Category Archives: legislative

Oregon’s ‘Historic’ Minimum-Wage Increase

In the ongoing saga of state-enacted minimum-wage increases in the United States (here are our HREOnline analyses and our HRE Daily posts on the subject), it seems we’ve reached a new plateau.

A gavel and a name plate with the engraving Minimum WageAccording to this release from Littler, Oregon Gov. Kate Brown recently signed the first geographically-tiered minimum-wage hike in the country. Her Senate Bill 1532 also gives Oregon the nation’s current highest political statewide minimum wage.

Basically, the state’s current minimum wage is $9.25; however, beginning July 1, 2016, it will rise steadily each year through at least June 30, 2023. How much the rate will increase will depend on where an employer is located within the state.

In other words, this approach allowed the drafter of the plan to account for a higher cost of living in the Portland metro area, for instance, and a lower cost of living in rural parts of the state.

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Here is the actual table, with some explanation and footnotes showing the rundown of the plan:

Effective Date of Rate Increase Base Rate Exception:  Rate within Portland’s Urban Growth Boundary2 Exception:  Rate within Nonurban Counties3
July 1, 2016 $9.75 $9.75 $9.50
July 1, 2017 $10.25 $11.25 $10.00
July 1, 2018 $10.75 $12.00 $10.50
July 1, 2019 $11.25 $12.50 $11.00
July 1, 2020 $12.00 $13.25 $11.50
July 1, 2021 $12.75 $14.00 $12.00
July 1, 2022 $13.50 $14.75 $12.50

After June 30, 2023, the base rate will be adjusted for inflation, with the Portland rate set $1.25 above the base and the nonurban county rate set $1.00 below the base.

Employers should review their payroll practices and, as with any minimum wage increase, implement any required changes to comply with each of the upcoming rate adjustments starting later this year.

1 Some cities have recently raised the minimum wage higher than the projected rates established by Oregon’s new law.

2 An area encompassing the City of Portland and much of the greater tri-county area (Multnomah, Washington, and Clackamas counties) that is managed and periodically expanded by Metro, the Portland area regional government.

3 Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, and Wheeler counties.

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Interestingly, this piece by Kristen Hannum of the Catholic News Service suggests certain lawmakers relied on their religious faith to inform their votes. As Democratic state Rep. Rob Nosse, of Portland, told the Catholic Sentinel, the archdiocesan newspaper, “Absolutely my faith informs how I voted on this and how I think about it.”

Other religious groups in the state apparently don’t even think the new wage does enough. Jeanne Haster, executive director of the Jesuit Volunteer Corps Northwest, thought the legislation could have gone further, but she appreciates the compromises made to pass the bill. “It’s a practical approach,” she tells Hannum.

One she doesn’t even follow.

According to the story, Haster says her Jesuit Volunteer Corps Northwest sets its employees’ salaries according to Portland’s estimated living wage, which was pegged at $13.56 an hour in the summer of 2015. As she suggests, the Portland, Ore., poverty problem that Oregon legislators were at least willing to consider and act on, is huge:

“We try to pay a living wage rather than a minimum wage because Portland has become such a difficult city to afford to live in. I don’t know how people who make minimum wage live. I think we need to be paying people so they can escape living in poverty.”

It’ll be interesting to see if other states follow Oregon’s lead in trying to address this problem regionally and geographically. That would certainly turn this “plateau” into a whole new chapter.

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Sieving Through the EEOC’s Data

Yesterday, the U.S. Equal Employment Opportunity Commission released its breakdown of workplace-discrimination charges that the agency received in fiscal year 2015 (Oct. 1, 2014, through Sept. 30, 2015)—and, to no one’s surprise, retaliation charges topped the list, representing 44.5 percent of all charges.

ThinkstockPhotos-177129299What is somewhat notable about the number of retaliation charges, however, is the fact that it climbed 5 percent from a year earlier. (Only disability charges, ranked third on the list after race, climbed more, at 6 percent.)

Thomas B. Lewis, a shareholder with Stevens & Lee law firm in Lawrenceville, N.J., is among the ranks of those not surprised by the number of retaliation claims being filed.

“In my view,” Lewis says, “retaliation is the most subjective charge that can be filed, because employees have different definitions of what retaliation means. Oftentimes, if employees haven’t been given a raise or given a promotion, they’re going to believe they’re being retaliated against… . It all comes down to what the employee believes is happening.”

Lewis adds that the 5 percent jump from the year before is significant. “There are retaliation claims out there in which employees believe they are being retaliated against just by the way the manager looks at them.”

Of the charges on the EEOC’s list, he adds, retaliation claims are extremely difficult to prove, both for the company and the employee.

We also probably shouldn’t overlook the fact that 10 percentage points separate retaliation claims from the next nearest category of charges: race. That’s a pretty noticeable gap between No. 1 and No. 2.

In its release, the EEOC reports that it resolved 92,641 charges in fiscal year 2015, and secured more than $525 million for victims of discrimination through voluntary resolutions and litigation. However, as might be expected, most of the charges were resolved through mediation.

The agency, in fact, filed 142 merits lawsuits last year. Sure, that was an increase of nine from a year earlier, but still represents only a small portion of the 89,385 claims filed. “For a national organization covering all 50 states and trying to protect the rights of employees from all forms of discrimination,” Lewis said, “it’s [noteworthy] that so few discrimination claims actually resulted in the EEOC taking a position and advocating that position on behalf of employees.”

In case you’re wondering, the majority of the lawsuits filed alleged violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

Of course, if you’re an employer, it’s hard to find comfort in the number of claims being filed these days, especially the increase in retaliation claims. But for anyone who finds himself or herself on the receiving end of one or more claims, Lewis’ advice is to do your best to try to resolve them amicably. And if you can’t? Then try to resolve them through mediation, an approach, Lewis says, the EEOC will often push for.

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DOL Gives a Holiday Gift to Parents

I’m not usually one for repeating content here one week to the next, but I simply had to share news of this pretty sizable gift while we’re all in the midst 510042321-- parents & newbornof the gift-giving season.

In an announcement last Thursday, the U.S. Department of Labor put significant money — up to $25 million in grants — where President Obama’s mouth has been in his support of working families struggling with today’s workforce realities.

Essentially, the grants will support public-private partnerships that bridge gaps between local workforce-development and child-care systems. Funded programs will enable parents to access training and customized support services needed for jobs primarily in information technology, healthcare and advanced manufacturing, though not necessarily confined to just those three.

The money, according to the DOL, will become available to these partnerships beginning in the spring and will be aimed at helping parents obtain affordable, quality child care so they can “pursue education and training opportunities leading to good jobs in growing industries.”

As U.S. Secretary of Labor Thomas E. Perez puts it in his announcement of the initiative:

“For too many working parents, access to quality, affordable child care remains a persistent barrier to getting the training and education they need to move forward on a stronger, more sustainable career path. Our economy works best when we field a full team. That means doing everything we can to provide flexible training options and streamlined services that can help everyone in America realize their dreams.”

This move by the government certainly underscores the attention employers and work/life experts have been paying to the needs of working parents lately. A search of this HRE Daily site, starting with my post last week lamenting the slow motion paternity leave seems to be in, along with this search of our parental-leave news analyses on our magazine’s HREOnline site, shows this push — some might even call it competition — by organizations to prove they’re family-friendly will be a hot agenda item heading into 2016.

Hopefully, employers and government agencies can come together and really start engaging in a national dialogue as opposed to each entity trying to outdo the other.

This move by the DOL seems to be a step toward that coming-together idea. It stipulates that grants up to $4 million will be awarded to partnerships that include the public workforce system, education and training providers, business entities and local child-care or human-service providers; more importantly, the release states, “all partnerships must include at least three employers.”

Personally, if this truly does lead to my kids, and my kids’ kids, having more at their fingertips than I did to survive the chaos of young parenthood coupled with work and the constant struggle to get ahead, then the gift is for me too.

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Employers Worry About Pay-Ratio Perceptions

Results of a recent poll by New York-based Towers Watson show it’s not the mechanics of complying with the new CEO pay-ratio-101366398 -- money on scaledisclosure rule — such as data gathering, getting the right sampling, identifying the median employee and the like — that worries employers the most.

It’s how they’re going to explain the pay-setting process to their employees and how their pay ratio will look compared to other companies’ ratios. This according to the almost 600 corporate compensation professionals who weighed in on the Towers Watson Webcast Poll on CEO Pay Ratio Disclosure Rule.

The communication issues loom especially large. Half the respondents cite that issue among their top concerns. Also, how employees will react when they start comparing their compensation to their CEO’s and to the median employees’ is keeping many a top business leader up at night.

For a refresher, this New York Times piece offers some pretty complete details, history and analysis of the 3-to-2 vote on Aug. 5 by the Securities and Exchange Commission that will require most public companies, starting in 2017, to regularly reveal the ratio of their chief executive’s pay to that of employees.

Some of the controversy is also spelled out in the piece:

“Representatives of corporations were quick to assail the new rule … saying that it was misleading, costly to put into practice and intended to shame companies into paying executives less.

“But the ratio, cropping up every year in audited financial statements, could stoke and perhaps even inform a debate over income inequality that has intensified in recent years as the wages of top earners have grown far more quickly than anyone else’s.”

What’s disconcerting at this point isn’t just how this ratio will be perceived, but how few employers really know what they need to do to comply. In the poll mentioned above, only 17 percent of employers agree they understand all of the costs, effort and data that will be needed while almost two-thirds (65 percent) disagree.

In an earlier Towers Watson survey of 170 U.S. compensation professionals, Towers Watson Talent Management and Rewards Pulse Survey, only 48 percent agree that their companies had identified the data they’ll need and know how they will capture it to calculate the pay ratio, while even fewer (41 percent) say they’re prepared for how the disclosure will affect employee perceptions of their pay.

And if you think time is on your side and you’ll get it right with many months to spare, think again, says Steve Seelig, senior regulatory adviser for executive compensation at Towers Watson.

It’s “not too early for HR to begin thinking about how well its company communicates with employees, and to then set a strategy for improving its message,” he says, adding to:

“Keep in mind that, when the disclosure comes out, workers below the median will [immediately start to] wonder what it takes to get them to that level, and why their company is not paying them more. Those employees at or above the median will naturally wonder whether their pay levels are determined fairly, or how the level of CEO pay might be hindering their pay increases. Workers also will be looking at companies across the street and pondering if their median pay is higher, and whether it might be a good idea to look around.

“Human resource executives should [be proactive and] view the pay ratio disclosure as a chance to make sure their employees understand [their company’s] pay-value proposition. Companies that get this communication effort right will find they actually have strengthened their relationship with the workforce, with better productivity and reduced turnover as likely outcomes.”

Those that don’t get it right shouldn’t be surprised when the opposite occurs.

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Saying Goodbye to Same-Sex Benefits?

ThinkstockPhotos-533697873In the wake of the United States Supreme Court’s recent Obergefell v. Hodges decision—which guaranteed same-sex couples throughout the U.S. the right to marry—HRE’s Maura Ciccarelli pondered what this landmark decision would mean for employers and HR leaders.

The International Foundation of Employee Benefit Plans was apparently wondering the same when it recently surveyed 258 companies in an effort to gauge how the ruling would influence employers’ approach to offering benefits.

Overall, 53 percent of responding employers said they believe the ruling will have an effect on their organizations. (In total, 57 percent of the companies surveyed reported offering benefits to same-sex domestic partners at the time of the Obergefell v. Hodges decision.)

Take a closer look, however, and the impact figures to be negligible.

For example, just 4 percent of those surveyed by the IFEBP said they anticipate the Supreme Court’s same-sex ruling would be “extremely” impactful, while 6 percent said the ruling would be “very” impactful, and 43 percent indicated the ruling would have “somewhat” of an effect.

Among the companies currently providing same-sex benefits, more than 70 percent said they are likely to continue offering them. Of the remaining respondents who said their organizations are unlikely to continue making benefits available to same-sex domestic partners, nearly all (93 percent) said they only provided such benefits in the past because same-sex couples couldn’t legally marry; which is no longer the case. Forty-four percent of these companies pointed to administrative complexities—documentation, tax and payroll issues, for instance—as the main reason why they plan to discontinue same-sex domestic partner benefits, with 19 percent citing cost as the biggest factor in their decision.

Likewise, the Brookfield, Wisc.-based provider of employee benefits education, research and information asked those who said they plan to continue providing same-sex domestic partner benefits why they have chosen to do so. Fifty-three percent of these employers said they “provide benefits to opposite-sex domestic partners, and want to be equitable,” and 53 percent reported a desire to attract and retain quality employees as the No. 1 driver. Forty-two percent indicated their organizations “recognize all kinds of families,” with another 36 percent saying they feel offering benefits to employees in same-sex domestic partnerships is simply “the right thing to do.”

It seems the majority of employers are in agreement with this group, at least according to this IFEBP poll. Julie Stich, the organization’s director of research, noted as much in a recent statement.

“Despite the Supreme Court’s decision to make same-sex marriage legal, many employers are deciding to continue offering benefits to unmarried domestic partners,” said Stich.

“They see providing benefits—to both same- and opposite-sex domestic partners—as a way to ensure employees and their loved ones are happy and healthy.”

 

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Know When the ADA Trumps Your Policy

101390464 -- gavel and law booksBeware your urge to discipline.

That seems the best mantra for HR leaders in this new ADA day.

Two reminders of the mounting murkiness when it comes to drawing the line between your work policies and the amended Americans with Disabilities Act floated my way recently in this piece from the Society for Human Resource Management (registration required) and this from The Growth Co., headed up by Lynne Curry.

The SHRM piece highlights a $180,000 settlement Walgreens agreed to pay a cashier who the company fired after she took and ate a $1.39 bag of potato chips without paying for it. Turns out the cashier, Josefina Hernandez, was a diabetic who needed the chips during a hypoglycemic attack to stabilize her blood sugar.

Also turns out, in this age of heightened disability sensitivity and the need for employers to be sure they’re engaging in reasonable-accommodation discussions and the interactive process, Walgreens apparently did everything wrong. (Requests for comments from Walgreens have not been returned.)

According to the piece, when a loss-control supervisor asked for an explanation after finding the empty potato-chip bag under the counter at her cash register, Hernandez wrote in a statement, “My sugar low, not have time.” The supervisor didn’t know what she meant, so she was fired for violating Walgreens’ anti-grazing policy. On the contrary, the courts found, it was Walgreens that was in violation, of the ADA.

Had HR been involved throughout the investigation and pre-termination process, Walgreens would probably have been $180,000 richer. As Robin Shea, an attorney with Constangy, Brooks & Smith, says in the piece, “HR people are generally in the best position” to determine whether workplace discipline and/or termination is an overreaction.

“If it appears that the employer is using a nuclear weapon to kill a gnat, then maybe termination is not the answer,” she tells SHRM.

The other piece concerns alcohol. In it, Curry reminds us that, as much as an employee’s alcohol dependence brings everyone down — employee, co-workers and employer — and although you can establish policies prohibiting alcohol consumption at work or prior to work events, an alcoholic does have rights.

For the record, here’s Curry on that:

“According to the federal Equal Employment Opportunity Commission, an alcoholic who can perform the essential functions of his [or her] job may have a disability requiring employer accommodation under the Americans with Disabilities Act. The courts are fairly unanimous in ruling that an employer needs to grant at least one leave of absence so an alcohol-dependent employee can participate in a treatment program if the employee hasn’t misused alcohol on the job or engaged in misconduct.

“For example, in the landmark Schmidt v. Safeway Inc. case, the court ruled that the ADA may require an employer to provide a leave of absence to an employee with an alcohol problem if it is likely that the employee would be able safely to perform his duties following treatment. With an alcohol-dependent manager, a leave of absence for outpatient or inpatient treatment may be the logical accommodation.”

At the same time, she writes:

” … alcoholism doesn’t immunize managers or employees from the consequences of their actions. Employers can hold alcohol-dependent managers and employees to the same performance and behavior standards as non-alcoholics and discipline or discharge an alcoholic whose alcohol use adversely affects his job performance. As an example, if an alcoholic employee often arrives late to work or makes frequent errors, the employer can take disciplinary action based on the poor job performance and conduct. Furthermore, the 2nd U.S. Circuit Court of Appeals ruled that the ADA does not protect an employee from termination for alcohol-related absenteeism when reliable attendance at scheduled shifts is an essential job function.”

Where does this leave us? I guess with a simple “Be Careful.” And in today’s increasingly employee-supportive legal landscape, “Consult Counsel,” too.

As clear-cut as it may seem that certain activities — such as stealing company property and alcohol abuse — have no legitimate place in your organization, except as forbidden zones in your employee handbook, just remember to beware the law, where black-and-white mandates are far outweighed by shades of gray.

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Drug Use, Addiction at Work Continues to Rise

The use and abuse of drugs in the workplace isn’t slowing down at all. Latest reports indicate the percentage of American workers 73267092 -- drugs at worktesting positive for illicit drugs such as marijuana, cocaine and methamphetamines has increased for the second consecutive year in the general U.S. workforce — putting an end to the decades-long decline.

Indeed, this article references a government report that finds nearly one in 10 full-time workers now has a substance-abuse problem. And the latest Quest Diagnostics Drug Testing Index shows an upsurge in the positivity rate of drug tests by 9.3 percent — from 4.3 percent in 2013 to 4.7 percent in 2014. (Here is an additional link to the actual tables/stats within the index.)

“American workers are increasingly testing positive for workforce drug use across almost all workforce categories and drug-test-specimen types,” says Dr. Barry Sample, director of science and technology for Quest Diagnostics Employer Solutions. “In the past, we have noted increases in prescription-drug-positivity rates, but now, it seems, illicit drug use may be on the rise, according to our data.

“These findings,” says Sample, “are especially concerning because they suggest that the recent focus on illicit marijuana use may be too narrow, and that other dangerous drugs are potentially making a comeback.”

Dr. Robert DuPont, former director of the National Institute on Drug Abuse, says this latest analysis by Quest not only “suggests that illicit drug use among workers is increasing broadly for the first time in years in the United States [but that] public and private employers might want to consider revisiting existing substance-abuse policies to ensure that they are taking the necessary precautions to protect their workplace, employees and businesses.”

Equally concerning is the fact that abuse of legal drugs is also going up, as this news analysis by Andrew McIlvaine addresses. Drugs taken for attention-deficit-hyperactivity disorder — such as Ritalin, Adderall and Focalin — are now being abused by employees looking to add some sparks to concentration and alertness.

Will Wesch, Novus Medical Detox Center director of admissions, says many organizations are now updating their language in drug-free workplace policies to include potential impairment from a prescription drug. He urges HR practitioners to coach managers in how to engage employees suspected of such abuse and offer reasonable accommodations, up to or including modifying job responsibilities should an employee inform him or her that the medication he or she is on may impair job performance.

As for specific policies, concerns and approaches HR leaders should be considering right now when it comes to all workplace drug use, DuPont has this to offer:

“First, look at the big picture in workplace drug testing. There is much more to workplace drug testing than just testing for marijuana. An effective drug-free program includes testing for many widely used drugs [including prescription]. Second, consider the legal complications of workplace marijuana testing.  For example, several states allowing medical use of marijuana are now requiring an employer to show impairment before taking action against an applicant or employee who tests positive for marijuana. These provisions pose a significant limitation to workplace drug-testing programs for marijuana.

“I also recommend you provide clarity in your drug-free policies. … Every employee must be informed of the company’s substance-use policy and the reasons for the policy. Drug testing needs to be described in a written statement of the employer’s substance-use policy. This policy statement must clearly lay out the elements of the drug-testing program, including who is subject to testing, how testing is administered, how positive results are confirmed and what the consequences are for positive drug-test results. Supervisors and human resource staff should be trained in the employers’ substance-use policies and procedures, and be able to explain them to all employees and job applicants.”

And, again, when it comes to marijuana, DuPont says, “pay close attention to the specifics of state and local law,” obviously and especially in those states where it’s medically or recreationally legal. And make sure your drug-testing policies are being reviewed by attorneys “who are familiar with federal, state and local laws … particularly related to marijuana.”

Yes, folks, it’s a whole new world when it comes to drugs at work. DuPont says it’s time to consider “going beyond the urine cup and … the typical five-drug tests” and embrace the bigger picture now upon us.

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With Union Petitions Up, Get Your Message Out … NOW!

Since sharing this blog post the day before the National Labor Relations Board’s “quickie-election rules” went into effect on April Union14, I’ve been waiting to see if the predictions shared therein would come to pass.

More specifically, would there be — as predicted by various employment attorneys I talked to — a surge in the number of representation petitions filed with the NLRB by unions just waiting for those rules to help them hurry up their process?

Well, I just got confirmation from NLRB spokesperson Jessica Kahanek that there’s been a 32-percent spike in union petitions lodged with her agency in one month since the rule’s enactment. Broken down, that’s 212 petitions from March 13 to April 13 and 280 from April 14 to May 14. An impressive and additional 104 petitions were filed between May 14 and May 27, she tells me. Spike indeed!

Kahanek also notes that elections are now taking place — on average — 23 days from the date of the petition. This duration is a dramatic shift from the 38-day average that existed under the previous rule.

What’s also interesting to note is that the petitions didn’t come flooding in starting on April 14. On the contrary, says Steve Bernstein, a Tampa, Fla.-based labor attorney with Fisher & Phillips, “in the first two weeks after the rule, the numbers of petitions filed were flat, maybe even down some; only in the last two to three weeks have we been seeing them really climbing.”

So what does that mean? It means even the unions needed some time to figure out all the new procedures contained in the new rules. “It’s been a learning curve for everyone,” Bernstein says.

What it all really means — to employers — is now’s the time to talk up your company and make no bones about stressing with employees that it’s a better place to work communicating directly with management than through third-party representation.

Bernstein calls this “front-loading the message.”

Employers, he says, “have the opportunity to use this [albeit shorter] period of time to take the initiative away from the union.”

Some companies, in fact, are getting ready for the NLRB before the NLRB even comes knocking. They’re getting all the new data being asked for — employee emails, phone numbers, work histories, job classifications, etc. — collected and collated now “so they’re positioned to be standing on ‘Go’ when the petition arrives and can use all their time getting their message out,” says Bernstein. He recommends that you:

“start from the standpoint that, with the new rules, comes a new petition form giving unions the opportunity to request the earliest election dates possible, usually two weeks out. So you, the employer, can posit the question, ‘Why is this union trying to move so fast on something so important to your lives and the lives of your families as this?’ “

In terms of the new administrative and disclosure requirements contained in the rules, he says, rather than focusing only on scrambling around trying to meet them all, think about taking this approach:

“In many circles, the kind of employee data they’re now demanding from employers would look like an invasion of privacy. So you can put out the immediate message, ‘They’re not even here yet and look at the personal information they already want on you. Why do they want all this from us?’ “

In other words, the NLRB has changed the rules, so you can too. (FYI, my earlier post, linked above, contains the NLRB’s position and purpose in the rule changes.)

You don’t even have to wait for a petition to start the conversation. In addition to getting all your data ducks lined up, you can join with the many companies Bernstein is already seeing “embracing the notion that it’s OK to talk about this, now, with employees,” sooner than later, he says.

Nothing wrong with telling your employees, “Let’s have this union dialogue now,” he says, especially in businesses and industries where unions are dominant. Some companies are even fashioning tailored, customized videos along these lines to go with their orientation processes, i.e., why no union is better than representation.

“You’re really trying to establish this line of communication, getting them used to hearing about this, so it doesn’t just sound like a defensive move after the petition has arrived,” Bernstein says.

So, to recap, your message to them: “Hey, it’s OK to talk about this now, folks!”

And my message to you: Ditto.

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Disney World’s H-1B Controversy

Additional  and corrected information below:

A front-page story in the New York Times focuses on what critics say is flagrant abuse of the H-1B visa program by Walt Disney World Inc. It’s only the latest example of the controversies swirling around the temporary visa program.

The Times is actually a bit late to the story: In April, Computerworld profiled several of the approximately 250 Disney IT employees who were required to train their replacements, prior to being laid off at the beginning of this year, in order to receive severance pay. The replacement workers were immigrants who had been brought in to the country by an India-based outsourcing firm via the H-1B program, according to Computerworld and the Times.

The H-1B program is, of course, intended for the use of highly skilled immigrant workers to fill jobs for which companies cannot find qualified candidates in this country. Disney CEO Bob Iger is a big proponent of the program: He is one of eight co-chairs of Partnership for a New American Economy, which lobbies for an increase in the number of H-1B visas allowed each year, reports Computerworld.

Disney has said the restructuring was necessary for increased innovation and has led to more IT jobs at the company: Kim Prunty, a Disney spokeswoman, provided the following statement: “Disney has created almost 30,000 new jobs in the U.S. over the past decade, and the recent changes to our parks’ IT team resulted in a larger organization with 70 additional in-house positions in the U.S. External support firms are responsible for complying with all applicable employment laws for their employees.”

A source at Disney tells me that the Disney Parks IT department underwent a shift from focusing on systems maintenance to developing new capabilities, with much of the support function shifted to outside vendors. The source says she can’t comment on the allegations that the employees were forced to train their replacements, but stressed that Disney expects its vendors to comply with “all applicable employment laws.” Of the 250 Disney employees laid off, 120 found new jobs within Disney, 40 took early retirement or found new jobs outside the company and 90 did not find new jobs at Disney, she says.

Earlier this spring, a group of former employees filed suit against Southern California Edison charging the utility with abusing the H-1B program. The plaintiffs say they, too,  were laid off and forced to train their replacements.

And just a few days ago, the Wall Street Journal reported what appears to be abuse of the H-1B program: Immigration lawyers involved in the process say they have helped firms file multiple H-1B skilled-worker visa applications for the same person in the hopes of prevailing in the lottery under which the visas are allotted. Some workers, meanwhile, are accepting offers from multiple employers, each of whom files a petition on their behalf, lawyers told the WSJ.

Given that this is an election year, and that the H-1B program has been a sensitive topic for years now, I’d say the chances are very good that Congress will soon be  holding more hearings about the program. As for increasing the visa cap, currently limited to 85,000 per year? I’d say not very likely this year, for sure.

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Mixed Interpretations of Mach Mining Decision

Reactions to last week’s U.S. Supreme Court ruling in Mach Mining v. EEOC are plentiful, and mixed. The decision essentially came down 78805354 -- Supreme Court for left sidein favor of employers and against the U.S. Equal Employment Opportunity Commission, but just who the real winner is — and by how much — is subject to interpretation.

In the case, Mach Mining was accused by the EEOC of discriminating against women who applied for jobs at its Johnson City, Ill., coal mine. The EEOC filed suit in 2008 after an unsuccessful job applicant complained to the agency that the company never hired a female miner.

In response, Mach argued for an intensive federal-court review of conciliation efforts the EEOC should have engaged in, but Mach argued were not carried out — as required under Title VII of the Civil Rights Act — prior to the company being sued.

“In language that is sure to be repeated back to the EEOC for years to come, the Supreme Court held that ‘[a]bsent such review, the commission’s compliance with the law would rest in the commission’s hands alone,’ ” say Seyfarth Shaw attorneys Gerald L. Maatman Jr., Christopher Cascino and Matthew Gagnon in this blog post. “This, the Supreme Court said, would be contrary to ‘the court’s strong presumption in favor of judicial review of administrative action.’ ” They go on:

“While the Supreme Court did not rule that the intensive review that Mach Mining argued for was required, the case nevertheless represents a significant win for employers and resounding defeat for the EEOC. The EEOC will no longer be able to file suit against employers after paying mere lip-service to its conciliation efforts, and to give them the back of the hand in response to requests for fulsome information about liability and exposure in a threatened lawsuit. And employers will, as a result, be in a better position to settle meritorious claims  on reasonable terms before the EEOC files suit, thus saving employers from unnecessary litigation expense.”

But not so fast. According to points raised by Jon Nadler, a Philadelphia-based employment attorney with Eckert Seamans Cherin & Mellott, the ruling is actually a win for the EEOC, despite the prevailing commentary and headlines. Though the court ruled the EEOC’s conciliation efforts are subject to some judicial review, “that review is extremely limited (‘relatively barebones,’ in the court’s words,” his notification says.

On the contrary, it goes on, the “EEOC will merely need to show it provided the employer with notice of the allegations — the specific alleged unlawful practices, and identification of those allegedly harmed — and to engage in some bilateral communication with the employer in an attempt to resolve the matter.”

Nevertheless, Nadler points out, though employers have complained in some instances that the EEOC “failed even to provide this basic information, now [it’s] clearly required.”

Further, in points raised by Don Lewis, shareholder with Nilan Johnson Lewis, the Supreme Court also chose not to adopt a “good faith” standard of review previously adopted by the Fourth, Sixth and Tenth Circuits. “Employers,” his notice reads, “will be pleased that the high court has recognized that the EEOC’s obligation to conciliate is enforceable in court, and that its obligation includes a requirement to disclose and discuss the essential elements of its claims and identify the parties for which it seeks relief.”

Meanwhile, in this posting, the EEOC calls the decision a “step forward for victims of discrimination” in its rejection of the “intrusive review proposed by the company and its supporters.”

The agency goes on to say that the “court recognized … the scope of review is narrow and a sworn affidavit is generally sufficient to meet the statutory requirements. If the employer has concrete evidence that such efforts were not made and the court finds in favor of the employer,” it says, “the remedy is [simply] further conciliation.”

This story on the Inside Counsel site, written in January after oral arguments were presented in the case, offers great background on the history, arguments and questions surrounding all this.

So what does it mean? Obviously, it depends on who you talk to … on whose glass is half full or otherwise. Yes, the scope of judicial review articulated in the decision “is a narrow one,” Maatman and company write, but bottom line, the court “vigorously upheld the fundamental principle that judicial review of administrative action [however slight] is [still] the norm in our legal system.”

Further, they state, “the EEOC now has to present its position in a federal court, and its litigation strategies are apt to be very different when it must justify and show the basis for its conciliation positions before a neutral fact-finder.” In their words,

“Suffice it to say, employers’ defense of ‘failure-to-conciliate’ is still alive and well, and the EEOC’s litigation strategies are now likely to be in need of rebooting.”

Or not …

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