Pennsylvania Labor and Employment Blog

President Obama focuses on Immigration Compliance and Enforcement

MMoore@mwn.com (Michael Moore) — Fri, 10 Jul 2009 16:42:20 -0500

The President and Vice President met with a bipartisan group of Congressional leaders in late June to discuss one of today's most contentious issues – immigration – and how to go about reforming the broken immigration system. One of the White House's focal points for immigration reform is enhanced enforcement efforts. The President noted that the Department of Homeland Security and the Department of Labor are working to crack down on employers who are exploiting illegal workers.

U.S. Immigration and Customs Enforcement (ICE) is launching a new audit initiative by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

The Department of Homeland Security announced that the Administration will push ahead with full implementation of the rule requiring use of E-Verify by government contractors, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009. The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. DHS also announced it will scrap the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system. On July 8, the U.S. Senate adopted an amendment to the Fiscal Year 2010 Department of Homeland Security appropriations bill that will require federal contractors to use the government’s voluntary electronic employee verification system known as E-Verify. The spending bill also extends E-Verify for three more years.

U.S. Citizenship and Immigration Services (USCIS) also recently announced that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

Prohibition on Excessive Overtime in Health Care Act effective July 1, 2009

MMoore@mwn.com (Michael Moore) — Wed, 01 Jul 2009 09:49:42 -0500

The Prohibition on Excessive Overtime in Health Care Act (Act 102) became effective on July 1, 2009. Health care facilities covered by the law include hospitals, ASCs, hospices, long-term care facilities and other inpatient facilities, but it excludes private physician offices and group practices. Employees protected by the law include all nonsupervisory employees involved in direct patient care activities or clinical services, including individuals employed through a temporary service or employment agency. Physicians, physician’s assistants, dentists, and job classes with no direct patient care are excluded from the overtime limitations.

A health care facility cannot compel a protected employee to work more than an agreed to, predetermined and regular daily shift exclusive of “on call” time, unless one of the following exceptions applies:

the employee voluntarily agrees;
there is an unforeseen emergent circumstance but as a “last resort”, after exhausting other staffing options and giving the employee one hour arrange for family care alternatives;
the extended work is required to complete a patient care procedure already in progress, but only if the employee’s departure would have an adverse effect on the patient.

Employers are permitted to have agreed upon, predetermined and regular shifts greater than 8 hours; however, an employee who volunteers to work more than 12 consecutive hours shall be entitled to 10 hours off duty but may waive the entitlement. Employers may not retaliate against employees who refuse to accept work in excess of the limits. Employers who violate the law are subject to fines ranging from $100 to $1000 per violation.

The Department of Labor and Industry has posted a FAQ on its website summarizing common compliance questions. There is also a summary of the law.

Supreme Court Rejects choice of Lawsuits Defense

MMoore@mwn.com (Michael Moore) — Tue, 30 Jun 2009 08:37:58 -0500

A governmental employer cannot throw out a employment promotion test because it thinks that the test results have a disparate impact against a minority group unless there is a "strong basis in evidence" to believe it will be liable for discrimination unless it rejects the test results. Fear of litigation alone cannot justify an employer’s decision that is based on race even if the employer will be sued regardless of which group it favors.

In Ricci v. DeStefano, the City of New Haven, Connecticut used a validated test to select firefighters for promotion. However, the results the promotion examination to fill vacant lieutenant and captain positions showed that white candidates had scored higher than other minority candidates. Strong public opposition to use of the test followed. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity.

White and Hispanic firefighters who scored well on the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City, alleging that discarding the test results discriminated against them based on their race in violation of Title VII. The City responded that had it certified the test results, it could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters.

The District Court granted summary judgment for the City, and the Second Circuit affirmed. The Supreme Court reversed holding that City discriminated against the White and Hispanic firefighters who passed the test because there was not a strong basis in evidence to throw out the test scores in response to their disparate impact. The City conducted hearings on the test results and determined that there was a statistical adverse impact on minority employees. This showed that there was at least a prima facie case of disparate impact. However, this fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. To reject the test, the City needed to go further and show that the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs. Based on the record the parties developed through discovery, there was no substantial basis in evidence that the test was deficient in either respect.

Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The Court’s analysis held that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision-making is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.

The Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary. The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions. However, the Court gave little other guidance on how employers may use tests in the hiring and promotion processes.

Pennsylvania Enacts "Mini-COBRA" requiring Insurers to offer Continuation of Health Coverage Options for Employees of Small Businesses

MMoore@mwn.com (Michael Moore) — Wed, 24 Jun 2009 11:20:46 -0500

Effective July 10, 2009, medical insurers covering small employers in Pennsylvania will be required to offer COBRA-like continuation coverage to qualified employees and their eligible dependents. The new law covers small employers who have between two and 19 employees on a typical business day during the preceding calendar year.

The so-called mini-COBRA coverage expands on the federal COBRA law that covers employers with at least 20 employees and allows employees who are involuntarily terminated to qualify under a federal economic stimulus law for a 65% federal subsidy of both COBRA and mini-COBRA premiums.

Like the federal law, qualifying events for coverage under the new Pennsylvania mini-COBRA are loss of group coverage due to termination of employment, death, divorce or marital separation. However, there are some key differences between the federal COBRA and Pennsylvania’s mini-COBRA law, some of which are as follows:

Under the Pennsylvania law, an employee or dependent must have been continuously covered by medical insurance for three months prior to termination of coverage and may not be covered or eligible for coverage under another medical plan or Medicare.
Under the Pennsylvania law, continuation coverage must be extended for nine months; under federal COBRA law, coverage is available up to 18 months when employment is terminated and 36 months in situations involving death, divorce or legal separation.
Under the Pennsylvania mini-COBRA law, beneficiaries can be charged a premium up to 105% of the group rate; federal COBRA beneficiaries can be charged a premium of up to 102% of the group rate.
Pennsylvania mini-COBRA obligations apply to insurers; federal COBRA applies to employers that provide medical coverage through self-insurance or insurance products.

Employers and insurers will need to provide notices to employees and dependents of the provisions of the new law as well as their rights to elect continuation coverage upon the occurrence of a qualifying event.

Supreme Court Age Discrimination Decision in "Mixed-Motive" Cases Invites Legislative Reversal

MMoore@mwn.com (Michael Moore) — Fri, 19 Jun 2009 09:22:16 -0500

The United States Supreme Court decision in Gross v. FBL Financial Services, Inc. creates a rift between the treatment of so called "mixed-motive" cases under the ADEA and Title VII. Under Title VII, an employee may allege that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed-motives” case. If a Title VII plaintiff shows that discrimination was a “motivating” or a “ substantial” factor in the employer’s action, the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of that impermissible consideration.

The Supreme Court declined to apply the mixed-motive burden shifting to ADEA cases holding that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Congress amended Title VII to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse action, see 42 U. S. C. §§2000e–2(m) and 2000e–5(g)(2)(B),while leaving the ADEA language unchanged. The Supreme Court viewed this omission as a congressional policy statement and declined to recognize the so called "mixed motive" analysis in ADEA claims. However the Courts' opinion invites Congress to fix the discrepancy by legislatively negating the Court's decision much like it did in with both the ADA Amendments Act and the Ledbetter Fair Pay Act:

Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088.

Expect Congress to harmonize the treatment of Title VII and ADEA claims so that the mixed motive analysis applies to both. Congress should really fix the differentiation between age discrimination cases and other discrimination claims. For some reason unknown to me, Congress placed protections from age discrimination in the Fair Labor Standards Act (governing topics like minimum wage and overtime) rather than just adding "age" to the list of Title VII's protected classifications. As a result, federal age discrimination claims have different rights, procedures, and damages.

Employers should Protect Registered Trademarks and Company Names from Appropriation on Facebook

MMoore@mwn.com (Michael Moore) — Fri, 12 Jun 2009 09:15:51 -0500

On June 9, Facebook, the social networking website, publicly announced that beginning Saturday, June 13 at 12:01 a.m. U.S. EDT, it will allow users to adopt personalized username URLs (e.g., facebook.com/yourname). Trademark owners who want to prevent their trademarks from being registered as a Facebook username URL by another Facebook user should take action as soon as possible and preferably before Saturday.

According to a release by our Intellectual Property Group, it is suggested that once a URL is assigned to a user it cannot be transferred, and under the new Facebook policy it can never be used again, even by the rightful owner of the trademark. Trademark owners who might someday consider marketing through Facebook are encouraged to reserve their trademarks before Saturday, June 13 when the general registration opens.

Trademark owners can reserve their trademark on the Facebook platform by submitting relevant information to Facebook through its trademark protection contact form, available at Preventing the Registration of a Username | Facebook. It appears that a separate form is required for each trademark and registration number. Facebook promises to then advise the trademark owner when the username URL is available for the owner to adopt.

Who is a "Management Level Employee" for Imputing Notice of Co-worker Harassment to an Employer?

MMoore@mwn.com (Michael Moore) — Tue, 09 Jun 2009 16:00:07 -0500

An employer's liability for co-worker harassment exists if the employer knew or should have known of the harassment and failed to take prompt remedial action. In other words, an employer may be liable for non-supervisory co-worker harassment if the employer was negligent in failing to discover the co-worker harassment or in responding to a report of harassment. Knowledge of a sexually hostile work environment arises when a "management level employee" obtains enough information to raise the probability of sexual harassment in the mind of a reasonable employer.

In its decision in Huston v. The Proctor & Gamble Paper Products Corp., the Third Circuit Court of Appeals concluded that an employee’s knowledge of allegations of co-worker sexual harassment may typically be imputed to the employer in two circumstances:

"where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties. In this case, the employee usually has the authority to act on behalf of the employer to stop the harassment, for example, by disciplining employees or by changing their employment status or work assignments. The employee’s knowledge of sexual harassment is then imputed to the employer because it is significant to the employee’s general mandate to manage employer resources, including humanresources;" or
"where the employee is specifically employed to deal with sexual harassment. Typicallysuch an employee will be part of the employer’s human resources, personnel, or employee relations group or department. Often an employer will designate a human resources manager as a point person for receiving complaints of harassment. In this circumstance, employee knowledge is imputed to the employer based on the specific mandate from the employer to respond to and report on sexual harassment."

The court went on to clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status unless the worker has a mandate generally to regulate the workplace environment. This reasonably bright line test should help employers to avoid allegations of constructive knowledge of workplace problems; provided, job descriptions clearly define the employee's job duties. Employers should examine generalized policy statements that create a "duty" to report workplace harassment or mistreatment.

E-Verify Rule for Federal Contractors Delayed until September 8, 2009

MMoore@mwn.com (Michael Moore) — Tue, 09 Jun 2009 13:23:10 -0500

U.S. Citizenship and Immigration Services’ (USCIS) announced the third postponement of the implementation of the final rule requiring federal contractors and subcontractors to begin using E-Verify system which is now delayed until Sept. 8, 2009.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will published an amendment in the Federal Register on June 5, 2009, postponing the applicability of the final rule until Sept. 8, 2009. The rule was first published on Nov. 14, 2008 requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees. I previously summarized the rule in "E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work."

May Unemployment Rate increases to 9.4%

MMoore@mwn.com (Michael Moore) — Fri, 05 Jun 2009 10:44:05 -0500

The Bureau of Labor Statistics numbers for May show the national unemployment rate reaching a 26 year high to 9.4% up from 8.9% in April. The number of unemployed persons increased by 787,000 to 14.5 million. Since the start of the recession in December 2007, the number of unemployed persons has risen by 7.0 million, and the unemployment rate has grown by 4.5 percentage points.

Unemployment rates rose in May for adult men (9.8%), adult women (7.5%), whites (8.6%), and Hispanics (12.7%). The jobless rates for teenagers (22.7%) and blacks (14.9%) were little changed over the month. The unemployment rate for Asians was 6.7% in May, not seasonally adjusted, up from 3.8 percent a year earlier.

The BLS statistics by job class and sector continue to show weakness in the construction, manufacturing, wholesale/retail and leisure/hospitality sectors. All sectors are as follows:

Sector of the Economy	Unemployment Rate for May 2009	Unemployment Rate for April 2009
Mining, quarrying, and oil and gas extraction	13.3%	16.1%
Construction	19.2%	18.7%
Manufacturing	12.6%	12.4%
Durable goods	13.2%	12.8%
Nondurable goods	9.0%	11.8%
Wholesale and retail trade	11.9%	9.0%
Transportation and utilities	8.5%	9.0%
Information	9.5%	10.1%
Financial activities	5.7%	6.0%
Professional and business services	10.9%	10.4%
Education and health services	4.9%	4.6%
Leisure and hospitality	11.9%	10.2%
Government workers	3.1%	2.6%

Employment Law implications of Obesity and BMI after the ADA Amendments Act

MMoore@mwn.com (Michael Moore) — Thu, 04 Jun 2009 14:47:49 -0500

The ADA Amendments Act re-wrote the definition of disability so that it will likely include obesity-related health conditions and perhaps obesity itself as a protected disability. Before the ADA Amendments, being overweight and even obese was not generally considered a "disability". For example in EEOC v. Watkins Motor Lines, Inc., a court determined that non-physiological morbid obesity was not a protected disability.

The EEOC is considering regulations regarding the equal employment provisions of the ADAAA. In December 2008, the EEOC commissioners deadlocked along party lines on whether to approve former Chair Naomi Earp’s proposed regulations. According to the EEOC’s agenda, a notice of proposed rulemaking will be issued by August of this year. I predict that obesity will become a protected disability requiring employers to reasonably accommodate the condition. I also expect that the correlation between BMI and obesity will be challenged by agruing that disqualifying an employee based on a high BMI consistitutes "regarded as" disability discrimination.

The ADA changes have important implications for businesses including employment discrimination claims, health plan design, and wellness program administration. There are several issues that merit discussion when examining obesity such as following.

What is Body Mass Index (BMI)? BMI has become the unofficial scientific measure for assessing obesity. BMI is a function of height and weight (BMI calculator). The Center for Disease Control classifies a person who has a BMI of less than 18.5 as underweight; normal is 18.5-24.9; overweight is 25-29.9; obese is over 30; and extremely obese is over 40.

What is the BMI analysis telling us about our weight? A Report by the Trust for America's Health recently disclosed statistics about obesity trends. In the Report, Pennsylvania had the 24th highest rate of adult obesity with 25.7 percent of its population having a BMI over 30. The Report correlated obesity figures with other factors like Diabetes and Hypertension rates. It also noted levels of admitted physical activity (or inactivity). Twenty-Four percent of Pennsylvanians admit no physical activity.

How good is BMI as a measure of obesity? Martica Heaner points out the limitations of BMI in her posts BMI Blues and Is Body Mass Index a Bad Measure?:

The BMI works well for research purposes, but doesn’t necessarily translate precisely to the individual. Unfortunately, it tends to convey that people that exercise regularly, for example, are overweight, when they are not actually overfat. A fit person tends to have more muscle, so their body weight is a reflection of body fat as well as muscle and other lean tissue.

Since the problem with being overfat is that health risks are increased, a BMI in the overweight range is probably not a negative indicator for a fit person. Regular exercise, low body fat and increased muscle mass are all factors that tend to outweigh any health risks suggested by a higher BMI.

Is there correlation between high BMI and bad health? According to the CDC, the BMI ranges were established based on the health consequences associated with obesity as determined by different BMIs. Some, like Paul Campos in his book, The Obesity Myth, challenge this conclusion. However, the correlation between high BMI and bad health is quickly becoming an assumption.

Other than being incorrectly labeled "overweight" or "obese", why should we care whether BMI is a accurate health status predictor? BMI is fast becoming the legal standard for determining whether someone is "obese" and therefore a "health risk". Those with high BMIs can face increase cost and eligibility barriers for certain employee benefits.

Individual insurance policies for life, disability and medical insurance almost universally use underwriting procedures that take into account BMI as a basis for determining insurability and premium. A survey by the Texas Office of Public Insurance Counsel found that insurance company individual health plan underwriting guidelines used BMI as a basis to deny coverage, charge a higher premium, and offer less coverage. The California Insurance Commission has made comments alerting consumers about BMI as a basis for insurance denial.

Some group health plans are community rated and not subject to medical underwriting. These plans calculate premium based on the expected claims of the community not the individual employer group. Other group health insurance programs can be subject to medical underwriting in which BMI analysis and other factors will be used to price the coverage for the group. An employer with a compliment of employees with potential for high claims (including high BMI) will face higher premiums or denial. Likewise, self-insured medical plans that utilize stop loss coverage may undergo medical underwriting where BMI will be factored into the rate for reinsurance.

Group health plan wellness program incentives may be keyed to BMI targets for premium discounts and other incentives. The availability of incentives to those with high BMI is subject to limitations including situations when it is "unreasonably difficult" or "medically inadvisable" for a participant to attempt to achieve the BMI standard.

Jon & Kate Plus 8 Reality TV Show faces Child Labor Investigation

MMoore@mwn.com (Michael Moore) — Mon, 01 Jun 2009 08:09:28 -0500

The Gosselin Family, which has been the center of a media attention in recent weeks, is reportedly under investigation by the Pennsylvania Department of Labor and Industry for child labor law violations stemming from their children's appearance on the reality TV show "Jon & Kate Plus 8". Much of the reality show is filmed in the family's Wernersville, Pennsylvania home. The Gosselins have twin daughters age 8 and five-year old sextuplets, all of whom appear on the show.

The obvious legal issue is whether a children's involvement in a reality TV filmed in the children's home with the participation of parents constitutes "work in, about, or in connection with, any establishment." An "establishment" is a place "where work is done for compensation of any kind, to whomever payable." Children employed on a farm or in domestic service in private homes are excluded.

In Commonwealth V. McKaig (decided in 1937), a court found that it is not a violation of child labor laws for a nine year old child to give skating exhibition for an amateur skating society where she received no compensation; the exhibition was not for profit, although admission fee was charged; and the exhibition was not held at place of public resort but one privately leased for purely private purpose. The court focused on the role that the child played in the overall program and found that it is material that professional skater appeared on same program for compensation if child's skating was in no way linked with his. However, a child would have been engaged in "work" If the participation of the child been "linked with commercial channels and so connected with the work of others as to be immediately supplementary to that work or in direct aid and direction of the work of others." Reality TV as "work" will be an interesting legal issue. The Gosselin children play an integral part the show and their roles may be somewhat staged. Furthermore, the family has created a business around the show.

Pennsylvania's Child Labor Law regulates that hours and types of work that minors under the age of 18 may perform. The Child Labor Law specifically requires the Department of Labor and Industry (L&I) issue a special permit for "the employment of minors seven and under eighteen years of age in theatrical productions, musical recitals or concerts, entertainment acts, modeling, radio, television, motion picture making, or in other similar forms or media of entertainment in Pennsylvania where the performance of such minor is not hazardous to his safety or well-being." The Child Labor Law requires that performances occur before 11:30 p.m. and be no more frequent than two per day and 8 per week. There are also rules for "temporary" employment of minors as part of the performing cast in the production of a motion picture, if the department determines that adequate provision has been made for the educational instruction, supervision, health and welfare of the minor provided a minors work as part of the performing cast does not exceed forty-four hours in any one week and eight hours in any one day.

With the end of school approaching and children entering the summer workforce, employers should review their child labor law compliance.

President Obama selects Sonia Sotomayor as Supreme Court Nominee

MMoore@mwn.com (Michael Moore) — Tue, 26 May 2009 12:15:10 -0500

Judge Sotomayor's resume is summarized by CNN and her most notable opinions are compiled by the New York Times. Judge Sotomayor's most significant employment-related decision came in Ricci v. DeStefano which is now before the United States Supreme Court. Ricci is a discrimination case brought by white firefighters after the city threw out results of a promotion exam because too few minorities scored high enough. The appellate court allowed the city to disregard the test results that had a disparate impact on minorities analyzing the role of Uniform Employee Selection Guidelines on employer testing procedures and results. The case has important implications for any employer that uses testing as part of its employment and promotion practices. The Connecticut Employment Law Blog has followed the case since it was initially decided.

Lessons Learned from the almost Pandemic: 2009 Novel Influenza A H1N1 a/k/a Swine Flu

MMoore@mwn.com (Michael Moore) — Wed, 20 May 2009 09:32:07 -0500

The swine flu is thankfully less severe than anticipated and certainly not the "pandemic" that was feared and even predicted. The Centers for Disease Control and Prevention reports at least 5,469 cases of swine flu in the United States with Pennsylvania accounting for 55 cases. Six deaths are linked to the outbreak. The CDC continues to warn that, "we are not out of the woods."

Managing communications about a potential pandemic is a "no win" situation for government agencies. The risks of over and under communicating are evident when one compares the approaches of the Mexican and U.S. governments. Commentators are already analyzing the swine flu "overreaction overreaction" and its impact on the next potentially real pandemic.

The communication and response from the Human Resource department can create the same credibility gap that governments face. Human Resource Professionals should book mark some of the resources that emerged from this go round some of which we identified in our prior post as well as the EEOC's Guidance "ADA-Compliant Employer Preparedness for the H1N1 Flu Virus."

Employers should view the pandemic false alarm as an opportunity to plan for all manner of business "disasters." The following are some addition areas of planning and development of an action plan include the following:

Healthy Families Act: Proposed Legislation Mandates Seven Days of Paid Time Off

MMoore@mwn.com (Michael Moore) — Sat, 16 May 2009 14:39:03 -0500

Representative DeLauro introduced the Healthy Families Act (H.R. 2460) which would require businesses with 15 or more employees to provide up to seven days of annual paid sick leave. The paid leave could be taken to attend to an employee's own or a family member’s illness, or used for preventative care such as doctor’s appointments. In addition, the bill provides leave for employees who are the victims of domestic violence, stalking or sexual assault. Sick time requests may be oral or in written at least seven days prior to foreseeable absence or otherwise as soon as practicable. The employee must provide notice of the expected duration of the absence. Medical certification is required if more than three consecutive days are taken off.

Employees would earn one hour of paid sick time for every 30 hours worked up to a maximum of 56 hours (seven days) annually. Leave begins accruing from the first day of employment, but may not be taken until an employee works for 60 days. Up to 56 hours of paid sick leave would carry over from year to year, but an employer may permit additional accrual beyond the 56 hour minimum. Employers are not required to pay terminated employees for unused paid time off. If a separated employee is rehired within 12 months, that employee is entitled to the accrued leave already earned, and would be entitled to take sick leave immediately.

A business's existing paid time off policy would not need to modified if it met or exceeded the minimum time periods and allow employees to take such leave for illness and other circumstances outlined in the Health Families Act. Employers must post a notice of the substantive and remedial provisions of the Act.

Aggrieved employees may bring civil claims to recoup unpaid time off benefits and to enforce the Act's discrimination and retaliation protections. The Secretary of Labor also has investigative and enforcement powers. The Bill, if enacted, is effective six months after the Department of Labor issues required regulations.

April Unemployment up to 8.9%

MMoore@mwn.com (Michael Moore) — Fri, 08 May 2009 11:41:54 -0500

The Department of Labor released unemployment data on April's unemployment rates. The unemployment rate rose to 8.9 percent, and the number of unemployed persons increased by 563,000 to 13.7 million in April. Over the past 12 months, the number of unemployed persons has risen by 6.0 million, and the unemployment rate has grown by 3.9 percentage points. The unemployment rate has steadily risen this year from a rate of 7.6% in January, an 8.1% rate in February and an 8.1% rate in March. The number of long-term unemployed (those jobless for 27 weeks or more) increased by 498,000 to 3.7 million over the month and has risen by 2.4 million since the start of the recession in December 2007.

Pennsylvania's unemployment rate for March was 8.2% which was above the national average. The April unemployment rate for Pennsylvania will not be released until later in the month.

Getting behind the raw numbers shows that certain groups and economic sectors are harder hit by the economic downturn. The national unemployment rates are greater for men than women. Unemployment rates rose in April for adult men (9.4%) but remained relatively stable for adult women (7.1%). The jobless rates for Whites (8.0%)and Hispanics (11.3%) were little changed over the month, but rose for Blacks (15.0%) and Asians (6.6%). The following Bureau of Labor Statistics data shows unemployment levels for construction and manufacturing of 18.7% and 12.4% respectively:

Sector of the Economy	Unemployment Rate for 2008	Unemployment Rate for 2009
Mining, quarrying, and oil and gas extraction	3.6%	16.1%
Construction	11.1%	18.7%
Manufacturing	4.8%	12.4%
Durable goods	4.8%	12.8%
Nondurable goods	5.0%	11.8%
Wholesale and retail trade	4.5%	9.0%
Transportation and utilities	4.0%	9.0%
Information	4.4%	10.1%
Financial activities	3.4%	6.0%
Professional and business services	5.3%	10.4%
Education and health services	2.8%	4.6%
Leisure and hospitality	6.9%	10.2%
Government workers	1.7%	2.6%

Business Preparedness: Pennsylvania Employer's Guide to Pandemic Resources

MMoore@mwn.com (Michael Moore) — Wed, 29 Apr 2009 10:37:22 -0500

The Pennsylvania Department of Health reports that as of April 28, 2009, there are no reported cases of swine influenza A (H1N1) virus infection in Pennsylvania. However, the Center for Control reports 91 laboratory confirmed cases in the United States and tragically the first U.S. fatality.

Best practices for Human Resources should involve planning for business interruption and continuity in the event that the current situation reaches a pandemic proportion. A list of issues from Human Resource Policies and Pandemic Planning Workplace Questions complied at PandemicFlu.gov. is as follows:

Human Resource Policies and Pandemic Planning

Leave/Leave Policies (including Family and Medical Leave)
Return To Work
Layoff/Termination/Firing
Sending Workers Home
Refusal To Work
Pay Policies
Work Restrictions
Working At Home And Social Distancing
Re-Employment Rights
Child Care At The Workplace
Liability Issues
Pre-Pandemic Workplace Planning

Equal Employment Opportunity (EEO) and Privacy Issues

Workplace Benefits

Workplace Safety and Health Issues

Unemployment Issues and Financial Assistance

Private Sector Workplace Issues

Other valuable employer preparedness resources are as follows:

EFCA Resurrected: Pennsylvania Senator Specter switches Political Parties

MMoore@mwn.com (Michael Moore) — Tue, 28 Apr 2009 14:10:01 -0500

Veteran Republican Senator Arlen Specter disclosed plans Tuesday to switch parties, a defection that will move Democrats closer to total control of the U.S. Senate. The switch may also revive EFCA in its original form despite Senator Specter's withdraw of support for the pro-union legislation last month. Senator Specter faces a difficult primary in Pennsylvania.

Senator Specter was a co-sponsor of EFCA last year but withdrew his support. In an announcement made on March 24, 2009, he proposed alternative amendments to the NLRA addressing his perceived issues in delays and problems with the unionization process. His floor comments on his change of heart about EFCA will require some political backtracking, if he is now to support the measure consistent with his new party's position:

On the merits, the issue which has emerged at the top of the list for me is the elimination of the secret ballot which is the cornerstone of how contests are decided in a democratic society. The bill’s requirement for compulsory arbitration if an agreement is not reached within 120 days may subject the employer to a deal he or she cannot live with. Such arbitration runs contrary to the basic tenet of the Wagner Act for collective bargaining which makes the employer liable only for a deal he or she agrees to. The arbitration provision could be substantially improved by the last best offer procedure which would limit the arbitrator’s discretion and prompt the parties to move to more reasonable positions.

For now, EFCA in its original form, may have been given new life in the Senate.

E-Verify Federal Contractor Rule Delayed until June 30, 2009

MMoore@mwn.com (Michael Moore) — Fri, 17 Apr 2009 12:18:12 -0500

The applicability date of the final rule requiring federal contractors and subcontractors to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system has been pushed back by six weeks to June 30, 2009, with hint that it may be abandoned or revised. The USCIS website contains the following notice:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will publish an amendment in the Federal Register tomorrow postponing the applicability of the final rule until June 30, 2009. The rule requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees was first published on Nov. 14, 2008, and went into effect on Jan 19, 2009.

The extension provides the Administration an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors.

My previous posts on the E-Verify rule are here:

E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work

Mandatory use of E-Verify for Government Contractors delayed again to May 21, 2009

Good News: SHRM reports delay in E-Verify Regulations' Effective Date until February 20, 2009

Tax Treatment of Differential Wage Payments to Employees in Military Service

MMoore@mwn.com (Michael Moore) — Thu, 16 Apr 2009 15:18:44 -0500

In recognition of the importance and sacrifices associated with military service, many employers provide a supplemental payment for their employees called to active military service which covers the difference between their military pay and their regular compensation. Pay differentials are provided for varying lengths of time.

Revenue Ruling 2009-11 provides that a differential wage payment made by employers to their employees that leave their job to go on active military duty is not subject to FICA or FUTA taxes. However, the pay differential is subject to income tax withholding under new Code section 3401(h). The IRS ruling provides that employers may use the aggregate procedure or optional flat rate withholding to calculate the amount of income taxes required to be withheld on these payments, and that these payments must be reported on Form W-2.

Section 3401(h) was added to the Code by section 105(a) of the Heroes Earnings Assistance and Relief Tax Act of 2008. New subsection 3401(h) provides that, for purposes of income tax withholding, any differential wage payment is to be treated as a payment of wages by the employer to the employee. Section 3401(h) applies to differential wage payments paid after December 31, 2008. The enactment of section 3401(h) modifies the holding in Revenue Ruling 69-136 that differential wage payments are not subject to income tax withholding. The term “differential wage payment” means any payment which (A) is made by an employer to an individual with respect to any period during which the individual is performing service in the uniformed services (as defined in chapter 43 of title 38, United States Code) while on active duty for a period of more than 30 days, and (B) represents all or a portion of the wages the individual would have received from the employer if the individual were performing service for the employer.

We have previously summarized the provisions of HEART in our post Making Sure Your "HEART" Is In The Right Place When It Comes To Soldier-Employee's Benefits

USCIS Reminds all U.S. Employers of Requirements to Use Revised Form I-9, Employment Eligibility Verification

MMoore@mwn.com (Michael Moore) — Fri, 03 Apr 2009 09:16:42 -0500

There is no delay. April 3, 2009 is the effective date for use of the revised I-9 Form according to the USCIS. The following resources are available for compliance with the revised form and more limited scope of acceptable documents:

Revised I-9 Form (English)

Revised I-9 Form (Spanish)*

List of Documents Acceptable for Employment Verification

Questions and Answers

Handbook for Employers

*Note: The Spanish version of Form I-9, available below on this page, 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.