When It Rains...

In the last eights days of February, the U.S. Supreme Court issued a number of decisions in employment related cases.  The following is a summary of some of those decisions.

February 27th - You may be aware that generally an employee must exhaust his or her "administrative remedy" before suing the employer in court for employment discrimination.  This means the employee must file a charge with an administrative agency such as the U.S. EEOC. This gives the employer notice of the "charge" so both parties have an opportunity to resolve the dispute before it goes to litigation.  But what constitutes the filing of a charge?  If you have ever received an EEOC charge you know there is a standard form or notice that is sent to the employer.  But what if the employee only answers some questions asked of him/her by the EEOC representative that are recorded on the agency's intake questionnaire?  No notice is ever sent to the employer and the employer has no knowledge that a "charge" was ever filed with the EEOC.  Does the employee still have the right to proceed to court and file a claim against the employer?  The U.S. Supreme Court ruled, "Yes," although legal proceedings could be delayed until the parties have a chance to engage in concilation. Federal Express Corp. v. Holwecki

February 26th -  Let's say an employee sues your company for age discrimination alleging that her supervisor denied her a promotion because of her age.  Should that employee be permitted to present evidence from other employees who worked for different supervisors, in different departments that they, too, were subjected to age discrimination by their supervisors?  The U.S. Supreme Court ruled that such "me-too" testimony may be permitted and the decision whether or not to admit such evidence rests with the district court hearing the case.  What does this mean to employers? When conducting internal workplace investigations, do not disregard what may appear to be ancillary or irrelevant comments, statements or remarks from potential witnesses.  Just because a potential witness describes behavior that occurred somewhere else in the workplace or involved people other than those you are investigating, be proactive and look into the matter. Sprint/United Management Co. v. Mendelsohn

February 20th - Let's say an employee submits a request to change some of the investments in his/her 401(K) plan.  Your HR department is very busy and the requested change is made but not immediately. Can the employee successfully sue your company under ERISA for breach of its fiduciary responsibility when no harm came to the value of the Plan as a whole but only to this one employee's account?  "Yes" ruled the U.S. Supreme Court. LaRue v. DeWolff, Boberg & Associates. On a related note, if you have a pension or welfare plan with fewer than 100 participants, you should read the U.S. Department of Labor's announcement regarding publication of a proposed rule to provide a safe harbor period of seven business days following the employer's receipt of employee contributions.

And stay tuned!  There are more to come!! See FiveL Company's February newsletter for a description of some other pending cases.

  Hot Hits!! Education Corner

Public Presentations

Thursday, March 6th, "Employment Law, Legislative & Regulatory Update," presented for the Hunt Valley Business Forum's HR Roundtable, Hunt Valley, MD 8:00 - 9:30 a.m.

Monday, March 10th, "Employee Where Art Thou? The Latest News in Managing Disability and Leave Issues" presented during the SHRM Employment Law and Legislative Conference, Washington, DC.

Wednesday, March 12th, "Legal Issues in Recruitment, Selection & Hiring" presented during the 2008 Workforce Solutions Summit sponsored by the B/W Corridor Chamber of Commerce, Linthicum Heights, MD, 7:30 a.m. - 2:00 p.m.

Thursday, March 27th, "Employment Law, Legislative & Regulatory Update" presented for the FC SHRM Chapter, Frederick MD 11:30 - 1:30.

NEXT WEBCAST!

Wednesday, March 26, "Are You My Employer? Tips for Managing Your Contingent Workforce" 10:00-11:00 a.m. EST. Did you miss last month's or the 2007 webcasts? They are archived and you can access them from the website as well!

All webcasts are pre-approved by HRCI for 1.0 Strategic credit!

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March's Client Training Programs

"Maintaining an Inclusive Workplace" (3)

"To Ask or Not to Ask: Tips for Effective Interviewing"

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U.S. Department of Labor Issues Proposed FMLA Regulations

While all the proposed changes are too extensive to cover in this newsletter an overview was provided in FiveL Company's webcast on February 27th, "FMLA (Proposed) Regulations: What They Mean For You." 

You can register to access the recorded event from FiveL Company's website at your convenience!  Just scroll down to "Archived Webcasts." One participant wrote, "...[your webcast] was very informative...I received some information on this previously but not as well covered as you presented it..." (Thanks John!)

Here is one tip.  The U.S. DOL has published a new, supplemental poster that FMLA covered employers are required to post now, in addition to the current FMLA poster.  You can download the poster for free at FiveL Company's website. Look for "Federal FMLA Suppl" in the list of labor posters.

 U.S. Department of Labor Issues Guides on Employment of Veterans with Service-Connected Disabilities

On February 29th the U.S. DOL published two question-and-answer guides providing technical assistance for employers on workplace issues affecting veterans with service-connected disabilities. The first, a Guide for Employers addresses the differences in protections that are provided for covered veterans under the Americans with Disabilities Act (ADA), which is enforced by the U.S. EEOC as compared to the Uniformed Services Employment and Reemployment Rights Act (USERRA), which is enforced by the DOL. The second guidance is provided primarily for protected veterans with questions about their employment rights when returning from service. Employers, however, should read this guidance as well to ensure they understand these rights from both perspectives, theirs and the covered individuals'.