HR In the Year 2525

Segal, a partner in the Philadelphia office of Duane Morris LLP offered his tips at the SHRM Annual Conference and Exhibition, held recently in Atlanta.

Wage and Hour

Prior to 1938 we had a manufacturing economy, Segal says. In 1938, the Fair Labor Standards Act (FLSA) was enacted. With the exception of minor interim adjustments, for example, the 2004 changes regarding white collar exemptions, the law is largely untouched.

Now, in 2012, we have a service economy and the FLSA framework is outdated, but employers still have to deal. Segal recommends focusing some attention on the virtual workplace

1. Employees with PDAs (wage and hour issues)
2. Employees accessing the employer’s Internet server remotely (corporate security issues)
3. Telecommmuting employees (both wage/hour and security issues)

Segal recommends:

1. Issue guidelines on permissibility
2. Create mechanisms to record hours worked
3. Pay employees if they work
4. Pay overtime, even if not authorized, but discipline

2525? Unconscious Dreaming Worker Protection Act

EEO

Prior to 1964 it was lawful to ask an applicant:

1. What is your religion?
2. What is your race?
3. Are you pregnant?
4. Are you fertile?

Prior to 1964 it was lawful to terminate employee because of his or her:

1. Race
2. Age
3. Sex
4. Religion

Then came federal Civil Rights legislation:

1. Civil Rights Act of 1964—gender, race, color, religion and national origin
2. Pregnancy Discrimination Act—pregnancy
3. Age Discrimination in Employment Act—age
4. Vocational Rehabilitation Act—handicap (government contractors and subcontractors)
5. Americans with Disabilities Act—disability
6. Immigration Reform and Control Act—citizenship
7. Genetic Information Non-Discrimination Act—genetic information

Now the EEOC is focusing on adverse impact analysis applied to:

1. Unemployed (It’s cruel and stupid to discriminate against this group, Segal says.)
2. Credit records
3. Criminal records

Also, Segal says, beware of a focus at the state level on:

1. Sexual Orientation 
2. Gender identity 
3. Parental or familial status 
4. Credit record 
5. Criminal record 

Don’t rely on at-will, says Segal. Even the most pedestrian litigator can turn unfair into unlawful. If you don’t think it’s fair, no jury will, adds Segal.

2525? White men, a minority, will be covered by discrimination laws

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Unions

Pre 1935, workers could be and were abused, Segal says. Then the National Labor Relations Act of 1935 gave workers the right to organize.

However, management-labor collusion and sweetheart deals let to the passage of the Taft-Hartley Act of 1947, which made it unlawful for employers to assist, dominate, etc., a labor organization.

Because of the way the NLRB is structured, its pendulum swings as presidents change. The current Labor Board is a best friend of unions, Segal notes. Some recent decisions concern:

1. Social Media—“protecting vitriolic vituperators with venom”
2. Micro units—potential for smaller, position-specific bargaining units

Segal’s Recommendations

On social media, you can consider a carve out that says that nothing in your policy is intended to dissuade employees from exercising rights under the NLRA; however, that may not satisfy the NLRB which did say that requiring employees to be “respectful and courteous” might be “dissuading.”  

An alternative is to be silent on online disparagement and respond only if unprotected comments are made. This isn’t risk free, but neither is the alternative, says Segal.

As far as union elections, says Segal:

1. Determine who your supervisors are before there is a petition
2. Train them on warning signs and legal limitations
3. Put a plan in place for early detection and rapid response

2525? Union membership is a condition of employment.

ADA

Pre ADA, employers had the right to terminate because of the need for medical leave (subject to exceptions, for example, Section 510 of ERISA).

Then came the ADA, requiring leave as reasonable accommodation, and the FMLA, requiring 12 weeks’ leave because of serious health condition (broadly defined). In addition, there are state leave laws, both pending and existing.

Then the ADA was amended, expanding the definition of disability (Are we all disabled now?), and expanding the definition of perceived disability.

EEOC is attacking in the following areas:

1. Maximum leave provisions (that’s happening)
2. Need for a flexible interactive process
3. Minimum requirements for leave (coming soon to a courtroom near you)
4. Leave before employee becomes eligible for FMLA

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Need an example of EEOC thinking?  Shy Bladder Syndrome may be a disability, says Segal, and just watch that catch on with employees scheduled for drug tests.

2525? Look for leave for colds:

1. Actual cold
2. Fear of getting a cold
3. Talking with someone with a cold

And expect the Employee Right Not To Work Act.

In tomorrow’s Advisor, Segal’s take on harassment and technology, plus an introduction to a unique, checklist-based audit system that helps you find problems before the feds do.