30 Mayıs 2012 Çarşamba

Introducing Robert Crouch, Assistant Vice President for Human Resources

To contact us Click HERE

By Pablo Rajczyk, HR Business Administrative AssociateAs the Assistant Vice President for Human Resources, Robert Crouch’s duties are numerous and wide-ranging in scope, from the specific to the over-arching. Whether it’s in a face-to-face meeting or developing campus-wide human resource strategies, he brings the same set of principles to bear: integrity, respect and fairness. It becomes conspicuously obvious after only a few minutes of conversation that the two biggest influences in his life are his mother and father. “My parents instilled in me a strong work ethic and a positive moral character,” he says. This was more than just parental advice; they modeled this behavior in their interactions with those they just met and life-long friends.
From a very young age Robert never shied away from hard work, doing yard work and landscaping for families in his community in northwestern Missouri. Even when faced with the pressing appointments of little league games when he was only 10 years-old, his mother would ask him if he’d “taken care of his customers first.”  “I’ve always endeavored to make a difference,” he says. His personal mantra is that he “wants to leave things better than I found them.” This has manifested itself throughout his personal and professional life. He is a godparent to 20 young men and women, actively mentoring them at every opportunity.  His sense of caring is evident when he discusses his goals to add a customer service emphasis to UIC Human Resources and become a model HR organization among public institutions. The best way to achieve these goals (along with hard work, of course) is through a structure of communication. Either through one-on-one sessions, seminars, or town hall meetings, Robert consistently emphasizes that the way for everyone involved to gain a greater understanding of the University’s concerns and issues is through open and honest communication.  Challenges are omnipresent. Internal pressures and external factors abound. Rising to a higher level is never easy. But for significant, measurable progress to be made, these challenges must be met head on, individually and collaboratively, in a way that channels effort into forward movement. An effective HR manager possesses a wide range of competencies: business acumen, organizational development, performance management, empathy, and the ability to develop meaningful partnerships, all of which he has honed during his 25 years of public-sector HR work.  Trust and empowerment are the most effective ways to ‘get things done,’ he says. His managerial emphasis is on helping others realize their worth, not only as employees, but as individuals. Helping people recognize their value is more inspiring than heavy-handedness. It’s all too easy to see a co-worker’s title as their defining professional characteristic. But it’s the person in that position that matters most.It’s apparent why he has earned multiple awards for his leadership, diversity and the overall quality of his work. His list of professional accomplishments is impressive, but it all hinges on the relationships he builds with employees and stakeholders. He has changed locations during his professional career, but, he says, “My craft remains the same.”In life we meet many people, but meaningful relationships can only be maintained through consistent, positive interaction. How long you’ve known someone says something important, but it’s how faithful you are to people that determines the real depth of your relationship.

Planning for Retirements and Operational Success

To contact us Click HERE
By Kim Morris Lee, Director Organizational Effectiveness

It is a reality that many employees are considering retiring in the near future. How will UIC respond to this fact?

Regardless of perspective, proactive or reactive, the current workplace talent situation requires action. Planning for employee departures ensures college/unit operational success.

The first action point to address in this planning process is the identification of “critical knowledge holders” or CKHs in the department. A CKH is defined as any employee with knowledge that is either important or critical to the college, unit or university strategic objectives, unique in higher education, requires substantial training to obtain and/or is UIC-specific.

The Knowledge Loss Risk Assessment tool is one option to consider for identifying key talent. Completing the assessment is simple and allows for calculation of a Total Attrition Factor (TAF) to help prioritize the creation of detailed “Knowledge Transfer” plans for the identified critical role(s).

Perception of occupational stress need not rise solely because of pending announcements of employee retirements. Take a deep breath --- now consider: What positions will be vacant due to retirement? Are they all CKHs? Keep in mind, a critical role is not always determined by organizational hierarchy. Key positions are those that have a significant impact on effective and efficient service delivery; and, ultimately, on UIC’s overall operational performance.

The second action point is creating a plan to capture knowledge of CKHs before they depart --- weeks and, if possible, months before the “last day.” Documenting the Knowledge Transfer Plan is the first step. Actual implementation follows with consistent focus on details. While sophisticated technology can be used to document, implement and monitor talent management processes, a simple paper-based knowledge transfer tool is an option for UIC management to create a Knowledge Transfer Plan. Using this tool, management may begin documenting a process to transfer knowledge associated with critical department roles that may be lost to retirement soon.

Many organizations use automated Talent Management systems to track knowledge sharing and transfer across CKHs. Such systems make employee development and knowledge transfer an integrated business process. With such processes, there is higher probability of uninterrupted service delivery as employees leave the organization. While UIC does not have an integrated, automated system to monitor talent acquisition, on-boarding, development and separation, it does have other tools that may be used.

In the absence of a robust, automated Talent Management system, solutions like web conferencing, online chat, screen sharing, and online workspaces may help minimize “translational loss” when creating a knowledge transfer plan. These tools offer options to refer back to previous conversations or projects and leave a “paper trail” that can be traced to confirm processes and standard procedures.

When creating a Knowledge Transfer Plan, it's best to avoid a “one-size-fits-all approach” in the name of administrative simplicity. The focus should be on optimizing information transfer rather than standardizing a process. From a university-wide perspective, it is more efficient to have a framework for guidance to develop a plan. The plan will look different across colleges/units and may include some of these common knowledge transfer practices: facilitated training, one-on-one mentoring, communities-of-practice, lessons-learned sessions, knowledge audits and targeted interviews.

At UIC and any organization that is mission focused, it is necessary to maximize knowledge retention/transfer using a proactive, long-term strategy that is supported by senior management and woven into the cultural fabric of the organization. It is an indisputable fact that there will be planned and unplanned attrition. Implementing and sustaining knowledge transfer processes will minimize productivity losses as employees depart.

Managers across UIC should consider developing workforce assessment skills to identify and document critical knowledge roles and responsibilities associated with these roles. These skills will prepare management to capture the institutional knowledge that is necessary for continued operational success across UIC’s colleges, departments and administrative units.

2011 UIC Campus Charitable Fund Drive

To contact us Click HERE
The 2011 UIC Campus Charitable Fund drive annual performance was substantially aided by the overwhelming support of the employees of the units reporting to the Vice Chancellor for Administrative Services. We wish to acknowledge the extraordinary efforts of the entire unit in creating fun contests, allowing us to present and host additional fairs and really encouraging employees to participate in any way they could. One time donations rose by over 90% due to the additional contributions made by VCAS employees. Thank you all for your support. The economic circumstances have made quite an impact on our overall giving. The 2011 Campus Charitable Fund Drive results will be posted shortly. Any questions of concerns please let us know we are always looking to add department representative’s, enhance our website or pledge drive ideas contact specialprograms@uillinois.edu or via fax at 6-6807.

2011 Retirement Luncheon

To contact us Click HERE

The 2011 Retirement Luncheon was held on Tuesday, February 28, 2012. The luncheon included employees who retired between August 16, 2010 and August 15, 2011. Over 290 attended the Retirement Recognition Luncheon honoring 2011 retirees. Retirement certificates for those unable to attend were sent to their home address.
Please make every effort to have employees update their personal email addresses in NESSIE as we hope to go to an entirely electronic invitation process in the near future.

It's Never Too Soon: The Retirement Planning Conference

To contact us Click HERE
Marilyn Sommer, Special Programs

Spring is the time when flowers blossom, when we cast off our winter garb and welcome bright colors and light clothing and when we are reminded of our promises to stay fit and healthy. It is also a time to think about future goals. If one of those is retirement, then hopefully you attended the Retirement Planning Conference which was held on Saturday, April 14, 2012 at Student Center East.

The Retirement Planning Conference is intended to assist UIC faculty, staff, and families in planning for retirement by providing information and access to resources. Retirement planning can never start too soon. Whether you are planning on retiring in three years or thirty years the seminars offer information that assists you in preparing for your retirement. The 400 people in attendance this year were welcomed by Maureen Parks, Executive Director and Associate Vice President, University Human Resources. Next, a presentation on the State of Illinois Retiree Health Plan with insight into the Retirement Steps and Timeline was addressed by Tim Gavin from University Payroll and Benefits Services.

State Universities Retirement System of Illinois (SURS) counselors conducted workshops and seminars covering a wide range of topics for planning and managing your retirement benefits. Representatives of Fidelity and TIA-CREFF provided insight into investment strategies and income distribution at retirement. State Universities Annuitants Association UIC UNITED, UIC Chapter of SUAA representatives were available to discuss protecting your retirement benefits, while other presenters discussed benefit impact on social security and challenges of pension reform.

Of greatest value reported by attendees were the Retirement Planning Expo Fair breakout sessions and the wealth of printed information distributed on arrival.

For more information access the following links:
Retirement Planning Conference http://www.uic.edu/depts/hr/Special_Programs/retirement_conf.shtml
Websites of Interest for Illinois Retirees and the Retiree Guide:
Websites of Interest for Illinois Retirees
The Retiree Guide
For information on protecting your retirement benefits and membership contact SUAA http://www.uic.edu/orgs/suaa/

26 Mayıs 2012 Cumartesi

UIC Retirement Planning Conference - Saturday April 14, 2012

To contact us Click HERE
UIC Human Resources, University Human Resources, and the Benefits Service Center are offering a FREE Retirement Planning Conference April 14, 2012. Space is limited. The conference includes a series of presentations for university employees.
Presenters for the conference are as follows:
Central Management Services (CMS)
Fidelity Investments
State Universities Annuitants Association Chicago Chapter (SUAA)
State Universities Retirement System (SURS)
TIAA-CREF
UIC Benefits Service Center
UIC Retiree Panel
Registration is required and is available in NESSIE.Further information regarding Retirement Planning Conferences can be found at Retirement Conference 2012 or you can visit NESSIE for descriptions of these seminars, the event schedule and online registration. This event is sponsored by UIC Human Resources, University Human Resources, the Office of the Vice Chancellor for Administrative Services and UIC United, UIC Chapter of SUAA.
____ Retirement and Investment Plans - Information on the University’s retirement and investment plans is provided on NESSIE, Retirement & Investment Plans or by contacting the Campus Benefits Service Center at 6-6471.
____ FREE 403(b) Counseling - One-on-one counseling is offered by the representatives of the 403(b) investment companies, Fidelity and TIAA-CREF. Please visit Retirement One-on-one for a list of upcoming counseling dates at UIC and to set up a counseling appointment.

Information Alert: HR Policy Updates

To contact us Click HERE
Below are updates on a few items which you should be aware of:

1. Policy 202-02 – Academic Hires - Board of Trustees Biosketches . Changes to the policy per the Board of Trustees Office which clarifies those positions which must have prior Board of Trustees approval. HR Policy 202-02

2. Policy 206-01 – Hourly-Faculty/Clinical/Research Employees . Policy is updated to require job end dates on all Hourly appointments. HR Policy 206-01

3. Position Classification Listing (Primary Source Verification of License) - Position Listing, of positions requiring Primary Source Verification of their license, has been updated. Many positions, working in or having appointments in the University of Illinois Hospital, require a valid license in order to perform their job duties. Only the pclasses identified on this list are reviewed by Campus HR as to whether Primary Source Verification of the individual’s professional license has occurred prior to starting their job and upon license renewal time. Primary Source Verification Listing.

Please refer your questions to Faculty Affairs HR for Faculty related issues (FAHR@uic.edu ext. 5-2412); for other employee groups contact Jack McEnery (jmcenery@uic.edu ext. 6-3581).

Information Alert: Separation Process Improvement

To contact us Click HERE
In an effort to improve the timing and completion of separations from the University, UIC HR and Faculty Affairs HR have established an e-mail notification system for colleges and business units. At the time a separation comes out of hibernation in the HR Front End (HRFE), an automated e-mail will be sent to the HRFE transaction initiator so that the next steps in the separation process can be started. The system will be put into production on 4/16/2012 for monthly employees and 4/19/2012 for bi-weekly employees.

For HR Front End technical questions, contact the HR Help Desk at (312) 413-4848 or uichrhelpdesk@uillinois.edu
Questions about Faculty may be directed to Faculty Affairs HR, (312) 355 – 2412, or FAHR@uic.edu
Questions about Academic Professional and Civil Service employees may to directed to UIC HR, (312) 413-3490 or uichrahr@uillinois.edu

Information Alert: Summer 2012 Graduate Appointments

To contact us Click HERE
Roseanda Police Hall,  Associate Director, HR Service Center

For processing Summer Graduate Appointments, please note the following instructions.

Use 5/16/12-8/15/12 dates only, no exceptions
  • Job cannot begin before 5/16 and must end by 8/15
  • Positions can have start and end dates in between the above two dates
Use “SM” suffix on jobs

Use position class codes CDSAA, CDSHA, CDSGA, or CANKA (Pharmacy Externs)

HR Front End transactions for Graduate reappointments only are applied at the College level
  • Other HR Front End transaction types such as New Hire, Add Job, etc. will be applied in Campus HR
  • All Hospital and Health Science Systems (formerly Medical Center) graduate appointments should be initiated on a Transaction Request Form via Online Services. 
Graduate Assistants with GRAD ASST or GRAD TCH ASST titles and a total FTE between .25 and .67 are covered by GEO
  • Letter of Offer/Notice of Appointment is required
  • Template is found on the UIC HR website under HR Forms:
    http://www.uic.edu/depts/hr/quicklinks/hrforms/Template%20for%20Assistantship%20Letters%20of%20Offer.doc
The Recommendation and Authorization for Hiring Approval (RAHA) is:
  • Required for newly hired graduate assistants 
  • Not required if the graduate assistant was employed in the Spring 2012 semester
Verify that the graduate assistant’s visa expiration date is current for the appointment period before initiating the HR Front End transaction

The Summer Exception process does not apply to Grad Assistants - the Summer Exception form is not required.

Adding Grad hourly jobs:
  • Attach offer letter if available, otherwise add job comment in HRFE transaction stating period of grad hourly job and estimated work hours per week. This is to help monitor the total hours a GA is eligible to work.
Submit HR Front End separation transactions for those graduate assistants or grad hourly appointments who have graduated.

NOTE: All Graduate tuition and fee waivers are taxable unless exempt under the Internal Revenue Code. Code IRC §117 allows exemption from taxation of tuition and fees for waivers above $5,250 for individuals conducting teaching or research activities. Grads who are appointed an assistantship during the summer must meet the summer graduate assistant tuition waiver guidelines to receive a summer waiver. Grads who held an assistantship during the Spring term will receive the same type of tuition waiver in the summer if they do not hold a qualifying summer graduate assistant appointment.

Graduate Assistant Processing Resource Links:
Information for Graduate Assistantships and Graduate Hourly:
http://www.uic.edu/depts/hr/support/jobaids/GA%20job%20aid.pdf
HR Front End Transaction – Graduate Reappointment:
http://www.uic.edu/depts/hr/support/jobaids/HRFE_Grad_Reappointment_032010.pdf
Graduate Minima:
http://www.uic.edu/depts/hr/ahr/minimagrad.shtml
Information on Taxation of Graduate Assistant & Pre-Professional Graduate Assistant Tuition waivers: http://grad.uic.edu/cms/?pid=1000945

For Questions:
Regarding campus graduate appointments contact Ashley Sefcik at asefci1@uillinois.edu, 312-996-7606.
Regarding Hospital and Health Science Systems new graduate appointment processing contact Maria Robinson at (312)996-3211, mborja@uillinois.edu  or Teri Blain for grad reappointments at terilynb@uic.edu, 312-413-1476.
HR Front End questions contact the UICHR Help Desk, uichrhelpdesk@uillinois.edu, 312-413-4848.

Information Alert: Academic Vacation and Sick Leave (AVSL) Reporting May 2012

To contact us Click HERE
Roseanda Police Hall, Associate Director, HR Service Center
Angela Yudt, Director, Faculty Affairs HR

 The following information is about reporting Academic Vacation and Sick Leave (AVSL) in Banner. Please forward to all appropriate individuals in your unit who maintain PEALEAV or who answer questions regarding AVSL reporting.
An AVSL on-line course will be available in May and a Q & A Session is scheduled for May 23, 2012. To register for the Q & A session, go to https://www1.gotomeeting.com/register/777535648.
Resource materials are available on the UIC Human Resources website at
http://www.uic.edu/depts/hr/support/AVSL/index.shtml.

 Mass communications will NOT be sent to affected employees. Therefore, if you have not already begun to collect vacation and sick leave usage, you may wish to share the information below with your affected academic employees.

 As a reminder, University policy requires that AVSL be reported twice a year, in May and in September. Units should be collecting AVSL usage from employees in preparation for the first 2012 reporting period. This is particularly important for those leave-eligible employees who may be leaving campus May 15, 2012.

 The two AVSL reporting periods will be: August 16, 2011 through May 15, 2012, and May 16, 2012 through August 15, 2012. Because the University must report its liability to the State in June, it is critical this report be done for both 9/12 and 12/12 month employees.

 AVSL usage information should be entered into Banner beginning May 16, 2012 and no later than June 6, 2012 for the first reporting period.
As a reminder, employees should not be entering their own leave usage in Banner. If one individual enters usage for all Academics in that unit, department, and/or college, a different individual must be identified to enter usage for that person. There are no exceptions to this process.

 Remember that your employees should report any leave taken in hours, keeping in mind that one full-time day equals 8 hours. For example, if your full-time employee used 10 vacation days and 2 sick days; you would report 80 hours of vacation leave used and 16 hours of sick leave used. As a reminder, Academic employees who are not eligible for overtime should be reporting absences in half- and full-day increments only (except when leave is taken under the Family and Medical Leave Act). Absences in increments less than half- or full-days should not be charged against vacation or sick leave balances. Part-time and alternative schedule employees report absences as appropriate based on their schedule. Generally speaking, the employee reports either half-day or a full-day based on their scheduled hours for the day.

 Please note: When an employee separates from the University, departments are requested to use the same process in order to bring leave balances current for payout purposes.
If you have any questions, please contact:
UIC Human Resources, (312) 413-3490 uichrahr@uillinois.edu
Faculty Affairs Human Resources, (312)355-2412 or fahr@uic.edu
UICHR Help Desk (312) 413-4848 or uichrhelpdesk@uillinois.edu

23 Mayıs 2012 Çarşamba

Whites Account for Under Half of Births in U.S.

To contact us Click HERE
The New York TimesBy SABRINA TAVERNISE Published: May 17, 2012 WASHINGTON — After years of speculation, estimates and projections, the Census Bureau has made it official: White births are no longer a majority in the United States. Non-Hispanic whites accounted for 49.6 percent of all births in the 12-month period that ended last July, according to Census Bureau data made public on Thursday, while minorities — including Hispanics, blacks, Asians and those of mixed race — reached 50.4 percent, representing a majority for the first time in the country’s history. Full Story: http://www.nytimes.com/2012/05/17/us/whites-account-for-under-half-of-births-in-us.html?nl=todaysheadlines&emc=edit_th_20120517

Document ties Warren kin to Cherokees

To contact us Click HERE
The Boston GlobeApril 30, 2012|Noah BiermanA record unearthed Monday shows that US Senate candidate Elizabeth Warren has a great-great-great grandmother listed in an 1894 document as a Cherokee, said a genealogist at the New England Historic and Genealogy Society.The shred of evidence could validate her assertion that she has Native American ancestry, making her 1/32 American Indian, but may not put an end to the questions swirling around the subject.Intense focus on Warren’s heritage comes as the Democrat has faced several days of scrutiny about whether she has represented herself as a minority in her academic career.Full Story: http://articles.boston.com/2012-04-30/metro/31488941_1_cherokee-nation-elizabeth-warren-official-dawes-commission-rolls

Changing face of America

To contact us Click HERE
The HillBy Armstrong Williams - 05/18/12 07:01 AM ET There are more minority children than white children being born today. This is a game-changer in America. It is difficult to argue for affirmative action for a growing minority population that will soon become the majority. What will become important is the concept of equality based on the 14th Amendment; as America become a society of diverse ethnic groups, none of which has a majority. It is important that our government doesn't favor any particular ethnic group nor discriminate. Full Op-ed: http://thehill.com/blogs/pundits-blog/economy-a-budget/228263-changing-face-of-america

White supremacist to be sentenced in Ariz. bombing

To contact us Click HERE
By JACQUES BILLEAUD, Associated PressPHOENIX (AP) — A white supremacist is set to be sentenced Tuesday in a 2004 bombing that injured a black city official in suburban Phoenix.A jury in February found Dennis Mahon, 61, guilty of three federal charges stemming from a package bomb that injured Don Logan, who is black and was Scottsdale's diversity director at the time, and hurt a secretary.The explosive detonated in Logan's hands on Feb. 26, 2004, in Scottsdale's Human Resources Complex.Full Story: http://www.google.com/hostednews/ap/article/ALeqM5jYta5buyBCLxCzfGR4xz_nD4Hh4g?docId=a60ce23722b54c7ab7b190f1819edf52

REACTIONS TO THE HOUSE SUBCOMMITTEE HEARINGS ON OFCCP .... FROM SOMEONE WHO HAS BEEN THERE

To contact us Click HERE
OFCCP Blog SpotWednesday, May 16, 2012by Harold M. Busch, Vice President - Government Relations - DCI ConsultingFor those that don’t know me, I am a retired Member of the Senior Executive Service of the federal government, where I served as the Acting Director and Deputy Director of OFCCP and as the National Director of Operations and Acting Regional Director of OFCCP from 1995-2005. I was asked to provide my general reactions to the House subcommittee hearings on OFCCP held April 18, 2012. In watching the hearings unfold, I couldn’t help but think about a similar Congressional hearing on OFCCP that occurred in 1996. I was with the agency during this hearing and actually participated in it.Full Story: http://ofccp.blogspot.com/2012/05/reactions-to-house-subcommittee.html

17 Mayıs 2012 Perşembe

Pepsi Pays for Conducting Criminal Background Checks

To contact us Click HERE
Pepsi has paid a total of $3.13 million and agreed to make job offers to rejected candidates to resolve a charge of race discrimination filed by the EEOC where they allege that Pepsi's use of criminal background checks resulted in disparate impact against minorities.

The EEOC alleged that more 300 African Americans were adversely affected when Pepsi used criminal background as a reason to disqualify candidates. Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense.

The EEOC alleged that it was not job related for Pepsi to screen out dock worker applicants for non violent offenses, and that if applicants are convicted thieves, forgers and the like, they should not have been excluded. “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII,” said Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office. “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”



http://eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm

NLRB General Counsel Wants More Power

To contact us Click HERE
NLRB Announces:

"Citing concerns about delays in processing grievances through parties’ contractual grievance-arbitration procedures, NLRB Acting General Counsel Lafe Solomon has proposed that the Board consider revising the existing policy of deferring charges to arbitration in certain circumstances.

When it is anticipated that charges alleging violations of Section 8(a)(1) and (3) – which include discharges or other discrimination based on union activities -- will not be resolved or arbitrated within a year, Acting General Counsel Solomon would urge that the Board not defer the case, but rather decide the case on the merits. He would also apply the new policy to cases that have already been deferred for more than one year. Mr. Solomon specifically targeted cases involving issues of unlawful discrimination and interference with workers’ protected rights because they are significant and uniquely within the Board’s expertise.

In a memo issued today, Acting General Counsel Solomon directed Regional staff to investigate whether there are significant backlogs or other probable delays in the grievance-arbitration process before making a determination to defer a case alleging Section 8(a)(1) and (3) violations. If the arbitration of this claim is likely to be delayed by more than a year, the Region should not defer the matter to the grievance-arbitration process. Instead, it should fully investigate the charge and, if meritorious, send the case to the Division of Advice at NLRB headquarters for further action. Regional offices should also regularly monitor deferred cases, and, if the case has not been arbitrated or resolved within a year, the Region should consider the parties’ positions and submit the case to the Division of Advice if it determines that the case is meritorious or that continued deferral is appropriate based upon the circumstances of that particular case.

This directive applies only to union workplaces where grievance-arbitration procedures are spelled out in a collective-bargaining agreement. It applies to all pending cases, including those that have already been deferred for more than a year. The directive will not apply to typical Section 8(a)(5) cases, which often involve allegations of contractual violations, that are normally better left to resolution through arbitration.

The National Labor Relations Board has a long-standing policy to defer charges made by employees to the parties’ grievance-arbitration procedures contained in a collective bargaining agreement, as long as certain conditions are met. Deferral of cases has been done in order to promote collective bargaining and the private resolution of disputes, presumably more quickly than through the NLRB’s administrative process. The Board later reviews the resulting arbitration decision to ensure that it meets certain standards.

The Acting General Counsel’s goal, as described in the memo, is to ensure a prompt resolution of disputes in those cases in which backlogs hold up the process for many years. Acting General Counsel Solomon wrote, “Excessive delays can render enforcement of a Board order ‘pointless and obsolete.’ The circumstances may have changed so much at the job site that by the time a Board order issues it would be impossible to effect meaningful compliance, and the Charging Party would be left without a remedy. This lack of a remedy can erode public respect and confidence in the law.”"

E-Verify Self Check is Active

To contact us Click HERE
USCIS announced today that Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status, is now available nationwide.

In conjunction with this announcement, USCIS will be hosting a national stakeholder engagement on Self Check, February 9 at 3:00pm Eastern Time. During the session, USCIS will describe and demonstrate the service, discuss its performance, and debut the new Self Check webpages and promotional materials.

For information, visit: www.uscis.gov/SelfCheck

Omaha Ordinance in Jeopardy

To contact us Click HERE
In an opinion by the State Attorney General, Omaha's new ordinance which protects against discrimination due to sexual orientation may be in jeopardy. In the opinion, the attorney general reasons that that ordinance is beyond the scope of authority granted to a municipality by the state of Nebraska. See the opionion here:http://www.omaha.com/assets/pdf/OW707254.PDF#attorney-general-s-opinion

NLRB "Ambush Elections" Are Struck Down

To contact us Click HERE
The U.S. Chamber of Commerce has received a decision from the U.S. District Court for the District of Columbia which has ruled that the Ambush Election Rule is invalid "because no quorum ever existed for the pivotal vote in question." The ruling was a decision on the Chamber's motion for summary judgment. Appeal is anticipated. http://www.chamberlitigation.com/chamber-commerce-et-al-v-national-labor-relations-board

13 Mayıs 2012 Pazar

Pitfalls of Monitoring Emails

To contact us Click HERE
Most employers have established a policy regarding surveillance in the workplace. Typically, this type of policy states that the employees have no expectation of privacy and that telephones, internet use and emails may be monitored. In Georgia, an employer is permitted to monitor phones, email and internet use. However, case law is beginning to emerge that interpets when an employer may cross a line in interfering with an employee's privacy, such as where an employee uses a private email address for communications while using a company-owned computer, posting on social networking sites such as Facebook, etc.

A New Jersey case is illustrative of the challenges and evoluation of legal issues in this electronic age.  In Stengart v. Loving Care Agency, the New Jersey Supreme court held that an employer was not permitted to read e-mails between an employee and her lawyer, even though she sent them using her work computer. The case is interesting because ordinarly, since the computer belonged to the employer, it had a right to monitor activity on such computer and therefore there was no invasion of privacy.

In addition, most company policies addressing surveillance do not specifically mention whether the use of a personal email address would be prohibited or would be subject to monitoring. And, the email communication was between the employee and her attorney, which raises other issues, such as the attorney-client privilege.

Steingart was using a personal, password-protected web-based e-mail account. She also thought that the e-mails, sent to her attorney (and related to a potential employment discrimination suit against her employer) were private. When Steingart later filed a discrimination suit against her employer, the employer retrieved the emails and attempted to used them as evidence, but the court refuse to allow them into evidence.

“[The employee] plainly took steps to protect the privacy of those e-mails and shield them from her employer. She used a personal, password-protected e-mail account instead of her company e-mail address and did not save the account’s password on her computer. … In addition, the e-mails bear a standard hallmark of attorney-client messages. They warn the reader directly that the e-mails are personal, confidential, and may be attorney-client communications,” the court said.

The court also found that the employee “had a subjective expectation of privacy in messages to and from her lawyer discussing the subject of a future lawsuit. In light of the language of the policy and the attorney-client nature of the communications, her expectation of privacy was also objectively reasonable.”

So, it is important that employers clearly set forth when employees do not have an expectation of privacy and that all modes of communication made from company telephones, BlackBerrys, PDAs, email accounts or from a company-owned computer may be subject to search and that no expectation of privacy exists in using such modes of communication.

Restrictive Covenants

To contact us Click HERE
With the economy lagging, and jobless rates still hovering at around 10%, many employers are finding that having employees sign a restrictive covenant agreement is a good idea.  Restrictive covenants can take several forms, including a covenant not to compete (non compete), a confidentiality provision, a covenant not to solicit co-workers to leave their employ and a covenant not to solicit customers.  In many instances, an employer will include one or move restrictive covenants in an employment agreement.

In Georgia, the general rule is that a restrictive covenant in an employment agreement is enforceable when it is limited in scope, duration and geographic territory.  Determining a reasonable scope, duration or geographic territory is usually a case-by-case analysis.  Restrictive covenants that lack reasonable scope, duration or a geographic territory are ordinarily deemed unenforceable.  In an employment context, Georgia courts may not "blue pencil" an agreement, meaning they cannot rewrite the restrictive covenants to scale back the duration, if it's too long, for example. Instead, restrictive covenants tend to be an all or nothing proposition; either they are written properly under Georgia law or they are unenforceable in their entirety.

So, employers looking to retain customers, protect confidential information, and who want to retain valued employees should consider having counsel draft a restrictive covenant agreement for all employees.  Continued employment may be sufficient consideration for signing the agreement, so there's no problem with asking an existing employee to sign one.

Obviously, the value of a well-written restrictive covenant agreement is to deter and prevent any employee who is laid off or quits from going down the street to a competitor with the promise to bring on the company's customers or to bring other staff with them.  In addition, a confidentiality provision can prevent a former employee from taking customer lists, pricing and other sensitive data to a competitor. 

Also, since the job market is tight, some former employees will stop looking for another job and will instead start their own business, essentially becoming a new competitor.

In short, if a company wants to hold onto its market share or to valued employees and customers, having employees sign a restrictive covenant agreement makes good business sense.

Weighing in On Weight Discrimination

To contact us Click HERE
In 2009 and 2010 the Equal Employment Opportunity Commission (EEOC) received the highest number of charges of employment discrimination than ever before.  The increase in discrimination charges is likely the product of a poor U.S. economy.  Employees being laid off from work are turning to the EEOC, complaining that their employer's decision to separate them from employment was motivated by unlawful discrimination.  Of course, not every employment decision is based upon discriminatory motivation or animus.  To the contrary, companies struggling to make ends meet often are left with no choice but to reduce the number of employees on the payroll. In many instances, persons selected for layoffs are just the victim of lagging sales or cash flow problems.

Of late, there has been discussion about adding weight to list of protected classes (such as age, sex, religion and race) under federal employment discrimination laws (some states already protect weight under their discrimination laws, such as Michigan).  For example, a potential employee files an EEOC charge alleging that an employer failed to hire him/her because he/she is overweight.

A few years ago, Obesity, a journal, reported that discrimination based on weight increased 66% in the past decade, up from about 7% to 12% of U.S. adults.

Weight is already protected under federal law.  Under the Americans with Disabilities Act (ADA), a person suffering from diagnosed obesity may be considered "disabled" and would be afforded protection under that law.  In addition, there have been cases brought under Title VII of the Civil Rights Act of 1964 where plaintiffs argued that weight standards imposed by an employer that were applied differently to men and women was discriminatory on the basis of sex since such standards adversely impacted women.

Like race, weight is something that is immediately identifiable.  An employer may meet a potential employee and determine that because he/she is overweight, that the person will be lazy or unhealthy.  Further, an employer may simply choose not to hire an overweight person on the basis of customer disdain or for any other reason.  Some commentators argue that weight should not be afforded protection under law since it is a mutable characteristic (a person can lose weight with a better diet and exercise), but in some instances weight gain is a result of medication or a disorder, which is not something that the person can control.

No surprise: EEOC charges way up

To contact us Click HERE
The EEOC reported last month that the number of discrimination charges was at record levels. The report was not a surprise given the high unemployment rate, continued company layoffs and general economic climate.

A greater number of EEOC charges also means that it is likely that a greater number of EEO lawsuits will be filed in the courts. Now more than ever, it is imperative for employers to be cognizant of the potentail for cases of this sort being filed against them, to understand the nuances involved in the EEOC’s handling and prosecution of such cases, and to be prepared to timely challenge any attempts by the EEOC to overreach.
Our firm is recommending that employers engage in proactive self-audits, in order to seek out and eliminate vulnerability. We do not want our clients to be among the list of targeted businesses, nor do we want our clients to be found in violation of any laws, paying fines, being sued, etc. We engage in an interactive interview process, examine records and review policies and procedures to ensure that a company is compliant with the various employment laws.

A self-audit can mitigate potential penalties and fines that a government investigator might uncover. In addition, the audit process can lead to identifying weak areas and problems with record keeping and certain employment practices. In turn, the audit process can lead to the development of "best practices" and can function as a long-term cost savings, as a single lawsuit can cost over $100,000 to defend.
If your company hasn't reviewed policies and procedures in some time or hasn't had an audit, now is a good time to do so.

What's the Real Cost?

To contact us Click HERE
With the increase in Federal agency initiatives targeting employers, such as I-9 audits or independent contractor classification audits, employers face increased scrutiny. In addition, disgruntled current or former employees are free to lodge complaints with State and Federal agencies that may spark an investigation. In either case, an employer faces potential liability, as very few employers are capable of keeping up with the myriad of employment laws. In reality, most employers try to remain compliant with employment laws, but if the government looks hard enough, it is likely to find a violation or two.
What’s the cost of a claim? It might be fines for incomplete I-9s, unpaid taxes for misclassification of workers, overtime for unpaid wages or a need to change employment practices. But, the biggest cost is usually legal fees. It is a best practice to hire counsel when an employer faces a government investigation, employee claim or audit. Contacting counsel before reacting/responding to a claim is prudent, but it does create an expense. Moreover, a disgruntled employee is likely to have an attorney herself. When an employee has an attorney, that attorney will likely make a demand for some kind of monetary compensation for whatever wrong the employee alleges. The demand ordinarily includes the payment of that employee’s attorney’s fees.
Most Federal discrimination laws allow for the recovery of attorney’s fees to the “prevailing party”. In a case that goes to litigation, this can mean that the employee’s attorney will ask the court to award “reasonable attorney’s fees”. Typically, the employee’s will ask that the court award attorney’s fees in excess of $100,000. Even in cases that settle, employees expect their attorney’s fees to be paid by the employer, which again can add up to significant amounts of money even in a case that is considered suspect.
In a recent Federal employment discrimination case, a jury awarded an employee $110,000 in damages for the employer’s retaliation for her protesting unlawful employment practices. The employee asked the court for an award of attorney’s fees. Although the employee also brought two other unsuccessful claims (one for gender discrimination and one under the FMLA) that the jury rejected, the judge in that case awarded the employee $250,000 in attorney’s fees and expenses. Think about it: her attorney’s fees award more than doubled the amount of actual damages that the jury awarded to her. The judge reasoned that the winning claim (retaliation) was “intertwined” with her other discrimination claims such that she was entitled to all of her attorney’s fees.
What is the lesson learned from this illustrative case? Be proactive as an employer. Conduct regular training for both employees and management, including on topics such as harassment. In addition, conduct a self-audit of internal recordkeeping, policies and procedures, etc. If you find violations on your own, it’s cheaper and easier to correct with the assistance of counsel than when your company is facing a claim or audit. Finally, while not all claims are avoidable despite best efforts, if the company has taken proactive steps such as those mentioned above, it can mitigate its exposure and can reduce the number of claims. After all, paying someone else’s attorney’s fees doesn’t exactly help the bottom line.

Starting This Blog

To contact us Click HERE
I called my local office of the Department of Labor the other day. I wanted the number to my state capital's Department of Labor's office so I could get a copy of the FMLA Federal Regulations. BTW, they will send you a free copy, just for the asking.
Anyway, I was talking to the agent there and he asked me where I worked. I told him, "The Post Office". He then told me that he gets more calls and complaints from Postal employees than from any other business. He then tells me that if I needed anything solved, then I'd have to see my steward. I told him that I am a steward and that is why I needed a hard copy of the FMLA Regulations.
The Agents of the Department of Labor can, but won't investigate the Postal Service for violations of the FMLA Act. The problem is that these are U.S. Government agencies we are dealing with. If the Department of Labor recommends that the USPS be cited for violations in the law, then they turn the case over to the Justice Department for prosecution. When the Postal Service finds out they are being taken to court, they call the Justice Department to represent them. So the Justice Department ends up fighting against itself and they won't do that.
So who can you turn to fight the USPS when it comes to FMLA violations, ME! Your friendly, co-working, Union Steward. On this site I'm going to try to share some of the things I've learned about FMLA from fighting management for the past 9 years as a Union Steward. I hope it helps.

Incapacitated

To contact us Click HERE
The number one reason FMLA is there for employees is to protect them while themselves, or an immediate family member is "Incapacitated". The definition of Incapacitated is that you are unable to perform one or more of your job functions. Bending, lifting, standing or even sitting, if it is part of your job function and you cannot do it because of a medical condition you have, then you are incapacitated.
If your family member has a medical condition that makes it so they cannot do things for himself/herself such as basic hygiene, transportation or eating, then you can get FMLA Protection to take care of that person. (Don't try to be a jerk and apply this to a new born baby. It has to be a medical condition) ;-)
When you get your doctor to fill out your form for FMLA Certification, make sure the doctor uses the word "Incapacitated" as the reason you need to be out.

The Two Day Rule

To contact us Click HERE
The FMLA Regulations are available in PDF format and you can download them from http://www.nalc.org/depart/cau/fmla.html This is the National Association of Letter Carriers web site and they have a lot of good information here.
When you download the Regulations, in Adobe Acrobat, use the search feature and look for "Two Business Days". You will find that the FMLA Regulations revolve around Two Business Days and you will find 21 results.
The most important thing you will find is that management Must let you know within "two business days" after turning in your FMLA Certification if it has been accepted or not. 825.208(b)(1) If they haven't let you know by then, a grievance should be filed to have it marked as approved. I usually give them 3 week days so an arbitrator can see I've given management the benefit of the doubt.
If you return from an illness and you want to clam this as an FMLA absence, then you must let management know within "two business days".
825.306(b) gives that an employee has 15 days to provide the FMLA certification after management is given notice the leave is for FMLA reasons.
If you are in trouble, download the FMLA Regulations PDF and protect yourself.

FMLA Certification Form

To contact us Click HERE
The FMLA Certification Form does not have to be the WH-380 that the USPS likes to use. In fact, it doesn't have to be a "Form" at all. If the doctor gives all the pertinent information on his letterhead and signs it, that can be just as good. Regulation 825.306 explains what information the doctor needs to provide. It also explains that management cannot ask for more information.
I had an FMLA Regional Coordinator send a letter to an employee telling him to resubmit for FMLA certification within 10 days and that there needed to be documentation from the doctor explaining why the employee's leave had to be connected to a weekend every time he was out.
I had the employee resubmit the FMLA but told him not to give the coordinator the extra information he asked for. Also, I filed, and won, a grievance because it was illegal for the coordinator to ask for that extra information plus ask for re-certification to be given within 10 days instead of 15. I got the employee $40 for the office visit plus mileage.

FMLA Forms

To contact us Click HERE
The best FMLA forms are the ones provided by the APWU. Here is a link to their FMLA Forms. http://www.apwu.org/dept/ind-rel/fmla/fmlaforms.htm Forms Numbers 2 and 3 are the most common ones to use. Form 2 is for the employee's own serious health problem. For 3 is for the employee's family member.
When an employee comes to me and wants information about FMLA and Certification, I print out 3 copies of the form. Then I take one copy and fill it out for the employee. I'm careful to write down in the margins that this form is just an example or a sample but not a diagnosis. this way if management ever gets their hands on it, then I'm not in trouble for practicing medicine without a licence.
I'll give you an example of how I fill out form number 2 using Migraine Headaches as the condition. The first line is the employee's name, that's easy. The second line, the doctor checks the number of the condition. Those numbers are explained on the second page of Form 2. For Migraine Headaches, the doctor would check next to the number 4.
The next line gives doctors the most trouble. They cannot figure out how to explain why the condition is number 4 without giving a diagnosis. This is what they should put down for a Migraine. "Periodic severe headaches that Incapacitates the employee." Remember, FMLA Coordinators are idiots and everything must be explained in small words. Also, the Key Word in the description is "Incapacitates". Make sure that word is used.
Date commenced.....When the doctor diagnosed the problem
Probable Duration....Migraines are a Life long problem
Present Duration.....Only filled out if you are out sick that day.
The next box: Will the employee be out intermittently? "Yes" Probable time? "One to three days per episode", or however long you will really need.
Next Box: If the condition is chronic (Migraines are) then the frequency? One or Two episodes per month / Quarter / Year. Whatever applies, but be sure to give yourself one more out than you really need. If you go over the number of times the doctor spells out in the FMLA Certification, then management will make you resubmit your FMLA Certification.
Next Box: Treatments? Medicine and Bed Rest when condition flairs up.
Next Box: Is the employee able to do his/her job? "YES!" Make sure you say "yes" on this or the ELM's rules will take effect and you will have to get doctor certification to return to work after every absence.
Lastly the doctor MUST sign, date and give his address and phone number.
This is VERY Important: Why did I print out 3 copies of this? One copy I filled out, the other two are for the doctor. IF he/she messes up on one of the FMLA forms, DO NOT use White-Out or scratch the mistake out. Start over! Management will say that the employee changed the form and send you back to the doctor's office. IF your doctor's office does everything on a computer now, including fill out these forms, then when he/she prints out the form, make sure they sign the printed copy.
Form Number 3 is very similar to Form number 2 except for one major addition."Does the patient require assistance for basic medical, hygiene, nutritional needs, safety, or transportation?_______ If no, would the employee's presence to provide psychological comfort be beneficial to the patient's recovery?____ Note the probable duration of the need."This means that you can be off to take your mother to her doctor's visit if she has a medical condition that does not allow her to drive. You can even go to feed her or hold her hand when she is having a bad day because of advanced Alzheimer's or something like that.

6 Mayıs 2012 Pazar

ICE turning up the heat

To contact us Click HERE
Last week, the U.S. Immigration and Customs Enforcement ("ICE") announced a new initiative targeting over 1000 employers in all 50 states.  This initiative will include site visits for document inspections.  According to ICE, "the inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny".  Essentially, this means that ICE is stepping up its efforts to audit employers.  Any company is potentially subject to being audited. 

Over the past few years there has been a shift from seeking to punish undocumented workers to the pursuit of employers that knowingly hire undocumented workers or who fail to comply with immigration laws.  This trend began with employer audits in July 2009, when ICE announced more than 650 firms were being investigated. Another 1,000 notices were issued in November 2009, with 200 more in March and an additional 500 notices of inspection in September 2010.

A concern for employers should be ensuring the form I-9 is properly completed each time it hires a new worker.  The I-9 form is used to verify that a worker is authorized to work in the U.S. and is to be completed within three days of initial hire.

If an employer fails to properly complete an I-9 or does not retain I-9s for all employees, it can be subject to ICE enforcement. Civil fines for violations range from $100 to $1,100 for each violation, and fines for substantive violations - employing an unauthorized worker - range from $375 to $16,000.

In line with the previous blog posting, conducting a self-audit to identity and correct any violations is the best way to avert violations.  If your company is contacted by ICE, you should contact counsel immediately.

NLRB Posting Rule and Current Status

To contact us Click HERE
On August 25, 2011 the National Labor Relations Board (NLRB) issued a final rule called “Notification of Employee Rights under the National Labor Relations Act”. The rule was to be effective 75 days from publication, putting the effective date as either November 9, 2011 or November 14, 2011 (the NLRB put out a press release creating some confusion on the effective date).

In summary, the rule requires covered employers to notify employees of their rights to engage in organized activities (concerted activity) and apprises such employees of their rights to raise complaints concerning terms and conditions of employment. For instance, the notice states that employees have a right to:

• Organize a union to negotiate concerning wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing over wages, benefits, hours, and other working conditions.

• Discuss terms and conditions of employment or union organizing with co-workers or a union.

• Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The notice requires employers subject to the NLRA to post a notice in 11x17 format much in the same way that other rights have to be posted, such as wage and hour and EEO notices. However, it also requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means, however.

Failure to post the notice may be treated as an unfair labor practice (ULP) under the NLRA. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an ULP case involving other alleged violations of the NLRA. Note that the NLRA, and this rule, apply to private employers that have an impact on interstate commerce. The NLRA specifically excludes public employers, railway and airline employers, and people who are employed as agricultural laborers. The law covers a retail or service establishment with annual gross receipts of at least $500,000. It also covers manufacturing companies that ship at least $50,000 worth of goods across state lines, or that purchase at least $50,000 worth of goods from out of state.

A copy of the poster can be found here.
But, the rule is being challenged in a U.S. District Court in Washington, DC. If successful, the lawsuit would block the notice positing requirement.  But for now, employers should presume that they are to comply with this rule.


NLRB Posting Deadline Now Delayed

To contact us Click HERE
After I posted the information on the NLRB final rule called “Notification of Employee Rights under the National Labor Relations Act”, the NLRB issued a statement on its website that:
The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.
The new effective date of the rule is Jan. 31, 2012.

So, the NLRB still intends to implement the rule.  Curiously, the NLRB made no mention of the federal court litigation challenging the rule.

Sexual Harassment Revisted

To contact us Click HERE
Sexual harassment has taken over headlines again.

First, the 20th anniversary of the Anita Hill/Clarence Thomas controversy just passed.  To rewind, in 1991 when U.S. Supreme Court Justice Marshall decided to retire, then-President George Bush appointed Thomas to the U.S. Supreme Court. During the the Senate's confirmation process, Hill went public with her allegation that Thomas had sexually harassed her while both worked for the Equal Employment Opportunities Commission (EEOC).


Second, in the past few weeks, Republican presidential hopeful Herman Cain's campaign has had to answer charges that he sexually harassed several women while he was the head of the National Restaurant Association in the 1990s.


Sexual harassment has always existed in the workplace, although it receives much more attention in legal circles than it does in mainstream dialogue.  By law, a company is supposed to train and educate management and staff on what harassment is, what do if a worker is a victim or witness to harassment, and how the company will handle the report or complaint.  Generally, a company should have a written anti-harassment policy covering all forms of harassment, including sexual harassment.  Typically, a company puts such a policy in an employee handbook or on a company intranet.  The key elements of an appropriate investigation include:

  • interviewing the alleged victim, harasser and any witnesses; and
  • taking prompt remedial action if the allegations can be substantiated.
The law also creates a strict liability situation (i.e., no defense) in some situations, such as where a supervisor is the alleged harasser and the company has failed to provide any form of policy or guidance on how to report the conduct.  A company can also be held liable where a member of management learned of alleged harassment and failed to take action to investigate or address the complaint.
A best practice is for a company to bring in outside assistance, such as legal counsel, to perform annual training on harassment and to review existing policies and procedures.  During training, it is a good idea to explain the current state of the law, to review the company's anti-harassment policy and to reiterate a zero tolerance for any form of harassment.

What's the Real Cost?

To contact us Click HERE
With the increase in Federal agency initiatives targeting employers, such as I-9 audits or independent contractor classification audits, employers face increased scrutiny. In addition, disgruntled current or former employees are free to lodge complaints with State and Federal agencies that may spark an investigation. In either case, an employer faces potential liability, as very few employers are capable of keeping up with the myriad of employment laws. In reality, most employers try to remain compliant with employment laws, but if the government looks hard enough, it is likely to find a violation or two.
What’s the cost of a claim? It might be fines for incomplete I-9s, unpaid taxes for misclassification of workers, overtime for unpaid wages or a need to change employment practices. But, the biggest cost is usually legal fees. It is a best practice to hire counsel when an employer faces a government investigation, employee claim or audit. Contacting counsel before reacting/responding to a claim is prudent, but it does create an expense. Moreover, a disgruntled employee is likely to have an attorney herself. When an employee has an attorney, that attorney will likely make a demand for some kind of monetary compensation for whatever wrong the employee alleges. The demand ordinarily includes the payment of that employee’s attorney’s fees.
Most Federal discrimination laws allow for the recovery of attorney’s fees to the “prevailing party”. In a case that goes to litigation, this can mean that the employee’s attorney will ask the court to award “reasonable attorney’s fees”. Typically, the employee’s will ask that the court award attorney’s fees in excess of $100,000. Even in cases that settle, employees expect their attorney’s fees to be paid by the employer, which again can add up to significant amounts of money even in a case that is considered suspect.
In a recent Federal employment discrimination case, a jury awarded an employee $110,000 in damages for the employer’s retaliation for her protesting unlawful employment practices. The employee asked the court for an award of attorney’s fees. Although the employee also brought two other unsuccessful claims (one for gender discrimination and one under the FMLA) that the jury rejected, the judge in that case awarded the employee $250,000 in attorney’s fees and expenses. Think about it: her attorney’s fees award more than doubled the amount of actual damages that the jury awarded to her. The judge reasoned that the winning claim (retaliation) was “intertwined” with her other discrimination claims such that she was entitled to all of her attorney’s fees.
What is the lesson learned from this illustrative case? Be proactive as an employer. Conduct regular training for both employees and management, including on topics such as harassment. In addition, conduct a self-audit of internal recordkeeping, policies and procedures, etc. If you find violations on your own, it’s cheaper and easier to correct with the assistance of counsel than when your company is facing a claim or audit. Finally, while not all claims are avoidable despite best efforts, if the company has taken proactive steps such as those mentioned above, it can mitigate its exposure and can reduce the number of claims. After all, paying someone else’s attorney’s fees doesn’t exactly help the bottom line.