Hot Topics - November 17, 2008

FMLA: Final Regulations

On November 17, 2008, the U.S. Department of Labor published their final rule for the Family and Medical Leave Act (FMLA). The new rule becomes effective on January 16, 2009.

Several important FMLA issues are addressed in the final rule. For example, employer notice requirements have been expanded to improve communication between employers and employees. Employers will be required to provide employees with a general notice about the FMLA; an eligibility notice; a rights and responsibilities notice; and a designation notice. The final rule extends the time for employers to provide various notices from two business days to five business days.

Key rule changes also include: the definition of serious health condition; medical certification process, fitness for duty evaluations; substitution of paid leave; light duty; perfect attendance awards; employee notice requirements and waiver of FMLA claims.

The final rule also reflects the January 2008 statutory expansion of FMLA for military families. The new rule defines "qualifying exigency" with a broad list of reasons and activities including a short-term deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and any additional activities agreed to by the employer and the employee.

MSEC will address the FMLA Final Rule in several Briefing Sessions in the following locations:
Denver:
December 16, 2008
January 6, 2009

Colorado Springs:
TBA

Fort Collins:
TBA

Webinar:
January 9, 2009

Federal Contractors Required to use E-Verify

On November 14, the federal government announced amendments to the Federal Acquisition Regulation (FAR) requiring federal contractors to use the online employment eligibility verification tool, E-Verify. The amendments become effective on January 15, 2009.

After January 15, 2009 federal contracts worth at least $100,000 will contain a clause committing federal government contractors to the E-Verify System to verify that all new hires and all employees  existing and new  directly performing work under the federal contract are authorized to work in the United States. The same clause is also required for subcontracts over $3,000. Additionally, the new regulation allows federal contractors to E-Verify all existing employees, regardless of whether or not they work on the federal contract. This signifies a major change to existing E-Verify law.

E-Verify is an online system that compares databases maintained by the Department of Homeland Security and the Social Security Administration with information presented by the employer regarding the employee. If the employee's information does not match either database, the employee must go to the local agency office to remedy the discrepancy or face termination of employment.

The new E-Verify regulation will signify a major change in the way federal contractors operate. Also, many experts predict that mandatory use of E-Verify will be required in the future for all employers.

If you are a federal contractor, an existing E-Verify user, or just contemplating using E-Verify, plan to attend MSEC's briefing session, E-Verify for Everyone  volunteers, federal contractors, and players to be named later, on January 12, 2009 in Denver. For more information or to register call 303.894.6732 or visit www.msec.org.

Do You Really Know Who You Just Hired?

Inflated credentials amongst candidates for employment continue to show up, and recently a report in the Wall Street Journal highlighted that inflated credentials have also been found in the C-Suite. Over the past couple of years firms such as RadioShack, Herbalife Ltd., and Trimble Navigation Ltd., have had to confront executive staff with misrepresented credentials specifically related to education. In some cases these misstatements do not appear to be intentional; none-the-less employers have to be vigilant in their background checking or "vetting" procedures to know who they are really hiring.

Kroll, Inc., a background checking firm has found that approximately 20% of job seekers and rank and file employees have inflated their education credentials. Closer to home, MSEC's Pre-Employment Screening Service which expects to exceed 10,000 background checks in 2008 has found just under 20% of candidates misrepresent their work history, education background and social security information. Approximately 35% misrepresent their criminal history. The data is clear; employers have to be careful and thorough in vetting their candidates bringing them on board. A simple step to start getting truthful information - including from C-Suite employees--is to insist every candidate for every level job in the organization complete employment applications and undergo background checks prior to extending an offer of employment.

Affinity Groups in the Workplace

Affinity groups are alive and well in the workplace. Some estimates are that more than ninety percent of Fortune 500 companies have "affinity groups". Employers have found them effective mechanisms to extend diversity efforts and brand the organization as diverse and socially responsible. Affinity groups are formed voluntarily by employees to address issues of common interest relating to a particular characteristic such as race, gender, sexual orientation, and more recently political views, generational groups, and hobby enthusiasts.

Affinity groups can be useful in breaking down barriers between groups, addressing misconceptions and stereotypes and building better working relationships. While not new to the workplace, affinity groups have seen resurgence as organizations increasingly are made up of multi-cultural and multi-generational workforces. To keep these groups effective from an employee relations standpoint, and minimize legal liability, employers should keep the following points in mind:

• Ensure the groups are voluntary and open to all employees, not just a particular group;
• Affinity groups should not "deal with" or make employment-related decisions dealing with wages, hours and working conditions, and;
• Employers should ensure that there are established guidelines and oversight of the groups, which are applied equally to all groups.

Question of the Month - November 2008

Can Disabled Employees Be Disciplined For Performance Problems?
Yes, with careful consideration given to the basis for the action and an eye toward prospective accommodations. The Equal Employment Opportunity Commission (EEOC) recently issued an enforcement guidance on what has always been a thorny issue addressing performance and conduct issues under the Americans with Disabilities Act (A.D.A.). In its press release concerning the new guidance the EEOC acknowledged that employers "still have a high level of uncertainty about how the A.D.A. affects these fundamental personnel issues." The guidance was created to address these questions and enhance employer compliance with the A.D.A.

The guidance makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the A.D.A. does not affect an employer's right to hold all employees to basic conduct standards. Employers must, however, make reasonable accommodations that enable otherwise qualified disabled employees to meet performance and conduct standards.

The guidance reviews the A.D.A.'s requirements and explains how they govern performance and conduct standards. The EEOC provides examples from case law and scenarios that have been presented by employers and employees. It explains when and how performance and conduct standards should be applied and the role of reasonable accommodation.

Among the questions tackled in the guidance are:

• If an employee's disability causes violation of a conduct rule, may the employer discipline the individual?
• What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?
• May an employer require an employee to receive or change treatment for a disability to comply with a conduct standard?
• Should an employer mention an employee's disability during a discussion about a performance or conduct problem if the employee does not do so?
• Must an employer who has sufficient basis for requesting medical information or requiring a medical examination take such steps instead of imposing discipline for poor performance or conduct?

There are also sections dealing with attendance, dress code, drug and alcohol use, and confidentiality issues. The full text of the guidance is available at www.eeoc.gov. The EEOC has updated this document in anticipation of changes made by the A.D.A. Amendments Act which will take effect January 1, 2009.