Category Archives: legislative

Rent-A-Center’s ‘Hollow Victory’ for Employers

The U.S. Supreme Court’s narrow 5-4 decision in favor of Rent-A-Center this week is certainly, on the face of it, a victory for employers. Once again, the court upheld the validity of pre-dispute arbitration agreements, and the validity of letting an arbitrator — not a court of law — decide whether such an agreement is enforceable in employee-dispute cases.

But this legal alert from Fisher & Phillips warns that the decision in Rent-A-Center, West Inc. vs. Jackson may, in fact, add fuel to the fire under the Artibtration Fairness Act of 2009 now pending in Congress, which would render any such pre-dispute agreement unenforceable. It also warns employers with arbitration agreements in place to get with their counsel and make sure they “stand muster under the new decision issued” Monday.

“By and large,” the alert reads, “many employers continue to find arbitration proceedings preferable to court proceedings, as they are usually cheaper, more efficient and lead to more employer victories and fewer large verdicts. However, because of these very reasons, there has been a growing resistance movement” to them.

“No doubt the advocates of that proposed legislation will point to [Monday’s] decision as further evidence of the need for employee protection. One day, employers could look back at the Rent-A-Center decision as a hollow victory, one that did nothing more than provide fodder for arbitration opponents in their continued quest to restrict employer rights.”

Vigilante Anti-Illegal Immigrationists?

Here’s a new twist in the ongoing fracas over immigration. Came across this piece in Thursday’s New York Times about residents of a small town in Nebraska who are so fit-to-be-tied over illegal immigrants in their midst that they forced a vote on the issue — fighting off challenges by some of their elected leaders all the way to the state Supreme Court.

Indeed, voters of Fremont, Neb., will be deciding this Monday (June 21) whether to ban businesses from hiring illegal immigrants and bar landlords from renting to them. Forget waiting for your governor to take the lead, eh? (Though it does appear Fremont’s proposal was written with help from an author of Arizona’s new anti-immigration law.)

Mind you, there are only about 25,000 residents in this 1850s-era railroad and farming town about 30 miles northwest of Omaha, and it’s nowhere near an international border. But those in favor of the bans say the number of Hispanic residents has climbed from 165 in 1990 to close to 2,000 now, and that many are living and working there illegally and are responsible for rising crime rates. They’re demanding that all Fremont businesses use the E-Verify system, something skeptics of the proposed law say most already do.

I’m wondering what the atmosphere at the polling places is going to be like on Monday. (I’ll try to keep you posted.) The story suggests many people in Fremont have stopped talking to one another because they’re not sure where everyone stands on this extremely heated and controversial — and, of course, very personal — issue.

More importantly, I’m wondering how far from this kind of development the rest of our American cities and towns might be.

Wage and Hour Division’s Aggressive Agenda

 The U.S. Department of Wage and Hour Division held a public stakeholders forum on May 21 to lay out its goals and regulatory agenda — and from the looks of the reports I found, employers better stay on their toes ’cause the feds they are a-watchin you, folks.

Noel Tripp, an attorney with one of the employment law firms I quoted in an April 5 news analysis — Jackson Lewis — was in attendance and filed this report. Reads more like a warning to me. At the very least, it seems clear the Department of Labor’s WHD is gearing up to enhance employees’ rights, but not necessarily bend over backwards to help employers do just that in the process.

According to a story posted by Roy Maurer of the Society for Human Resource Management, WHD Deputy Administrator Nancy Leppink started the forum by defending her agency’s March 24 decision to end its long-held practice of issuing opinion letters to employers’ specific questions about compliance (which my news analysis was about). Leppink told those in attendance the practice was dropped because the “cost benefit was not there.”

 Yet, in the same initial greeting, she touted WHD’s “ambitious agenda,” according to Maurer, and listed some of the agency’s more impressive accomplishments, including hiring 250 new investigators (with plans to hire 100 more in 2010) and starting the “We Can Help” campaign, aimed at reaching vulnerable workers who wouldn’t otherwise report violations and noncompliance (this last bit, ala Tripp).

Tripp also offers this parting shot: “Employers must recognize that the newly aggressive WHD is focusing on complance and [will] consider internal or external audits to review wage-and-hour compliance. Employers in traditional low-wage industries must take special notice of the WHD’s initatives.”

I would say ALL employers would be well-advised to open these links I’m providing here and read them very carefully. 

New Target-Date Fund Guidance

In case you didn’t see this latest guidance from the federal government on target-date funds, also known as life-cycle funds, take a look and bookmark!

The guidance, issued jointly by the U.S. Department of Labor’s Employee Security Administration and the U.S. Securities Exchange Commission, is intended to help investors and plan participants understand the operations and risks of target-date fund investments.

For all the new ways the current administration seems to be adding to HR leaders’ administrative responsibilities (double-use of word intended), this guidance truly does appear to make your job a little easier by supplying, in one place, the information you need to help your retirement-plan participants navigate some complicated territory.

New Law Advisory from the DOL

Just wanted to make sure everyone saw this recent release from the U.S. Department of Labor about a new disability nondiscrimination law advisory — part of its new elaws Web site, an interactive site developed to help employers and employees understand their rights and responsibilities under numerous federal employment laws. Might want to check this stuff out and report back to us with your impressions and feedback! In fact, we’d appreciate it!

Obama’s Choice for the High Court

Elena Kagan— President Obama’s choice for replacing the retiring Justice John Paul Stevens—may not be as controversial a candidate as some previous Supreme Court nominees. But the current Solicitor General should still expect some tough questions when she comes before the Senate Judicial Committee, including maybe a few pertaining to military recruiting on college campuses.

In announcing the nomination earlier today, Obama described Kagan, 50, as someone “respected and admired not just for her intellect and record of achievement, but also for her temperament, her openness to a broad array of viewpoints, her habit—to borrow a phrase from Justice [John Paul] Stevens—of understanding before disagreeing, her fair-mindedness and skill as a consensus builder.”

Critics, however, are expected to point to Kagan’s lack of judicial experience as a major concern.

Not much is known about Kagan’s positions on issues in the realm of employment law. But it’s quite likely committee members will bring up her decision as dean of the Harvard Law School to bar military recruiters from using its offices. In an e-mail to students and faculty, she called the military’s “Don’t ask, don’t tell” policy “discriminatory” and a “profound wrong.” But in the face of losing federal funding because of the school’s violation of the Solomon Amendment—which allows the government to withhold money from universities that bar military recruiters—Kagan reversed her position on the ban.

No doubt proponents and opponents of her nomination will attempt to spin this incident to their own advantage. But while it’s not likely to make any difference in the eventual outcome—most expect the Kagan nomination to eventually be approved, unless something unforeseen happens—it does, at the very least, provide a hint into how she might approach some of the employment-discrimination issues that find their way to the High Court.

Biometric Brouhaha Boiling On

Sentiments from either side of the proposed biometric national ID card debate are getting more and more heated, as this recent story from the Society for Human Resource Management underscores.

Aside from the politics involved in the idea of including the card in an immigration-reform bill, HR professionals are also “casting a wary eye,” according to the story. The ACLU predicts employers could pay as much as $1.2 billion to issue the cards and workers would have to pay $105 to $139 eachto obtain them. Expanded to the entire U.S. workforce, the program could translate to a cost of $285 billion.

ACLU Legislative Counsel Christopher Calabrese tells SHRM the bureaucracy behind such a program “would involve new government offices across the country, tens of thousands of new federal employees and the construction of huge new information-technology systems.”

Other opponents predict long document-presentation lines, inevitable information errors and bureaucratic red tape. Employers “would have to purchase expensive biometric readers, train HR workers to be immigration agents and endure delays in their workforce,” Calabrese says.

But nothing else could be as fraud-proof and sure to enhance homeland security and reduce the number of illegal immigrants living and working here, card proponents say.

My prediction: This cauldron has a heckuva lot more cooking time ahead.

Remembering the Fallen

Secretary of Labor Hilda Solis honored today — Workers Memorial Day — with a reference to Mother Jones (the woman and labor organizer, not the magazine) by quoting her: “Pray for the dead and fight like hell for the living.”

While government data shows that fatal workplace injuries (PDF) have decreased each year since 1992 and other workplace nonfatal injuries and illnesses (PDF) have done the same since 2003, even one injury is too many.

Solis notes that this has been a “tragic month for the nation’s working families,” citing the oil rig workers in Louisiana, the branch Mine workers in West Virginia and victims of the refinery fire in Washington.

“More than 4.6 million workers suffer serious injuries each year,” according to her statement. “And, every day across America, more than 14 men and women lose their lives in preventable workplace incidents. That’s nearly 100 preventable deaths per week!”

HR leaders should already be aware that OSHA has hired — and plans to hire even more — enforcement agents, but besides preparing for stepped up enforcement, companies need to review their own safety programs. A recent story on HREOnline looks at some of the inadvertent reasons workplace safety programs don’t play out in reality as they do on the drawing board. 

There may be some heartless and ruthless employers out there, but I would guess that number is pretty small.
While the overwhelming majority of employers may look askance at some of the rules, regulations and opinions coming from the DOL, I would guess nearly all agree with Solis’ statement today: “No one — regardless of his or her occupation — should have to be injured or killed to earn a paycheck.”

Impact of Healthcare Reform Continuing to be Revealed

 There’s more disconcerting news about the historic healthcare reform bill — all being released today.

Along with a study by the Congressional Budget Office that about four million middle-class Americans will pay higher healthcare costs because of the reform and another study from the U.S. Department of Health and Human Services concluding that the legislation will increase healthcare costs — not reduce them — comes a poll of healthcare executives by AMN Healthcare finding that nearly three-quarters of them (72 percent) were either somewhat concerned or very concerned the new law would have a negative impact on their facilities.

In addition, nearly two-thirds (63 percent) say the reform will have a somewhat or very detrimental effect on the quality of care their facilities are able to provide.

Only about one in five of those surveyed (22 percent) were greatly or moderately pleased by the passage of healthcare reform, while about the same number (23 percent) said reform will have a somewhat beneficial or very beneficial effect on the quality of care their facilities are able to provide patients.

But it may impact staffing — which could be both good for the economy in general, while bad for the executives, who already have problems finding some healthcare professionals, especially nurses.

Six in 10 (62 percent) executives said healthcare reform will cause them to add more physicians, 56 percent said reform will cause them to add more nurses, and 56 percent said healthcare reform will drive them to add more allied healthcare professionals.

What Doesn’t Get Reported

It always impresses me how much we journalists are forced to leave in our reporter pads and memory cells when we cover events or conduct interviews.

Take this one session I wrote about from our recent Human Resource Executive Forum® in New York. The session — focusing on re-engaging workforces after the recession to carry them through the recovery and beyond, and moderated by Charlie Tharp — was well attended and well run (thanks in large part to Tharp on both accounts).

When American Express CHRO Kevin Cox started describing the day he got the call from a fellow senior executive about what the federal government actually had in mind in terms of new rules and oversights for bailout-funded financial institutions — including Amex — when it comes to executive compensation, you could have heard a pin drop. There were silently nodding heads all around me. Basically everyone seemed to be hanging on his every word.

I was spellbound, too, by Cox’s full transparency about that moment and the feelings he had. I used his quote about his company’s “near-death experience” but there was so much more he said, about the helplessness he felt when other senior leaders came to him asking if there was any way around this new chokehold from the nation’s capital. He talked about feeling completely powerless to do what he was supposed to do as the head of HR. He described where he was at the time the call came in — on vacation — and what it was like staying on his cell phone for the next few hours, getting patched in here and patched in there.

What really impressed me, too, were the expressions on the faces of fellow HR practitioners in the audience. You could see it, feel it in the air. They not only seemed to share the pain, many — I sensed — had already experienced something similar in waking up to the new reality, the new sheriff in town, the new less-than-supportive “take” on corporate America they could feel emanating from D.C. 

We’ll actually be looking at this new reality through the eyes of some of the nation’s most powerful employment attorneys in our June issue, so stay tuned for that. For now, take it from me, within this country’s HR circles, the impact of the “new deal” in Washington is palpable.