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Federal Contractors Must Post Notices That Advise Employees of Their Rights to Unionize or Participate in Unions

admin — Mon, 24 May 2010 22:30:49 +0000

Beginning on June 19, 2010 Federal contractors and their subcontractors are required to post notices informing employees of their rights under the National Labor Relations Act (NLRA). On June 3, 2010, Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) will present a webinar for Federal contractors and subcontractors to provide them with information about how to comply with this new regulation. For more information about the webinar subscribe to OFCCP's E-mail updates at http://www.dol.gov/OFCCP/.

These regulations implement Executive Order 13496, signed by President Obama on January 30, 2009, and require federal contractors to agree to post the required employee notice and to agree to insert provisions in their subcontracts that require their subcontractors to post the employee notice as well. The employee notice that must be posted and the contract provisions that must be inserted into Federal contracts and subcontracts can be found at 29 C.F.R. Part 471 Appendix A.

The notice to employees, required by the new regulation, informs employees about their rights under the NLRA to form, join and assist a union, and to bargain collectively with their employer. The notice provides examples of unlawful employer and union conduct that interferes with those rights and indicates how employees can contact the National Labor Relations Board, the Federal agency that enforces those rights, with questions or to file complaints. Contractors that violate the Labor Department's regulations requiring employee notification of these rights may be subject to sanctions, including suspension or cancelation of the contract.

Contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees who are covered by the NLRA and who engage in contract-related activity. In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted. Contractors and subcontractors who post notices to employees electronically must also post the required notice electronically, which requires posting a link to the Department of Labor's website containing the employee notice where they customarily place other electronic notices to employees about their jobs. Where a significant portion of contractor's workforce is not proficient in English, contractors and subcontractors must provide the employee notice in languages spoken by employees, and the Department will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements.

Contractors and subcontractors may obtain the required poster in any of three ways. The Labor Department will print posters and provide them to Federal contracting departments and agencies for supply to contractors and subcontractors. Contractors and subcontractors can request posters from the Labor Department's Office of Labor-Management Standards and OFCCP field offices, and contractors and subcontractors can download the poster from http://www.olms.dol.gov.

Ninth Circuit Panel Again Upholds Granting of Class Action Status to Wal-Mart Female Workers

admin — Mon, 24 May 2010 22:08:42 +0000

by Caroline Gentry

Porter Wright Morris & Arthur

In an unusual procedural move, a Ninth Circuit panel issued a revised opinion and rejected—for the second time—Wal-Mart’s request to overrule a lower court decision granting class action status to a lawsuit by six women representing a class of more than 1.5 million female workers. Dukes v. Wal-Mart, Inc., Case Nos. 04-16688 and 04-16720, 2007 U.S. App. LEXIS 28551 (9th Cir. Dec. 11, 2007). The class includes all female workers—from part-time, entry-level hourly employees to full-time, salaried managers—at Wal-Mart stores from December 1998 to the present “who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions, policies and practices.” The lawsuit alleges that female employees were paid less than men and given fewer promotions. If the case proceeds, it will be the largest sex discrimination case in U.S. history. The revised opinion addresses some of the criticisms directed toward the earlier opinion and changes some of the reasoning, though not the result, of the court’s earlier decision.

After initially finding that the size of the putative class was sufficient to justify a class action, the Court, deleted multiple passages from its earlier decision in an apparent attempt to correct some of its more questionable portions relating to the commonality of the factual and legal issues raised by the potential class members. In particular, the court retreated from its watered-down standard for expert testimony at the class certification stage and from its outright rejection of Wal-Mart’s statistical expert under that standard. Instead, the court simply stated that it need not consider whether the testimony of Wal-Mart’s statistical expert was more persuasive than that of Plaintiffs’ expert.

In another move that is particularly troubling for employers, the court maintained its position that commonality existed because of Wal-Mart’s use of subjective decision-making with regard to pay and promotion decisions. The court held that decentralized, subjective decision-making in and of itself can give rise to an inference of discrimination.

The court also reaffirmed its earlier holding that Plaintiffs could certify the class under the relaxed standards of Rule 23(b)(2) and need not satisfy the more demanding requirements of Rule 23(b)(3). Plaintiffs claimed they should be allowed to certify the proposed class as one seeking injunctive and declaratory relief under Rule 23(b)(2) even though they sought billions of dollars in back pay and punitive damages. The general rule is that, in order to pursue a 23(b)(2) class action, monetary damages must not be the predominant relief sought and must be merely secondary to claims for injunctive relief. Wal-Mart argued that Plaintiffs should be required to establish predominance and superiority under Rule 23(b)(3) because of the large damages sought by the class. The Court rejected this argument, holding that the large damages sought were merely a function of the size of Wal-Mart itself and did not mean that damages were the class’s primary goal in instituting the action. The court chose to credit Plaintiffs’ self-serving statements that the primary goal of the litigation was to obtain an injunction against future discrimination—not monetary relief – even though some of the class members were no longer employed and would not benefit from such an injunction. The court added new language to its opinion recognizing that Wal-Mart correctly argued that a request for back pay did “weigh against” class certification but nonetheless held that the district court did not abuse its discretion by certifying the class under Rule 23(b)(2) notwithstanding the request. In so doing, the court deleted language from its earlier opinion that flatly rejected Wal-Mart’s contention that former employees had no interest in injunctive or declaratory relief. Instead, the court added language agreeing with Wal-Mart’s argument and holding that class certification “may not be proper” for former employees.

Finally, in its prior opinion, the court rejected Wal-Mart’s argument that the size of the class made a trial unmanageable because Wal-Mart would not be able to conduct individualized hearings on the merits of each claim and raise defenses unique to each individual class member without incurring prohibitive expense. Instead, the court held that Wal-Mart was not entitled to individualized hearings either under existing precedent or due process, a holding that appeared to contradict not only the Supreme Court’s decision in Int’l Bd. of Teamsters v. United States, 431 U.S. 324 (1977), but also Title VII and the Civil Rights Act of 1991, 42 U.S.C. § 2000e. In so doing, the court endorsed Plaintiffs’ plan to use statistical methods to determine liability and award back pay and punitive damages for each class member. In its revised opinion, the court deleted the language describing these holdings and instead “express[ed] no opinion regarding Wal-Mart’s objections to the district court’s tentative trial plan.”

Following issuance of the court’s revised opinion, Wal-Mart again requested an en banc review of the court’s decision on class certification. Wal-Mart’s petition for review argues that the class was improperly certified under Rule 23(b)(2) and that the proposed class “presents intractable manageability problems.”

Employers should take note of this case as it makes its way through the court system. The case raises a number of critical legal issues including, among others: (1) whether courts can or should rigorously review expert testimony at the class certification stage; (2) whether decisions based on subjective criteria are susceptible to a finding of commonality under Rule 23; (3) whether defendants can offer individualized defenses as to whether particular class members were discriminated against; and (4) whether plaintiffs can sidestep the demanding Rule 23(b)(3) requirements of predominance and superiority by using Rule 23(b)(2) even in cases seeking massive damages. This case is also significant because of the size of the class and the potential damages involved. It could establish a new framework that would allow classes of employees nationwide to file lawsuits against their employers alleging that a uniform policy or corporate culture, combined with subjective decisions by individual managers, resulted in discrimination. For these reasons, employment lawyers and their clients are waiting and watching to see what happens next.

OFCCP Toughens Audits and Unveils Six Year Strategic Business Plan

admin — Tue, 20 Apr 2010 04:10:51 +0000

It is by now conventional wisdom that the OFCCP is stepping up enforcement activities that will generate record breaking financial remedies for affected females and minorities which will impact all federal contractors.

This past week Patricia Shiu, Director, Office of Federal Contract Compliance Programs outlined a draft of the agencies Strategic Business Plan which lays out the direction of OFCCP through 2016. Director Shiu stated that “it is a new day at OFCCP” and made it quite clear that this administration and the OFCCP’s Strategic Plan’s goal is to engage federal contractors with new burdensome processes to demonstrate compliance.

The Strategic Business Plan laid out two primary goals as follows;

Prepare workers for good jobs and ensure fair compensation. In order to meet this portion of the Strategic Business Plan OFCCP looks to:

a. Increase workers’ incomes and narrow wage and income inequity; and
b. Help workers who are out of the labor market or in low-wage jobs find a path into middle class jobs.

2. Assure fair and high-quality work-life environments. In order to meet this portion of the Strategic Business Plan OFCCP looks to:

a. Break down barriers to a fair and diverse workplace so that every worker’s contribution is respected; and
b. Ensure workers have a voice in the workplace.

Contractors can expect an increased scrutiny of their compensation systems. In the past years we have seen OFCCP audits focus on systemic pay discrimination. Future audits will focus on both systemic and individual pay disparities. The message here is that contractors must get very serious about conducting meaningful analysis and proactively implementing pay adjustments were unjustified pay disparities exist. These adjustments need to begin now as OFCCP, as part of their audit process, intends to request compliance documentation that includes evidence of “self-audits” and the corrective process used to remedy pay issues. This could include proof of back pay and make whole relief to the affected individuals.

The draft of the Strategic Business Plan clearly outlines the agencies increased focus on a contractors’ selection process and emphasis on outreach to an hiring, promoting and training veterans and individuals with disabilities.

The strategic plan also outlines the agencies intent to conduct corporate wide multi-establishment audits. Though it is not clear as to how these reviews will be conducted, it will increase the burden of these multi-establishment entities to prepare for several audits at the same time.

Adding to their enhanced presence, the OFCCP will reincarnate the EO Survey, though not in its original form. The new version will be used to enhance the current targeting method used by OFCCP.

Of importance is the OFCCP new focus on repeat offenders. Contractors that have been found to be non-compliant will be faced with follow-up evaluations that will be designed to ensure the implementation of corrective policies and procedures. Contractors that have had negative findings during the audit process will be faced with more rigorous reviews during their conciliation progress reporting periods and all future audits.

To better prepare you for what an audit may look like under the Directorship of Patricia Shiu, join our webinar on April 27th at 10:00 AM PDT or May 5, 2010 at 10 AM PDT

Research Shows That An Increasing Number of U.S. Workers Are Retiring To Mexico

admin — Tue, 20 Apr 2010 02:04:12 +0000

A recent study concludes that many Baby Boomers leaving the workforce will retire in Mexico. According to the US Department of State, over four million Americans now live in Mexico with tens of thousands of Americans crossing the boarder each year. Statistics show that the primary reason for Americans retiring in Mexico is the current recession and loss of investment income.

With a down economy, layoffs and a bleak economic future for employees, many companies are providing “retirement counseling” in order to assist employees leaving the workforce with positive change of life options, and these include information on retiring in Mexico.

Mexico cost of living allows retirees to stretch their pension and investment money. Additional reasons include better climate, a higher standard of living and access to health services that cost up to 12 times less than those in the United States.

The health Insurance Industry is acting upon this significant trend. Already, the four largest commercial U.S. health insurers—with enrollments totaling nearly 100 million people—have either launched pilot programs exploring or offering overseas travel to countries like Mexico for health services. Some smaller health insurers and brokers also have introduced travel options for hundreds of employers around the country.

It also makes sense that Americans should be able to use insurance benefits from Medicare and Medicaid in Mexico. And that ability may become reality very soon, says Bruno Ferrari, the chief executive officer of Promexico, Mexico’s foreign investment agency.

And he believes that within one year, the governments of Mexico and the U.S. may have an agreement to let Americans use their Medicare and Medicaid insurance at Mexican health care facilities.

Already, 10 U.S. and Canadian companies have expressed an interest in building facilities to cater to Americans seeking to take advantage of low medical expenses, he says. This is all good news for those who live in Mexico and for anyone thinking about relocating or retiring there.

Anticipating the approval of both U.S. private insurance and Medicare/Medicaid programs in Mexico, real estate developers are getting in on the act, too. Many of them are creating special communities that cater to the health needs of foreign retirees, including assisted living centers.

The biggest boom will be the development of “green communities”. Already one U.S. based developer, (Rancho Costa Verde www.ranchocostaverde.com) located in San Diego, California, is in there second phase of developing a “green community” that is located just two hours south of the U.S., Mexican border on the Sea of Cortez.

Frank Ingrande, President of Rancho Coasta Verde, shared with us a few facts about the community.

350-acre master planned community that offers breathtaking 180-degree sea and mountain views from every home site.
1/4-acre home sites start as low as $17,500.00. Rancho Costa Verde offers secure ownership with title insurance provided by Stewart Title.
All properties are either ocean front or have full ocean views
80 percent of home construction material is made from recycled material
Homes are powered by renewable energy solar and/or wind
Homes have waste water treatment systems that recycle all water for irrigation
Homes use an atmospheric water maker that produces purified drinking water from the humidity in the air with power produced by the sun.
Homes sell for a fraction of what they cost in the United States and Canada.

When asked if you can own property in Mexico, Frank responded, “Yes, you can legally own property in Mexico — including beachfront. Foreigners can legally own property in Mexico, and the Mexican legal system protects the rights of foreign property owners. That means you can enjoy owning the kinds of property in Mexico that might be priced out of your budget in the US – including beachfront and beach view property. Mexico’s Foreign Investment Act, allowing foreigners to own beachfront property, was passed in 1994 with the North America Free Trade Agreement.

We produced a 15 minute DVD and created comprehensive printed material that explain all of this because many people are not aware of these facts. Anyone interested can receive our DVD and printed material for free by calling our office at 1-866-464-0243 or by requesting the information through our website at www.ranchocostaverde.com. We also have weekend discovery visits by luxury motorcoach that depart from San Diego Saturday mornings and return Sunday evenings for people that would like to visit Rancho Costa Verde and the surrounding area."

Some additional facts that Frank shared with us are:

According to U.S. government figures, Mexico's economy moved ahead of Canada's last year, making it the 12th largest economy in the world.
Unlike the U.S., Mexico is one of the world's largest oil exporters and sells 1.7 billion barrels of oil to the U.S. each day. As a result, Mexico's economy is actually strengthened by today's rising oil prices.
Mexico's stock market has also taken off. In fact, over the past five years, Mexican markets have outperformed U.S. stocks (as measured by the S&P500) by 10 to 1.
Mexico's government has launched a 5-year, $250 billion program to build new highways, railways, airports and ports throughout the country, much of that in Baja.
And today, there are countless state-of-the-art hospitals and care homes being built specifically to service the aging baby boomers arriving from north of the border.

To receive additional information on retiring in Mexico or the Rancho Costa Verde Project call 1-866-464-0243 or visit www.ranchocostaverde.com.

Workplace grief costs U.S businesses over $75 billion per year in reduced productivity

admin — Tue, 20 Apr 2010 01:59:01 +0000

Support for grieving employees makes a difference

BY CINDY KRISCHER GOODMAN

cgoodman@MiamiHerald.com

Free Webinar On Grief In The Workplace

Workplace grief costs U.S. businesses over $75 billion per year in reduced productivity, increased errors and accidents, according to the Wall Street Journal. Yet, how employers react to a worker's loss can make or break how workers feel about their jobs. Experiencing compassion at work can change the way people see the entire organization.

Indeed, many companies don't handle workplace grief all that well. Tears at the office don't always go over. Some managers find it downright disruptive, especially if it drags on for months. Often, like so many other things in a work environment, it boils down to the integrity of the person you work for, your direct boss.

The key, initially, is acknowledging a loss, says Ligia Houben, a certified grief counselor and author of Transform Your Loss. “Managers really shouldn't go on like nothing has happened.'' Yet, a friendly “How are you?'' may inevitably lead to an outpouring of emotions or resentment at the question.

Houben says the better way is to say, “If you need me, I am here for you.'' She believes a positive workplace experience can help. “If the boss and co-workers can show understanding and solidarity, the person will feel in a better place.''

As an employer, a challenge is that individual workers react to loss differently. Some prefer to come to work. Others want to cope with a loss in private.

Claudine Sada, a Creole translator with Miami-Dade County, feels fortunate to have a supportive workplace to go to, rather than sitting home alone crying over the loss of family and friends in Haiti. Initially, a boss may need to reduce an employee's workload. Sada's supervisor temporarily has shifted some of her responsibilities. “They accepted the fact that I couldn't function well.''

Colleagues have been considerate in ways she never could have expected. They have bought her lunch each day. They have given her envelopes of cash to buy medicine to send to sick relatives. County Commissioners have helped her get her nephew from Haiti enrolled in public school in Miami. “They have made me feel like they are my second family,'' says Sada, a 10-year county employee.

Less friendly workplaces may not tolerate time off for funerals. Bereavement leave is not required by the Fair Labor Standards Act or the Family and Medical Leave Act. Many small businesses offer no paid leave.

At least initially, showing concern needs to take precedence over worker productivity, says Miami-Dade County HR director Angela Maher.

“There's a lot of stress in the workforce, everyone is trying to do more with less. It's easy for managers to get caught up in mission and goals of organization and not be as compassionate with employees as they should be''

Creating a compassionate workplace had been on the agenda at Jackson Health System even before the Haiti disaster. In December, Houben, the author and grief counselor, had conducted a seminar at Jackson on coping with workplace grief. The message: encourage communication and let the bereaved express their feelings.

“I'm roaming the halls and giving workers permission to cry,'' said the Rev. Patricia Wilson, director of the Jackson's pastoral care services.

Clearly, outreach and sensitivity during an employee's time of grief set a positive tone for everyone in your workplace. Cruise line giant Royal Caribbean jumped into action when learning of the Haiti disaster; about 200 crew members on its ships are Haitian.

Immediately after the earthquake, Royal Caribbean gave employees phone cards to help them get in touch with family members and it installed Skype on all its ships, said communications director Cynthia Martinez.

It also sent grief counselors onto ships and encouraged phone-in sessions. For crew who wanted to go home to Haiti, the cruise line coordinated travel for them and offered “compassion leave,'' for as long as needed.

Even more, it advanced funds to those who couldn't afford to take time off, Martinez says. “Many of our employees, even those who weren't affected, have told us they are extremely appreciative.''

Send your comments and ideas to Cindy Krischer Goodman at cgoodman @MiamiHerald.com.

Join our Free Webinar on April 29, 2010

The Growing Impact of Grief Illiteracy in the Workplace

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admin — Wed, 17 Mar 2010 07:28:05 +0000

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The $7 Billion Tax Dodge

admin — Tue, 16 Mar 2010 03:01:49 +0000

New York Times ^ | February 18, 2010 | Steven Greenhouse
Federal and state officials, many facing record budget deficits, are starting to aggressively pursue companies that try to pass off regular employees as independent contractors.

President Obama’s 2010 budget assumes that the federal crackdown will yield at least $7 billion over 10 years. More than two dozen states also have stepped up enforcement, often by enacting stricter penalties for misclassifying workers.

Many workplace experts say a growing number of companies have maneuvered to cut costs by wrongly classifying regular employees as independent contractors, though they often are given desks, phone lines and assignments just like regular employees. Moreover, the experts say, workers have become more reluctant to challenge such practices, given the tough job market.

Companies that pass off employees as independent contractors avoid paying Social Security, Medicare and unemployment insurance taxes for those workers. Companies do not withhold income taxes from contractors’ paychecks, and several studies have indicated that, on average, misclassified independent workers do not report 30 percent of their income.

One federal study concluded that employers illegally passed off 3.4 million regular workers as contractors, while the Labor Department estimates that up to 30 percent of companies misclassify employees. Ohio’s attorney general estimates that his state has 92,500 misclassified workers, which has cost the state up to $35 million a year in unemployment insurance taxes, up to $103 million in workers’ compensation premiums and up to $223 million in income tax revenue.

“It’s a very significant problem,” said the attorney general, Richard Cordray. “Misclassification is bad for business, government and labor. Law-abiding businesses are in many ways the biggest fans of increased enforcement. Misclassifying can mean a 20 or 30 percent cost difference per worker.”

Employers deny misclassifying workers deliberately. The businesses say the lines are unclear between employee and independent contractor.

(Excerpt) Read more at nytimes.com …

Les Schwab Tire Centers Agrees To Pay $2,000,000 To Settle Hiring Discrimination Case Involving Females

admin — Tue, 16 Mar 2010 03:00:26 +0000

SEATTLE — The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has resolved its gender-based hiring class lawsuit against Les Schwab Tire Centers of Washington, et al., and Les Schwab Tire Warehouse, Inc. for $2,000,000 and other corrective measures.

The EEOC’s suit (Case No. 06-045-RSM) in U.S. District Court for the Western District of Washington (Seattle) claimed that Les Schwab had failed to hire qualified women for Sales & Service (tire changing) jobs at its stores in Washington, Oregon, California, Idaho, Montana, Nevada and Utah starting in 2004.

“While the parties have engaged in extensive litigation the past four years, we are pleased to work with Les Schwab to bring this case to a resolution and to start a new era of cooperation,” EEOC Regional Attorney William Tamayo said. “This resolution allows Les Schwab and the women who the EEOC represents to move forward.”

Mike Baldonado, EEOC San Francisco District Director, whose responsibility includes Washington, Oregon, Idaho and Montana, stated, “The EEOC will continue to investigate employers and industries that have put women in certain types of jobs, and men in others. We hope Les Schwab becomes a model employer of women in the male-dominated tire industry.”

In addition to the monetary amount, Les Schwab agrees to maintain its anti-discrimination policies and procedures and anti-discrimination training for all its managers, assistant managers and employees about Title VII and sex-based discrimination. The company will also provide periodic reports to the EEOC on its compliance with the terms of the consent decree.

Navigate the world of EEO, Affirmative Action and Diversity

admin — Sat, 27 Feb 2010 07:30:33 +0000

Career Resources Inc. is a leading provider of corporate critical Affirmative Action and Equal Employment Opportunity needs. We have over 31 years of experience working with hundreds of HR Leaders in over 40 states. If you're reading this, there's a good chance you are looking for an EEO or Affirmative Action Consultant for your organization. We'd be happy to help you with your objectives, your corporate initiatives and assisting you reach your immediate and long term Affirmative Action, EEO and Diversity goals. Company Overview:

31 years experience as a nationally recognized Affirmative Action consultants.
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Rated by the National Association of Human Resource Professionals as the #1 Affirmative Action Consultant 8 years in a row.
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