For the Week of March 15, 2010

KEY CASES

1stCir: Denial of office space could constitute a materially adverse action

A female professor could not proceed with her Title VII retaliation claim based on being denied a request for a more desirable office space because denial of the office left her in no worse a position than that held by similarly situated faculty members. Under certain circumstances, denial of a request for office space could constitute a materially adverse employment action, the First Circuit noted, but it was not in this case based on the particular facts. The appeals court also rejected the professor's gender bias claim based on her denied pay raise resulting from an unsatisfactory "scholarship" rating. Her argument that a male professor received a satisfactory scholarship rating despite the fact that he published less lacked merit; the male professor was on a different track that required less scholarship production, thus he was not similarly situated. The professor's hostile work environment claim also failed because it relied predominantly on untimely acts; the continuing violation doctrine did not apply because neither the pay raise denial or the office space denial qualified as an "anchoring act" that occurred within the limitations period (Lockridge v Univ of S Maine, March 10, 2010).

3rdCir: Mix of expert, lay testimony can establish serious health condition

A combination of expert and lay testimony can establish that an employee was incapacitated for more than three days, a showing required by the FMLA's implementing regulations. A medical receptionist sued her employer, claiming FMLA interference and discrimination, when she was fired six days after taking two days of sick leave followed by two days of previously scheduled vacation time in order to recover from a urinary tract infection and a related illness. A district court held the employee did not establish that she had a serious health condition because she failed to present medical evidence that she was incapacitated for more than three days. The district court granted summary judgment to the employer, finding that the doctor's note she provided to her employer established incapacitation for only two days and her reliance on her own testimony about the remaining days was insufficient to establish a serious health condition. Vacating and remanding, the Third Circuit noted that all of the circuits to address the issue have held that lay testimony can create a factual issue regarding incapacitation. After reviewing the relevant DOL regulations, the appeals court found no support for the categorical exclusion of all lay testimony regarding the length of an employee's incapacitation. In contrast to the Fifth and Ninth Circuits, however, the Third Circuit did not rule that lay testimony alone was sufficient to establish incapacitation. Rather, it agreed with Eighth Circuit precedent, holding that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony (Schaar v Lehigh Valley Health Servs, Inc, March 11, 2010).

EDArk: HR manager's reference to "your kind" didn't reflect race bias

An employee who was discharged allegedly for misrepresenting his reason for taking personal leave failed to establish that his discharge was based on race in violation of Title VII because of an HR manager's comment that "your kind does not want to work here." The employee requested a month's leave of absence allegedly to help his father demolish an old house. In reality, the employee spent only a few days with his father and worked on a remodeling project for a coworker for the remainder of his leave. The employee was terminated for misrepresenting the reason for his leave and for failing to contact his employer as instructed. The court held the employee failed to come forward with evidence that his discharge occurred under circumstances giving rise to an inference of unlawful race bias. It was undisputed that the employee's supervisor made the decision to terminate him and the HR manager merely communicated that information to the supervisor. At any rate, the HR manager's comment did not directly reflect a racially discriminatory attitude. Further, the employee's hostile work environment claim failed because the comment did not establish harassing conduct so severe that it altered the conditions of his employment. The employee's FMLA claims similarly failed because he failed to come forward with evidence showing that he was entitled to leave under the Act. Besides offering no medical evidence showing that his father suffered from a serious health condition during the relevant time period, the employee failed to offer evidence that he needed to care for his father during this period (Taylor v Odom's Tennessee Pride Sausage, Inc, March 8, 2010).

NDCal: Sexual comments, conduct may have created hostile environment

A female employee offered sufficient evidence to create triable issues as to whether her male supervisor's conduct created a sexually abusive work environment. The employee put forth evidence that the supervisor frequently made sexual comments about female employees, accused her husband of infidelity, frequently stared at her, inappropriately touched her, described his erection and simulated masturbation in front of her. These facts, taken together, demonstrated that the supervisor's offensive conduct occurred on a consistent basis. Further, the employee presented facts regarding a series of comments and acts by the supervisor spanning over a year. As a consequence, the supervisor's conduct was of a type that a reasonable jury could determine would make a reasonable woman in the employee's situation feel as though her working conditions were altered. The employer failed to established a Faragher/Ellerth defense on the undisputed facts, found the court. Triable issues existed as to whether the employer took corrective action in response to the employee's allegations (Mitchel v Holder, March 9, 2010).

DMinn: Court enforces EEOC subpoena seeking information about management

Schwan's Home Service must comply with an EEOC subpoena seeking additional details about the company's managers and its manager development program in a Title VII sex discrimination, sex harassment and reprisal suit filed by the agency on behalf of a female employee. The issue before the court was whether the information sought was relevant to the EEOC's investigation of the claims set forth in the charge—namely, that Schwan's demoted a female employee and did not allow her to graduate from its management program on the basis of her sex and in retaliation for having complained about harassment based on sex; and that Schwan's discriminated against females, as a class, in regard to the management program. Information sought in the subpoena included the names, genders and hire dates of all general managers; documents relating to how persons are selected for the manager development program; and the names, genders, hire dates, current employment status and contact information of all persons who completed the program. The court enforced the subpoena, concluding an examination of the gender breakdown of the current manager population was relevant to the employee's claim that she was told if she were a manager, she would have been only the second female manager of this type nationwide. Moreover, all of the information sought would permit the EEOC to investigate and evaluate whether sex bias occurred at Schwan's because of the management program and whether Schwan's has persisted in a pattern of discrimination against a class of people (EEOC v Schwan's Home Serv, March 8, 2010).

DNJ: Consorting with menacing person supported employee's discharge

While an employee's New Jersey Law Against Discrimination claim asserted that he was fired on the same day that he requested leave for anxiety and depression, it was his association with an "unsavory character," not his disability status, that led to his discharge. The employee worked as a shoe sales associate at one of his employer's stores. On two occasions, a menacing person came into the store looking for the employee and when he did not find him there, he became loud, profane and threatening, frightening coworkers and causing the police to be called. When HR called the store inquiring about the employee's request to take time off, the store manager advised HR about those incidents. After concluding the employee was not entitled to vacation time, and considering the available facts, the HR manager determined the employee presented a risk of harm to other employees and customers and terminated his employment. The employee failed to refute the HR manager's claim that his store manager did not inform her that the leave request was related to any medical condition or disability—rather, the plaintiff sought time off because, as he said, "some not nice people were after him." Moreover, HR was not otherwise aware that the employee suffered from anxiety and depression. Further, the employee failed to submit evidence that cast sufficient doubt on the employer's stated reason to infer that discrimination was the motivating cause for his discharge (Paternoster v Ecco USA Inc, March 11, 2010).

EDNY: Loss investigation provided ample justification for manager's discharge

An African-American store manager who was discharged by Radio Shack for failing to report employee theft and inventory loss at his store and failing to conduct weekly "cage counts" did not suffer an adverse employment action giving rise to an inference of race bias under Section 1981 or New York law. Radio Shack instituted a loss investigation after the manager's store sustained an inventory loss in excess of $5,000. That investigation concluded that he failed to adequately follow cage count and inventory procedures. Discharging the manager, Radio Shack advised him that he was fired for the combination of failing to properly report a laptop theft, pressuring an associate to pay for the stolen laptop, inadequate cage counts, and a substantial inventory loss. The employer's reasons for discharging the manager stemmed from the results of the loss investigation, but the manager never claimed that the loss investigation was motivated by racial animus. Moreover, there was no "reasonably close resemblance" between the manager's case and his comparators' cases. Each comparator cited by the manager used appropriate means to report and trace inventory losses, and did not improperly pressure their subordinates. Thus, the court concluded that the employee's failure to report the laptop theft and his behavior towards the associate were valid reasons for terminating his employment (Octobre v Radio Shack Corp, March 11, 2010).

SDNY: Parties agreed to arbitrate dispute over purported evergreen clause

News wire service Reuters and a newspaper union agreed to arbitrate a dispute over the meaning of what the union alleged was an evergreen clause in their bargaining agreement, thus the parties were properly before an arbitrator. The case stemmed from Reuters' motion to stay two pending arbitrations on the basis that its collective bargaining agreement with the Guild had expired on February 29, 2009 and that both arbitrations dealt with renewal of the contract. The Guild argued an evergreen clause in the contract kept all terms in effect—including the arbitration provision requiring the parties to arbitrate disputes—until the parties either negotiated a new contract or reached impasse. Reuters disputed that the provision even was an evergreen clause. The Guild asked a court to determine the validity of the clause; the court found the clear language of the contract indicated an intent to arbitrate over its meaning. The arbitration clause was the main component of the grievance procedure through which the parties had agreed to resolve contractual interpretation issues, the court found. Thus, the arbitration clause was sufficiently broad to encompass the purported evergreen clause. Furthermore, the arbitrations at issue did not relate to the renewal of the agreement and the court ruled the dispute over the evergreen clause therefore was arbitrable for as long as the parties engaged in negotiations over a new contract (Reuters, Inc v Newspaper Guild of New York, March 9, 2010).

NDOhio: Negative job reference did not support reprisal claim

A plaintiff could not pursue her Title VII reprisal claim after learning of a negative job reference from a former employer because she could not show a materially adverse employment action. The plaintiff was a part-time firefighter and emergency medical technician before resigning after her application to become a full-time firefighter was rejected. Another company offered her employment as a paramedic, conditional on satisfactory results of a background check. The assistant chief of her former employer gave a negative job reference. The employment offer was rescinded because of an unsatisfactory background check. The court found the plaintiff's retaliation claim failed because the negative job reference fell "well short" of meeting the applicable "tangible employment action" standard. That is, the employee must show a tangible employment action that produced a materially adverse change in the terms and conditions of her employment. The assistant chief's negative job reference resulted in "no change at all" in the plaintiff's employment status, wrote the court. The evidence was clear that the job offer would have been rescinded even without the negative job reference and "was not brought about by an ‘official act of the enterprise.'" Thus, her claim failed (Pope v First Consol Dist, March 9, 2010).

NDOhio: Medical center may have failed to accommodate worker's migraines

A radiological technologist at a medical center who was terminated for allegedly sleeping on the job withstood summary judgment on her Ohio law disability bias claims. Prior to her termination, the technologist received warnings or was disciplined on four separate occasions for allegedly sleeping while on duty. All of these incidents occurred after she had taken medical leave due to migraine headaches and depression. The technologist asserted that during these incidents, she was actually resting her eyes to help treat her migraines. Rejecting the employer's argument that the technologist's migraines had to preclude her ability to work in order to constitute a disability under the Ohio law (which follows the ADA), the court found that a factual issue existed as to whether she had a disability because the affidavit of her treating physician indicated that her migraines substantially limited her in other daily life activities such as reading, walking, lifting and bending. The court also determined that because the employer only provided her the option of going home for the day when she suffered from a migraine, a factual issue existed as to whether the medical center offered her a reasonable accommodation. The technologist testified that going home for the day, rather than resting her eyes for a few minutes, would result in her unnecessarily having to use up FMLA and sick leave and would place a greater burden on her coworkers. Moreover, evidence that the employer failed to offer a reasonable accommodation could also be used to show that the stated reason for the termination—sleeping on the job—was pretextual, the court ruled (Maley v EMH Reg'l Health Care Ctr, March 11, 2010).

SDOhio: Open question whether investigators exercised discretion, were exempt

The primary duty of an insurance company's special investigators was directly related to the company's general business operations; however, because a genuine issue of material fact remained as to whether the investigators exercised discretion and independent judgment, a federal court denied summary judgment on the issue of their exempt status as administrative professionals. The plaintiffs investigated potentially fraudulent insurance claims and assisted the insurance company in adjusting claims. The services performed in direct furtherance of claims adjusting efforts was administrative work, the court found; their primary duty was directly related to the "servicing" of the company's business. However, genuine issues of fact remained as to whether the investigators made determinations related to matters of significance. Audit guidelines used to evaluate investigators' work product indicated that investigators were to provide factual information to allow adjusters to make good decisions. On the other hand, the audit tool also provided that investigative reports should express the investigator's evaluation of factual information. Consequently, the court held a reasonable trier of fact could find for either the employer or the investigators on whether they exercised discretion and independent judgment (Foster v Nationwide Mutual Ins Co, March 9, 2010).

MDPa: Employees withstand summary judgment on same-sex harassment claims

Because a jury could conclude a male supervisor's conduct amounted to discrimination because of sex, two male employees avoided adverse summary judgment on their Title VII and state law sex harassment claims. The employees claimed they were touched and subjected to inappropriate comments on a daily basis and propositioned regularly. Despite their resistance and eventual reporting of these actions to company management, the supervisor's conduct continued until he quit working for the employer. Although the supervisor was not popular and was alleged to have had problems with all of his subordinates, the district court noted his behavior toward the employees was more than normal workplace teasing. The conduct was aimed specifically at the employees and was frequent and ongoing during their employment. The employees described frequent degrading and sexually directed actions and comments. Such behavior caused both employees to dread going to work and to seek assistance from company management to end the problem. A jury could find the conduct was so severe and pervasive that it amounted to a change in the conditions of work, held the court (Cragle v Werner Enter, Inc, March 11, 2010).

WDPa: Court refuses to apply ADA Amendments Act retroactively

A postal employee who was discharged after an incident in which he made comments that he wanted to kill his union steward could not proceed with his claims of disability bias or retaliatory discharge. The court concluded the employee was not entitled to statutory protection under the Rehab Act at the time of his discharge because he failed to show his inability to do his particular job substantially limited him in the major life activity of working or that he was "regarded as" disabled. In so holding, the court applied the more restrictive standard of disability in effect prior to the adoption of the ADA Amendments Act on January 1, 2009 (which also amended the Rehab Act), because the employee's discharge occurred prior to that date and, since the law contains no language indicating that it applies retroactively, courts have construed its provisions to be purely prospective. The employee also was unable to proceed with his claim that his discharge constituted unlawful retaliation under the Rehab Act because he failed to establish that the decision to discharge him based on his threatening behavior was pretextual. It was not objectively unreasonable for US Postal Service officials to take a serious approach to the situation where the employee indicated that he was so "stressed out" that he was medically incapable of completing the remainder of his shift. Moreover, Postal Service policy unambiguously prohibited a postal employee from making "any actual, implied or veiled threat, made seriously or in jest," noted the court (Venter v Potter, March 9, 2010).

WDPa: OWBPA invalidated release that barred challenges to its validity

A discharged employee who signed a separation agreement and release of claims in exchange for a salary continuation and other benefits could still proceed with his ADEA claims because the release at issue was invalid under the Older Worker Benefits Protection Act (OWBPA). The court adopted the view that a waiver is invalid if it contains provisions that could reasonably be interpreted to prohibit challenges to the validity of the waiver. Such a waiver does not meet the OWBPA requirement that it be written in a manner calculated to be understood by the individual employee. Reviewing the language of the statute and the relevant regulations and legislative history, the court rejected the employer's argument that only the offending provision of the release should be stricken rather than the whole agreement. The court also dismissed the employer's assertion that Pennsylvania law should allow an exception where an employee signs a waiver with an understanding that it is invalid, finding it clear under the law that an employer must comply with all eight OWBPA requirements regardless of the employee's subjective knowledge (Bogacz v MTD Products, Inc, March 9, 2010)

ArkSCt: Dismissal of Title VII claims in federal court did not bar state law claims

Two employees whose Title VII sex harassment claims were dismissed with prejudice by a federal district court for failure to exhaust administrative remedies were not barred by res judicata from filing state law claims after dismissal of their federal claims. The employees sued the attorneys who incorrectly advised them that it was unnecessary to file EEOC charges and obtain a right to sue letter. They sought to impute the attorneys' negligence to the law firm they joined after filing the complaint but prior to its dismissal. The employees asserted their complaint could have been amended prior to dismissal to include state law causes of action, but after dismissal, they were barred by res judicata from pursuing claims in state court. The Arkansas Supreme Court disagreed, noting that the US Supreme Court has held that dismissal for failure to meet a precondition is not a decision on the merits and does not bar a subsequent action on the same claim. The federal district court's dismissal for failure to file the EEOC charge thus was not a dismissal on the merits that would bar state claims under res judicata. State case law also holds that a final judgment resting on the prematurity of an action or failure to satisfy a precondition of suit does not bar another action initiated after the claim has matured or the precondition has been met, unless a second action is prohibited by operation of substantive law. Even if the federal district court's dismissal was considered a decision on the merits, the employees' state claims were not necessarily barred since they had filed only Title VII claims in federal court. Without the district court's express decision to decide state claims using its pendant jurisdiction, the court's decision on the merits of their federal claims would be understood as lacking jurisdiction on the state claims (Lindsey v Green, March 11, 2010).

MoCtApp: Continued employment alone doesn't bind worker to ADR agreement

An employee who continued to work after his employer presented him with an arbitration agreement did not decisively evidence his intention to be bound by the arbitration agreement, a Missouri appeals court ruled in an apparent case of first impression in the state. At issue was whether, under Missouri contract law, the employee was required to submit his Missouri Human Rights Act age and gender bias claims to alternative dispute resolution because he continued working after his employer presented him with an arbitration agreement providing that alternative dispute resolution was a condition of continued employment. The appeals court rejected the trial court's determination that the employee's continued employment after obtaining knowledge of the proposed arbitration agreement rose to the level of an unequivocal acceptance. The court adopted the view that mere continuation of employment does not manifest the necessary assent to the employer's terms of arbitration and sent the case back to the trial court for a factual determination as to whether the employee unequivocally and objectively signaled an intention to be bound (Kunzie v Jack-In-The-Box, Inc, March 9, 2010).

AGENCY DEVELOPMENTS

USCIS to accept H-1B petitions for FY 2011 starting April 1

On April 1, US Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap. H1-B visas are given to companies seeking to hire nonimmigrant aliens in specialty occupations of distinguished merit and ability when such workers are in limited quantities in the United States. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee, not the date that the petition is postmarked. USCIS will monitor the number of petitions received and will notify the public of the date on which it received the necessary number of petitions to meet the H-1B cap. (The numerical limitation on H-1B petitions for FY 2010 is 65,000.) If needed, USCIS will randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected as well as those received after the final receipt date. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a US masters degree or higher are exempt from the cap. Holders of these visas can stay in the United States for up to six years.

EBSA recovers $12 mil for employee stock plan participants

The DOL has recouped more than $12 million for employee stock plan participants after a lengthy EBSA investigation into improper transactions that took place between 2004 and 2007 led the agency to file a lawsuit against several individuals and firms alleging ERISA violations. The agency announced on Thursday that it has procured consent judgments against the Employee Ownership Holding Co of Stockton, California and Fife, Washington. The settlement requires the plan officials and the service providers who were involved with the stock ownership plan in question to make restitution. "These settlements send a clear message that the Labor Department will not tolerate the blatant misuse of pension assets at the expense of workers and their families," said labor secretary Hilda Solis.

Retail tire chain to pay $2 mil to settle class sex-based hiring case

The EEOC has resolved a class action suit alleging sex-based hiring against Les Schwab Tire Centers and Les Schwab Tire Warehouse, Inc. Les Schwab failed to hire qualified women for sales and service (tire-changing) jobs at its more than 400 stores in Washington, Oregon, California, Idaho, Montana, Nevada and Utah starting in 2004, the EEOC alleged. The company will pay $2 million and take corrective measures pursuant to a consent decree approved on March 11. Under the consent decree, Les Schwab agrees to maintain antidiscrimination policies and procedures and to provide antidiscrimination training for managers and employees. The company also will continue its efforts to increase the flow of female applicants for sales and service positions and provide periodic reports to the EEOC on its compliance with the terms of the consent decree.

LEGISLATION

Senate approves bill extending UI, COBRA benefits for the rest of the year

The Senate on March 10 passed the American Workers, State and Business Relief Act, legislation that would retroactively extend through the end of 2010 approximately $30 billion worth of expired middle-class and business tax breaks as well as emergency unemployment compensation and eligibility for the 65 percent COBRA premium subsidy. The measure now heads to the House where, according to ways and means chairman Sander M. Levin (D-Mich), a conference may be called to resolve differences between the two chambers' bills. (The House passed an extenders bill on December 9, 2009.) Currently, unemployment benefits are extended through April 5 and eligibility for the COBRA premium subsidy are extended through the end of March. Senate Democratic leaders called renewal of the extenders package essential to their plan to help stabilize the economy and promote job growth. "Extending these tax cuts creates the stability and certainty that our economy needs to create jobs," said Senate finance committee chairman Max Baucus (D-Mont). The bill also extends for six months certain provisions of the America Recovery and Reinvestment Act.

Jobs bill would provide for one million public, private sector jobs

Rep. George Miller (D-Cal) has introduced the Local Jobs for America Act (H.R. 4812), a bill intended to create or save up to one million public and private sector jobs. Miller, who chairs the House education and labor committee, released a statement on the bill, saying the funds would pay salaries for public employees and prevent local and state tax increases. In turn, says Miller, those employees will be able to spend their money, thereby stimulating state and local economies, which in turn will create private jobs. The bill would send $75 million to local communities to hire local staff and would provide $500 million to retain, hire and rehire firefighters. It would also provide $1.15 billion to put more police on the streets.

TWITTER UPDATES

HEALTH CARE REFORM

How would Obama proposal impact Medicare tax?

President Obama's recent health reform proposal includes a new Medicare tax on investment income and an increase in Medicare tax rates for the wealthy, a rate increase that is also in the Senate-passed bill. The proposal would also increase the Medicare payroll tax on workers' wages on earnings that exceed $200,000 for an individual and $250,000 for a couple. The portion of the Medicare payroll tax paid by the employer would remain at 1.45 percent. Kaiser Health News takes a closer look.

Failure of reform would hurt millions

As health care reform legislation has stalled in Congress, "the original motivation and rationale for the reforms appears to have become obscured, as have an understanding of what the proposals would do and who would benefit from them," an Urban Institute paper points out. The study examines the groups with the most to lose should comprehensive health reform fail to pass.

MARCH MADNESS

March Madness spurs office pools

While a majority of HR executives say their top priority this year is cost containment, March Madness and the office pools that the event inspires may erode productivity and therefore jeopardize cost-saving measures, according to a recent study by Spherion Staffing Services. "With growing access to online venues and the increased use of mobile applications to stream video, workers will have more access to March Madness activities this year during work hours, which may translate to historic dips in productivity levels for businesses," John Heins, senior vice president and chief human resources officer at SFN Group, Inc.

COMPLIANCE

You may have found fraud. Now what?

The unthinkable has happened. You believe there may be fraudulent activity in your organization. What do you do next? Accounting and consulting firm Crowe Horwath LLP offers some guidance to companies that suspect fraud within their organization.

OSHA

OSHA proposes more than $3 million in fines to BP-Husky refinery

OSHA has proposed more than $3 million in penalties against BP North America Inc and BP-Husky Refining LLC for 62 alleged willful and serious safety violations at the energy company's Oregon, Ohio, refinery. The Ohio refinery has been subject to 12 inspections since 1991. Nationally, various BP Products North America sites have been inspected by OSHA 44 times. BP currently faces $87 million in record-setting proposed penalties in pending cases in which 439 willful citations and failure-to-abate notices were issued to its Texas City Refinery, which was the site of a 2005 explosion and fire that killed 15 workers and injured 170. A significant portion of the proposed $87 million in fines is attributable to OSHA's allegations that BP failed to fully comply with a settlement agreement entered into after the explosion. BP is contesting the fines.

OSHA issues 15,000 injury and illness rate notification letters nationwide

OSHA has sent letters to about 15,000 workplaces nationwide with the highest numbers of injuries and illnesses resulting in days away from work, restricted work activities or job transfers, the agency reported. "Receipt of this letter means that workers in that particular establishment are being injured at a higher rate than in most other businesses of its kind in the country," said Dr. David Michaels, assistant secretary of labor for OSHA. "Employers whose businesses have injury and illness rates this high need to take immediate steps to protect their workers." A list of the employers receiving the letter is available on OSHA's website.

HR PRACTICE

Execs, HR managers oppose EFCA

A whopping (but perhaps unsurprising) 98 percent of senior executives and HR managers oppose the Employee Free Choice Act, according to a recent survey by Barnes & Thornburg LLP, seeking to gauge employers' preparedness levels, knowledge and concern over the proposed labor legislation as it moves through Congress. The survey also found 86 percent of respondents think President Obama's new NLRB appointments will make union organizing easier.

SHRM survey reveals essential HR competencies

The most important competencies that senior HR leaders in the US must possess are: effective communication; strategic thinking; HR knowledge; integrity; and ethical behavior, according to a recent SHRM survey, What Senior HR Leaders Need to Know. The survey report addresses the most essential competencies for senior HR professionals now and in the coming five years, as well as during an economic crisis.

ECONOMIC NEWS

National unemployment rate falls, but 30 states post increases

While the national unemployment rate fell from 10.0 percent in December to 9.7 percent in January, 30 states still posted over-the-month unemployment rate increases, according to the most recent BLS report on regional and state employment and unemployment. Of particular note, Michigan, at 14.3 percent, again recorded the highest unemployment rate, while the West in general reported the highest regional jobless rate at 10.8 percent. However, the news was not all bad, as nine states experienced statistically significant increases in employment between December 2009 and January 2010, with the largest statistically significant job gains occurring in California (+32,500), Illinois (+26,000), and New York (+25,500).

Benefits were 30.2 percent of total compensation in December 2009

Employer-provided benefits costs for civilian workers in private industry and state and local governments in December 2009 averaged $8.88 per hour worked, accounting for 30.2 percent of total compensation costs, according to BLS' most recent quarterly report of employer costs. Benefits as a percentage of compensation have risen in the past three years from 27.4 percent of total compensation, although that percentage has been stable in the last year.

Bonus plans for 2010 remain strong; salary levels rebound

A majority of employers report their bonus payments in 2010 will be similar to what they paid last year, according to a Buck Consultants survey released March 10. The survey found that 58 percent of organizations expect to award bonuses that are within five percent of last year's amounts. The survey also found that pay increases for 2010 will average 2.2 percent. "We're seeing a gradual lifting of pay freezes and hiring freezes," said Buck Consultants director Tom Burke. "Employers realize the importance of reinvesting in their workforces as the economy shows signs of recovery. At the same time, they are being cautious so they are in sync with business performance."

IN OTHER NEWS

Obama may give leg up in contracting to employers that pay living wage

The Obama administration may be considering a proposal that would alter the current scoring system that the government uses to evaluate government contractors by giving preference to contractors who pay their employees a living wage. A recent report from the White House Middle Class Task Force hinted at the possible change. The rumored proposal is widely seen as favoring organized labor and anti-union groups have criticized the move. "The costs of this favor to Big Labor would be borne by the taxpayers," the National Association of Manufacturers says. The Associated Builders and Contractors argues "[t]his proposal may add yet another layer of bureaucracy in the federal procurement process, which will hinder rather than encourage job creation."

Senate committee report cites benefits of paid sick leave

The Healthy Families Act would enable at least 30.3 million additional workers to gain access to paid sick leave, according to a report introduced last week by members of the Senate's Joint Economic Committee. Expanding Access to Paid Sick Leave: The Impact of the Healthy Families Act on America's Workers analyzes the demographics of workers who currently have access to paid sick leave and workers who would gain access to paid sick leave under the bill.

Most check smart phones while driving

While smart phones have made it easier for workers to stay connected to the office, they may not be a good idea for every commute. According to a new CareerBuilder survey, more than one-half of workers who have a smart phone or similar device said they check it when driving a vehicle.

Nurse wage-fixing settlement sparks attorney dispute

Several Chicago-area hospital systems last month quietly settled a lawsuit alleging they had conspired to fix or depress nurses' wages. But a veteran antitrust lawyer who briefly worked on the case says the hospitals unnecessarily spent millions of dollars to defend what he says was a frivolous lawsuit—and that the defense's strategy of fighting the plaintiffs' attempt to turn the suit into a massive class action unnecessarily prolonged the litigation. The Chicago Tribune reported on the resulting dispute.

UAW aims to rebuild, rebound

The UAW faces a historic challenge of rebuilding not just its membership—which has fallen from a high of 1.5 million in 1980 to a historic low below 470,000—but also its image. How low the union's image has sunk became apparent during congressional hearings in late 2008, when GM and Chrysler sought federal aid, notes the Detroit Free Press. Despite the criticisms, the UAW emerged from the crisis with a surprising amount of potential.

Corporate Counsel Suite™

Fast answers, trusted analysis and time-saving resources.

This new online platform is designed exclusively for corporate counsel to provide fast answers and time-saving resources.

State Employment Law Compare

Quickly & easily compare state employment laws side-by-side

This new innovative tool uses "Smart Chart" functionality to instantly compare multiple state laws, all at the same time on the same chart.

Editor

Lisa Milam-Perez, JD

About CCH WorkWeek

This weekly newsletter provides corporate counsel and law firm practitioners with need-to-know employment and labor law information in a timely, yet manageable manner. Benefit from news and information in a broader context, with deeper analysis of recent developments and corresponding trends. Delivered to you every Monday, CCH WorkWeek offers timely coverage of breaking legislative developments, regulatory activity, state law changes, key case law and expert commentary by CCH editors.