I’m sure many of you have noticed the ongoing nods on this site to Laughing Squid for content that he provided or the via credits. Well, this an unabashed post to garner votes for this wonderful site which has been nominated for a Webby Award.

The 12th Annual Webby Awards have announced their Nominees and Honorees today. We are excited to announce that Laughing Squid has been nominated for a Webby in the Culture/Personal Blog category…

Laughing Squid is also eligible for The People Voice Awards. Voting starts April 8th and ends on May 1st. You can vote for Laughing Squid and other nominees through the online ballot (registration required). Here’s our nominee page.

I definitely wish Scott the very best of luck here. I’ve never met anyone who deserves recognition more than he.

(And in the interest of fairness, I should probably disclose that Scott is my husband! But you knew that already didn’t you?)

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(01-24) 17:40 PST San Francisco (AP) –

International Business Machines Corp. was sued in federal court Tuesday for allegedly not paying overtime to tens of thousands of rank-and-file employees.

The suit was filed in U.S. District Court on behalf of three current and former workers, and seeks class-action status to represent computer installers and maintenance workers for IBM throughout the United States.

“They were forced to work overtime without being paid in a manner that is required by the state and federal laws,” attorney James Finberg said.

Lawyers said they are seeking millions of dollars in back pay for employees of the world’s biggest technology services provider based in Armonk, N.Y. They are also considering punitive damages.

Experts speculated that the practice of not paying overtime to workers who deserve it was widespread in the technology industry.

“In the last couple of years, there has definitely been an increase in the number of wage-and-hour actions brought on behalf of computer related employees,” said Oakland attorney Jeff Ross, who is representing 840 engineers working for applications software maker Siebel Systems Inc. in a pending overtime class action.

Employees allege they were forced to work more than 40 hours a week, and were called in on weekends without getting overtime pay.

Generally, executives, manager and high-level computer operators are exempt from being paid overtime premiums, which is compensated at 90 minutes pay for each additional hour of work.

The suit seeks compensation for the past four years for affected current and former IBM workers in California, and three years back pay for those in other states. The IBM employees usually worked at an IBM clients’ workplace, attorneys said.

John Bukovinsky, an IBM spokesman, said the company does not comment on pending litigation.

Lawyers who filed the suit settled a similar case against Computer Sciences Corp. for $24 million. Video game publisher Electronic Arts Inc. also agreed last year to pay $15.6 million to settle a class-action lawsuit by computer graphic artists who sought overtime compensation. (SFGate.com)

There is alot of confusion around whether computer professionals are considered exempt or non-exempt and California doesn’t make it any easier by having different rules from everyone else. I’ve personally found the best way to remain in compliance (inasmuch as one can in California) is to refer to the Wage Order appropriate to the industry. Then at least you have it in writing.

WHAT? Are these people out of their minds? This is beyond my understanding because even if the hiring person felt this way, she/he should not have said this out loud, let alone put it in writing.

I am not in a position to offer legal advice, nor am I qualified to do so, however one of the basic tenets of employment law is that you cannot make employment decisions based upon discrimination, which I believe this situation to be. In fact, the DFEH very clearly states the following:

This law provides protection from harassment or discrimination in employment because of:

* Age (40 and over)
* Ancestry
* Color
* Creed
* Denial of Family and Medical Care Leave
* Disability (mental and physical) including HIV and AIDS
* Marital Status
* Medical Condition (cancer and genetic characteristics)
* National Origin
* Race
* Religion
* Sex
* Sexual Orientation

I apologize for the soapbox, but I can’t possibly urge California HR practitioners enough to educate their managers and hiring staff on basic employment laws in California. And also teach them to understand when they’ve said enough.

Now it could be that my friend may not have been a good fit for this position (even though I know him to be a good employee with a good work ethic) and that would have been explanation enough. By elaborating, this employer put his/her agency at risk. And we all know what that can lead to.

So waddaya think about the new look?

Now I’m not trying to set up any employee into being dooced but as I’ve stated before, there is a responsibility on both sides to act within their respective boundaries. And where there’s smoke there’s fire. If an employee is complaining about their job onsite then it’s likely that they are also complaining about it online. The best you can do as the employer is address the situation as you would in any other policy violation situation. And hope for the best in this litigious society. Otherwise, you may become the next employer who fired someone for blogging. Ha!

Back to business – I’ve been really puzzled lately over what to do when employees run out of FMLA/CFRA protected leave but provide a note from their doctors stating that they need another 4 or 6 or 8 weeks more. According to the letter of the protected leave laws (both state and federal), the employer can refuse the leave and inform the employee that his/her job is no longer protected and hire someone into the position. That seems easy, yes? It would be if it weren’t for that pesky little thing called the ADA. Many descriptions of the intersection of these laws refer to it as the “two headed monster”. Additionally, once Workers Comp is added into the mix, it becomes “The Bermuda Triangle”. How can employer know when they should extend a leave and when they should terminate for leave exhaustion?

Here’s the basic solution:

FMLA allows for a maximum of 12 work-weeks of unpaid leave in a 12-month period. A qualified individual with a disability would be entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the leave would not impose an undue hardship on the employer?s business.

The FMLA allows the 12 weeks of leave to be taken intermittently or in the form of a reduced work schedule (for example, a three-day week instead of a five-day week until the 12 weeks are used up). The FMLA also allows the employer to require the employee to transfer to an alternative job with equivalent pay and benefits while the leave is being utilized.

Under the ADA, a qualified individual with a disability may work part-time or take occasional time off so long as it does not impose an undue hardship on the employer. If, or when, it does impose an undue hardship, the employer must attempt to reassign the employee to a vacant equivalent position, and as a last resort, to a vacant lower position so that the leave or reduced schedule could be continued. Of course, the employer and employee are always free to agree on a voluntary transfer to a different position if both parties deem this preferable to accommodating the person in his/her current position. (“Leave Rights under the FMLA and ADA: The Intersection of Two Laws Impacting Employee Leave”, Sheila Dunston, September 2001)

But what constitutes a hardship? If an employer was able to survive without the employee for 12 weeks thusfar, why not another 4 or 6 or 8? You can terminate for exhaustion of leave but such terminations don’t hold up very well in a court of law, particularly if the employee should have been granted further time under the ADA. But how do you know where to draw the line?

You can try to determine whether or not an employee should be granted further leave under the ADA by the ADA definition of a disability, which states:

An impairment is a “disability” under the ADA only if it substantially limits one or more major life activities. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.
References: TAM I-2.2(a):

The regulations provide three factors to consider in determining whether a person’s impairment substantially limits a major life activity:
1. its nature and severity;
2. how long it will last or is expected to last;
3. its permanent or long term impact, or expected impact.

The regulations go on to describe various situations that may or may not be considered a disability under the regulations. Again, not always clear cut as an employee may go on leave for one reason, but, for example, may need further time off due to the emotional impact of being in ill-health.

Again, I don’t know the answer here. What I do know is that each situation is unique and it’s our reponsiblity to carefully assess what the employee needs at the time. Make sure to engage in the interactive process to determine what, if any, accommodations (including time off) need to be made and make sure that you document, document, document. You may not decide to offer extra time off to the employee, but you’ve discussed possible solutions with the employee. And that, my friend, is worth it’s weight in attorney’s fees.

Liz Ryan explains this very well in her Business Week “Hiring Line” Column very aptly named “Why HR Gets No Respect”. She is right on when she says:

Here’s the thing: You can’t say that people make your organization what it is and then discount the human-resources function.

I couldn’t agree more. Thank you for saying that Liz.

Justin Martin, the author of this piece states:

The law [ADA] even extends to psychiatric conditions. Fire a poor performer who happens to be depressed, and that employee may be able to sue, arguing that his condition is a disability. For such a case to hold up, the plaintiff needs to have a diagnosed condition and an employer must know about it. But ADA lawsuits stemming from psychiatric conditions are notoriously murky…Meanwhile, the number of ADA suits—over physical and mental disability, handicapped access, etc.—continues to rise, although that isn’t obvious from looking at the federal statistics. The EEOC received 15,376 ADA complaints in 2004. That’s nearly identical to the 2003 number: 15,377. But according to legal experts, an increasing number of cases are being filed in state courts.

Martin goes on to advise employers to make an effort to work with employees as, per the article “Doing something trumps doing nothing”. I agree. If the employer can show that they engaged the employee in the interactive process in order to determine what reasonable accommodations can be made, then the employer has shown that they acted in good faith.

It’s a slippery slope no doubt, but so is most of HR. The best we can do is communicate as well as we can, particularly when an employee needs help performing the essential functions of his/her job. After all, even the slightest awareness of an employee’s disability of any sort leaves you vulnerable to doing the right thing.

Employers considering a blogging policy are not thinking broadly enough. Employees need to be trained as better, more effective communicators, and any blogging policy is really just an extension of an existing corporate communications policy with the intention of educating everyone similarly to how an executive may receive training to deal with press and the public. Treat your employees as an important yet independent public voice and prepare to reap the rewards.

So what makes an independent contractor different from an employee? California Labor Code, Section 3353 states the following:

Independent contractor” means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.

Additional factors to be considered are on the DLSE site and go something like this:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;

2. Whether or not the work is a part of the regular business of the principal or alleged employer;

3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;

4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;

5. Whether the service rendered requires a special skill;

6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;

8. The length of time for which the services are to be performed;

9. The degree of permanence of the working relationship;

10. The method of payment, whether by time or by the job; and

11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

The questions you need to ask yourself (as an HR professional) are:

1. Are we requiring the consultant to work onsite?

2. Are we requiring the consultant to only work during certain hours?

3. Are we providing the consultant with equipment i.e. a computer?

4. Are we requiring that the consultant manage any employees?

5. Are we paying the consultant through our regular payroll?

If the answer is yes to any of these questions, well, then you’ve just hired yourself an employee.

Looking for information on this subject brings one to many websites for law firms soliciting their services. They have some good information, I don’t really want to shill for them. And the best article I’ve found addressing the issue is on the Society for Human Resource Management website, but the article is for members only. It’s too bad since this really is the best article by far that helps me navigate the various leaves available. I’ve been searching and searching for something that comes even somewhat close to being as comprehensive, but I’m having no luck. Suffice to say, California employees who are pregnant have access to the following:

- Family Medical Leave (FMLA)

- Pregnancy Disability Leave (PDL)

- California Family Rights Leave (CFRA)

- California Fair Employment and Housing (CA-FEHA)

Cornelia Gamlem, SPHR (the author of the above referenced article) explains it all very well in her article “Pregnant in California:Which Family Leaves Apply?”

With respect to pregnancy and childbirth, the California Family Rights Act (CFRA) allows eligible employees up to 12 weeks of leave in a 12-month period for the birth of a child, for the adoption of a child or for the placement of a child in foster care. It also allows leave to care for a seriously ill family member or for the employee’s own health condition, other than pregnancy-related disability. While the provisions of the CFRA are similar to FMLA with respect to the birth of a child or the placement of a child for adoption, an employee in California has no protection under this law for pregnancy-related disability. In other words, pregnancy is not covered or considered a serious health condition under the CFRA. The woman with the difficult pregnancy is not entitled to protected leave under this law. This leave can only be used by an employee following the birth of a child. However, disabilities related to pregnancy are covered under a separate law.

The California Fair Employment and Housing Act (CA-FEHA), the same state law that prohibits discrimination, provides protection for pregnancy-related disabilities. It allows employees disabled by pregnancy, childbirth or a related medical condition to take up to four months of protected leave. It does not provide for any time off for the birth or placement of a child in foster care or adoption. Thus, the woman with the difficult pregnancy is entitled to up to four months of disability leave (with the proper medical certification) and the employer cannot discriminate against her on the basis of the pregnancy or pregnancy-related disability. If the four-month leave under CA-FEHA is exhausted and additional disability leave is required by the employee’s health care provider, the employer may, but is not required to, grant leave under CFRA prior to the birth.

Mmm, I hope you’re hungry.