of having detailed job descriptions that include physical requirements.

In this case, plaintiff Katherine Richardson alleged that Friendly’s violated the ADA by failing to accommodate her shoulder impingement injury, which required her to undergo surgery. Apparently, she never fully recovered from the injury, which limited her ability to do some manual tasks. Even though Richardson was in a management position, she was expected to chip in and help with everything from doing the fries to cleaning up. Because she was limited in her ability to do these jobs, as the court stated, “Even assuming it is true Richardson’s ‘primary function’ was to oversee restaurant operations, the point does not advance Richardson’s case. The essential functions of the position are not limited to the ‘primary functions’ of the position.”

The court pointed to evidence showing “there were a limited number of employees among whom the performance of the manual tasks at the restaurant could be distributed … This evidence supports findings that these tasks were essential to Richardson’s position.” The court quoted an EEOC guideline, “If an employer has a relatively small number of available employees for the volume of work to be done, it may be necessary that each employee perform a multitude of different functions. Therefore, the performance of those functions by each employee becomes more critical and the options for reorganizing the work become more limited.”

In the end, Richardson’s case failed because even with modifications to her work, she remained unable to perform a number of tasks, including mopping the floor, lifting heavy trash bags, scooping ice cream, and unloading supplies from delivery trucks. This left her unable to perform a substantial number of manual restaurant tasks and therefore, her case failed. The court also stated that, “The law does not require an employer to accommodate a disability by foregoing an essential function of the position or by reallocating essential functions to make other workers’ jobs more onerous.”

Richardson also argued that Friendly’s violated the ADA by refusing to engage in an interactive process to determine whether any reasonable accommodations were available. This argument failed too because Richardson was not able to identify any such accommodation that would qualify. The two accommodations she did identify —performing tasks in a modified manner and delegating tasks to others — were inadequate to enable her to perform a sufficiently broad range of manual tasks.

Lesson learned: This is an insightful case, which you should consider reviewing in its entirety. It reviews the battle of job descriptions and accommodations in a way that provides many helpful hints to employers. Read the full case here. You can also access free job descriptions that have some physical requirements here.

Got an Opinion?

The DOL has plenty of them, and they can offer great guidance for employers. To learn more, click here. Note: The Bulletins and Field Operations Handbook at the bottom of this link are also very helpful!

FMLA and Your Personal Exposure as a Manager

The U.S. District Court for the Eastern District of Pennsylvania has green-lighted an employee’s FMLA claims against a company president, human resources manager, director, and the plant manager. In Narodetsky v. Cardone Industries, Inc., the company terminated a 12-year employee shortly after he requested FMLA leave for surgery to repair a leg injury. The day after learning that the employee needed leave, the company decided to conduct a forensic computer search of his computer and found a pornographic e-mail that he had allegedly forwarded to another employee more than a year earlier. After the company terminated the employee, he sued not only Cardone Industries but also the company president and several individual managers, alleging that they had violated the FMLA. The FMLA defines “employer” as “any person who acts, directly or indirectly, in the interest of an employer,” and FMLA regulations explain that individuals such as corporate officers can be found individually liable for any violations of the act. Thus, the Court concluded that the individual defendants were properly named in the lawsuit because each one was alleged to have played a role in the decision to terminate the plaintiff.

Harassment from the Get-Go

The Federal Fourth Circuit Court has ruled that a plaintiff could proceed to trial on her claim of sexual harassment and constructive discharge after she had worked with the alleged harasser for only two days. Whitten v. Fred’s, Inc. involved an employee transferred to the Fred’s store in Belton, SC, where she worked as an assistant manager for two days. During those two days, the store manager made it clear he was unhappy that the plaintiff had been transferred to his store, repeatedly called her dumb and stupid, and told her he didn’t want her working in his store. He also told her to “be good to [him] and give [him] what [he] wanted,” adding that he would make her life a “living hell” if she ever took work matters over his head. On two occasions, he walked behind her and pressed his genitals against her back. Two days after she started this assignment (on a Sunday), the plaintiff told three company officials about the conduct and said she was going to quit. However, she got nowhere, with one manager telling her she had overreacted. She quit that day and reported the matter to the company’s corporate office the following day. The company investigated but took no action. Although the district court granted the employer’s motion for summary judgment, the Court of Appeals reversed, ruling that the plaintiff had a prima facie case of sex harassment, including her claim for constructive discharge, and remanded the case for trial.

Retaliation and Mixed Motives

The Federal Fifth Circuit Court has held that a plaintiff could use a “mixed motive” theory in a retaliation case under Title VII. In Smith v. Xerox, the employee won a jury verdict against the company for her claim that she was fired for filing an EEOC charge. The employee was disciplined for her failure to meet sales goals and placed on a performance improvement plan. Before the time under the plan expired, she filed a charge of discrimination. The company began the process of termination seven days later. At trial, the jury was given a mixed motives instruction, and found that the company was motivated to terminate her in part by the EEOC charge. The jury awarded the plaintiff both compensatory and punitive damages. On appeal, the Fifth Circuit, relying on the U.S. Supreme Court’s Price Waterhouse v. Hopkins, reasoned that the mixed motive instruction was proper. A plaintiff can show that an adverse action was “because of” an impermissible factor by showing that factor to be a “motivating” or “substantial” factor in the employer’s decision. In this instance, the plaintiff met her burden of proof, and it was the company’s burden to show that it would have taken the same action even if she had not filed a charge. Xerox did not meet its burden.

ADA – Side Effects of Medication

The Federal Third Circuit Court has held that limitations on life activities caused solely by the side effects of medication do not give rise to a disability claim under the ADA. In Sulima v. Tobyhana Army Depot, the plaintiff claimed that he was forced to accept a voluntary layoff because his employer did not accommodate the side effects of medications he was taking to treat obesity and sleep apnea. The district court ruled that medication side effects may, under certain conditions, constitute a disabling condition under the ADA, but that the side effects experienced by the plaintiff did not rise to that level. The Circuit Court agreed. The plaintiff, who was morbidly obese and suffered from sleep apnea, was taking several medications related to those issues at the time of his layoff. The medication caused the plaintiff to need to use the restroom frequently for extended periods. The employer decided to transfer him, but had no other work available at the time. The plaintiff accepted the voluntary layoff in advance of layoffs scheduled for the following month. He did not present any evidence that his obesity or sleep apnea directly and substantially limited a life activity, and instead focused on the side effects of the medication. To prevail under this theory the plaintiff needed to show that: (1) the treatment is required “in the prudent opinion of the medical profession;” (2) the treatment is not just an “attractive option;” and (3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices. The plaintiff could not meet this test because his doctor had discontinued the medications, thus refuting part (1) of the test that the treatment be required “in the prudent opinion of the medical profession.”

Article courtesy of Worklaw® Network firm Shawe Rosenthal (http://www.shawe.com/).

Alcoholism No Excuse for Poor Attendance

Managers must often deal with an employee who is chronically absent, and claims that a disability is the cause of the absenteeism. The U.S. Court of Appeals for the Second Circuit (covering Connecticut, New York, and Vermont) addressed this issue with regard to an alcoholic employee. The Court held that the employee’s repeated absence from work meant that he was not qualified for the job, and that his termination had no relation to his FMLA-protected leave.

Facts of the Case: In Vandenbroek v. PSEG Power, the company fired a boiler utility operator after he violated the employer’s no-call/no show policy. His termination came shortly after he had taken FMLA-protected leave, allegedly to deal with his alcoholism. The employee sued the company, claiming that he was terminated because of a disability (alcoholism) and for taking medical leave to treat the condition.

The Court’s Ruling: The Court upheld the district court finding that the employee was terminated for violating the employer’s attendance policy, and not because of his disability or for taking FMLA-protected leave. The Court, noting that alcoholism could constitute a disability because the employee was substantially limited in his ability to work, found that the employee failed to adduce sufficient evidence to make out a prima facie case under the ADA. To do so, he would have had to show that he was “qualified” to perform the essential functions of the job with or without reasonable accommodation. “Essential functions” are duties that are fundamental to the job in question. In this case, the Court determined that reliable attendance at scheduled shifts was an essential function of a boiler utility operator. The employee had to be present at the plant to monitor the boiler, respond to any alarms, handle any power outage, or (if needed) respond to an explosion. With regard to the employee’s FMLA claim, the employee failed to show that he was terminated for taking FMLA-protected leave. There was no evidence of pretext; rather, the evidence showed that his violation of the no-call/no show policy led to his termination.

Lessons Learned: Most employers would agree that reliable attendance is an essential function of all jobs. While the Vandenbroek case provides a clear example of this principle, other instances might not be so clear. When alcoholism or another disability causes an attendance problem, employers must be able to show that regular and reliable attendance is an essential function for the specific position. One way of doing this is to have clear and detailed written job descriptions that describe the essential functions of the position, including regular and reliable attendance.

Article courtesy of Worklaw® Network firm Shawe Rosenthal.

Form of the Month

Violence Policy (PDF) – According to numerous polls, violence in the workplace is one of the top risk management concerns. Consider using this policy from OSHA as part of your prevention program. Click here for more information.

(HR That Works Users can access this form in Word format by logging on to the site).

Podcast

Please click here to listen to the June Compliance and Culture Podcast.

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