Employee Free Choice Act, employers (union and non-union) must be prepared

The Employee Free Choice Act (EFCA), also known as the “Card Check bill” has been the top priority of unions throughout this election year. If passed, the EFCA will amend the National Labor Relations Act (NLRA) by removing previous barriers to union organizing.

President elect Barack Obama was a co-sponsor of the bill while a senator and has said that he will sign it into law if the legislation comes across his desk.

If Obama signs the EFCA, it would result in the most “sweeping” changes to the NLRA in the past 40 years. Union and non-union employers must be prepared for this law, which will make it easier for workplaces to unionize and will likely lead to a spike in union organizing activity, according to Mark Mathiason of the Gray Plant Mooty law firm.

In a recent Human Resources Executive Online article, Garry Mathiason, partner and vice chair of Littler Mendelson in San Francisco, advised:

The 2009 agenda for HR professionals must assume EFCA in some form will become law. In anticipation, employers should consider auditing conditions to determine whether they would support an organizing drive; monitoring union-organizing activities within the industry or geographical location; training management about rules associated with union organizing, potentially providing employees with information and arguments about union representation when organizing activity is anticipated and -- in some highly targeted industries -- even before receiving evidence of organizing activity; and, most of all, reviewing overall employment conditions to ensure they are competitive and the needs of employees are being addressed.

The EFCA would amend the NLRA in three major areas:

  1. The EFCA would require the National Labor Relations Board (NLRB) to recognize a labor union through authorization cards signed by a majority of employees, without the benefit of a government-supervised, secret-ballot election.
  2. It would also require arbitration if an employer and a newly certified union are unable to reach an agreement on an initial contract in a timely fashion.
  3. The new law would create significant penalties for remedying employer unfair labor practices. Such penalties would apply during any period when unions are organizing and during negotiations of a first contract.

The G.Neil labor law team will continue to watch the EFCA as President elect Obama prepares to take office in January. Check back regularly for the most up-to-date information to help your business take action and stay in compliance.

Benefits of hiring older workers

Whether it's from devastated 401(k) accounts, the rising cost of living or uncertainty about the future, more older workers are delaying retirement and some are even leaving retirement for a spot back in the workforce.

More than one-quarter (27 percent) of workers 45 and older were postponing retirement and two-thirds reported having more difficulty paying for essentials such as food, gas and medicine, according to a recent AARP survey.

Additionally, the number of older workers on full-time schedules nearly doubled from 1995 to 2007 and those working part-time increased 19 percent.

Human resources faces unique challenges as more older workers reenter the workplace -- communication across generations, teamwork between coworkers with different work styles, training managers how to work with employees who are much older or younger than they may be.

Still yet, the benefits of hiring older workers greatly outweigh the challenges. Older workers posses the workplace skills businesses need to succeed in today's economy, including:

  • Experience. This group of workers understands how business works and what needs to be done in order to succeed, because they've lived it. Depending on the nature of the job, companies will save time and money on less training.
  • Work ethic. Older workers in the workplace are more dependable and stay more task-focused than their younger counterparts. They are less distracted by cell phones, mp3 players and social networks, and concerned more with completing the task at hand. Older employees have also proven to be the most self-motivated in the workplace.
  • Loyalty. These days, a young worker may have gone through three jobs by the time they turn 25, but that's not the case with senior employees. Older workers grew up during a time where people worked for only one or two companies during their lifetime, building a strong sense of loyalty.
  • Pride. Senior employees take personal pride in a job well done. While younger workers may be more concerned with making it out of the office in time to meet friends, older workers are more likely to stick around past closing time to make sure the job is finished and the final product reflects quality work.
  • Confidence. With all of their experience and training, older workers have a sense of confidence that younger workers still have yet to develop. Their confidence allows them to make decisions and share ideas that can help companies find ways to save money and run more efficiently.

Hiring older workers, with their unique skills and work styles, has the potential to improve productivity and save companies money during a time when it is needed the most. Tapping into the benefits of a mature workforce can help many businesses through these tough times and into a brighter future.

New FMLA regulations, what employers need to know

The U.S. Department of Labor released the final regulations under the Family and Medical Leave Act (FMLA), clarifying employer and employee rights under the law. The new FMLA regulations were published in the Federal Register on November 17, 2008 and will take effect on January 16, 2009. New forms and posters reflecting the latest changes will be required for employers subject to the FMLA.

This is the first set of revisions to the FMLA regulations since its enactment in 1993 and will affect all employers that must adhere to FMLA guidelines. The final rule helps workers and employers better understand their responsibilities and will speed the implementation of a new law that expands FMLA coverage for military families.

"This final rule, for the first time, gives America's military families special job-protected leave rights to care for brave service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty," said U.S. Secretary of Labor Elaine L. Chao in a recent press release. "At the same time, the final rule provides needed clarity about general FMLA rights and obligations for both workers and employers."

The final rule includes two notable benefits for some military families:

Military Caregiver Leave: Expands FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

Leave for Qualifying Exigencies for Families of National Guard and Reserves: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs — "qualifying exigencies." The rule defines "qualifying exigencies" as: (1) short-notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

Additional highlights from the new FMLA regulations:

Waiver of Rights: The department has finalized its position that employees may voluntarily settle their FMLA claims without court or departmental approval. However, prospective waivers of FMLA rights will continue to be prohibited.

Serious Health Condition: The new rule clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Additionally, it defines "periodic visits to a health care provider" for chronic serious health conditions as at least two visits per year.

Light Duty: Time spent in "light duty" work does not count against an employee's FMLA leave entitlement, and the employee retains the right to job restoration during the light duty period.

Employer Notice Obligations: The final rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.

Employee Notice: Under the new regulations, employees must follow their employer’s normal call-in procedures when taking FMLA leave. Under current rules, employees may notify their employer up to two days after an absence on their need for FMLA leave.

Medical Certification Process: The final rule recognizes the Health Insurance Portability and Accountability Act (HIPAA) and its impact on medical privacy. Responding to concerns about medical privacy, the new provisions prohibit direct supervisors from obtaining employee medical information for FMLA certification.

View the final rule as it appears in the Federal Register, here.

New forms and posters will be required for employers subject to FMLA guidelines. G.Neil’s top legal experts are working to provide you with the information and resources needed to stay in full FMLA compliance.

As of today, our legal team is developing a new E-Guide to explain the new FMLA rules in plain English. Check back regularly for the most up-to-date information to help you understand and take action on the latest legal requirements that affect your business.

Read our new Q & A reviewing the latest Family and Medical Leave Act Changes.

Obama on labor law: Preparing for change

As President-elect Barack Obama prepares to take his place in the White House, businesses across the country are considering what impact his plans will have on their organizations in the coming years.

In our existing unpredictable market, businesses should be prepared for impending changes related to wages, immigration, taxes, health care, executive compensation and benefits, civil rights and an inevitable increase in worker unionization, according to Littler Mendelson, the nation’s largest employment and labor law firm representing management, in a recent article.

“The combination of President Obama, with an electoral mandate for change from the voters, large Democratic gains in both houses of Congress, and the declining economy, sets the stage for a wave of legislative and regulatory proposals intended to protect workers in these troubled times,” Jay Sumner, a Washington, DC-based attorney at Littler said. “In the first 100 days and over the next four years, American businesses should anticipate significant changes.

“Those companies that educate themselves and prepare to navigate the changed labor and employment landscape will survive and prosper, and they should have a competitive edge over those that are caught unprepared,” said Sumner in a recent article.

Here are the most important employment law issues we’ll be watching after Obama takes office in 2009:

Unions - The Employee Free Choice Act (EFCA), designed to make it easier for unions to organize, is the top item on the labor agenda. Obama has already pledged to sign EFCA into law once passed.

Health care - Experts predict that the Obama Administration will explore avenues to keep the current employer-provided health care system in place. Obama’s health care plan would require employers to provide health care benefits or pay a percentage of payroll to support public health care.

Immigration - The new administration will push to increase enforcement of immigration laws and hold negligent employers accountable for disregard of immigration laws and employing undocumented workers. Obama is likely to agree with past proposals requiring government contractors to use E-Verify and could extend the program if accuracy and funding issues are settled.

Minimum Wage - Obama has pledged to increase minimum wage and index it to inflation.

Time off - The Obama Administration wants to expand the Family and Medical Leave Act (FMLA) to cover smaller employers, those with 25 or more employees, and permit leave for more reasons. Obama and Congress are also considering paid FMLA leave, mandatory sick leave and flexible work arrangements.

Help employees quit smoking, participate in the Great American Smokeout

November is Lung Cancer Awareness Month and Thursday, November 20, marks the 33rd Great American Smokeout, a day created to inspire and encourage smokers to quit for one day.

Almost 45% of the 45.3 million American smokers have attempted to quit smoking for at least one day in the past year, according to the American Cancer Society. For more than 30 years, the Great American Smokeout has proven to be a great opportunity to motivate smokers to make a long-term to quit for good.

Each year, only about 5% of smokers who quit succeed long-term and stress about the economy is having a clear and immediate effect on smokers, according to a recent survey sponsored by the American Legacy Foundation.

The survey found that smokers’ increased stress is causing smokers to delay a quit attempt, increase the number of cigarettes they are smoking, or switch to a cheaper brand instead of quitting. Additionally, former smokers reported that they are starting to smoke again because of financial stress.

Among the survey findings:

  • 77% of smokers report increased stress levels due to the current state of the economy, two-thirds of those smokers say this stress has had an effect on their smoking.
  • One in four smokers stressed about the economy say this stress has caused them to smoke more cigarettes per day, higher among women (31%) than men (17%).
  • A greater percentage of middle-income ($35-74.9k) stressed smokers have delayed their quit attempts because of stress over the economy (20%) than those with household incomes of under $35k (14%).

“The best time to quit smoking is now,” according to the American Cancer Society. Use the upcoming Great American Smokeout to start a smoking cessation program, revisit your workplace smoking policy and encourage employees who smoke to set November 20 as their quit date.

The American Cancer Society has put together a Smokeout page as part of their Great American Health Challenge full of materials to help publicize smoking cessation in your workplace, press releases, local resources and guides to help employees quit smoking.

New FMLA rules coming to a workplace near you

New Family and Medical Leave Act regulations are expected to become official soon and could go into effect by the end of this month.

In late October, the Department of Labor (DOL) submitted a final draft of new FMLA regulations to the Office of Management and Budget (OMB) for review. The OMB has a final action date of November 2008, but no specific day.

The DOL released proposed FMLA rule changes in February and asked for public comment. It is still unknown what changes were made, if any, based on feedback from the public.

The proposed regulations suggested a dozen key changes, some of the most substantial changes include notice from employees, eligibility standards, the definition of “serious health condition” and the release of FMLA claims.

We’ll have more information once the final regulations are published. Subscribe or check back often for the latest updates.

Workplace health: November is Flu Awareness Month

Influenza (commonly known as the flu) is a contagious respiratory illness that can cause mild to severe symptoms, and at times can lead to death, according to the Centers for Disease Control and Prevention (CDC). Tens of thousands of Americans die every year from flu complications.

The best way to prevent the flu is by receiving a flu vaccination each fall. The Center has designated November as Flu Awareness Month to encourage all Americans to get the flu shot.

Every year in the United States, on average 5% to 20% of the population gets the flu; more than 200,000 people are hospitalized from flu complications, and; about 36,000 people die from flu. Some people, such as older people, young children, and people with certain health conditions, are at high risk for serious flu complications.

Ways to keep your workplace safe and employees healthy during flu season:

Host a flu clinic. Provide flu shots on company grounds as part of your employee wellness program. For information about hosting a flu clinic visit the American Lung Association’s Online Flu Clinic Locator.

Educate employees on the benefits of the flu shot. Distribute information that encourages employees to get the flu vaccination and debunk myths that you can get the flu from a flu shot (the vaccine does not contain live viruses). Hang posters around the office on the importance of prevention and the dangers of the flu.

Review sick leave/absence policies. Ensure your policy does not punish employees for being sick, because employees who feel they will be disciplined will be more inclined to come to work no matter how ill they may be.

Encourage employees to take preventative measures. Inform employees on the most effective ways they can work to stay healthy in the office. The most important prevention activity - washing hands with soap and water often. Make sure bathrooms are stocked with soap and paper towels and go one step further by providing hand sanitizers and tissues in common rooms.

If the flu makes its way into the office, proceed with caution. Minimize employees’ exposure to the flu by limiting face-to-face meetings, consider telecommuting and hold off on typical business greetings like handshakes for a period of time.

For more information on the 2008-2009 flu season visit the CDC website.

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