In many organizations, few training topics suck the air out of the room faster than diversity training. However, succesful companies are finding that diverse workforces provide new depths of innovation, customer service, and brand recognition… in essence, making them more competitive in the marketplace. So how do we get past the basics of counting people in certain categories and move into an area where the company can really draw on the diversity of experience and background in its workforce?
Our guest today on the Imperative Podcast is Scott Airitam of Leadership Systems. Scott is a consultant, trainer, and co-author of Ethics for Everyone, The Handbook for Integrity-Based Business Practices. Scott will be the luncheon speaker at the North Texas SHRM’s March 24th luncheon meeting.
Every day, we all face problems that cry out for creative solutions. And, if you’re like me, you’ve worked with people who can look at a seemingly complex problem and say, “Oh, here’s what you need to do” and then proceed to outline an elegant solution that solves the problem.
Man, I hate those people… but their creativity is invaluable to an organization’s survival in this economy.
Our guest on this edition of the Imperative Podcast says that we all have a creative genius hidden away inside of us. Stephen Thomas King is a “personal creativity coach” who consults with organizations of all sizes to help bring out the personal genius of their employees, from the C-suite to the shop floor. Stephen is author of The Creativity Code and the brains behind geniusforrent.com.
Stephen King will be the speaker at the North Texas SHRM Chapter’s February 24th luncheon meeting. You can register for that event by visiting www.northtexasshrm.org.
We hope you enjoy the podcast!
Three ways to listen to the podcast:
1. You can listen using our java-enabled player at the top of this post.
2. Or you can listen to the podcast in your computer’s mp3 program by clicking the “Play mp3″ button below (or right-click on the button and
select “save target as…” to save the mp3 to your computer).
3. Or you can download the podcast and subscribe to future podcasts via iTunes.
In this podcast, Mike interviews Michael Layman, the keynote speaker for the symposium. Michael is the Manager of Employment and Labor Legislation for the Society for Human Resources Management and he will be discussing the many federal public policy issues expected to impact human resources professionals in the coming year.
For more information about the Employment Law Symposium, please visit MCHRA’s website at www.mchra.org. During the podcast, Michael Layman refers to SHRM’s HR Voice webtools, so be sure to check those out!
Mike Coffey: Hello I’m Mike Coffey and you’re listening to The Imperative Podcast. Barack Obama will become the 44th President of the United States on January 20, 2009. This year will mark the first time in seventeen years that one political party has held control of the White House and both houses of Congress. Ten days after President Obama is sworn in, the Mid-Cities HR Association in cooperation with the Ft. Worth HR Management Association and North Texas SHRM will present their second annual law employment symposium titled “What You Need to Know Under the New Administration”. The symposium will be held at Lone Star Park in Grand Prairie on the afternoon of January 30 and topics covered will include the Employee Free Choice Act, the ADA Amendments Act, the new FMLA regulations, and HR compliance in the information age. Following those sessions there will be a seated dinner and our guest today, Michael Layman, will be the keynote speaker. Michael is the Manager of Employment and Labor Legislation for the Society for Human Resources Management and he’ll be discussing the many federal public policy issues expected to impact human resources professionals in the coming year. Michael thanks for joining us today on The Imperative Podcast.
Michael Layman: Thanks for having me Mike.
Mike: We’ve got a new administration coming in office on January 20, so when this symposium takes place on January 30, President Obama will have been in office for ten days. What do you think the single most pressing issue for HR professionals is gonna be with this new administration?
Michael: I appreciate you having me on Mike. I’m very excited to be down in Dallas coming up in a coming weeks and there just couldn’t be a better time for all of us to get together and talk about issues affecting the HR profession and employers generally. As you noted we will have had a new administration just newly settled on the day of the speech and while the national news and even more regional news are giving a great deal of coverage to stimulus packages and bailouts for certain segments of industry and certainly some of the combat operations abroad, there’s very little attention given to some of the issues that we’ll talk about and particularly in the labor law and HR/public policy areas the new administration and the new Congress have the potential to enact some really transformative, really dramatic changes in the workplace and by now most people are aware, certainly in the crowd that we’ll have on January 30, most people are aware of the Employee Free Choice Act. That certainly has a chance to transform the workplace by allowing unions to organize workplaces more easily. It’s the simplest way to describe the bill. But Congress obviously already got started on January 6 when actually they were sworn in. So they’ve already been at this for a few days and got a head start on the administration and the House of Representatives has already passed two sweeping, two very significant measures that intend to address pay discrimination. So along with the Employee Free Choice Act I would want to highlight the Ledbetter Fair Pay Act and the Paycheck Fairness Act. These are two bills that again, purport to address wage inequity between different classes of employees and they may have a great effect on how HR professionals do their jobs.
Mike: Okay then let’s start with those pay discrimination acts. The Supreme Court said in the Ledbetter decision that under current law an employee claiming pay discrimination must file a complaint within 180 days of the discriminatory action by the employer. I take it that the Ledbetter Fair Pay Act is an effort to make it easier for employees to file claims long after a potential discriminatory decision is made?
Michael: Yeah that’s right Mike. In May 2007 the US Supreme Court in the Ledbetter v Goodyear decision effectively held that the time limit for filing a charge under Title VII of the Civil Rights Act starts after the alleged unlawful employment action. But the time clock does not restart upon the receipt of each successive paycheck, each paycheck that an employee receives. So what this Ledbetter bill would do is effectively reverse that and say instead every time an employee receives a paycheck he or she will have a new 180 or actually 300 days depending upon which state you live in. You will have a new period to file a claim against your employer. But the bill goes further than that. The bill would also apply to pension payments. So conceivably an employee could work at a company and leave that company for other employment and his or her time clock would run out for filing a claim. But then upon receiving a retirement benefit of some sort at say age 65, that employee’s time clock for filing a claim would restart and you can certainly see that that has the potential to keep employers liable for decisions years and even decades down the road when there may be no witnesses available, there may be no records available. The statute of limitations in any area of criminal or civil law is very important in encouraging claims to surface so that cases can be properly adjudicated. The final aspect of the Ledbetter bill is that it would also allow family members and others affected by a discrimination to file a claim. So it really would expand the pool of potential plaintiffs under the act and would have a vast new application in employment law.
Mike: Okay so we’re all opposed to discrimination. That’s what the professionalization of human resources over the last 30 years has really accomplished in many cases. But I take it that the Ledbetter Fair Pay Act will expose employers to claims long after a possible discriminatory action has taken place especially where those actions weren’t intentional by an employer but perhaps they were institutional or just unintended consequences of an employer’s policy.
Michael: Well that’s true Mike and by institution what’s known as the paycheck rule where each paycheck would restart the time clock, everything gets fuzzier about when discrimination occurred and how employers can be liable for previous decisions. But if one employee’s pay is lower than another or vis-à-vis other colleagues, an employer can have significant liability under the Ledbetter bill for the first time because of the way the statute of limitations would be held open and paychecks would be scrutinized more closely; so certainly a big, big deal to HR professionals and all these reasons and the essence of SHRM’s opposition to the Ledbetter bill.
Mike: Did SHRM have an alternative solution to the problem that the Ledbetter ruling pointed out? I mean, I think a lot of people probably agree that the Ledbetter ruling was trying to remedy maybe a legitimate issue and maybe Congress has gone too far in the other direction. Is there a happy medium that HR professionals should be supporting?
Michael: Well you said it earlier Mike when you said that certainly SHRM and HR professionals and everyone is opposed to unlawful discrimination in the workplace. SHRM and its members have a long history of preventing discrimination and just have a tremendous record in that area. But we’ve opposed these two bills, the Ledbetter and the Paycheck bills, based on the way they were written and the approaches that they take. You asked about alternatives to the Ledbetter bill. There are a number of ideas that we have discussed and I think reasonable people could discuss to think about ways to allow aggrieved employees to be able to seek redress when they are discriminated against in the workplace. But on day number three of the new Congress with no hearings or much discussion of any kind the House of Representatives already passed both of these bills and didn’t consider any alternative to the bills as they were written and as they were considered in the previous Congress over the past two years. So there’s been very little opportunity to influence the process to this point although we’re hopeful that things will slow down. But SHRM will continue to work with members of Congress and their staffs and we’ll be listening to our members on instances like the presentation on January 30 in Dallas when we’ll take our message to our friends and members in Dallas and hear what our friends have to say and it’s those times when we can really get good give and take and take ideas back to Washington and try to have an influence in the process.
Mike: Well we talked about Ledbetter. What exactly does the Paycheck Fairness Act do?
Michael: Sure, the Paycheck bill is probably even more dramatic in the way that it would affect specifically the Equal Pay Act. The Ledbetter bill actually affects a number of employment laws, the Civil Rights At, the Age Discrimination in Employment Act, the ADA, and the Rehabilitation Act. So in effect, Ledbetter would affect all those employment protected classes. The Paycheck Fairness Act zeroes in on the Equal Pay Act. Equal Pay Act obviously requires that jobs requiring comparable functions and skills and responsibility must compensate equally and what the Paycheck Fairness Act would do really are a number of sort of unrelated things but I’ll just go through them. The Paycheck Fairness Act would change the dynamics of how class actions occur under the Equal Pay Act. Right now an individual must give his or her written consent to join a class action. But the Paycheck Fairness Act would require that employees opt out of any gender discrimination class action. So this would just have a very significant effect in increasing the number of plaintiffs in class actions. You’d be forcing employees to take the affirmative step of opting out of a class action as opposed to opting in under current law. The other primary thing the Paycheck Fairness Act, it would create unlimited punitive and compensatory damage awards under the Equal Pay Act for which employers would be liable and that’s on top of current liability for back pay. So the combination of the class action dynamic and then lifting, or excuse me, just creating an unlimited damage awards would be potentially devastating for employers and certainly one would have to believe that that combination would encourage more employers to settle cases even in instances where no intentional discrimination occurred. One other note about the Paycheck bill is there is some complex language. It would make it significantly more difficult for an employer to use legitimate factors such as education, training, and experience are three that I’ll name as a component of its pay system. It really restricts what an employer can base its pay system off of and may have the effect of really prohibiting the employer’s use of a locality pay as well as prior salary history in basing compensation for current employees. So the Ledbetter bill would have a dramatic effect on the statute of limitations in the Civil Rights Act but the Paycheck Fairness Act really opens up opportunities for plaintiffs to challenge their employers’ pay decision.
Mike: Can you help me understand better how the Paycheck Fairness Act will limit employers’ flexibility in deciding what to pay employees?
Michael: Under the Equal Pay Act there are three identified basically bona fide reasons for paying employees different wages. Those three areas are I believe seniority, merit, and production. Then there’s a fourth prong in the Equal Pay Act that is effectively a catch-all that says many other factors can be considered but with the exception of sex. What the Paycheck Fairness Act would do is really, really tighten up that fourth prong, that catch-all prong and limit it to – well really limit it. the bill actually names education, training, ability, and experience as legitimate factors to base a pay system on but then there’s a very high, almost an ADA like standard, that employers must affirmatively prove to justify using training or using experience as a foundation of its pay system. Because of this high standard the use of locality pay may be really restricted and thus an employer would have a hard time justifying that the reason they pay an employee in Midland, Texas different than they do an employee at their Lower Manhattan branch, it’s just going to be much more difficult to justify pay decisions and compensation when an employer has employees in vastly different parts of the country.
Mike: Wow both of these sound like bills that HR professionals need to be heard on. I know SHRM has some really useful tools on their website for identifying and communicating with our representatives and senators.
Michael: That’s right and we appreciate every time our members engage legislators through our HR Voice program and through other means. Our SHRM strength is the quality of its members and the fact that we have 250,000 members largely across the US. We can have and we have had a significant effect on influencing all sorts of past legislation and it’s only more important here n the new administration and the new Congress in 2009 with so many potential landmark bills on the docket.
Mike: Immigration’s been a hot topic for a number of years now and last year President Bush signed the executive order requiring that federal contractors begin using E-Verify and then on just this past Friday, largely in response to a SHRM lawsuit, SHRM and several other organizations, a suit against that order, the Department of Justice delayed that until February 20. What do you think is going to happen in the next year related to E-Verify and immigration in general?
Michael: Well that’s right Mike. We appreciate that plug for some of SHRM’s efforts in the employment verification arena with you mentioning the delay to federal contractor rule. The other sort of short term item on the immigration front is that the federal government’s employment verification system that’s known as E-Verify and other’s may know it better as Basic Pilot, that system actually has been extended, was extended last fall by Congress but will now expire in March 2009 here unless a change is made. So Congress will have to consider whether they want to kick the can down the road once more with E-Verify and extend it in its current voluntary form or there are a number of proposals out there to do all sorts of things with E-Verify. One prominent proposal would make E-Verify mandatory for all US employers over a phased in timeline. SHRM has a proposal that would create a new electronic employment verification system that we think would be easier for HR professionals to use. It would be more reliable. It would be more secure for employees’ identity and would just go a long way in helping to secure a legal workforce. The E-Verify program is only used by about 1% of employers nationwide on a voluntary basis and we’re concerned about its error rate. I mean, a program like E-Verify is almost useless if it doesn’t have 100% accuracy rate and if there’s any threat of error it becomes very problematic. So SHRM is very interested in this arena. I think something to point out that immigration reform is such a third rail of American politics, it’s just almost too hot to touch for any politician that it’s likely – I think it’s reasonable that the Obama administration may not be interested in digging too deeply into immigration reform too early in their term here. There are certainly a number of other issues facing the country. They can probably try to gain some momentum through some legislative victories on some other fronts before tackling immigration reform which has just proved to be so difficult to find a sweet spot where you can pass any bill through Congress. So we’ll see. But immigration reform, I think we view immigration reform as more of a longer term item on the legislative agenda.
Mike: I know you’re going to talk about a lot of these issues during the Employment Law Symposium but I don’t want to get away without talking about the Employee Free Choice Act. Every chance we get we’re sounding the drum to all our HR colleagues about that. Can you tell us what your take on the chances of the Employee Free Choice Act passing in this session of Congress are and what you think the impact to employers would be if it were to pass?
Michael: Sure Mike. Based on the election and the pending legal challenge in Minnesota, Democrats and Democratic leaning Independents in the Senate may have 58 or 59 senators for the 111th Congress here and the Senate is really where the playing field for the Employee Free Choice Act will be played out. The Senate will frankly be the key playing field for a number of these issues we’ll be talking about on the 30th just because it’s so easy to pass bills through the House. It only takes a majority vote. There’s a number of other procedural mechanisms that the minority can use to protect itself in the Senate and things tend to take longer there and as a result we certainly hope the Senate is more contemplative. So the Employee Free Choice Act, as other bills need, would need 60 votes to defeat a filibuster over there in the Senate. So the Senate would be right on 59 Democrats and there was one Republican who voted in favor of cloture last year. So conceivably if everyone votes the same way, proponents of the Employee Free Choice Act would have enough votes to defeat a filibuster this year and proceed to consideration of the bill. Who knows what’s going to happen from there and if the bill will look identical when it’s brought up this year as it was considered in the previous Congress. The bill has not been introduced to press time here so it remains to be seen what the proponents’ strategy will be. But certainly this is the number one priority of organized labor. This is why organized labor threw so many millions of dollars into the election. This is what they want. So it’s likely that some form of the bill will become law in 2009 or 2010 potentially and SHRM will be continuing to aggressively engage that debate to ensure the HR perspective is shared there.
Mike: For those who aren’t aware the Employee Free Choice Act basically takes away the secret ballot process from the union vote in a company. So if you get 50% plus one of the employees who sign what we traditionally have considered interest cards in a union then you’ve got a union and I’m wondering have you heard what the arguments for that are? It just seems odd to me that the United States Senate would support something that takes away what we all consider a fundamental right, to vote our consciences without intimidation or coercion. What are the arguments for that?
Michael: Sure Mike. What I think is the most common response that we hear when we’re making our case with legislators and their staff is that some proponents of the bill are simply very concerned about wage inequity issues in the country. Proponents of the bill will highlight that the rich are getting richer and the poor are getting left behind and they view the Employee Free Choice Act as perhaps a means to an end to address that. There’s been a lot of talk about unions and their impact in employees’ lives and on the marketplace through the discussion of a financial rescue for the automakers in recent week and that has highlighted a lot of what unions can offer and what they mean to an employer in an employment setting. That’s had an effect that is yet to be determined on the Employee Free Choice Act because there’s renewed interest in union issues and the fact that union membership has declined so steadily for almost half a century. Many proponents of the bill on Capitol Hill see the Employee Free Choice Act as a way to reverse the decline in union membership and therefore increase the living standards of the middle class and these are the arguments we’re hearing in favor of the bill. We continue to argue that the Employee Free Choice Act is a lousy means to those potentially admirable ends and I will be happy to discuss that at further length on January 30 with everyone.
Mike: Michael, thank you for your time today and I’m looking forward to meeting you face to face on January 30.
Michael: Thanks a lot Mike, looking forward to seeing you in Dallas.
Mike: Michael Layman will be the keynote speaker at the Mid-Cities HR Association’s January 30 Employment Law Symposium. This is an event you don’t want to miss and you can register by visiting their website at MCHRA.org and thanks for listening to The Imperative Podcast. Hey, in January, we’ll be giving away an IPod nano to a lucky listener. To enter the contest, just go to our website that’s ImperativeInfo.com and click on the listener contest graphic. To enter the contest you’ll need an entry code so here it is: MCHRA (Mid-Cities HR Association). Just type “MCHRA” in the entry code box and you’ll be entered in the contest to win an IPod nano. The winner will be announced on February 2 so be sure to enter soon. While you’re on our website you can hear all of our previous podcasts or read our HR related blog items. You can also learn more about background checks and the other services we offer. Finally, in today’s economic climate it is critical to get every hiring decision right. Do you really have the time or budget to recruit, hire, train, manage, and then terminate a bad hire? A good background check needs to be a critical piece of your employee selection process. If you don’t absolutely love your current background screening partner, please give me a call. I’m Mike Coffey at 877-473-2287 or visit us online at ImperativeInfo.com. Thanks and have a great 2009.
At today’s North Texas SHRM meeting, the incoming president Michele Domes received the Pyramid Award in recognition of her tireless work on behalf of the chapter. That didn’t surprise me because Michele, like the rest of the NTSHRM board, is always in go-mode. I’m convinced that the best diet plan in the world is to be on the board of an active SHRM chapter, you’ll never get to eat a full meal during a meeting – there’s always something to do.
The other recognition North Texas SHRM made today was a surprise to me. I received the HR Professional of the Year award. Outgoing president Kay Schroeder was extremely gracious in her presentation and I was flattered to receive this recognition.
I should point out what a great job Kay has done as president of North Texas SHRM for the past two years. They’ve put on some of the best employment law conferences and other events I’ve ever attended.
Imperative Information Group is a Fort Worth, Texas-based background investigations and business due diligence firm dedicated to clients who can’t afford a cheap background check. For more information about Imperative Information Group’s services, please contact Micah Taylor at 877-HR-FACTS (877-473-2287) or visit us online at http://www.imperativeinfo.com.
Mike’s guest on today’s podcast is Audrey Mross, a shareholder in the law firm of Munck Carter, where she leads the Labor and Employment Law section. Audrey has been practicing law since 1994 and was a human resources professional for over a decade before that, giving her a unique perspective as she helps her clients deal with their HR-related legal issues.
Audrey will be presenting her annual employment law update during the North Texas SHRM chapter’s November 18th luncheon in Denton, Texas.
For more information about Munck Carter, visit their website at www.munckcarter.com. Or contact Audrey at 972.628.3600.
We hope you enjoy today’s podcast!
Three ways to listen to the podcast:
1. You can listen using our java-enabled player at the top of this post.
2. Or you can listen to the podcast in your computer’s .mp3 program by clicking the “Play MP3″ button below (or right-click on the button and select “save target as…” to save the .mp3 to your computer).
3. Or you can download the podcast and subscribe to future podcasts via iTunes.
Mike Coffey: Hi. I’m Mike Coffey, President of Imperative Information Group. We’re an employment background screening firm dedicated to employers who can’t afford cheap background checks. If you’ve recognized the risk associated with each new person you allow in your organization, whether they’re an employee, a contractor, a temp, we should talk. Visit us online at ImperativeInfo.com or give me a call at toll free 877-473-2287. And now, welcome to the Imperative Podcast.
Mike Coffey: Our guest today is Audrey Mross, a shareholder in the law firm of Munck Carter where she leads the labor and employment law section. Audrey has been practicing law since 1994 and was a human resources professional for over a decade before that, giving her unique perspective as she helps her clients deal with their HR related legal issues. Audrey will be presenting her annual employment law day during the North Texas SHRN Chapter’s November 18th luncheon in Denton. Thanks for joining us, Audrey. What does 2009 hold for the HR profession?
Audrey Mross: Well there are some things that we already know we’re going to be looking at. One of those done deals is the amendments to the Americans with Disabilities Act. That’s already been signed off by President Bush, will take affect in January. So between now and that time, legal commentators and HR professionals will be huddling and trying to read the tea leaves and figure out what exactly is the effect of the changes to the law. And then on the other side, there are some things that we can get that we will probably be facing.
Probably one of the ones that people are talking about the most is the Free Choice Act. That’s a proposed federal bill which had some interesting bedfellows in terms of who’s for it and who’s against it. Oftentimes employers find themselves crosswise with the Department of Labor, but in this case they’re actually on the same page and even the Secretary of Labor has come out in speaking against the Free Choice Act. In a nutshell what it would provide is that it would no longer be necessary to hold an election at a place of employment to determine whether or not a union could be the collective bargaining agent for the employees in the collective bargaining group.
In the past, it’s been done through private ballot and if there was a simple majority then the union was in. Free Choice Act, however, would allow the union to get in with a simple majority of signing of authorization cards. The concern that both the DOL and the employers have had about that process is that it leaves employees open to subtle and even open coercion by their coworkers rather than having the privacy of a private vote in a booth and no one knows how you voted, either for or against the union. Perhaps even more troubling, is the fact that with a simple majority of signed cards and that the union is the collective bargaining agreement, is exactly how that CBA comes to be.
In the past, there’s been bargaining and oftentimes both sides could bargain for quite a long time before they came to terms. Free Choice Act says that if there is no collective bargaining agreement in place within the first 90 days, they will go to mediation and an arbitration panel and if another 30 days can’t result in a deal, then a collective bargaining agreement will actually be imposed on the employer and it will be two years in length or until the parties can agree on a second collective bargaining agreement. So, businesses are necessarily very concerned about that and President-elect Obama is on the record of saying he’s very much in favor of it.
Mike Coffey: Okay, so assuming that the Employee Free Choice Act or something like it gets passed in the next Congress, what can employers do now to prepare for this reinvigorated union movement?
Audrey Mross: Well even before this bill was on the horizon, what employers ought to be doing to avoid being subject to a collective bargaining agreement is to – and it’s so simple – do right by your employees. The first step is understanding how they perceive how they’re being treated and a good way to do that is normally you would get a third party to come in there and do some sort of either blind or mutual surveying of the employees and take a temperature. Find out how do they feel about their wages, their benefits, their working conditions, even how’s the thermostat set. Are you comfortable with that temperature?
I mean no detail is too small to ask and find out and just confirm that folks are happy with their lot, because generally folks that feel like they’re getting a fair shake are not inclined to go with the unknown, which would be this outside union coming in and saying “Well, we can do better” and they don’t get much traction where there’s a workplace full of happy campers. Where they do get traction is where people are unhappy with their lot. The number one thing that seems to just affect employees and make them listen to the union message is supervisors that are a little rough on their employees or perceived as being unfair and playing favorites with some employees.
So, it’s a real good idea to take a temperature of your folks. Determine how they feel about their working conditions, and also spend some time with your supervisors and train them adequately not only to recognize the signs of union organizing, so that you can make a proper response, but just to avoid it in the first place, by helping them to understand the key roles that they play in ensuring that people, in fact, are happy with where they work.
Mike Coffey: Well that makes sense, treat your employees with respect, keep them engaged, make them feel valuable. So when we think about unions we think about manufacturing, auto plant workers, that kind of thing. Are there any limits on what kind of employees can organize a union or on the size of the employer that can be organized?
Audrey Mross: No, there are no size limits. And the interesting trend is that over the years, except in the public sector, the percentage of work forces that are union have been trending down and that may be in direct correlation to the fact that the historic industries that they focused on, like manufacturing and heavy industrial, are also trending down just in your sheer numbers. And so just purely as a necessity, to remain alive and viable and funded, the unions have definitely moved their sights over to other industries and professions that people don’t often associate in their minds with union activity; a chief one being the healthcare profession and even attempting to organize groups of doctors.
You don’t normally think of unions coming after professional individuals, but they certainly are because that’s where some of the job growth has been and will be going to the future. For all of aging baby boomers, we’re gonna need lots of healthcare, but also because of they have heavy pockets, they can afford the dues.
Mike Coffey: Wow. I’m sure a lot of employers haven’t even considered that their highly educated professional staff might be enticed to start a union. Are lower paid staff as equally as appealing now to the union organizers?
Audrey Mross: Absolutely. And again, it goes back to who are the population that may be a little disaffected and not happy with their employer, but moving back to the healthcare example, another prime subset within that group are nurses. What the union is seizing upon in order to gain their favor is sometimes nothing more than the tension between the nurses and the doctors or the nurses and the administration. And where the key issues has been, to me is a little thin, at many hospitals and clinics they’re desperately looking for additional nurses to staff up, but what that means is the ones that are in place right now tend to work very long hours.
And you know, when you’re working long hours and if you feel like you’re not getting respect from the doctor who you’re supporting, those are the ingredients that are necessary to bring a union in.
Mike Coffey: Yikes. I guess I’m gonna go buy my employees lunch today.
Audrey Mross: And be nice to your nurse. (Laughs)
Mike Coffey: Okay, earlier you mentioned the changes to the Americans with Disabilities Act? What do employers need to be aware of there?
Audrey Mross: A couple of things. In the original Americans with Disabilities Act, the definition of who has the protection of the law was a little bit long winded but essentially, it was somebody who had an impairment and who was substantially limited in major life activity and can perform the essential functions of the job with or without a reasonable accommodation unless they either posed a direct threat or there was an undue hardship. And as you can imagine, each of those little words and phrases had to be fleshed out mostly through litigation because you can’t draft a statute or a regulation that deals with every possible situation that might apply.
In the original ADA there actually was no definition of a major life activity. You had to look into the regulations and you also had to look into the additional guidance, such as opinion letters put out by the EEMC, and you also had to look at court decisions to get your mind around “Well, what exactly is one of these major life activities?” and then, you have to go into and “What do you mean by substantially limiting?”
Under the new ADA, the definition of major life activity has actually been put into the statute and they added some major life activities that weren’t in there before, but maybe had cropped up as a matter of either rule making or court decisions. Probably one of the big things that people are looking at is the ADA was intended to negate the effect of several Supreme Court decisions. One of the big ones posed the question “Well, if I’m trying to figure out if my employee has the protection of this law, and I’m trying to figure out whether or not they are in fact one of these qualified individuals with a disability, and if they granted have some impairment, but the affect of that impairment has been mitigated either by them taking a prescription or because they have some sort of adaptive device like a prosthesis, or even sometimes the body, itself, adapts to certain impairments, monovision being one of them, so we’re not trying to make this decision is this person disabled or not? Do I consider them in their mitigated state or their unmitigated state?”
Well the Supreme Court some years ago said “No, you look at them in the mitigated state and if the prescription or the device or the body itself has adapted in such a way that they’re not longer disabled, they don’t have the protection of the law.” The new ADA turns that on its head and says “No. You examine the condition in it’s unmitigated state to determine whether or not they have the protection of the law.”
Mike Coffey: So what are the practical issues that an employer’s gonna be dealing with on a daily basis because of these changes?
Audrey Mross: Well I think you can go back to the legislative record on the change in this and all the people that came up and spoke and it kinda helps you understand what it is they’re trying to accomplish through these changes. Because person after person after person came up there and spoke and said this law is not having the desired affect. It has so many catches and gotchas in it, that the people who in fact have disabilities and could use some help never make it past that first hurdle of being declared “Yes, you are an individual with a disability.” So maybe the best way to look at this is that they’ve taken the definition or the elements of what it takes to be deemed disabled and therefore entitled to the protection of the law and brought that threshold way down in a number of ways.
Mike Coffey: I don’t wanna steal the thunder from your North Texas SHRN presentation, but what other legal issues might be on the horizon for HR in 2009?
Audrey Mross: Well we are watching out for the recent amendments to the Family Medical Leave Act, that was amended with the National Defense Authorization Act and it added two new forms of leave. One of those, something called ‘caregiver leave’ actually took affect back in January. That’s the one where if an employee has a family member who was injured by being on active duty in the US military, and now they’ve come back stateside and they’re either hospitalized or perhaps they’re at home, but they’re recuperating. That employee who’s related to that person can take up to 26 weeks off, job protected leave under FMLA, to care for that family member. The other one is the ‘active duty leave’ and that’s simply to take time off for that family member who’s been called up, to see them off, to help them get their arrangements in place. Perhaps they’re making arrangements for their kids, their finances, their legal situation, and its set to help them out with that.
On that one, until they figure out what the definition of an existing ‘extenuating circumstances’ and put that out in a published regulation, employers are not yet required to grant active duty leave. They are being encouraged to do so and in fact, in some states you’ll find that there’s state law that grants job protection leave to those family members to help their active duty military person, but the FMLA version will not take affect until those regulations are published. And so we’re just waiting on them. The last I heard they had gone to OMB in the middle of October and that normally means you’re gonna get a published reg out within the next month or so, so I’m thinking that we’ll have regs before we have turkey on our table.
Mike Coffey: Wow. That quick, huh? Well what about immigration? I know that e-Verify, the federal government’s online system to verify eligibility to work for new hires, dodged a bullet this fall and received funding to next spring. What do you think E-Verify’s prospects are under the new administration and the new Congress?
Audrey Mross: Oh, I think there’s a pretty good head of steam to go ahead and continue to fund that into the future. And in fact, the amount of funding that was granted was well in excess of what it takes to keep it running. They added an additional amount to in fact, improve upon it. So my thinking is “You don’t spend money to improve something just to turn around and junk it.” There is a faction of employers who are pressing to move away from E-Verify and instead, rely upon the database that’s currently being used as part of the new hire reporting system, because the feeling is it’s a little more comprehensive, a little more accurate, a little more complete, but it seems like right now the emphasis and the money and the focus is being put on E-Verify to update it and make it better.
You know, it’s a joint database between USCIS and the Social Security Administration. So, personally, I think that you’ll see a move to improve it and at some point mandate its use for all employers. There was an executive order put out mandating its use for federal contractors, but that still has not been finalized and there have been a number of pushes to go ahead and make it mandatory for all employers. So, that’s a good one for us to keep our eyes on in the months to come.
Mike Coffey: Arizona and some other states are requiring that employers use E-Verify on all new hires. At this point in Texas, I know there’s no law requiring that employers use E-Verify. What kind of discussions are you having with your clients about their use of E-Verify?
Audrey Mross: At this point, what we’re talking to our clients about, first thing is to check what states they have employees in because there are a handful of states that have mandated use of E-Verify; some of them allow alternate systems to be used. It’s actually been an interesting thing to follow because E-Verify basically deals with an immigration issue. States that have tended to pass these laws that touch upon an immigration issue, to a great extent, have found those laws have been held unconstitutional because normally, immigration is handled by the federal government through the Commerce Claus.
But, Arizona being one example, some states have found that their immigration oriented laws have withstood the challenge in the court. The Arizona one is particularly interesting because the consequences of not following it are so dire on the second finding that an employer is knowingly employing illegal aliens, they can have their license pulled to do business in that state. So the first thing I advise my folks to is look at where your employees are located. Look at what state law’s in place and see what, if anything, you’re required to do at that level. If you’re not required to do anything, at least for now, I would hold off on using E-Verify and allow this added funding and effort to improve upon the scope and accuracy of the database to move forward a little bit further.
Mike Coffey: Great. Thanks for joining us today, Audrey.
Audrey Mross: Thank you Michael. I have enjoyed it very much.
Mike Coffey: Audrey Mross leads the labor and employment law section at Munck Carter. You can reach her by visiting their website at monkcarter.com. That’s M-U-N-C-K-C-A-R-T-E-R dot com. She’ll also be the speaker at the monthly luncheon of the North Texas SHRN Chapter on November 18th. You can register for that event at NorthTexasSHRN.org. Thanks for listening to The Imperative Podcast. For more interviews with HR thought leaders and other information relevant to HR professionals in North Texas and across the country, visit our blog at ImperativeInfo.com. Thanks for joining us and have a great week.
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