I was doing some research on the new Americans With Disabilities Amendments Act (ADAAA) the other day and concluded that it's really open to wide-ranging interpretation--and abuse.
Under the original Americans With Disabilities (ADA) Act of 1990, the definition of disability hinged--as it still does in the ADAAA--on the definition of "substantially limits a major life activity." The courts, however, kept whittling down these qualifying life activities to the point at which Congress felt the ADA had been gutted, so it authored the ADAAA in 2008. The law took effect Jan. 1, 2009.
The ADAAA seeks to restore the open nature of "major life activity" and lists a whole slew of such activities, including walking, sleeping, thinking, concentrating, and so on. It then adds a new category, "operation of major bodily functions," to the list. Within this category are things like digestion, respiration, bowel movements and etc. The last one, "reproductive functions," really got me thinking.
Could a guy having trouble scoring with women claim a disability under this category?
"Boss, I haven't had any in months. I think my work is interfering with my reproductive functions."
Boss: "Say what?"
"You know, I need a reasonable accommodation for my sex life."
"And what would that be?"
"Let's start with telecommuting."
"But you're a stock room handler."
"Then hire some babes to work with me and give us a long lunch break."
"Right. Tell ya what, Joe. Stop by my office later, and I'll give you a reasonable accommodation with a generous severance package."
"You'll be hearing from my lawyer."
Would Joe prevail in his lawsuit? My guess is not, but anything can happen in court these days. It would be fun to find out at any rate.
Saturday, January 31, 2009
Friday, January 30, 2009
Car Washes Targeted by ICE Illegal Worker Raids
News item from the blogosphere:
Monty's whole point is how much safer and easier an employer's life becomes when he or she uses the E-Verify online database to check the "legal to work in the U.S." status of each new employee. The system is free, he says, works in about 10 seconds, and produces a document to file with each employee's I-9 that virtually guarantees you won't get fined by the government. Using E-Verify, you've done your due diligence, in other words.
The blog where Monty posted this was one for the carwashing and detailing industry, and he blithely warns his readers that car washes are "low-hanging fruit" when it comes to ICE illegal worker raids.
For his final advice, Monty warns, "ICE knows which companies are using the system and which are not—and they target those who are not using E-Verify."
I personally always rely on Personnel Concepts to keep compliant with the various laws and regulations of the nation, and that long-time labor law compliance company has issued an instructive and useful I-9 Compliance Kit. Highly recommended.
Actually, I found this little tidbit while following a Google Alert on the I-9 employment verification form that employers must keep on file for each employee. The quoted tidbit is both newsworthy and instructional in and of itself, but it's also part of a blog posting by labor law attorney Jacob Monty.Earlier this year, Car Care Inc., a subsidiary of Mace Securities Inc., was ordered to pay a fine of $100,000 and to forfeit $500,000 to the U.S. Immigration and Customs Enforcement (ICE) following a 2006 investigation. (At one time, Mace, a manufacturer of security and personal defense products, was one of the largest carwash chains in the nation.) Car Care Inc., based in the Northeast, had employees on the payroll who were using false identification cards to show legal status to work. $600,000! On top of that, five managers are awaiting criminal actions against them, personally.
Monty's whole point is how much safer and easier an employer's life becomes when he or she uses the E-Verify online database to check the "legal to work in the U.S." status of each new employee. The system is free, he says, works in about 10 seconds, and produces a document to file with each employee's I-9 that virtually guarantees you won't get fined by the government. Using E-Verify, you've done your due diligence, in other words.
The blog where Monty posted this was one for the carwashing and detailing industry, and he blithely warns his readers that car washes are "low-hanging fruit" when it comes to ICE illegal worker raids.
For his final advice, Monty warns, "ICE knows which companies are using the system and which are not—and they target those who are not using E-Verify."
I personally always rely on Personnel Concepts to keep compliant with the various laws and regulations of the nation, and that long-time labor law compliance company has issued an instructive and useful I-9 Compliance Kit. Highly recommended.
Thursday, January 29, 2009
President to Sign Ledbetter Fair Pay Act Today
No doubt emblematic of his entire time in office, President Barack Obama will sign his first piece of legislation today--a labor law that overturns a Bush-era Supreme Court decision.
Lilly Ledbetter, who was the subject of that Supreme Court ruling, will be there when Obama inks the Lilly Ledbetter Fair Pay Act into law.
The legislation reverses the court's decision in the Ledbetter case that the 180-day statute of limitations on pay discrimination cases starts ticking when the initial decision is made to pay unfairly. The Fair Pay Act amends the 1964 Civil Rights Act and mandates that the statute starts ticking again every time a paycheck is issued to the victim.
(Pay discrimination is defined as an employee's being paid less for the substantially same job and same set of job responsibilities, figuring in length of service, etc., based on age, race, gender and factors besides experience.)
Opponents fear that this will just open up the spigot for lawyers to march an endless stream of employees into court and win two years of backwardly adjusted pay.
They're probably right.
N.B.: Catch this, the law is worded to "take effect as if enacted on May 28, 2007." This is curious for a couple of reasons. First, I believe there's a Constitutional ban on ex post facto laws (backdated laws), and this date is one day before the Supreme Court heard the Ledbetter case. Evidently, it's been so written to enable Lilly to go back to the Supreme Court and reopen her case. If so, I hope the court rules that the start date is unconstitutional.
Lilly Ledbetter, who was the subject of that Supreme Court ruling, will be there when Obama inks the Lilly Ledbetter Fair Pay Act into law.
The legislation reverses the court's decision in the Ledbetter case that the 180-day statute of limitations on pay discrimination cases starts ticking when the initial decision is made to pay unfairly. The Fair Pay Act amends the 1964 Civil Rights Act and mandates that the statute starts ticking again every time a paycheck is issued to the victim.
(Pay discrimination is defined as an employee's being paid less for the substantially same job and same set of job responsibilities, figuring in length of service, etc., based on age, race, gender and factors besides experience.)
Opponents fear that this will just open up the spigot for lawyers to march an endless stream of employees into court and win two years of backwardly adjusted pay.
They're probably right.
N.B.: Catch this, the law is worded to "take effect as if enacted on May 28, 2007." This is curious for a couple of reasons. First, I believe there's a Constitutional ban on ex post facto laws (backdated laws), and this date is one day before the Supreme Court heard the Ledbetter case. Evidently, it's been so written to enable Lilly to go back to the Supreme Court and reopen her case. If so, I hope the court rules that the start date is unconstitutional.
Wednesday, January 28, 2009
New York Initiative Targets Wage Theft
The New York Department of Labor is mad as hell and ain't gonna take it anymore.
Take what? Wage theft in its many forms. The department this week launched a new program to monitor employers throughout the Empire State.
Modeled somewhat on the nation's Neighborhood Watch program, New York Wage Watch will empower groups of volunteers throughout the state to report violations of wage laws, generally pertaining to minimum wage and overtime provisions in the FLSA (Fair Labor Standards Act) and other pieces of legislation.
The state has been beset with numerous instances of wage theft in various industries. Restaurant violations (even involving allegations against celebrity chefs Bobby Flay and Tom Colicchio) seem to get the most headlines, but a study found that 78 percent of the state's car washes were not paying minimum wage or overtime.
Even state icons like the Saratoga Race Course and the Erie County Fair didn't go unscathed--or undetected. At Saratoga, more than 100 backstretch workers reported wage violations, and at the fair, bathroom attendants were paid nothing and forced to give half their tips to a subcontractor.
Activities by New York Wage Watch volunteers will include holding training sessions, providing employers with compliance literature, and handing out employee literature in public places. When violations are suspected within any volunteer group's geographic zone, a mechanism to report these alleged abuses is in place. Everything will be supervised and monitored by the State Labor Department's Division of Labor Standards.
For those of you running your own businesses or making wage decisions, I highly recommend a series of wage and overtime tools from Personnel Concepts.
Take what? Wage theft in its many forms. The department this week launched a new program to monitor employers throughout the Empire State.
Modeled somewhat on the nation's Neighborhood Watch program, New York Wage Watch will empower groups of volunteers throughout the state to report violations of wage laws, generally pertaining to minimum wage and overtime provisions in the FLSA (Fair Labor Standards Act) and other pieces of legislation.
The state has been beset with numerous instances of wage theft in various industries. Restaurant violations (even involving allegations against celebrity chefs Bobby Flay and Tom Colicchio) seem to get the most headlines, but a study found that 78 percent of the state's car washes were not paying minimum wage or overtime.
Even state icons like the Saratoga Race Course and the Erie County Fair didn't go unscathed--or undetected. At Saratoga, more than 100 backstretch workers reported wage violations, and at the fair, bathroom attendants were paid nothing and forced to give half their tips to a subcontractor.
Activities by New York Wage Watch volunteers will include holding training sessions, providing employers with compliance literature, and handing out employee literature in public places. When violations are suspected within any volunteer group's geographic zone, a mechanism to report these alleged abuses is in place. Everything will be supervised and monitored by the State Labor Department's Division of Labor Standards.
For those of you running your own businesses or making wage decisions, I highly recommend a series of wage and overtime tools from Personnel Concepts.
Tuesday, January 27, 2009
Can the NLRB Force a Company to Reopen?
According to employer attorney George Lenard on his blawg, the answer is yes, no, and "it depends," though he does say it's not a very realistic outcome.
The company in question is the now-infamous Republic Windows and Doors, late of Chicago but now reincarnated in a place called Red Oak, Iowa, and renamed Echo Windows.
The difference? No United Electrical, Radio and Machine Workers union in Iowa.
Recall back in December, when Republic abruptly closed down due to a "credit crunch," the employees refused to vacate the premises until the owner of Republic, a man named Richard Gillman, obtained a line of credit to pay the workers all money due them, including eight weeks of pay under the WARN (Worker Adjustment and Retraining Notification) Act.
Sure enough, along with a Chapter 7 bankruptcy filing to cease operations, Gillman provided $1.75 million to settle with the employees.
Case closed, big victory for the union, right?
Not quite, the United Electrical, Radio and Machine Workers union smelled a rat and filed an unfair labor practice complaint with the National Labor Relations Board (NLRB). The filing requested that the machinery that had been ferreted out of the Chicago plant in the dead of the night to Red Oak and the new factory be returned to Chicago, where Republic might be put back in operation under a potential new owner.
Now, here's where it gets tricky. If Gillman did indeed move his operations to another state to bust the union, then previous court cases (cited by Lenard) grant the NLRB the right to order the old factory to be reinstated with the employees and union in tow.
Lenard doesn't give this reopening-of-Republic scenario much chance of playing out, but he concludes that it's not outside the realm of possibility.
With new appointees to the NLRB under Obama surely to be highly pro-labor, I'd say anything is indeed possible.
The company in question is the now-infamous Republic Windows and Doors, late of Chicago but now reincarnated in a place called Red Oak, Iowa, and renamed Echo Windows.
The difference? No United Electrical, Radio and Machine Workers union in Iowa.
Recall back in December, when Republic abruptly closed down due to a "credit crunch," the employees refused to vacate the premises until the owner of Republic, a man named Richard Gillman, obtained a line of credit to pay the workers all money due them, including eight weeks of pay under the WARN (Worker Adjustment and Retraining Notification) Act.
Sure enough, along with a Chapter 7 bankruptcy filing to cease operations, Gillman provided $1.75 million to settle with the employees.
Case closed, big victory for the union, right?
Not quite, the United Electrical, Radio and Machine Workers union smelled a rat and filed an unfair labor practice complaint with the National Labor Relations Board (NLRB). The filing requested that the machinery that had been ferreted out of the Chicago plant in the dead of the night to Red Oak and the new factory be returned to Chicago, where Republic might be put back in operation under a potential new owner.
Now, here's where it gets tricky. If Gillman did indeed move his operations to another state to bust the union, then previous court cases (cited by Lenard) grant the NLRB the right to order the old factory to be reinstated with the employees and union in tow.
Lenard doesn't give this reopening-of-Republic scenario much chance of playing out, but he concludes that it's not outside the realm of possibility.
With new appointees to the NLRB under Obama surely to be highly pro-labor, I'd say anything is indeed possible.
Monday, January 26, 2009
Some New Year's for the People's Republic
China ushered in the Year of the Ox yesterday (today in the U.S.) amid deepening economic and social woes.
It's hard to get the truth out of the People's Republic, which is anything but a republic, but the year just closed saw some 18,000 businesses close, mostly in the southeast, and at least 2 million (some would say 10 million) workers laid off. Economic growth has slowed to about 7 percent or so (again, the truth is hard to ascertain since the government concocts, er, tabulates the growth rate), and all these woes have put the government on edge.
In the U.S., we have the WARN Act (Worker Adjustment and Retraining Act) that applies to businesses with 50 or more employees, requiring them to give 60 days' advance notice of undertaking mass layoffs or ceasing operations. In the PRC, there's the new Labor Contract Law and other initiatives that require businesses to alert the government in advance of any layoffs of 20 employees, or 10 percent of the workforce.
However, the laws are proving hard to enforce as many business owners simply shut down shop and disappear, leaving their workers without jobs or the money owed them. In some cases, local governments have had to move in and pay the workers themselves to quell potential rioting.
Since many of the plant closings involved operations staffed mostly by migrant workers, hundreds of thousands, perhaps millions (again, who knows for sure?), of these roving employees are being forced back to the hinterlands from the industrialized cities, adding to a cadre of malcontented citizens. In addition, there are at least 1.5 million college graduates from summer 2008 who have yet to find jobs, with another few million set to join their ranks this summer. It could portend an explosive mix in a land that touts economic freedom but practices political and civil repression.
We'll just have to wait and see if the Year of the Ox ends up seeing the unelected lords of China--who last year had to suppress an uprising in Lhasa, Tibet--getting themselves gored by an unhappy, suppressed population.
It's hard to get the truth out of the People's Republic, which is anything but a republic, but the year just closed saw some 18,000 businesses close, mostly in the southeast, and at least 2 million (some would say 10 million) workers laid off. Economic growth has slowed to about 7 percent or so (again, the truth is hard to ascertain since the government concocts, er, tabulates the growth rate), and all these woes have put the government on edge.
In the U.S., we have the WARN Act (Worker Adjustment and Retraining Act) that applies to businesses with 50 or more employees, requiring them to give 60 days' advance notice of undertaking mass layoffs or ceasing operations. In the PRC, there's the new Labor Contract Law and other initiatives that require businesses to alert the government in advance of any layoffs of 20 employees, or 10 percent of the workforce.
However, the laws are proving hard to enforce as many business owners simply shut down shop and disappear, leaving their workers without jobs or the money owed them. In some cases, local governments have had to move in and pay the workers themselves to quell potential rioting.
Since many of the plant closings involved operations staffed mostly by migrant workers, hundreds of thousands, perhaps millions (again, who knows for sure?), of these roving employees are being forced back to the hinterlands from the industrialized cities, adding to a cadre of malcontented citizens. In addition, there are at least 1.5 million college graduates from summer 2008 who have yet to find jobs, with another few million set to join their ranks this summer. It could portend an explosive mix in a land that touts economic freedom but practices political and civil repression.
We'll just have to wait and see if the Year of the Ox ends up seeing the unelected lords of China--who last year had to suppress an uprising in Lhasa, Tibet--getting themselves gored by an unhappy, suppressed population.
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