A new bill is sitting with the New York Senate and State Assembly hoping to hold responsible those employers who violate wage and hour laws by hitting them where it hurts – through increased penalties.
The legislation — introduced in the State Senate and State Assembly — would subject employers that fail to pay, for instance, $10,000 in legally required overtime to having to pay twice that amount in damages. That would be above and beyond the $10,000 in back wages that current law already requires such employers to pay…For support, the bill’s backers cite a report by the National Employment Law Project [pdf] that found that the city’s low-wage workers experienced more than $18 million in wage violations each week, or nearly $1 billion a year. The report found that more than 300,000 low-wage workers in New York suffer wage violations each week, or $3,016 on average per year in minimum-wage, overtime and other wage violations.
The aforementioned report also found that 51% of workers were paid $1 less than minimum wage, 77% were not paid the legally required overtime rate by their employer and 70% were not given sufficient breaks during the workday. These are not insignificant numbers.
With these statistics in mind, the Act also allows for fines of $10,000 against employer for any retaliatory action taken against an employee objecting to any wage violation. It also provides that any delays in back pay would cost even more than it does now.
Because many employers delay complying with back-pay judgments, the legislation would increase penalties by 30 percent against employers that do not pay wage judgments within 90 days.
While this seems to be onerous for employers, it’s not really asking anyone to do anything that they shouldn’t be doing in the first place. And it not only helps the employee, but it also helps the state in a myriad of ways.
Personally, I think bills like this should be introduced in every state. It only reinforces what we HR folks have been saying for years.
Yesterday, President Obama signed H.R. 4691, The Temporary Extension Act, into law, thereby extending both the COBRA subsidy and UI extension for the unemployed (of which I am one).
The Temporary Extension Act includes the following (via SHRM):
COBRA
The law’s COBRA provisions:
Extend the eligibility period for the 15-month 65 percent premium subsidy to those involuntarily terminated from March 1 through March 31, 2010.
Allow employees to receive the subsidy if they first lost group coverage due to a reduction in hours and then were terminated after enactment of the bill.
Unemployment Insurance
The law’s unemployment insurance benefit provisions:
Extend the period during which individuals may file applications for Federal Emergency Unemployment Compensation (EUC) from the current end date of February 28, 2010 to April 5, 2010 and the period during which individuals may claim and be paid EUC is extended from July 31, 2010 to September 4, 2010.
Extend the period during which individuals may qualify for the Federal Additional Compensation (FAC), the extra $25 weekly benefit amount on state and federal unemployment compensation, from the current end date of February 28, 2010 to April 5, 2010 with weekly payment provided during the phase out period for weeks ending October 5, 2010 instead of August 31, 2010.
Extend the period during which 100% federal reimbursement for weeks of regular federal extended benefit payments to April 5, 2010, with the state option to continue the extended period from July 31, 2010 to September 4, 2010.
All of this sounds good, yes. Well it is good but it is temporary. The temporary part of this act has to do with the fact Congress needs more time to debate ongoing legislation such as H.R. 4213 which essentially mirrors H.R. 4691, but would continue the extensions through the end of 2010 rather than the end of September.
It turns out that an OSHA report in 2006 warned that “swimming with captive orcas is inherently dangerous and if someone hasn’t been killed already it is only a matter of time.” (via CNN).
According to CNN, when OSHA presented this report, SeaWorld became enraged and successfully quashed the report, reducing it from 18 pages to a mere 8.
In the original OSHA report it states that these trainers would train for when the event happened and not if. According to Kaye this angered SeaWorld and they went to OSHA about it supposedly making them change the original report. Deleted were statements concerning the prediction that an event will happen as well as statements concerning the training that employees go through for when they are attacked.
OSHA acknowledged that the statements in the original report were speculative and not fact driven. Randi Kaye reported that the original OSHA report was 18 pages long while the revised one was only 8 pages.
(I would have loved to post the CNN video, but they don’t allow for embedding).
All of this is a big “I told you so” and doesn’t really help the family and friends of Dawn Brancheu. Even so, as in every tragedy, one can only hope that Sea World and the rest of us learn from this. Sometimes it pays to listen to OSHA, no matter how bureaucratic the entity can be.
There’s a reason why Orcas are also known as “killer whales.”
Plaintiffs Kimberly McCarther and Juan Huerta worked for SBC Services, Inc., and Pacific Bell Telephone Company, respectively. They both were members of the Communication Workers of America, which had entered into a collective bargaining agreement (“CBA”) with the employers. The sick leave policy under the CBA provided for up to five consecutive days of paid time off for employees’ own illness or injury in a seven-day period. Each time an employee returned to work from an absence the entitlement would renew. The CBA also provided employees each year with six paid personal days off that they may take for any reason.
Unlike other sick leave policies, however, this policy did not provide for a bank of paid sick days accrued incrementally over a period of time. The policy also did not cap the total number of days employees could be absent each year. Employees were not paid for absences to care for ill family members.
When the plaintiffs took time off to care for their respective families, neither were disciplined for their respective absences, but neither were they paid for the days taken, which both considered to be in violation of the Kin Care Statute. Subsequently, the plaintiffs filed a class action lawsuit against the employer. The court found in favor of the defendant via summary judgement. Upon appeal, the CA Appeals Court reversed the ruling and found the employer’s policy did fall under the Kin Care statute. This time the employer appealed.
: Examining the statute’s language, the Supreme Court disagreed with the Court of Appeal, finding the sick leave policy at issue was outside the “kin care” statute. Specifically, the Supreme Court noted that Section 233 permits employees to use up to six months (i.e., one-half) of their annual accrued paid “sick leave” to “attend to an illness of a child, parent, spouse, or domestic partner of the employee.” The definition of “sick leave” is “accrued increments of compensated leave.” The Supreme Court concluded that, by its terms, “the reach of the statute is limited to employers that provide a measurable banked amount of sick leave.”
Personally, I’m glad that this situation was able to provide greater clarification on Kin Care. While the statute itself seems very straight forward, it also seems that more and more employers are moving towards less traditional time off policies or even no time off policies at all, something which I don’t agree, but a reality nonetheless.
All of this just continually proves my point again and again, just when you think you’ve got sure footing in California employment law, the ground gives out and you start sinking again.
Employers beware – or at least be aware – the IRS is cracking down on businesses who violate the the legal terms of working with an independent contractors.
The IRS said it would begin a three-year study of the issue this month. State crackdowns include:
- New York: A multi-agency team reported finding nearly 31,500 cases of employee misclassification and nearly $390 million in unreported wages from Sept. 2007 and the end of 2009. It had ordered employers to pay more than $28 million in past-due wages, taxes and penalties.
New York’s numbers were up significantly. Its team found 12,300 misclassification cases in the 16 months ending in December 2008; by a year later it had found about 19,200 more.
- California: Orange County prosecutors said last year they would seek $38 million from a couple for workers’ compensation fraud for failing to pay premiums and submitting claims for 42 injured but uninsured workers at their construction companies.
- Florida: A 2008 statewide grand jury found some construction contractors conspired with check-cashing stores to fake payments to a bogus subcontractor, cash the checks themselves and pay workers cash, under the table.
- Ohio: The state’s Bureau of Workers’ Compensation ruled last year that a former state attorney general’s top aide improperly classified all four employees at his Youngstown construction firm; on appeal only two were found misclassified. The state won’t say how much he owes in restitution.
I realize that I’ve gone over this issue adnauseum, but it seems that some employers still don’t get it.
As much as I’d like to insist they follow the rules, all we can do in HR is advise. And document, document, document.
For I truly believe that a little CYA never hurt anyone, especially HR.
Note: This article was brought to my attention from the SHRM discussion board.
In an opinion piece on ere.net, Dr. John Sullivan, currently a Business Management Professor at San Francisco State University states that faulty HR processes led directly to the issue that caused Toyota’s recall, the shootings at Fort Hood as well as the downfall of Enron and Bear Stearns.
Weak people-management practices have been attributed as the primary causes of failure in a number of notable cases. At Enron and Bear Stearns for example, reward systems that incented dangerous behaviors easily overpowered the effect of control systems designed to prevent fraud and ethical breaches. The mass killings at Fort Hood would not have occurred if the Army had better linkage between performance management and critical incident reporting systems.
Now Dr. Sullivan is a highly respected HR professional, having been the Chief Talent Officer for Agilent Technologies, so I certainly see where he is going with this, but I’m not sure that HR is the primary source of blame. I’m sure that HR shares some of the blame, but does not nor should not own it.
I agree that poor policies do lead to poor performance, but I am also a strong believer that managers need to manage their people and be aware if a policy is not working for their respective teams. It is certainly up to HR to coach managers, but managers need to act on behalf of their employees if a policy and/or procedure is not successful. And as we know, there are a great many times when HR policies are very strong, but not implemented correctly through the managers. There also are a great many times when HR is plainly ignored.
I firmly believe that it can only be detrimental, perhaps even crippling, to an organization once people start pointing at a single department. When things go wrong it is the fault of the company as a whole and an opportunity for improvement for everyone.
Yet another heartbreaking story of a workplace shooting.
During a faculty meeting yesterday, Dr. Amy Bishop opened fire on her colleagues killing three and wounding three others after learning she would not be granted tenure at the University of Alabama.
On Friday, she presided over her regular anatomy and neurosciences class before going to an afternoon faculty meeting on the third floor of the Shelby Center for Science and Technology.
There she sat quietly for about 30 or 40 minutes, said one faculty member who had spoken to some of the dozen people who were in the room. Then Dr. Bishop pulled out a 9-millimeter handgun and began shooting, firing several rounds, the police said.
While all violences is terrifying and tragic, workplace shootings strike a particular chord of terror. The workplace is essentially a collection of strangers brought together. In order for this group to be successful, there needs to be an implied trust that no harm will come to one at the hands of the other. Yet incidents of violence in the workplace continue to occur.
And HR can only do so much. Of course we write, distribute and enforce the policies to the best of our ability. We can do background checks and terminate for incidents of violence. But what can we do when a gun is literally pointed at our heads? What happens when the person who was terminated comes back to the workplace with a weapon and makes HR his/her first target? Or the employee who has given no indication of an issue, who then opens fire for reasons only known to him/her?
Obviously there are no answers here, although I do find it interesting that Dr. Bishop is now under re-investigation for the 1986 shooting death of her brother. Since she wasn’t charged at the time, there was no way it would show up on a background check.
It’s all such a shame. For those who were killed. For her four children. For everyone involved.
This is something I didn’t know until I received my own check. For each week of unemployment insurance paid another $25 dollars is added as a part of the Federal Stimulus Plan.
Federal legislation signed into law on February 17, 2009, allows for a weekly $25 stimulus payment. This $25 stimulus payment will be added to each week of UI benefits paid to eligible workers in California. The federal legislation states that these $25 stimulus payments are only payable for weeks of unemployment that start February 22, 2009, and after.
Effective immediately EDD will automatically add the $25 stimulus payment to each paid week of unemployment that starts on or after February 22, 2009, as part of the regular UI check.
Since the $25 stimulus payments are added to your regular UI benefits, the $25 stimulus payment will not reduce your available UI claim amount.
You do not need to contact EDD to apply for the $25 stimulus payments.
While I’m disappointed in myself that I wasn’t aware of this ahead of time, I must admit that it was a very nice surprise.
Okay, I’ve put off posting about “The Office” for many years, but after catching up on the season, I finally found a clip that I couldn’t resist. It truly epitomizes how incredibly ineffectual Toby is as an HR Manager (and of course how ridiculous the rest of the office is as well).
Far more detailed analysis around HR and “The Office can be found at HR Watches The Office. Definitely worth checking out.
This is a long-anticipated but still very smart move by Yahoo. HotJobs is not central to Yahoo’s core portal business. This way it gets to unload the costs of maintaining the service, some cash now, and some cash later.
While the sale makes sense, the fact is that Yahoo suffers a big loss with this sale. Yahoo bought HotJobs $436 million in 2002, which means that they are only recouping 51% of their original purchase, not including the above mentioned maintenance costs.
Either way, this will definitely inject some much needed cash into the long struggling Yahoo.
Here’s the first of (I’m sure) many more to come. Yesterday, Sun Microsystem’s Chief Executive Officer, Jonathan Schwartz, resigned his position via Twitter. Mr. Shwartz’s resignation comes shortly after the purchase of Sun by Oracle.
Evidently, Oracle CEO Larry Ellison is quite pleased with the results.
Oracle’s chief executive, Larry Ellison, is not especially fond of Mr. Schwartz. In an interview last week, Mr. Ellison said he fully expected Mr. Schwartz to resign rather than play a role in the combined company.
Well it seems that what Larry wants, Larry gets.
I do think, however, that the haiku at the end was a nice touch.
Not HR related, but something that is very important to me.
A brilliant talk from Jamie Heywood (via TedMed), a man whose brother died from the same illness that claimed the life of my beautiful mother. Amyotrophic Lateral Sclerosis. ALS. Also known as Lou Gehrig’s Disease.
In the video above, Jamie talks about Patients Like Me, an incredible website that both aggregates medical data and acts as a support network for those who have illnesses in common.
I only wish that this existed while my mother was still alive. I know she would have found great comfort in it.
I’ve been hearing a great deal about the inefficiencies of the California UI system. Now I can personally vouch for the aforementioned statement.
I applied for unemployment several weeks ago. First I got a letter confirming my address. Then I got a letter requesting that I confirm my reason for filing for UI (position elimination). Okay, everything in order, yes? Well…no. It seems now the state of California doesn’t believe I am who I say I am. In order to prove otherwise, per the letter I received, I needed to provide a government-issued i.d., a copy of my W-2, a copy of my last paycheck and my annual Social Security statement. I then had to shove all of this information into the tiny blue envelope the EDD supplied (I suppose I could have used my own envelope, but why waste my own resources in order to prove my own identity?) and put a stamp on the whole mess.
I’m out of town, so I haven’t been able to check my snail mail. I’m hoping that they have indeed confirmed that I am who I am.
