HARTFORD, Conn., – Jackson Lewis LLP, one of the country’s largest and fastest growing workplace law firms, announced that Victoria "Tory" Woodin Chavey has joined the firm as a Partner in its Hartford office. Ms. Chavey was formerly a partner with the Hartford law office of Day Pitney LLP, where she previously had worked with Hartford Managing Partner Beverly Garofalo and Litigation Manager Peggy Strange.
“Bringing Tory to our Hartford team is a tremendous coup for Jackson Lewis,” says Garofalo. “Connecticut’s entire legal community regards Tory as a true leader in her field -- an exemplary employment lawyer who is respected and esteemed for her exceptional abilities in the field of workplace law. Having worked with her before, I can say that she is intelligent, disciplined, intuitive and rightfully regarded as an expert in her field. The contributions she will undoubtedly make on our team will be significant for our ever-growing client base in Connecticut as well as to the entire firm.”
An experienced trial lawyer, Ms. Chavey has represented employers for over 15 years on a wide range of employment issues, including wage and hour matters; discrimination and retaliation claims; downsizing and reductions-in-force; and hiring, disciplining and terminating employees.
Ms. Chavey has written and spoken extensively on employment law issues and is on the board of editors for The Employment Law Strategist. She has been recognized as a Connecticut “Super Lawyer” for the past five years running, included in “The Best Lawyers in America” for the past four years and recognized by New England Magazine in 2008 as one of the ‘Top 50 Women Lawyers in New England.’ In the most recent edition of Chambers USA, the legal guide noted that Ms. Chavey “divides her time between counseling and litigation, always impressing her clients in either function” and praised her “well-balanced approach that combines tenacity with reason and charm.”
“I could not be happier to join my former colleagues Beverly Garofalo and Peggy Strange at Jackson Lewis, one of the premier workplace law firms in the country,” says Chavey. “I look forward to helping the Hartford office strengthen and expand its footprint as we help employers address the challenges impacting today’s workplace.”
Ms. Chavey graduated summa cum laude from Boston University School of Law where she served as editor-in-chief of the Boston University Law Review. She was a cum laude undergrad at Dartmouth College. Upon graduation, she served as law clerk to Thomas J. Meskill, senior judge of the U.S. Court of Appeals for the Second Circuit, and as law clerk to Ellen Ash Peters, chief justice of the Connecticut Supreme Court.
About Jackson Lewis
Founded in 1958, Jackson Lewis is dedicated to representing management exclusively in workplace law with 600 attorneys practicing in 45 cities nationwide. Jackson Lewis has a wide-range of specialized practice areas, including: Affirmative Action and OFCCP Diversity Planning; Disability, Leave and Health Management; Employee Benefits, including Complex ERISA Litigation, Workplace Privacy and Executive Compensation; Global Immigration; Labor, including Preventive Practices; Litigation, including Class Actions, Complex Litigation and e-Discovery; Trade Secrets, Non-Competes and Workplace Technology; Wage and Hour Compliance; and Workplace Safety Compliance. In addition, Jackson Lewis provides advice nationally in other workplace law areas, including: Reductions in Force, WARN Act; Corporate Governance and Internal Investigations; Drug Testing and Substance Abuse Management; International Issues; Management Education, including e-Based Training; Alternative Dispute Resolution; Public Sector Issues; Government Relations; Corporate Diversity Counseling and College and University Employment Law and Compliance Issues.
Additional information about Jackson Lewis can be found at www.jacksonlewis.com
After months of moribundity, the Employee Free Choice Act (“EFCA”) is showing signs of life. Or at least alternative means of imposing some of the major changes included in EFCA, such as greatly decreasing the time of an election campaign and limiting employers’ ability to actively participate in union elections, are being considered. It all depends on the possible confirmation of Craig Becker, whose nomination to the NLRB has been stalled in the Senate but was recently voted out of committee on a party line vote.
The theory goes that if Becker, who is currently Associate General Counsel of the SEIU, is confirmed by the full Senate, giving former union lawyers a 3-2 majority on the Board, strange (and bad) things may occur. Becker’s past published writings include such one-sided suggestions as excluding employers from participating in pre-election hearings to determine an appropriate bargaining unit, preventing employers from alleging that union campaign conduct coerced employees, and prohibiting employers from conducting mandatory meetings of employees at any time during the campaign (instead of only during the 24 hours before the election, as at present).
Given Becker’s extreme views, the theory goes, new NLRB Chairperson Wilma Liebman should have no trouble getting the majority of the Board to agree to embark on expanded rulemaking and in that fashion, impose many of the EFCA changes indirectly. Liebman has made no secret of her interest in having the Board expand its rulemaking activity, instead of limiting itself to ruling on cases presented to it.
By Jennifer Brown Shaw and Alayna Schroeder www.shawvalenza.com
Former Major League Baseball player Mark McGwire’s recent admission that he used steroids throughout his career came as no surprise in a profession plagued by similar problems. While McGwire ostensibly used the drugs to enhance his performance, employers generally fear a decrease in performance when their employees use illegal drugs.
Employers usually want to prevent negative effects on worker productivity and safety. Indeed, some employers are required to make sure employees are not working under the influence. One available tool is to test applicants and employees for drug use. However, California employers encounter tension between employees’ privacy and their duties or desire to maintain a drug-free workplace.
Laws That Regulate Drug Testing
State law primarily determines whether private employers can legally test employees for drugs. The California Constitution and cases interpreting it present the most serious restriction on applicant and employee drug testing. The Constitution protects individuals’ right to privacy. Unlike in most other states, these privacy protections apply not only to acts of the government, but to acts by private employers.
Drug testing also may implicate different statutes, including anti-disability discrimination laws, medical privacy statutes, and even local ordinances prohibiting certain testing, such as San Francisco’s.
The California Supreme Court applied the California Constitution’s privacy protections to drug testing in Hill v. National Collegiate Athletic Association. In Hill, the Court created a “balancing test” to determine whether the drug test at issue was legitimate. That test balanced the testing party’s interests against the individual’s reasonable expectations of privacy. Courts continue to apply this test when evaluating drug testing practices by employers in the private sector.
Anti-discrimination laws may apply when an employer tests employees lawfully using certain drugs and takes action when they test positive. For example, employees may be using prescribed drugs to ameliorate a bona fide disability. San Francisco’s ordinance regulates the types of testing and the circumstances under which it may be conducted.
On the other hand, some laws require either drug testing or programs to ensure a “drug-free workplace.” Applicants and employees for certain public-sector jobs, positions as drivers of larger vehicles, and others may be required to submit to drug testing.
Types of Drug Testing
The most common forms of testing include applicant drug testing (where employers test applicants before they even start working); testing based on “reasonable suspicion,” based on specific facts and circumstances an employee is using drugs; random testing (selecting employees for testing without suspicion); and post-accident testing (triggered when injuries occur or based on other criteria).
Pre-Employment Testing
With some restrictions, California courts have generally allowed employers to test applicants for drugs. In Loder v. City of Glendale, a case involving a public employer, the California Supreme Court upheld pre-employment drug testing under the Hill balancing test. The City of Glendale tested all applicants after offering them jobs. The Court found this pre-employment testing was justified under the California Constitution because of the significant problems posed for the city by employees who abused drugs and alcohol. The city had a legitimate and substantial interest in determining whether an applicant was currently engaged in such conduct before hiring. In Pilkington Barnes Hind v. Superior Court, the California Court of Appeal came to a similar conclusion when considering a pre-employment drug test by a private employer.
To avoid concerns about discrimination and the job-relatedness of a testing program, an employer should be consistent when testing applicants entering the same job classification. An employer should not selectively test only certain applicants in a job class.
Employers often conduct pre-hire drug testing after making an employment offer. Doing so also may avoid unlawful pre-hire inquiries when an employer seeks to clarify an employee’s lawful use of prescription drugs to treat a disability. Testing all applicants before narrowing the field can be prohibitively expensive as well. The courts have held that permitting the applicant to begin work does not convert the test from pre-hire to post-hire.
Finally, a recent federal case casts doubt on pre-employment tests that are not justified by specific, identified problems. In Lanier v. City of Woodburn, an applicant for a position at a public library challenged a pre-hire drug testing requirement. The Ninth Circuit Court of Appeals found that because the city did not demonstrate a special need to drug-screen for position at issue, the testing violated the Fourth Amendment of the U.S. Constitution, which requires individualized suspicion. While the Fourth Amendment only applies to government employers, California courts have relied on federal jurisprudence to interpret drug testing requirements for private employers. So, it is unclear what, if any, effect the Lanier case will have on pre-employment testing by private employers.
Reasonable Suspicion Testing
The courts have provided little guidance about what qualifies as a “reasonable suspicion” of an employee’s drug use. Employers should rely on objective criteria developed over time by medical professionals and regulators. To ensure suspicion is indeed reasonable, the employer should train management regarding the warning signs of drug use.
When an employer lacks a bona fide reasonable suspicion of drug use, employees’ privacy rights more likely will outweigh the employer’s business interest in conducting a test. For example, in Kraslawsky v. Upper Deck Company, the California Court of Appeal stated, “[i]f a drug test is not triggered by a reasonable belief the employee is intoxicated, the employee may have a stronger reason to expect to maintain his or her privacy interest and the employer may have less need to demand the test.”
Random Testing
“Random” testing is really just testing without adequate suspicion of drug use. As discussed above, without adequate justification for the test, an employee’s privacy rights likely will prevail. But in Smith v. Fresno Irrigation District, a California Court of Appeal upheld random drug testing for employees in “safety-sensitive” positions. The employee’s expectation of privacy was outweighed by the employer’s “legitimate and substantial” safety-related reasons for random testing.
Post-Accident Testing
While no California cases since Hill have addressed automatic post-injury/post-accident testing specifically, some courts decided prior to Hill evaluated post-accident testing under the Fourth Amendment. In Connelly v. Newman, for example, the U.S. District Court for the Northern District of California rejected post-accident testing by the United States Office of Personnel Management (OPM), but upheld reasonable suspicion testing. The court determined OPM’s interests supporting testing were weak because the testing plan required minimal property damage, did not have a causation requirement, and involved employees who did not pose a significant threat to public safety.
By contrast, in International Brotherhood of Teamsters v. Department of Transportation, the Ninth Circuit upheld an order by the Federal Highway Administration of the Department of Transportation that required different types of drug testing for commercial motor vehicle operators, including post-accident testing after a fatality, an injury demanding immediate medical treatment away from the scene of the accident, or involving at least $4,400 in damage.
Especially given the courts’ treatment of reasonable suspicion in post-Hill cases, it is risky to conduct post-accident testing following all accidents, or accidents involving little property damage or injury. An accident may contribute to a manager’s “reasonable suspicion,” of course, but there should be other indicia of drug use.
Employer Tips
Unless a specific law or ordinance prohibits or requires drug testing, employers must balance their needs against employees’ privacy rights. The absence of a “bright line” rule can create uncertainty. But employer can take steps to mitigate the risk of drug testing.
Unless or until the law changes, employers are generally free to conduct pre-employment, post-offer testing. As the Supreme Court recognized, such drug testing can contribute to fewer drug users in the workplace. Active drug users will be deterred from applying if the employer publicizes its testing program.
Employers also can help tip the “balance” of interests in their favor by reducing employees’ expectation of privacy. One effective method of doing so is to give applicants and employees adequate notice of the employer’s drug testing program. Notice may be given in a handbook or on a sign posted where applicants apply for work.
Employers can demonstrate a commitment to a drug-free workplace by implementing policies and practices affirming the employer’s disapproval of illegal drug use. When employees are found to be in possession of or using illegal drugs, a strong response can deter others from making similar mistakes.
While it is important to respect an employee’s privacy rights, employers also have the obligation to provide a safe working environment for all employees. Aside from drug testing, an employer may need to prevent an employee from performing his or her regular duties if the employer feels injury or harm could result.
Finally, it is important to apply anti-drug policies fairly and consistently. Employers should resist the temptation to selectively enforce reasonable suspicion-based testing programs. It also is important to train managers adequately regarding not only what constitutes adequate suspicion of drug use, but also the thorny procedures involved in conducting effective drug tests.
Young Conaway Stargatt & Taylor, LLP www.ycst.com
Less than one-third of U.S. employers have a social-media policy, according to Manpower in its recent study, Social Networks vs. Management? Harness the Power of Social Media. Not that this is a surprise. Frankly, I’m more surprised when an employer actually does have a social-media policy in place. The recently published regulations of the FTC regarding employee endorsements and social-media sites may prompt some employers to get working on that policy. And, if that’s the case or if you’re considering a social-media policy for any other reason, here are some tips to help you on your way.
Before You Draft
There are three steps that must be completed before you can get to the heart of it and start to collaborate on the actual content of your policy. I’ve written about these steps before, so I’ll just touch on them here.
First, you have to educate the decision makers about what social media is all about. Likely, this means you’ll need to get at least some of the C-Suite to participate in social media to some degree. A lot of hand-holding is both appropriate and effective. Don’t expect executives to squeeze time into their already crammed schedules to learn about social media just for the heck of it. Work with them by doing the legwork for them. Collect relevant blog posts and send them to the decision maker once a week. Or monitor Twitter for mentions of the company’s name and provide those as part of your regular update. Anything to show them that social media is relevant.
Before putting pen to paper, employers should start with the 3 most important questions: Who, What, and Why. I’ve discussed these in more detail in an earlier post (See Social Media Is Here to Stay: Time to start that social-media policy). Generally, these questions address the following:
First, who will be regulated by the policy—i.e., will certain job titles or departments be excluded altogether or subject to less restrictions?
Second, what will be regulated—will all online activity be subject to the policy or only when the employee somehow associates himself with your organization (for example, by using his company e-mail account in his Twitter profile).
Third, why are you writing a policy in the first place? Is it to encourage employees to get out there and embrace social media, hopefully with some resulting benefits returning to the employer? Or are you trying to regulate online use of social-networking sites because productivity has become an issue? There are infinite variations of those two choices and your organization needs to settle on one before you start hashing out actual policy provisions.
Non-Negotiables
Regardless of what types of activity you decide to regulate with the policy and regardless of who will be subject to the policy’s provisions, there are certain standards that can be applied universally. I call these the “non-negotiables” of social-media use. Truthfully, many are likely to already exist within other company policies, such as an anti-harassment, confidentiality, or privacy policy. But not all of them. And not in one single policy. Here are some of what I consider to be “must-have” prohibitions or restrictions when it comes to employees’ use of social media, a set of “social-media principles,” if you will.
Keep Confidential Information Confidential. Company information should not be shared outside the company. Similarly, any activities that occur at the Company’s facilities should not be shared outside the company. Do not post pictures of Company events or of the interior of the Company’s facilities without express authorization. Do not share any information about clients or customers and do not identify any clients or customers by name or otherwise.
Be Nice. Do not post derogatory, defamatory, or inflammatory content about others for any reason. Disagreeing with another person’s opinions or actions is a legitimate form of expression. But express your disagreement in an intellectual and rational way supported by facts and references and free of any overt or underlying nastiness or hostility. Stay calm even if others post information about you or the Company that is untrue.
Do Not Break the Law. Do not engage in illegal or unlawful activities—at work or at any time. Do not publish pictures or other information about your participation in illegal activities. Similarly, do not publish anything that infers or implies that you are engaging in illegal conduct.
Protect Privacy Rights (of Yourself and of Others). Be very cautious about the ways in which you share personal or private information about yourself with others online. Assume that your coworkers and clients wish to maintain their privacy, as well. Do not post pictures of coworkers without their express permission. Do not share details of others’ personal lives online unless they’ve expressly authorized you to do so. Assume that anything and everything you post online will stay online forever, for anyone to see. If that makes you think twice about posting the information, then don’t.
Standards of Conduct Still Apply. Any conduct that would be grounds for dismissal if performed at work will be grounds for dismissal if performed online. Just as the Company does not tolerate use of race-, religion-, or gender-based slurs in the workplace, an employee’s use of such slurs in cyberspace will be grounds for immediate termination. Similarly, just as workplace harassment will not be tolerated, harassing behavior that is conducted online will not be tolerated. Threats of violence towards others, like hate-based language and harassment, is grounds for termination.
See these earlier posts for more help with your social-media policy:
3 Reasons Why Employers Don't Have a Social-Networking Policy
The 3 Principles for Social Media: How to Be a Good Online Citizen
Sample Social-Media Guidelines
Social Media Is Here to Stay: Time to Start that Workplace Policy
Sample Social-Media Policy Ideas
Social Media Policies: What about my “friends”?
Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies
By John Donovan www.laborlawyers.com
In talking with dealerships around the country, it looks as if there is light approaching the end of the tunnel. Some are actually starting to hire new employees. So this probably is a good time to take a look at the way your dealership hires employees and to determine if the process is accomplishing two critical tasks: 1) identifying the best possible candidate for a position who will make the dealership money; and 2) screening out "high risk", problem candidates who are likely to cost the dealership money.
While there is no perfect or "one size fits all" hiring procedure, we do know from experience that there are seven critical elements to an effective hiring procedure.
1. Know what you are looking for before you start
Before you begin the hiring process, you need to give some thought to exactly what you are looking for. Go beyond the standard, technical job qualifications. Is this individual likely to be considered for future promotion within the dealership or the organization? If so, you may want to look for someone who had demonstrated promotability in the past or has acquired some skills or experience that will be helpful in the next position.
Does the job require skills or traits that do not appear on the application? For example, when hiring a service writer or cashier, you would probably prefer someone with a friendly personality or a good appearance. If so, be sure to evaluate those areas during the interviews.
2. Study the application before you begin the interview
A properly designed application can provide a lot of useful information beyond what is written. Is the application filled out neatly? Was it filled out completely? Applicants who do not take the time to make a good first impression on you, are not likely to impress your customers at all once they are hired. When applicants leave things blank on an application, it usually means that they do not want to provide the information you are requesting. That makes it even more important to follow up to get proper and complete answers. We often see this in the job history section where the applicant cannot remember names of former supervisors or telephone numbers or even dates of employment.
Be sure to check the response to the criminal record question. Unless the applicant has provided a clear and definitive "NO, you need to follow up and determine if he or she has any kind of criminal record. You have the right to ask this question even if it is embarrassing and even if it results in the applicant's rejection. But remember that you cannot disqualify applicants simply because they have a criminal record. You must first determine the facts and circumstances surrounding each conviction and then determine if the conviction renders the individual unsuitable for the position for which he or she is applying.
This normally requires having the applicant provide additional written information concerning the conviction as well as running a criminal record check for the current state and any other state where they previously worked. While this is somewhat complicated and may take a little time, it should never deter you from getting all of the information you need to make a proper decision. The last thing a dealership needs to do is to hire a salesman or finance manager with a conviction for identity theft.
3. Conduct an effective interview
The interview gives a manager the opportunity to see how employees think and express themselves. Through proper questioning, you can get useful insight into the candidate's attitudes toward customers, management, the car business, even work itself. This requires advanced preparation, however. Managers should develop their own written list of questions that they use for every applicant for a particular position. This will ensure that the manager asks all questions likely to develop useful information and helps avoid questions of a sensitive nature (pregnancy, family plans, medical issues, religion, etc.) It is also important for the manager to listen carefully to any answer that the applicant provides and to follow up when necessary, e.g. "Have you ever been terminated?" "Well, …. not really."
At the end of the interview, remind applicants that the dealership conducts a comprehensive background check including contacting all previous employers, checking criminal and driving records. Then tell them that if those checks might turn up anything adverse or anything which might make them look bad, you would like to give them a chance to explain right now. Surprisingly often, candidates will admit that they have not been completely truthful in some of the information they have provided.
4. Conduct thorough background checks
Always contact every previous employer. Because "leopards do not change their spots," the previous employer's experience with an applicant usually foretells what your experience will be. While not all former employers will provide a complete reference, they will often provide some useful information. For example, just having the previous employer confirm dates of employment may reveal that the applicant has significantly "fudged" employment dates to cover the time worked for another undisclosed employer. Knowing that an applicant is "not eligible for rehire" at least lets you know that that employer did not think much of them even if it provides no other reference.
While some states severely restrict employers' access to criminal record information, most do not. Therefore, all dealerships that can check these records should be checking them. Again, you cannot disqualify an applicant simply because of a criminal record. You must investigate and consider the nature of the offense, when it occurred and what has happened since and then determine if the conviction renders the individual unsuitable for that position. Because most dealership employees come in contact with or have access to customers' financial information and other personal information as well as their personal property, dealerships must be careful not to hire anyone with a history of theft or fraud.
Dealerships should also get a driving record from the state DMV. An applicant for a parts driver or sales position with a history of multiple accidents or a generally poor driving record is likely to cost you money, even if the insurance company will insure him.
5. Send them for a drug test
Most states permit an employer to require an applicant to take and pass a drug test as a condition of employment. Where lawful, you should send every final candidate or new hire for a drug test before allowing them to start work. Some dealerships will not allow an employee to start until they have the results of the test. Others hire them and send them for a test on their first day at work.
While the first procedure is cleaner, the second approach is fine so long as the employee understands that continued employment is contingent on passing the drug screen. If the test is "inconclusive," such as due to the presence of some adulterant or low creatinine level, the safest course of action is to say nothing to the employee and simply send him for a retest in a week or two, ideally on a Monday.
6. Conduct an effective orientation
Dealerships should always conduct a "new employee" orientation during the first week or two of employment. It gives you a chance to look over the hiring process and to ensure that all of the required criminal, driving and drug checks have been properly completed. It also provides the opportunity to ensure that the employee has completed all of the documents that are required by law or are necessary for the dealership's protection: I-9 form, tax forms, application, arbitration agreement, employee handbook, etc. Finally, it allows you to communicate the dealership's benefits, policies and rules to employees in a consistent manner. Incidentally, this is a great time to cover the dealership's no harassment policy in detail including identifying the individuals to whom complaints can be made.
7. Use your introductory period
Managers should think of the introductory period as the final step in the hiring process and treat it as a 90-day, on-the-job interview. During that time, a manager will have the opportunity to see firsthand how the employee actually performs and can then determine whether or not the employee is a keeper.
Contrary to what many managers believe, there is no legal "magic" to the introductory period. Employees who are terminated during their introductory period can still sue the dealership for discrimination or wrongful termination. Therefore, if a manager is considering terminating a new employee during this period, be sure you have documented any performance problems just as you would for a long-term employee, and be prepared to provide the employee with the reason for his termination.
If you would like a sample of what should be included in an effective hiring policy and procedure, which can be tailored to your dealership, contact any member of our Dealership Practice Group.
By Christopher Mills
On December 19, 2009, President Obama signed the 2010 Defense Appropriations Bill, which included an extension of the 65% COBRA Subsidy provision originally enacted last February in the Stimulus Bill. The new law affects the COBRA subsidy as follows:
• extends from December 31, 2009 to February 28, 2010 the date which governs eligibility for involuntarily terminated individuals to be eligible for the subsidy;
• extends the maximum subsidy period from 9 months to 15 months;
• gives individuals whose subsidized COBRA coverage has already ended, 60 days from the date of enactment (or 30 days after the notice that is required and discussed in the next point is given, if that is later) to pay the 35% subsidized premium amount and obtain retroactive coverage under subsidized COBRA. If the full premium was already paid for any period after October 31, 2009, the "overpayment" amount can be refunded or credited towards future coverage; and
• requires administrators of group health plans to provide a notice describing the foregoing changes to individuals who were eligible for the subsidy or who experienced a COBRA qualifying event at any time on or after October 31, 2009.
If your company takes responsibility for COBRA compliance and issuing COBRA notices (as opposed to contracting it out to a third party or relying on an insurance company) you now have an action item to complete by February 19, 2010: you must send a notice describing the COBRA changes to all individuals who were eligible for the subsidy or who have experienced or will experience a COBRA qualifying event at any time on or after October 31, 2009 and up until February 28, 2010. This notice should describe:
• the extension of the maximum COBRA subsidy period from 9 months to 15 months;
• the extension to February 28, 2010, of the qualifying date for an involuntary termination entitling the COBRA-qualified beneficiary to the COBRA subsidy as an "assistance-eligible individual";
• the right of qualified beneficiaries whose COBRA terminated after October 31, 2009 (because of a failure to pay the higher, unsubsidized COBRA premium) to reinstate coverage retroactively by paying the subsidized premium (the 35% amount) by February 19, 2010, or by 30 days after the notice is given, whichever is later; and
• the right of assistance-eligible qualified beneficiaries who paid an unsubsidized premium for COBRA for periods after October 31, 2009, to receive a refund or obtain a credit of the overpaid amount. (The administrator can choose the option it prefers – refund or credit).
For model notices visit the Labor Department's website.
The Centers for Medicare and Medicaid Services (CMS) postponed the implementation of new regulations requiring an employer to report to CMS any payment to a Medicare-eligible person, where that payment is for medical benefits or is in exchange for a release that waives claims for medical benefits. The new deadline recently announced by CMS requires that reports of covered payments must be submitted beginning in the first calendar quarter of 2011.
Background
Medicare is a government-funded health insurance program primarily for individuals age 65 or older. However, Medicare is not intended to be the primary insurance coverage for such individuals where there are other funds available to pay for medical treatment (i.e., Medicare is a "secondary payor"). In response to funding concerns for Medicare, Congress passed the "Medicare, Medicaid and SCHIP Extension Act of 2007" (MMSEA), which President George W. Bush signed into law on December 29, 2007. See 42 U.S.C. § 1395y(b). The purpose of the Act is to enable Medicare to determine when its beneficiaries have received payment or reimbursement for medical expenses that Medicare could recoup.
What Will Be Required, Once the Provisions of the Act Are Implemented?
An employer that is fully or partially self-insured will be considered a "Responsible Reporting Entity" (RRE) and will be required to report payments to a person who is eligible for Medicare benefits, if the payments are for medical benefits or are in exchange for a release that has the effect of waiving claims for medical benefits. Where an RRE has assumed "Ongoing Responsibility for Medical Benefits" (ORMs), payments made on or after January 1, 2010, must be reported. Where the RRE makes a one-time or lump-sum payment to resolve all or part of a claim, which the CMS refers to as a Total Payment Obligation to Claimant (TPOC), such payments occurring on or after October 1, 2010, must be reported. Without regard to whether the payment to be reported is an ORM or a TPOC, the RRE has until the first quarter of 2011 to submit its first report.
Significantly, where a settlement or other agreement between an RRE and a Medicare-eligible person includes a full release of all claims by the individual, any payment in exchange for that release must be reported. This is true even if the individual never asserted any claim for medical benefits, as long as the release would have the effect of waiving any such claim.
For the purposes of these new reporting requirements, an employer may be considered "self-insured" if it has insurance coverage subject to retention.
Why Is This Important for Employers?
An RRE that fails to report covered payments will be subject to a civil penalty of $1,000 per day. Therefore, the delay of the deadline to begin reporting will provide employers additional time to review the Section 111 regulations and begin the process of registration with CMS (if necessary).
The process of registering with CMS is highly technical, and CMS cautions that RREs must begin the registration process a full calendar quarter before the obligation to submit reports arises. This period allows for testing of the technical elements of the reporting process.
What Should Employers Do?
| 1. | Employers should consult with their insurance carriers and the attorneys handling their insured liability claims to ensure that preparations have been made to report information on covered payments on time. | ||||
| 2. | Employers should examine their claims history and determine the likelihood of claims or demands being made against them for medical benefits. Employers also should consider whether there are other claims for which they would require a full release of all claims in exchange for a settlement payment. | ||||
|
|||||
| 3. | Employers should consult with counsel concerning what steps, if any, may be necessary to determine whether a plaintiff or claimant is eligible for Medicare benefits. Note that because an individual's Medicare status can change during the course of litigation, such an inquiry should be made at the beginning of the litigation and at the time of a final payment to the claimant, at a minimum. Inquiries about a claimant's Medicare status can be made (i) to the claimant, and (ii) to Medicare's database (by entities registered with CMS). |
Additional Information
The CMS website is located at www.Section111.cms.hhs.gov. Should you have any questions about this new requirement or its impact on employers, contact the Ogletree Deakins attorney with whom you normally work or Ogletree Deakins’ Client Services Department at (866) 287-2576 or via e-mail at clientservices@ogletreedeakins.com.
By: Todd Dewett, Ph.D.
Todd Dewett, Ph.D. is a professional speaker booking through OnTarget Speakers Bureau.
Leadership is about supporting and building employee morale and productivity. Ultimately, these explain organizational success. Each year we see hundreds of new leadership-related books and thousands of leadership-related articles. But how much of what is new is really new? After reading most of it, I have concluded that there are a small number of things going on that explain the essence of leadership. In fact, all of the thousands of leadership ideas, tricks and tactics that have been discussed really boil down to three simple rules. To maintain and build high performance organizations you must focus on three core ideas: reduce ambiguity, be fair and stay positive.
Reduce Ambiguity
People hate the unknown, the unclear and the unnecessarily complex. Thus, an overriding goal is to be clear and specific, cogent and understood. Think through the many forms of communication you have with your team on a regular basis. Each is an opportunity to send ambiguous and misunderstood signals. When someone receives a 2.3% raise instead of the 5% they expected, do they really understand why? What about when they do not receive the promotion or that spot they really wanted on the new project team? To the extent that they do not fully understand the cause of these outcomes, they will do the one thing you do not want them doing: they will make assumptions. These assumptions are rarely correct. Typically, they are negative and self-serving. All of this is time not spent working productively because you failed to go the extra few steps required to really reduce ambiguity.
With a solid focus on two things, you can greatly reduce ambiguity. The first is clear interpersonal communication. This refers to communication that is very specific (e.g., liberal use of facts, dates, examples), genuine (honest, otherwise the vast majority of people sense the truth), confirmed (never assume they understood what you said, verify it) and timely (e.g., delivered as quickly as possible). The second part is effective goal setting. This involves establishing performance goals for individuals and the team, milestones and metrics that will be used to evaluate progress, hold people accountable and reward performance. With great communication and clear performance goals you will go a long way towards reducing unnecessary employee ambiguity.
Be Fair
This does not mean treating people the same. You only want to treat people identically in terms of creating an environment where expectations are clear and opportunities are open to everyone. Beyond that, your goal must be to use rewards and recognition depending on performance. To be fair also means to be transparent. Operate above board, avoid playing politics, avoid playing favorites and be sure that people are always clear as to how you made your decisions. Your employees should never be surprised by something you do at work.
One vital key to not only being fair, but being perceived as fair, is to allow people a voice in shaping decisions that affect them. Sometimes this is not possible and you must make decisions very quickly or you must make decisions that are not appropriate to discuss with subordinates. In these cases, you still need to be absolutely transparent. Explain yourself or they will draw their own conclusions (and they will not be accurate). The ideal, however, is participation - giving people real ownership. When there is time, seek input and take it seriously. Why? When people feel they have actually had a voice in the process they are willing to accept unfavorable outcomes far more than when they do not believe they have had a voice. That is a massively powerful incentive to strive for participation.
Stay Positive
Positive emotions (just like negative emotions) are infectious. Leaders have an opportunity with each and every issue they face to frame it as positive or negative, as an opportunity or threat. Research tells us that how an issue is framed dramatically affects how people react. The implication for leadership? The glass is half full! I do not mean to imply that you are to avoid conflict or avoid providing needed critical feedback. Simply make sure that you are positive when doing it and that you balance all critical and developmental feedback with a good dose of honest praise. This does not make people enjoy difficult feedback, but it puts them in a better mental position to actually accept and consider what you have to say.
Next, realize that to be a leader is to be a cheerleader. Sports metaphors have their limits, but this one really fits.
by Maria Danaher
Ogletree, Deakins, Nash, Smoak & Stewart PC
Four Gateway Center, Suite 400
444 Liberty Ave.
Pittsburgh, PA 15222
Phone: 412-394-3333
Non-disabled individual can support claim of "improper medical inquiry" under the ADA.
The Americans with Disabilities Act makes it illegal for employers to discriminate against disabled individuals. To that end, the Act includes a provision that, prior to an actual offer of employment, an employer “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” The only inquiry that can be made is whether the applicant is able to perform job-related functions. In a case of first impression, the 11th U.S. Circuit Court of Appeals has held that a non-disabled employee can sue an employer for prohibited medical inquiry under the ADA. Harrison v. Benchmark Electronics Huntsville, Inc., 11th Cir., No. 08-16656, Jan. 11, 2010.
John Harrison was assigned as a temporary employee with Benchmark Electronics Huntsville, Inc. (BEHI) in 2005, working to repair and test electronic boards. At that time, if a BEHI supervisor believed that a temporary employee would meet the company’s needs, he could invite that individual to submit an application for permanent employment, which required undergoing a drug test and background screening.
In May 2005, Harrison submitted an employment application to BEHI at the suggestion of his supervisor, Don Anthony, and underwent the required drug screening and background check. At that point, Harrison had never been informed of any performance deficiencies or problems with his work attitude. Harrison’s drug screening came back positive which, under BEHI’s policy, required review by a Medical Review Officer (MRO). Anthony was contacted by BEHI’s HR department and was asked to “send [Harrison] her way.” Although HR did not tell Anthony about the positive drug test, Anthony discovered that information on his own, and informed Harrison that the test had come back positive for barbiturates. Harrison stated that he had a prescription for the drug, and Anthony asked him to produce it. Anthony immediately called the MRO and passed the phone to Harrison. Anthony remained in the room while Harrison answered a series of questions from the MRO, explaining that he had been diagnosed with epilepsy at age two, and took barbiturates to control the effects of that disease.
Shortly afterward, Harrison was informed by the MRO that his drug test had been cleared. However, Anthony told HR not to prepare an offer letter for Harrison. He further asked the temporary agency not to return Harrison to BEHI, stating that Harrison had “performance and attitude problems.” Harrison immediately was fired from the agency.
Harrison filed a lawsuit against BEHI under the ADA, alleging that the company had engaged in improper medical inquiry. BEHI moved for summary judgment which was granted by the district court. That decision was reversed by the 11th Circuit on appeal. The primary basis for the reversal was the appellate court’s answer to the question of whether a non-disabled individual can state a private cause of action for a prohibited medical inquiry under the ADA. (The EEOC had determined that Harrison’s epilepsy did not rise to the level of “disability” under the ADA. Although the 11th Circuit had not previously addressed that issue, it held – consistently with sister circuits which have specifically addressed that question – that the ADA precludes inquiries with respect to any applicant who has not yet received a job offer, whether or not the individual is disabled under the ADA.
This case raises an interesting issue. The ADA specifically recognizes an exemption for pre-employment drug tests (“a test to determine the illegal use of drugs shall not be considered a medical examination”), and allows an employer to validate the test results by asking about lawful drug use or possible explanations for the positive result other than illegal use of drugs. However, as this case makes clear, disability-related questions are prohibited. In fact, the Court in this case quotes the legislative history of the ADA to point out that the drug-test exemption “should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment has been given.” Therefore, while an employer may conduct follow-up questions in response to a positive drug test, there are specific limitations on the types of information that can be elicited by someone other than a medical officer. While BEHI’s procedure to have an MRO conduct follow-up questioning may have been consistent with the ADA, Anthony’s presence during Harrison’s responses and revelation of his medical condition was held by this Court to preclude summary judgment in favor of the company.
Firm to Move to 12th & Midtown in Atlanta www.laborlawyers.com
ATLANTA - Fisher & Phillips LLP announces that the firm is moving its national headquarters to Midtown Atlanta. After 22 years in Buckhead, the firm is relocating to 1075 Peachtree Street, a new building in the 12th & Midtown development near the Federal Reserve Bank of Atlanta. The firm will occupy two floors of the 38-story office tower.
Firm Chairman and Managing Partner Roger Quillen said "We couldn't be more excited about this choice. This is a state-of-the art building that meets all the needs of a national law firm's headquarters. In addition to its built-in technology, the building offers a contemporary, inviting and energy-efficient environment for all of our personnel and clients. Two MARTA rail stations within just a few blocks is another important feature."
The firm's chairman also noted that many of the city's other leading law firms are located in Midtown. "Midtown Atlanta is to national law firms what Wall Street is to financial institutions."
"This location puts our firm in the heart of the city – there is an energy in Midtown that is palpable," said Quillen. "It is fitting that our headquarters be in the booming center of things."
Fisher & Phillips plans to move in November 2010.
The filing season for the Fiscal Year 2011 H-1B quota is at hand. Despite the sluggish economy, analysts are predicting positive growth in employment during the course of the year. Thousands of new H-1B cases will be filed on April 1, 2010. Employers need to project their labor needs for the coming year and position themselves to take advantage of the new H-1B quota.
Each quota season brings new changes to the process and employers should make an effort to project their H-1B needs for the coming year as soon as they are able. There are two major differences to the H-1B process for this year that should be noted. The first change is the processing time for the Labor Condition Application (LCA). The second change is in the form of a USCIS guidance memorandum on “Establishing the ‘Employer-Employee Relationship’ in H-1B Petitions.”
The LCA’s are no longer instantaneously approved. The LCA process now takes about seven workdays. However, the process can be three or more weeks if an employer has never filed an LCA or if it has never filed a PERM application. The Immigration Service expects the approved LCA to be filed with the H-1B petition. If the approved LCA is not included with the H-1B petition, then the Immigration Service might reject the application or delay its processing. Both outcomes will be detrimental to employers. Employers should add in the additional LCA processing time when they create their H-1B timelines.
The guidance memorandum released by USCIS in January will have a significant impact on PEO's and Staffing Company employers who place professionals at third party job sites. The memorandum focused on the additional evidence that an employer should include with the H-1B petition aside from the basic evidence of support. The Immigration Service will now expect to see evidence that the petitioner exercises control over the employee at the job site. Mere proof that the petitioner is the paymaster will no longer be enough. Instead employers must demonstrate that they assign projects to their employees, that their employees report directly to them, that they directly supervise and manage their employees, and that there is an itinerary of projects that spans the length of the requested H-1B term. Employers will be expected to submit contracts and work orders to demonstrate on-going business. To avoid delays and possible denials, employers are encouraged to assemble the requisite documents, so that they can be filed with the initial petition. These new evidentiary requirements will have the greatest impact upon IT consulting and staffing companies, but other staffing arrangements may be affected too.
For additional information regarding H-1B eligibility and/or procedure, and for guidance pertaining to your unique circumstances, please contact Sanford Posner or David Whitlock.
A common problem area for veterinary practice owners and managers is the screening and interviewing process, says Edward J. Guiducci, JD, American Veterinary Medical Law Association. Claims and lawsuits can arise from the words and conduct of a hiring veterinarian, manager or hiring team member toward prospective employees, Guiducci explained at the 2010 Western Veterinary Conference.
Claims and lawsuits can arise from the words and conduct of a hiring veterinarian, manager or hiring team member toward prospective employees, Guiducci explained at the 2010 Western Veterinary Conference.
Employees or rejected applicants most often sue based on federal, state or local anti-discrimination laws, implied contracts allegedly created during the hiring process, or misrepresentations concerning the terms and conditions of employment. Given these risks, anyone who interviews applicants or otherwise participates in the hiring process should be trained to recognize what can and cannot properly be said to an applicant.
An example is where a veterinarian screens and interviews all job applicants for her veterinary practice. She has had a problem with former employees marrying and having children causing the employees to either quit or take excessive absences. As a result she now screens applicants by asking probing questions during his/her interview about the applicant’s (especially associate doctors) plans to marry and have children.
This is a clear case of inappropriate questioning of applicants by the practice. It is illegal to base any hiring or employment decision on a person’s: age; race; national origin; religion; gender; or handicap/disability. The practice is exposed to an EEOC or state labor board complaint and/or being sued for discrimination.
There are a variety of questions that must be avoided when interviewing a prospective employee. The questions should focus on knowledge, skills and abilities that relate to the job for which applicant is interviewing. Some of the questions to avoid are:
| • | Health issues: The ADA prohibits “fishing” for information about an applicant’s physical or mental condition. A practice can only inquire about the person’s ability to perform specific job-related functions. |
| • | Age, except to ask if the applicant is over the age of 18. |
| • | Race/national origin |
| • | Marital status |
| • | Number and/or ages of children |
| • | Maiden name |
| • | Childbearing, pregnancy and family obligations. |
| • | Medical condition, state of health or prior illnesses. |
| • | Physical or mental disability prior to offer for employment. |
| • | Height or weight |
| • | Prior workers compensation claims. |
| • | Bankruptcies or garnishments |
| • | Arrests |
So what can the hiring team ask during an interview?
| • | Work experience. An interviewer can ask the applicant questions about the areas of responsibility of his or her previous job; what he or she likes best or least; what work is the easiest and most difficult; ask about a typical day; ask about his or her supervisory experience; ask how his or her work related to others; raises; promotions; awards; achievements; attendance; reason for leaving; career goals; veterinary specific experience; familiarity with certain equipment and instruments; and whether or not the associate doctor is subject to a non-competition agreement. |
| • | Training, skills and knowledge. You can ask the applicant to describe a typical day in his or her job. You can ask the applicant what he or she considers the single most important idea or accomplishment s/he has contributed to in his/her present job. You can also pose a typical problem in the current job and inquire how the applicant would handle the situation. |
| • | Personal attitudes. You can ask if the applicant prefers to work alone or with others or with minimal or direct supervision; career goals. You can ask the applicant to tell you about why he/she wants the job, his or her hobbies and interests. |
For more information, contact Edward Guiducci at Ed@guiduccilaw.com or visit www.GuiducciLaw.com.
National Employment Law Firm Continues Explosive Growth
CLEVELAND, OH (January 29, 2010) – Jackson Lewis LLP, one of the country’s largest and fastest growing workplace law firms, announced that Daniel L. Bell has joined the firm’s Cleveland office as Partner and Ryan Morley has joined as an Associate. Previously, Mr. Bell managed the Labor & Employment Practice Group at Brouse McDowell. Mr. Morley was a Partner with Buckingham Doolittle & Burroughs.
James M. Stone, Resident Manager of Jackson Lewis’ Cleveland office, said, “Dan and Ryan both have the type of outstanding character, work ethic and reputation that every law firm in Cleveland would love to have, so it makes us especially proud that they would choose to join Jackson Lewis.”
Mr. Bell is a leading authority on litigation under ERISA (Employee Retirement Income Security Act) and since 1990 regularly has litigated such cases across the country on behalf of employers, fiduciaries, insurers, benefit plans and third-party administrators. He also litigates cases and provides employers with advice and counsel on issues arising under a number of labor and employment laws, including ERISA, state trade secret law, Title VII, the Age Discrimination in Employment Act, the National Labor Relations Act, the Family and Medical Leave Act, the Americans with Disabilities Act, and the Fair Labor Standards Act. He also assists employers with union-related issues, including collective bargaining, bargaining agreement administration (including grievance processing and arbitrations), and unfair labor practice proceedings.
Named to Ohio Super Lawyers editions since 2004, Mr. Bell is a member of the Ohio State Bar Association, the Pennsylvania State Bar Association and the American Bar Association. He is an active member of the American Bar Association’s Labor and Employment Section through its Employee Benefits Subcommittee and Age Discrimination Subcommittee.
He is chair of the Board of Trustees for the Summit County Children's Services agency, an advisory board member for the Children's Concert Society, and a graduate of Leadership Akron.
Mr. Bell received his law degree from The University of Akron where he graduated summa cum laude and was a member of the University of Akron Law Review Editorial Board and the Trial Team. Prior to law school, Mr. Bell received a Masters degree in Personnel Psychology from the University of Akron and an undergraduate degree from the University of Texas at Austin.
Recently recognized as a “Rising Star” in Ohio Super Lawyers magazine, Mr. Morley has extensive experience in employment litigation and traditional labor law, including first chair negotiations and arbitrations. He has handled many matters for public employers in Ohio in front of the State Employment Relations Board. He has also litigated cases involving workplace issues, such as employment discrimination claims (including Title VII, ADEA, ADA, FMLA, and FLSA matters), retaliation, wrongful discharge, trade secret/non-competition, and employment contracts.
Mr. Morley received his law degree from the Quinnipiac University School of Law in Connecticut where he graduated cum laude and served as editor-in-chief of The Quinnipiac University Probate Law Journal. He received his undergraduate degree from Miami University in Oxford, Ohio.
About Jackson Lewis
Founded in 1958, Jackson Lewis is dedicated to representing management exclusively in workplace law with 600 attorneys practicing in 45 cities nationwide. Jackson Lewis has a wide-range of specialized practice areas, including: Affirmative Action and OFCCP Diversity Planning; Disability, Leave and Health Management; Employee Benefits, including Complex ERISA Litigation, Workplace Privacy and Executive Compensation; Global Immigration; Labor, including Preventive Practices; Litigation, including Class Actions, Complex Litigation and e-Discovery; Trade Secrets, Non-Competes and Workplace Technology; Wage and Hour Compliance; and Workplace Safety Compliance. In addition, Jackson Lewis provides advice nationally in other workplace law areas, including: Reductions in Force, WARN Act; Corporate Governance and Internal Investigations; Drug Testing and Substance Abuse Management; International Issues; Management Education, including e-Based Training; Alternative Dispute Resolution; Public Sector Issues; Government Relations; Corporate Diversity Counseling and College and University Employment Law and Compliance Issues.
Additional information about Jackson Lewis can be found at www.jacksonlewis.com
For more information, please contact:
Lara Hamm, Jackson Lewis
T: (212) 545-4031, E: hamml@jacksonlewis.com
WHITE PLAINS, NY -- Jackson Lewis LLP, one of the country’s largest and fastest growing workplace law firms, announced that 16 attorneys have been named Partners. The recently elected Partners represent a broad range of workplace law experience and are resident throughout Jackson Lewis’ 45 offices across the country.
Firm-wide Managing Partner Patrick L. Vaccaro says, “Through this elevation we cerebrate and recognize the dedication and commitment of an outstanding group of JL attorneys. Each has made an outstanding contribution to our firm and together they help us increase the depth and breadth of our service to employers throughout the country.”
The new Partners are:
• Kara M. Ariail (Washington, D.C. Region)
• Kristin L. Bauer (Dallas)
• Tanya A. Bovée (Hartford)
• Lisa R. Claxton (Greenville)
• Dawn T. Collins (Los Angeles)
• Michael R. Hekle (White Plains)
• Dale Kuykendall (Sacramento)
• Joanne B. Lambert (Orlando)
• Joseph J. Lynett (White Plains)
• Jody W. Moran (Chicago)
• Bryan P. O'Connor (Seattle)
• Dean A. Rocco (Los Angeles)
• Kathryn J. Russo (Long Island)
• Gregory L. (Skip) Smith, Jr. (Atlanta)
• David M. Walsh (Morristown)
• Monique Warren (White Plains)
About Jackson Lewis
Founded in 1958, Jackson Lewis is dedicated to representing management exclusively in workplace law with 600 attorneys practicing in 45 cities nationwide. Jackson Lewis has a wide-range of specialized practice areas, including: Affirmative Action and OFCCP Diversity Planning; Disability, Leave and Health Management; Employee Benefits, including Complex ERISA Litigation, Workplace Privacy and Executive Compensation; Global Immigration; Labor, including Preventive Practices; Litigation, including Class Actions, Complex Litigation and e-Discovery; Trade Secrets, Non-Competes and Workplace Technology; Wage and Hour Compliance; and Workplace Safety Compliance. In addition, Jackson Lewis provides advice nationally in other workplace law areas, including: Reductions in Force, WARN Act; Corporate Governance and Internal Investigations; Drug Testing and Substance Abuse Management; International Issues; Management Education, including e-Based Training; Alternative Dispute Resolution; Public Sector Issues; Government Relations; Corporate Diversity Counseling and College and University Employment Law and Compliance Issues.
Additional information about Jackson Lewis can be found at www.jacksonlewis.com
For more information, please contact:
Lara Hamm, Jackson Lewis
T: (212) 545-4031, E: hamml@jacksonlewis.com
By Jane Boucher
Jane Boucher is a best-selling author and professional speaker booking through OnTarget Speakers Bureau.
A synergetic leader builds an atmosphere of open communication. Open communication is a major factor in employee satisfaction. An employee must be able to approach and talk openly with their supervisors and co-workers. Invite suggestions and even constructive criticism. Instead of waiting for the employee to initiate communication, solicit feedback and discuss current problems and possible solutions.
One of the most important aspects of employee relationships is a leader who gives feedback. Whether it comes from written evaluations, informal or formal discussions, or occasional memos, feedback should be given on a regular basis. Let the employees know how they're doing. Make sure your people get adequate and timely feedback on what they are doing - right or wrong. Recognize your employee's accomplishments and when unpleasant feedback must be given, focus on the inappropriate behavior, not the person as an individual. A synergetic leader cares about the employee and realizes that worker feedback is critical for the productivity of the organization.
Put aside your concerns to listen to those around you. As a result, you will know what is going on, know what is being said, and what is said between the lines. However, knowing what is going on, and identifying the needs of those around you is not enough. The synergetic leader also acts upon that knowledge, attempting to help fulfill the needs of employees, superiors, etc. They wield influence to solve problems for those around them, often before even being asked.
Trust is critical to a good working relationship. Are you honest and fair? Do you level with your employees, even when it might reflect negatively on you or the organization? Do you follow through on promises? Do you take the time to evaluate your own strengths and weaknesses as well as the employee's? The best leaders deal with their employees in the way in which they would like to be dealt. An employee's feeling about their work, no matter how insignificant should be important to you. Deal fairly with each employee, not allowing favoritism or personality differences to affect judgment. People respond to a synergetic leader; they work more diligently, work to help the organization succeed and will got the extra mile when necessary. If you act consistent with the principle that your job is to help staff do their jobs, a basic inter-dependence emerges based on behaviors that show concern, respect and trust.
A synergetic leader has a genuine interest in workers as individuals. Take the time to get to know each employee's personality, needs, and goals and learn something about the employee's personal life. Such leaders get the optimal performance from each person because they are able to bring out each employee's unique abilities. Making your people feel important and personally significant generates productivity and loyalty.
A supportive environment motivates employees. "We are a team; we work together," creates a sense of security for the employee. Workers should be openly appreciated when appropriate and constructively corrected - privately - when necessary. Problem solving is a mutual effort. You should be willing to use your influence and even go to bat for the employee with higher-ups when appropriate. Employees who have that kind of support rarely get into trouble, because they have the direction, information and tools they need in order to do their job. They also have self-confidence and do a good job, knowing the support is there like a safety net if they make an honest mistake. Help each employee reach his or her potential. Goal setting and career planning are integral in this process. Encourage employees to increase their independence and responsibilities. Stimulate creativity as opposed to demanding adherence to rules and prescribed patterns. A synergetic leader has compassion and empathy for his employees.
Philadelphia, PA – Littler Mendelson, P.C. (Littler), the nation's largest employment and labor law firm representing management, is pleased to announce that Kristine Grady Derewicz will succeed Thomas Bender as managing shareholder for the Philadelphia office.
During Mr. Bender's tenure, the Philadelphia office experienced significant growth, expanding Littler's subject matter experience by attracting and retaining well-qualified employment, labor law and benefits attorneys, while continuing to provide quality representation to existing and new clients. Bender opened the Philadelphia office in March 2001 with ten attorneys and six staff members. Nearly nine years later the Philadelphia office is twenty-nine attorneys and nineteen paralegals/staff members strong. Ms. Derewicz plans to continue that momentum as office managing shareholder, and to build on the foundation of growth and leadership established by Mr. Bender.
"It was Tom's vision, drive and guidance that established our presence in the local marketplace. We have him to thank for the practice's growth and success," said Derewicz. Tom is a valued member of the Firm's Board of Directors and will continue his practice in both traditional labor law and litigation.
"Kris was a clear choice to manage the Philadelphia office given the exceptional service she has demonstrated in other key leadership roles," said Marko Mrkonich, president and managing director of the Firm. "Equally important is the creative approach she takes when confronting employment and labor law matters, a quality that truly exemplifies Littler's commitment to providing exceptional client service."
"I am honored to be named to the managing shareholder position," said Derewicz. "I look forward to working with my colleagues on continuing to develop new ways to collaborate with clients and growing the firm's business in Philadelphia and the Mid-Atlantic region."
Derewicz's practice focuses on all aspects of labor and employment law, ranging from proactive counseling to litigation in both union and non-union settings. Her experience includes employment discrimination litigation and counseling, drafting employment and severance agreements, drafting and litigating covenants not to compete, and labor-management relations. She also has extensive experience in traditional union matters including arbitrations, collective bargaining negotiations, representation elections, and unfair labor practice proceedings. Her clients include academic institutions, technology companies, retailers, healthcare providers, and other business service providers.
Derewicz received her J.D. from the University of Pennsylvania in 1990 and received her undergraduate degree from La Salle University, magna cum laude, in 1987. She is admitted to practice in Pennsylvania and New Jersey.
About Littler Mendelson
With more than 750 attorneys and 48 offices, Littler Mendelson is the largest U.S.-based law firm exclusively devoted to representing management in employment and labor law matters. As the only U.S. member of the Ius Laboris global alliance, Littler has extensive resources to address the needs of multi-national clients, from navigating international employment laws and labor relations issues to applying corporate policies worldwide. Established in 1942, the Firm has litigated, mediated and negotiated some of the most influential employment law cases and labor contracts on record. For more information, visit littler.com.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
10 Madison Avenue, Suite 400
Morristown, NJ 07960
Tel: (973) 656-1600
Fax: (973) 656-1611
www.ogletreedeakins.com
On January 18, 2010, the New Jersey Compassionate Use Medical Marijuana Act was signed into law (P.L.2009, c.307). This law, which becomes effective on July 1, 2010, decriminalizes medical use of marijuana under New Jersey state law for patients who legally use medical marijuana to alleviate symptoms or side effects of treatment relating to certain “debilitating medical conditions” (such as AIDS, HIV, and cancer). Those individuals who qualify are issued identification cards and their names are maintained on a confidential registry.
The law specifically provides that employers have no obligation to accommodate medical use of marijuana “in the workplace,” which at a minimum seems to mean that employers need not allow employees to use marijuana at work as a reasonable accommodation for a disability. What remains unclear, however, is the extent to which New Jersey employers must accommodate the use of medical marijuana outside of work, and whether employers may take an adverse employment action against an applicant or employee who tests positive for legally consumed medical marijuana.
Courts in several other states that have wrestled with the interplay between state medical marijuana laws and relevant disability discrimination laws, have held that employers may continue to enforce their drug and alcohol policies without regard to whether the positive drug test resulted from medical marijuana use. However, at least one court (in Oregon) has suggested that employers must make a “case by case” assessment of whether to allow off-duty medical marijuana use.
New Jersey employers’ and employees’ rights and obligations under the Act will likely be fleshed out through similar court cases and agency decisions in the months and years to come, as well as in regulations which will soon be drafted by the Commissioner of Health and Senior Services (in consultation with the Department of Law and Public Safety).
In the meantime, employers should carefully review their policies on drug use and drug testing for compliance with this law, and should tread carefully when confronted with an employee or applicant who tests positive for marijuana and claims same was for medical purposes.
By Ogletree Deakins
The recently passed law amending the Illinois Right to Privacy in the Workplace Act places statutory obligations on employers that use E-Verify. Effective Jan. 1, 2010, Illinois employers now are required to complete an attestation at the time of E-Verify enrollment. The form requires employers to attest to the following: (1) the employer and all its employees using E-Verify have received the Basic Pilot or E-Verify training materials and completed the online computer-based tutorial (CBT) training provided by the U.S. Department of Homeland Security (DHS); (2) the employer has posted the required notice from DHS indicating that the company is enrolled in E-Verify in a place that is clearly visible; (3) the employer maintains the original signed attestation form, as well as all CBT certificates of completion and makes them available for copying and inspection at the request of the Illinois Department of Labor; and (4) the employer has posted the required anti-discrimination notice issued by the Office of Special Counsel for Immigrant-Related Unfair Employment Practices (OSC) in a place that is clearly visible. Employers already enrolled in E-Verify must sign the attestation before Jan. 30, 2010.
The new law also prohibits employers that are enrolled in E-Verify from: (1) failing to display the notices supplied by DHS and OSC in a place clearly visible to both prospective and current employees; (2) allowing an employee to use the E-Verify system prior to having completed the CBT training; (3) allowing employees that have not taken the CBT training to use the E-Verify program under an employee's user identification or password that has taken the training; (4) using the E-Verify program as a pre-screening mechanism for prospective employees; (5) terminating an employee prior to that employee receiving a final nonconfirmation notice from the Social Security Administration or DHS; (6) failing to notify the employee, in writing, of the employer’s receipt of a tentative nonconfirmation notice and of the employee’s right to contest that tentative nonconfirmation letter; and (7) failing to safeguard the information contained in the E-Verify program database. These are all prohibitions that are already prohibited by the federal E-Verify laws and regulations. The act also prohibits an individual from falsely posing as an employer to enroll in E-Verify, and prohibits an employer from using E-Verify to access information regarding someone who is not an employee of the employer.
Employees and applicants now have a private right of action based on an employer's violation of the act. The employee or applicant who believes the act has been violated must first file a complaint with the Illinois Department of Labor and may then, under certain conditions, file a lawsuit in state court. If the court finds that the violation is willful and knowing, then the court may award the employee or applicant for employment $500 per affected employee plus costs, reasonable attorneys’ fees, and actual damages. Failure to comply with the order may be punished as contempt and the employer (or his/her representative) may be found guilty of a petty offense. A petty offense carries a maximum penalty of $1,000.
The Illinois Department of Human Rights has been granted investigation powers under the Illinois Human Rights Act when an employee or applicant believes that the employer refused to hire, promote, renew employment, discharged or disciplined the employee or applicant without following the procedures of the E-Verify program. Visit the Illinois Department of Labor web site for more information on the law.
Ogletree Deakins provides counsel to management in every area of labor and employment law.
Pamela Devata and Lynn Kappelman’s article, “EEOC Initiative Focuses on Pre-Hire Selection and Testing Criteria,” was published in the February 2010 issue of Chain Store Age. Their article discusses why companies need to be careful when using criminal background checks or obtaining applicants’ credit histories before making hiring decisions.
According to their article, the Equal Employment Opportunity Commission (EEOC) has determined that employers who decide not to hire applicants based on their criminal history or credit history may be adversely impacting black or Hispanic employees (or other minority populations) because these groups are arrested at a disproportionately higher rate and denied credit advantages as compared with the rest of the population. As part of its new E-RACE (Eradicating Racism and Colorism from Employment) Initiative, the EEOC is in the process of identifying “issues, criteria and barriers” that contribute to race and color discrimination in the workplace. The EEOC has been filing nationwide pattern and practice lawsuits against employers and challenging their hiring and screening procedures. The authors note that given the EEOC’s increased scrutiny of hiring policies, employers in the retail industry should make sure that hiring decisions based on background checks are “job-related for the position in question and consistent with business necessity.” Pam and Lynn note that several states have passed laws restricting employers from using credit information during the hiring process unless it directly bears upon the job at issue.
The authors point out that it is important that retailers review their pre-employment screening processes to ensure that they are seeking credit and criminal information from applicants in appropriate circumstances and using that information in a lawful manner. They also add that retailers should consult outside counsel to determine the applicable laws and regulations in the jurisdictions in which they operate.
Pete Luongo is an author and professional speaker booking through OnTarget Speakers Bureau.
In a world where greed and winning at all costs has permeated organizations from youth sports to Fortune Top 50 companies and everything in between, everyone is faced with the same challenge: How do we not fall into that trap of compromising our core values both individually and collectively, personally and professionally, as we chase the end game?10 Can we create an environment where winning (success however you measure it) and employees feeling valued, respected, and part of something special are mutually inclusive? The answer is yes!
Many leaders remember those life changing moments where it suddenly became crystal clear what has to be done to reach their organizations’ goals. It wasn’t until Pete Luongo was faced with that one epiphany in life, a difficult period that required him to rebalance life’s priorities and bring a new level of understanding to his work , that he recognized that all results are based on behaviors appropriate to the circumstance. Through this understanding—that actions are determined by specific, well defined standards—he developed a model for success, one that is both sustainable and that allows people to retain their personal dignity as they pursue their life plans. In his book, Luongo illuminates the “The Leadership Pledge” and the five tenets that make up the model; Recruit, Hire, and Retain, Provide the Support, Set the Standard, Share Honest Feedback, and Encourage Individual Accountability. He describes the ten most common obstacles to success and pairs them with ageless principles, the 10 truths that serve as the underpinnings for the code of conduct and are life lessons that help overcome those obstacles. His straightforward advice, based on data and hard earned experience, provides an understandable and virtually guaranteed plan for improvement and achievement.
The Ten Truths. These are Peter Luongo’s solutions to problems we face every day regardless of our station in life, personally or professionally.
• Truth Number 1: Past performance predicts future behavior.
• Truth Number 2: Motivation is a personal responsibility. Inspiration is the responsibility of others.
• Truth Number 3: Effective leaders manage support systems; effective employees manage themselves.
• Truth Number 4: Rules are for the weak, uncompromised standards of excellence are for the strong.
• Truth Number 5: Organizations will experience meaningful success when employees establish their own standard of performance.
• Truth Number 6: Habits of discipline and risk taking distinguish greatness.
• Truth Number 7: If we have no trust, we have no relationship.
• Truth Number 8: Commitment is not how a person performs but rather if they do it to the best of their ability every day.
• Truth Number 9: It’s critical to be loyal to your company and your fellow employees.
• Truth Number 10: Accept yourself as you exist, accept others as they exist, and in the context of the differences and similarities, finding more effective ways of succeeding as a behavior-driven organization.
Buy Now:
Amazon.com | BN.com | BooksAMillion.com | Bulk Purchases