Thanks to the Benefits Blog for the tip to check out the DOL's website for recent postings of FMLA Opinion Letters. See its discussion of the issue of counting employees from temporary agencies by both the temporary employer and its customer for purposes of determining FMLA coverage. The actual letter is here.
The second letter, a somewhat belated answer to a July 28, 1998 question, discusses the circumstances when an employer may request recertification quicker than the 30 days provided by the regulations. Among the reasons that might work, a history of Friday/Monday absences.
Missing From Action? Unscheduled Absence Hits 5 Year High
If your employees are not showing up in greater numbers than in the past, you are not alone according to the story, Unscheduled absenteeism soars; reasons, solutions vary from HR News found at SHRM's website. Different methods are being used to try to combat the problem, which rose to 2.4% last year, a .5% increase from the year before. One company has gone from buying donuts for a department when they met certain attendance standards to $40 and $20 gift cards every two months to employees who meet attendance and safety goals. No report on whether the decline in the success of the donuts as a motivator was correlated with the rise of Atkins dieting among the workforce!
Next Senate Chair of Health, Education, Labor, and Pensions Committee?
If as many seem to think, including the folks at the Daily Labor Report and this election article wrapup from a WSJ Reporter, Senator Judd Gregg moves over to chair the Budget Committee, the next in line to chair the Health, Education, Labor and Pensions Committee would be a Senator from Dick Cheney's home state of Wyoming, Mike Enzi, the only certified Human Resources Management Professional in the Senate. Check out a 2000 article concerning Enzi and his efforts on OSHA reform legislation, Mr. Enzi goes to Washington.
The Basic Form - The Employment Application
A short article, Employment applications: The devil is in the details
from the Columbus Business Journal, is a good reminder of the things that should be included on yours.
from the Columbus Business Journal, is a good reminder of the things that should be included on yours.
7th Cir. No Constructive Discharge Just Because of Possible (Even Likely) Termination
When a teacher was told that the Superintendent was not going to recommend her contract be renewed for the next year, she took early retirement and then claimed constructive discharge. Skipping over the requirement of "unendurable working conditions" reaffirmed by the Supreme Court in Suders, she argued that merely having a "discharge lurking in the background" was sufficient. Wrong. Cigan v. Chippewa Falls School District (7th Cir. 11/5/04) [pdf].
After knocking down the constructive discharge issue, the Court also dealt with the pesky question of whether an employer who makes some attempt at accommodation has by that act treated the person as disabled, thus meeting the "perceived" prong of the definition. The Court both quickly explained and rejected her argument:
Finally, although not required to decide the issue, the Court leaves little doubt that it would side with those courts that would hold that absent an "actual disability" there is no need for accommodation of one who is only "perceived" as disabled.
After knocking down the constructive discharge issue, the Court also dealt with the pesky question of whether an employer who makes some attempt at accommodation has by that act treated the person as disabled, thus meeting the "perceived" prong of the definition. The Court both quickly explained and rejected her argument:
Cigan’s line of argument supposes that an employer offers accommodation only if it thinks that the employee suffers from a substantial limitation in a major life activity. The “only if” is vital; if employers accommodate for other reasons, then the fact of accommodation does not support an inference that a given employer must have regarded a given employee as disabled. Cigan does not try to justify the “only if” clause, and it would not be a sound inference. Decent managers try to help employees cope with declining health without knowing or caring whether they fit the definition in some federal statute.The last sentence just illustrating that some good deeds do go unpunished.
Finally, although not required to decide the issue, the Court leaves little doubt that it would side with those courts that would hold that absent an "actual disability" there is no need for accommodation of one who is only "perceived" as disabled.
The Change That Didn't Happen - What A Kerry Administration Would Have Meant
Although not much talked about, the management side of the docket may have dodged a substantial bullet with Tuesday's election. While John Kerry's interests and expertise have been focused on foreign policy issues, his endorsement from the AFL-CIO noted his "91% AFL-CIO lifetime voting record on important working family issues." A change from Bush to Kerry would have probably been the most dramatic switch in labor/employment views in the White House since the Carter to Reagan transition almost 25 years ago.
Some of the specifics that will now not come to pass are the Kerry promise to appoint a Secretary of Labor "from the house of labor." Current Secretary of Labor Elaine Chao, wife of Republican Senator Mitch McConnell has expressed interest in moving to the Secretary of Transportation position. No word on who her successor might be if that were to happen.
The Democratic platform's promise -- "we will of course reverse this Administration's cuts in wages for working people by restoring overtime protections for hard-working Americans" -- were code words for repeal of the new Part 541 White Collar Exemption Regulations. Given that the changes have resulted in very few individuals losing their overtime protection, that probably would not have come to pass in any event and certainly is not likely now. While there could still be legislative action, given the outcome of the election and the reality of the issue, I don't see it as a likely change.
Labor reform type issues, many of which have been dreamed about since a serious effort was (ironically) defeated by a Senate filibuster in the Carter administration, will go back to the dream stage - a ban on permanent striker replacement, greater flexibility for the use of card checks, greatly increased penalties for violations of the NLRA, and of course the Bush Board will continue in place, although some nominations will have to make their way through the Senate.
To the extent John Edwards had been able to exert any influence on the domestic agenda, one could have expected his view to have been very much supportive of pro-employee litigation issues, even though his trial lawyer background was in the personal injury as opposed as to employment law arena. As major contributors, trial lawyers would certainly have been looking for some reward.
And of course 4 more years of court appointments, including, but by no means limited to the Supreme Court, will continue to influence the development of federal labor and employment law.
Some of the specifics that will now not come to pass are the Kerry promise to appoint a Secretary of Labor "from the house of labor." Current Secretary of Labor Elaine Chao, wife of Republican Senator Mitch McConnell has expressed interest in moving to the Secretary of Transportation position. No word on who her successor might be if that were to happen.
The Democratic platform's promise -- "we will of course reverse this Administration's cuts in wages for working people by restoring overtime protections for hard-working Americans" -- were code words for repeal of the new Part 541 White Collar Exemption Regulations. Given that the changes have resulted in very few individuals losing their overtime protection, that probably would not have come to pass in any event and certainly is not likely now. While there could still be legislative action, given the outcome of the election and the reality of the issue, I don't see it as a likely change.
Labor reform type issues, many of which have been dreamed about since a serious effort was (ironically) defeated by a Senate filibuster in the Carter administration, will go back to the dream stage - a ban on permanent striker replacement, greater flexibility for the use of card checks, greatly increased penalties for violations of the NLRA, and of course the Bush Board will continue in place, although some nominations will have to make their way through the Senate.
To the extent John Edwards had been able to exert any influence on the domestic agenda, one could have expected his view to have been very much supportive of pro-employee litigation issues, even though his trial lawyer background was in the personal injury as opposed as to employment law arena. As major contributors, trial lawyers would certainly have been looking for some reward.
And of course 4 more years of court appointments, including, but by no means limited to the Supreme Court, will continue to influence the development of federal labor and employment law.
How to Handle Telling the Boss (or Potential Boss) That You Are Pregnant
Interesting article, New boss should know of pregnancy, by Sue Shellenbarger of the Wall Street Journal, on the many facets to the question of when you tell your employer or prospective employer that you are pregnant. Another real world dilemma that men never have to deal with.
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