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Monday, June 30th, 2008
EMPLOYMENT LAW TIP SHEET

2008 LABOR & EMPLOYMENT LAW UPDATE

The Labor and Employment Group is busy planning our Annual Labor & Employment Law Update. This years seminar will be held on September 25, 2008 at Old Overton Club (we will have better chairs!). Save the date, and tell your favorite MC&G lawyer about any special topics you’d like to see addressed.

“ASSOCIATION DISCRIMINATION” – NEW TWIST FOR THE ADA

The Americans With Disabilities Act protects the disabled and those wrongly perceived as disabled (such as recovered cancer patients), but a lesser known provision of the law also protects those who are “associated” with someone who is disabled. This “association” discrimination was originally meant to protect the partners of those with HIV from being fired based on irrational fears of contagion. Two recent cases illustrate how association discrimination is being applied to protect employees whose family members have skyrocketing health care bills.

In one case, an employee of Proctor Hospital in Peoria, Illinois says she was fired because her husband’s cancer treatment was costing her employer over $170,000 per year. The other case comes from Montana where a couple, both employed by PacifiCorp, says that the utility company discharged them upon learning of their son’s brain tumor. In both cases, the terminated employees say their company fired them to save on health care costs based on their “association with” someone with disability. Both companies deny that health care cost was the motive behind the terminations.

The Illinois case is especially instructive because there several managers commented on the spouse’s high medical bills just before the employee was discharged. The timing of those comments was a key reason the Federal Appeals Court in Chicago ruled that the ADA protected the employee and sent the case back to the trial court for a full hearing.

The lesson? Proceed carefully before taking adverse employment action against an employee with a seriously ill family member. Don’t forget that “association discrimination” is a real part of the ADA.

EMPLOYEE FREE CHOICE – IS YOUR COMPANY READY?

The Employee Free Choice Act (EFCA aka push button unionism) has been around for several years. This legislation allows unions to by-pass NLRB supervised secret ballot elections and would force companies to recognize and bargain with unions whenever the union gets a majority of employees to sign authorization cards. Of course, unions often use coercive, strong arm tactics to get employees to sign these cards, but until now the democratic tradition of secret ballot elections has always been available to allow employees to express their true sentiments.

Political prognosticators are predicting (perhaps prematurely) a Democratic President and strong Democrat majorities in both Houses of Congress in 2009. If that happens, EFCA will likely become a quick reality.

Some say unions are already out there collecting undated authorization cards that they plan to spring on unsuspecting companies as soon as EFCA becomes a reality.

A few proactive employers are starting to meet to talk about strategies for fighting unions if the unthinkable happens and EFCA becomes a reality. Think about it – what if a union could secretly organize your employees and present you with a legally enforcible demand for recognition – before you ever have a chance to communicate with your employees to let them know the downsides of unionism (and there are many).

The early thinking is that companies will have to communicate with their employees early and often about the disadvantages of unions – BEFORE any organizing actually starts. From new employee orientation to regular employee meetings, ongoing employee communications will have to address the company’s position on unions.

Every nonunion company should begin now to think about new strategies for maintaining nonunion status in this anticipated new world. If your company does not have a published policy statement on unions, now is the time to consider adopting one as a starting point to battling the EFCA. Some companies are developing video products for use during new employee orientation to warn employees of the danger in signing authorization cards. If you would like more information about these issues, contact your favorite MC&G lawyer.

SLEEPING ON THE JOB – THE BOSS SAYS “OK”

Let’s talk about a sleepy little Company, Zappos.com, that encourages its employees to take a nap when they get tired during the workday. At first, Zappos (online retailer that features shoes and clothing) provided dozing employees with sofas, but recently the Company installed “nap pods” where employees can sleep in a partially enclosed container with soothing music. Sound like a dream? It’s not.

A few other companies, including Nike, Google, and Deloitte & Touche, have started similar programs. Harvard Medical School researchers say that a short nap can improve productivity and enhance a person’s ability to think clearly when performing mental tasks.

There are some naysayers, including those who believe that allowing naps promotes a laid back workplace where everyone’s productivity slides because all employees lose a sense of urgency when they see co-workers going for a nap. Others question how companies can monitor those employees who may abuse the practice. Picture Lil Abner hard at work as a mattress tester. Zappos says that its employees work in teams that must cover for each other and that peer pressure effectively prevents abuse. The teams also have production goals that discourage an atmosphere of sloth.

Author and Researcher Sara Mednick (“Take a Nap! Change Your Life”) promotes programs where companies allow employees to take a 20 minute nap between 1 and 4 pm each day. Mednick maintains that a one month trial is enough time to show real productivity gains.

One Company, Metronaps, produces sleeping vessels known as Energy Pods. The Metronaps CEO reports that while U.S. sales have slowed with the economic downturn, business is booming in the U.K. and Australia where workplace naps are more accepted. Metronaps reports that hospitals are its major source of business in the U.S.

Workplace naps are certainly not anywhere near becoming even a “trend” in the U.S., but the practice does appear to be growing.

FEDERAL CONTRACTORS MUST USE E-VERIFY

President Bush signed an Executive Order on June 6, 2008 which requires federal contractors to use an electronic employment eligibility verification system designated by the Department of Homeland Security (DHS) as a condition of future federal contracts. DHS has designated E-Verify, the government’s internet-based electronic system which is tied to the DHS’ immigration and the Social Security Administration’s databases, as the system that is to be used by federal contractors to verify the employment eligibility of employees working on federal contracts.

This Executive Order will not go into effect until some time later this Fall after a comment and review period. When it goes into effect, it will not replace the use of I-9 Forms, but will be used to verify the information obtained from I-9’s. The final rules will outline steps to be taken if the I-9 information does not match or cannot be verified.

We will be sending more detailed information on the Executive Order when E-Verify becomes effective.

No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.

Disclaimer regarding legal advice: The information in this newsletter should not be construed as legal advice. This information is not intended to create or constitute an attorney-client relationship. For more information or an explanation about the matters discussed in this newsletter, please contact an attorney in this practice group.

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