The Advantage, April 1997

Announcement

We want to be sure everyone who wishes to receive a copy of The Advantage can get one. As you know, we do not charge for subscriptions.

Meanwhile, the costs of printing and mailing have continued to rise. With costs increasing, we have concluded that the best way to continue providing this service to our friends and clients is to focus on the less expensive method of E-Mail distribution. This, then, is the second issue of The Advantage we have distributed by e-mail.

Reactions from our e-mail recipients has been positive. They sometimes miss the formatting which is possible with paper distribution, but the convenience of receiving their copy more quickly seems to outweigh the appearance issue. After all, they say, the content is what we are interested in reading.

Consequently, we are asking you to send us your E-Mail address so we can convert you to an E-Mail subscriber status. Your subscription will continue to be free of any charges. And, you can expect to receive other reports and announcements from time-to-time between issues of The Advantage.

You can send us your address by E-Mail if you are not already receiving your newsletter electronically. Just write to: tmainc@management-advantage.com

In the "subject" line put: "Add to E-Mail List" And, thanks for your help.

Minimum Wage Schedule

In last November's election, California voters passed Proposition 210 which increased the minimum wage level in California to the second highest in the nation. During the next two years, California's minimum wage level will increase twice, in addition to the federal increases we already had planned.

If you have employees in California, mark your calendars for the following dates and wage increases:

Don't forget that each time the minimum changes, you will need to post updated minimum wage posters in the workplace.

You might also check to be sure your pay day schedule meets California's state requirements. Employers must post a notice in the workplace which informs employees of paydays. If you pay employees on a twice-monthly schedule, you must adhere to the following requirements: For work performed between the 1st and 15th days of the month, payment must be made by the 26th day of the same month. For work performed between the 16th and last day of the month, payment must be made by the 10th day of the next month.

Small Employers Impacted by Supreme Court Decision

Like so many other rules, this one has had its own interpretations among employers and enforcement officials. The basic question is this: When is an employee counted as an employee?

Just this year, the US Supreme Court established a standard for employers to use when counting employees to determine if they are covered under Title VII. It has called that approach the "payroll method."

The case was Walters v. Metropolitan Educational Enterprises (1997 WL 9783 Supreme Court). Darlene Walters was an employee of Metropolitan Educational Enterprises in Illinois. She claimed Metropolitan fired her in retaliation for filing a complaint of sexual discrimination. When the EEOC filed suit on Walters' behalf, the District court dismissed the suit saying Metropolitan did not have enough employees to be captured under provisions of Title VII. When appealed, the 7th US Circuit Court of Appeals affirmed that position of the lower court.

You see, Metropolitan took the position that it only had employees on days when the employee was actually being compensated. Using that approach, Metropolitan did not count employees who were on unpaid leave of absence or scheduled days off.

The Supreme Court said that was not the way employees should be counted. It said we should look instead to whether an employment relationship exists on the day in question. Because employment relationships are "most readily demonstrated by the individual's appearance on an employer's payroll" the Court said the payroll method of counting employees represents a fair interpretation of Title VII.

The Court also noted that both the Age Discrimination in Employment Act and the Family and Medical Leave Act (FMLA) have similar schemes for determining when an employer is subject to the provisions of those laws. The EEOC has expressed a preference for the payroll method, and the US Department of Labor has formally adopted it for determining coverage under the FMLA.

From now on, folks will be your employees if they are still on your payroll, even though they may be on long-term disability, for example.

E-Mail Messages Are Key Evidence in Court

Ah, but E-Mail messages sometimes carry more than upset. Sometimes they contain racial, ethnic and sexual "jokes." Occasionally, E-Mail contains material which is so offensive to most people, it has no place in the context of business communication. Yet people send this stuff anyway.

Some myths about E-Mail

E-Mail is Anonymous

Although some psychologists have suggested that E-Mail seems like an anonymous method of communicating, in reality it is anything but that. Every message sent has an audit trail that can lead back to the sender. And, most E-Mail systems transmit the sender's identity on each message.

E-Mail can be deleted from the computer so there is no record of it

This may be true of your local computer. You can delete messages from your personal hard drive, but those messages will usually still reside at the "server" of your E-Mail. All messages are normally retained by a server for a specific period of time. That time will vary from one server to another, but it could range from 30 days to a year or longer.

Employees can use E-Mail systems at work for personal communication

This may well be true, unless the employer has a specific policy which governs employee use of its computer and E-Mail systems. These policies are becoming more common every day. The reasons are quite simple. Abusive messages and messages containing information which constitutes illegal discrimination bring liability to the employer. Therefore, the employer has a right (and some say a responsibility) to control how those systems are used.

Personal E-Mail messages are private

Not if the employer's system is being used to send or receive them and the employer has established a policy which indicates it has the right to monitor messages sent over its system. This type of policy is advisable because it places employees on notice that they may not expect privacy when sending or receiving messages over the employer's system. Furthermore, E-Mail messages may be retrieved and submitted for consideration during legal action brought against the employer, just like any other paper document.

A case in point:

Alex Markels, Staff Reporter for the Wall Street Journal, reported in a January 17, 1997 story that R.R. Donnelley & Sons Co. found itself in just such a position. The company was sued for racial discrimination by Chicago employees when it closed a printing plant there in 1994. The suit claimed that nearly all of the 575 black workers at the plant were laid off, while about 30% of the white workers were given transfers to other Donnelley facilities. During the legal discovery process, the company had to turn over copies of messages allegedly passed through the company's E-Mail system in Chicago. The documents included a list of 165 racial, ethnic and sexual jokes that were allegedly created at the company's facility in Lancaster, Pennsylvania. Company officials deny any knowledge of these messages before they were discovered due to the law suit. They claim such messages are in direct violation of company policy because of their content.

None the less, this situation demonstrates how employers are being forced to produce copies of E-Mail messages transmitted over their company-owned systems. It also demonstrates how embarrassing, if not financially harmful, such misuse of E-Mail systems can become.

Violence In The Workplace

Of the violent incidents occurring, the top five situations are:

New Employment Authorization Document From INS

The old card, I-688B, will still be issued in some cases and will be valid until the expiration date on each individual card.

To confuse things even more, most aliens who are authorized to work only for a specific employer will continue to receive their authorization on Form I-94 (Arrival-Departure Record).

Employers may accept these cards as "List A" documents during the I-9 employment verification process. Since they contain the holder's photograph, they establish both identity and employment eligibility.

For a free brochure showing the new Form I-766 card, call your local office of the INS and request publication Form M-440.

Misleading Job Reference Liability

The problem of job references has been with us for a long time now. And, employers have generally been counseled by legal specialists to avoid giving more than confirmation of employment dates and pay. The fear, of course, has been that former employees would sue for defamation of character if they were given a poor reference.

Now the stakes have been raised to include the situation where a former employee is given a positive referral. The Randi W. ruling tells us that employers can be liable for giving positive job referrals that omit material negative facts and lead to physical injury.

In Randi W. the school district was sued by one of its 13-year-old students, claiming she was molested by her vice principal. The vice principal had been hired based on recommendations from former school employers, even though the former employers knew (or should have known) that this individual had been involved in several sexual situations with female students. In the end, the former employers were held liable for not disclosing the negative information which could have possibly prevented the later molestation.

If you feel you must give more than name, rank and serial number, talk with your legal counsel first.

Employees' Right to Review Affirmative Action Plans

That runs contrary to federal court interpretation of this issue where self- critical analysis product is allowed protection from discovery.

The California court also rejected the argument that the affirmative action plan should be protected under attorney-client privilege or the work product doctrine. Although the plans and self-critical analysis may have been prepared by attorneys, the court said that they could not be considered confidential communications because the company expected government authorities to inspect the documents.

The case has been returned to the lower court with an order compelling the employer to produce the affirmative action and self-critical analysis information. (Cloud v. The Superior Court of Los Angeles, 50 Cal. App. 4th 1552 2d Dist., 1996)

In our opinion, while it is doubtful that a properly prepared affirmative action plan would contain any significantly damaging information, it is possible that other files could. For example, affirmative action employers are required to perform disparate impact testing (called Impact Ratio Analysis) on new hires, transfers/promotions and terminations. If disparate impact is indicated in any of these tests, and no further investigation or corrective action is taken, the potential for discrimination is present. At the very least, lack of follow-up makes it look as though the employer is unconcerned about discrimination.

Teach Employees to Pay Attention

The company settled a lawsuit brought by the Justice Department and a former guest for a violation of the Americans with Disabilities Act (ADA). It caused the hotel chain to write two checks: $7,500 to the Justice Department and $10,000 to the guest.

In 1993, David Williams of Tulsa, Oklahoma, reserved an accessible room at the Park Avenue Courtyard property in Memphis, Tennessee. Instead, he was given a standard room. "It was a one-time incident, a mistake by the hotel," says Marriott Corporation spokesperson Geary Campbell. Procedures to follow in these types of cases have been "re- emphasized" to staffs in all 275 Courtyard properties in the United States, says Campbell.

(SOURCE: Successful Meetings magazine, December 1996.)

Massachusetts Now Requires Sexual Harassment Policies

AAP Software Available

After years of developing AAP documents for clients we have finally found a family of software products which we believe is user friendly. PRI Associates line of AAP software takes advantage of the PC Windows environment and comes closer than any other product to making AAP preparation a simple task. We are so enthusiastic about this group of programs that we have put our reputation on the line as representatives of the products.

If you have more than one AAP to prepare each year, you will find that this software will be very cost effective for you. If you are respon-sible for five or more plans each year, this software will save you thousands of dollars every year.

You can import data from your existing HRIS. No need to keyboard the data a second time. Then output Workforce Analysis and Job Group Analysis reports automatically. If you have ever had trouble computing Availability Analysis (the dreaded 8-factor analysis) you will love how AAPlanner makes you life easier. It will dazzle you with Availability Analysis and Goals Reports. You can even make easy work of complicated statistical significance and probability formulas by using Adverse Impact Monitor.

If you would like to learn more about how these programs can help save you time and money call: 1-888-671-0404. Click for more information.

California Marijuana Initiative Complicates Employer Policies

Proposition 215 protects patients and their care givers from criminal prosecution for obtaining and using marijuana for medical purposes. It also throws employers into uncertainty about their anti-drug and drug testing policies.

The new law only requires an oral recommendation, from a licensed health care professional to a patient, that using marijuana will be helpful to their medical condition. A written prescription is not required. Therefore, employers can ask workers for a copy of written recom- mendations but, since they are not required, may not receive them.

Employers who have drug policies often take a zero tolerance approach to employee use. That places employers in a quandry about how to treat employees who are using marijuana legally under the new state law.

Currently, interpretation of the law is unclear to many legal experts. Some employers are standing by their zero tolerance policies, feeling supported by the continued federal prohibition against marijuana.

One of the most serious problems which may face employers has to do with employees who want to use medically recommended marijuana on company time or on company premises. While tobacco smoking in the workplace has generally been banned throughout California, medical necessity may come to mean some employees can use this drug treatment even at their workstations. While some workers take a cigarette break, smoking outside the building, they may find themselves standing next to another employee who is smoking marijuana.

And, what of smoke sensitivity inside the building? It was health concerns over second hand smoke which led to the eventual ban on workplace smoking. If some employees are to be allowed to smoke marijuana in the workplace while tobacco products are still banned, what reactions will be forthcoming from their co-workers?

Maintaining a zero tolerance policy toward drug use, including marijuana, could force an employer into a situation where it feels it needs to take disciplinary action against a medical marijuana user. Unfortunately, that could lead to lawsuits under the new state law.

Drug screening tests of job applicants and employees will certainly show positive results for medical marijuana users. How employers should deal with these situations is also unclear at this time.

If you face this problem with one of your employees, we strongly recommend that you delay any action against the employee until you have had a conversation with your employment attorney.

Moonlighting While on FMLA Leave

However, when a company has a policy which clearly prohibits or restricts secondary employment, then this policy can be enforced during FMLA leave. FMLA does however, prohibit activities that would interfere with, restrain, or deny the exercise of any rights provided by the act. Creating a policy which restricts secondary employment solely for the participants of FMLA leave would be considered illegal.

As always, we suggest you talk with your employment attorney before taking any action on such an issue.

(SOURCE: HR News, Society for Human Resource Management, Alexandria, Virginia, September, 1996)

Quotable Quotes

"If you want the rainbow, you gotta put up with the rain." -- Dolly Parton

"The supreme reality of our time is...the vulnerability of this planet." -- John F. Kennedy

"Age is not a handicap. Age is but a number. It is how you use it." -- Ethel Payne

A Gentle Word on Behalf of Our Business

You wouldn't go into an IRS audit alone. Why think about going into a Department of Labor compliance review without professional support? The stakes are just as high either way.

We are ready to give you the support you need.

And while you're at it, think about ordering a copy of our reference and training book on preparing affirmative action plans and managing compliance reviews. You will find it an invaluable resource at a price that just can't be beat.

Secrets of Affirmative Action Compliance New 2nd Edition Over 450 pages of regulation requirements and practical suggestions for your organization. Includes new Federal Regulations. $99.95 plus $7.00 shipping/handling and CA sales tax for CA destinations. Credit Card Orders...Call Toll Free: 1-888-671-0404

We can help you with your other human resource management needs as well. Think of us the next time you need:

Employee Handbooks

Discrimination Complaint Investigations

Management Training in Compliance Issues

Affirmative Action Plan Development

Affirmative Action Statistical Analysis

Disparate Impact Testing for New Hires, Promotions, Transfers, Terminations

Thanks for taking the time to read our newsletter. We would enjoy receiving your thoughts about its value to you. You can e-mail your message to tmainc@management-advantage.com or simply give us a call and tell us in person. We appreciate your feedback. The Advantage is published each quarter by: The Management Advantage, Inc. Please also take time to read the important articles in other issues.