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Mark

As we’ve discussed previously, several states are suing the federal government over the Patient Protection and Affordable Care Act (PPACA).

One such state was Florida, which planned to include a referendum on the November ballot that would have potentially overridden PPACA’s mandatory health insurance provisions. In a victory for supporters of the law, the state’s supreme court ruled 5-2 to exclude the initiative from the ballot.

The court ruled that the proposed referendum “contains misleading and ambiguous language” and thus it struck it from the ballot. The court especially objected to the inclusion of language such as “mandates that don’t work,” calling it the “type of political rhetoric that this court has condemned in other cases.”

Lots of other states have lots of other lawsuits pending on this issue. Click here for a handy summary and stay tuned for more.

You are hereby notified that you have a mandatory training session this evening. At 9/8c, you are required to tune in to your local NBC affiliate and watch this week’s episode of The Office. Failure to do so could result in disciplinary action.

In my humble opinion, The Office is the world’s greatest employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see.

TONIGHT’S EPISODE:

Happy Hour.  Here’s NBCs official description:  “Michael gets kicked out of a bar while trying to impress a friend of Jim and Pam’s; Andy and Erin try to keep their relationship under wraps”.

OFFICIAL “ARE YOU SMARTER THAN A LAWYER?” CONTEST. Tune in tomorrow to see my detailed analysis of the episodes and exactly what I would tell Dunder Mifflin if I were its lawyer. Anyone who spots an employment law issue that I missed will be entitled to a valuable prize.

Enjoy!

Click here for an interesting item on the Harvard Business Review site entitled How Sex Hurts the Workplace, Especially Women.

The basic premise: workplace sex doesn’t just hurt the parties directly involved — it can also have collateral damage on the careers of high-achieving female employees who had nothing to do with the harassment.

Brand new research by the Center for Work-life Policy indicates that a woman will most likely fail to achieve executive status “unless she is sponsored by a powerful senior executive — who, more often than not, is male and married.” As the article points out, that is often “where sex enters the picture.”

Some of the key findings:

• 34% of executive women say they know a female co-worker who had an affair with her boss
• 15% of women at the director level or above say they had such an affair themselves
• 37% of those who know of an affair believe that the woman received a “career boost as a consequence”
• 70% of women (versus 61% of men) lose respect for a leader who has an affair
• 56% of women (48% of men) feel “animosity” toward the couple involved
• 65% of women (60% of men) believe that salary increases and other perks are traded for sexual favors
• 37% of women (39% of men) see a productivity drop in the wake of a workplace affair

What Should Employers Do?

You don’t have to be the workplace romance police. However, you absolutely should:

• have a policy that (1) clearly prohibits all forms of unlawful harassment and (2) contains a clear mechanism for reporting potential violations, including alternate paths when the alleged harasser is the complaining party’s boss;
• train all employees on the policy, with a special emphasis for managers on the dangers of workplace romance (particularly of the boss-subordinate variety);
• fully investigate all complaints of harassment, even if (1) the alleged harasser asks you not to and (2) the allegations are against the head of the company or a “superstar”-type employee;
• if the investigation warrants disciplinary action, take it (even if it means firing the CEO or superstar); and
• carefully consider any and all communications related to the investigation, particularly if they concern a high-profile employee (and discuss them with experienced legal and PR counsel).

If an employer fails to take any of the above action , it could easily wind up in court — possibly in a class action — and face humongous morale and productivity problems. Don’t let that happen to you.

To help ensure that you cover all the investigation bases, click here for our handy Investigation Toolkit. Click here for our handy “cheat sheet” on harassment law.

The largest (potentially) employment discrimination case in world history is headed to the Supreme Court.

Basic Facts

The case started in 2001 when a greeter named Betty Dukes and a handful of other female employees complained that they were paid and promoted less than males. Among other things, they contended that women make up more than 70% of Wal-Mart’s hourly workforce but less than a third of store management and that the company’s “strong, centralized structure fosters or facilitates gender stereotyping and discrimination.”

Many of the facts have been hotly disputed. For example, Wal-Mart claims that a company-sponsored study showed that there is no statistically significant pay disparity between women and men in 90% of its stores. On the other hand, the plaintiffs’ experts allege they found evidence of gender discrimination in every single Wal-Mart region.

Previous Court Rulings

In 2004, a federal district court judge sided with the plaintiffs. Wal-Mart appealed. In April, a federal court in San Francisco officially certified the case as a class-action, making it potentially the largest employment discrimination lawsuit ever. The case could include as many as a million plaintiffs seeking more than a billion dollars in back pay and punitive damages.

In addition to disputing the facts, Wal-Mart has assailed the size and scope of the suit, calling it “historic” and arguing that it would be virtually impossible to litigate in a one-size fits all manner. One spokesperson said: “We do not believe the claims alleged by the six individuals who brought this suit are representative of the experiences of our female associates.”

So far, the courts haven’t agreed. In the latest decision, the cout ruled that although “the size of this class action is large, mere size does not render a case unmanageable.”

Next Up: The Supremes

Not it’s up to the Supremes to decide what happens next. The court’s ruling could forever change the face of employment discrimination litigation. As Robin Conrad, a representative of the U.S. Chamber of Commerce, put it: “This is the big one that will set the standards for all other class actions.”

One of the best ways to avoid needless employment law disputes is to stay in touch with what your employees are thinking, feeling and doing.  As part of our never-ending quest to keep you up-to-speed on the latest developments affecting your workplace, the following is our guide to some of the lesser-known holidays/celebrations your employees might be observing this month.

Just to make sure you’re paying attention, I included one made-up day on our list.  The rest are very real.  The first person to leave a comment below identifying the bogus day will win a valuable prize.

Month-long Observances

• Subliminal Communications Month
• Mold Awareness Month
• National Mushroom Month

Daily/Weekly Observances

• Chicken Boy Day (1)
• National Lazy Mom’s Day (3)
• Be Late for Something Day (5)
• Grandma Moses Day (7)
• Wonderful Weirdos Day (9)
• Video Games Day (12)
• Line Dance Week (13-18)
• National Boss/Employee Exchange Day (13)
• Felt Hat Day (15)
• Hug a Greeting Card Writer Day (18)
• Big Whopper Liar Day (18)
• Talk Like a Pirate Day (19)
• Elephant Appreciation Day (22)
• Punctuation Day (24)
• National One Hit Wonder Day (25)
• Shamu the Whale Day (26)
• National Hunting and Fishing Day (26)
• National Good Neighbor Day (26)
• Flying Nun Appreciation Day (29)

What this means for employers.  If your employees suddenly start line dancing, communicating subliminally, arriving late, playing video games, talking like pirates, exchanging bosses, appreciating elephants and whales, correcting your punctuation, hunting for big game in the company cafeteria and/or incessantly singing Disco Duck, Funktyown, Kung Fu Fighting, The Macarena or any other one-hit wonders, now you know why.

Enjoy the month!

(Sources:  holidaysmart.com, emotionscards.com, brownielocks.com)

In my humble opinion, NBC’s The Office is the world’s #1 employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see.

To help enhance your viewing experience, each week I provide a critique of the action from an employment lawyer’s perspective.

Last Night’s Episode: St. Patrick’s Day.

The Plot: Here’s NBC’s official description: “Michael struggles to impress his new boss.”

My Analysis:

1. Issue: Viagra Stopped Being Funny in 2003
   Description: Michael opened the episode with an inappropriate (and lame) Viagra joke.
   Risk: $
2. Issue: National Origin Discrimination
   Description: Several employees made inappropriate comments about those with Irish heritage. Michael called St. Patrick’s Day, “the closest the Irish will ever get to Christmas.”
   Risk: $$
3. Issue: Mega-desk Addiction
   Description: Dwight openly struggled with withdrawal from the “mega-desk” he created by pushing his and Jim’s desks together while Jim was on paternity leave. Knowing Dwight, it won’t be long ’til he files some sort of complaint.
   Risk: $$
4. Issue: Damage to Property
   Description: Jim (twice) knocked Dwight’s personal effects off the mega-desk and onto the ground.
   Issue: $$ 
5. Issue: Pets in the Workplace
   Description: Sabre’s CEO probably violated company policy (and maybe even workplace safety regulations) by bringing her two monstrous dogs into the workplace.
   Risk: $$
6. Issue: Emotional Distress from Actually Working
   Description: The employees seemed to be in shock from having to do some actual work because the new CEO was in town.
   Risk: $$
7. Issue: Sexual Harassment
   Description: Andy continued his rather pathetic pursuit of Erin, showing up at her house even though she went home sick from work. Andy exacerbated the situation by wearing a way-too-short kilt (which he admitted was actually his sister’s old field hockey uniform).
   Risk: $$$
8. Issue: Workplace Violence
   Description: Like every week, Dwight appeared to be on the verge of a major eruption. He compared himself to a volcano, saying he was “about to erupt with the molten lava of strategy.” I have no idea what that means.
   Risk: $$
9. Issue: Sick Employees
   Description: The company apparently has failed to adopt any of the government’s recommendations circulated in the midst of the H1N1 scare. Erin spent most of the episode sneezing all over the premises and no one did anything ’til approximately the 267th sneeze.
   Risk: $$
10. Issue: “Reverse” Discrimination
    Description: Actually, there’s no such thing as “reverse discrimination.” Discrimination is discrimination. Sabre’s creation of a training program available only to “people of color” could face challenges from non-minority employees.
    Risk: $$$
11. Issue: Promotion
    Description: The new CEO promoted Daryl on the spot, based solely on a cartoon he drew  to illustrate potential cost savings in the warehouse. Promoting someone without following an established process could expose the company to potenial discrimination complaints by those who didn’t get promoted. In addition, Michael made rather insensitive comments to Daryl — suggesting that his promotion was because of blackmail or some other nefarious plot unrelated to his skills and experience — could lead to a complaint.
    Risk: $$
12. Issue: Torturing the New Dad
    Description: Dwight spent most of the episode trying to convince Jim to return home to care for his newborn so that Dwight could claim the mega-desk again. Dwight went so far as to sing Jim the Cats in the Cradle song to try to make him feel guilty. It actually worked (a first for anything Dwight was ever attempted).
    Risk: $$
13. Issue: Misrepresentation
    Description: Jim got permission to leave early after lying to the new CEO about a client meeting.
    Risk: $
14. Issue: Overtime
    Description: Several non-exempt employees were required to work overtime. Hopefully, the company will pay ‘em appropriately. Wage and hour suits can be both painful and expensive.
    Risk: $$$
15. Issue: Drunk Employees
    Description: Michael offered to buy all the employees a drink at the bar in honor of St. Patrick’s Day. Even though they turned him down, several employees were visibly intoxicated. Michael, Packer and Meredith formed a highly inappropriate conga line.
    Risk: $$
16. Issue: Various Other Inappropriate Comments and Actions
    Description: Once again, virtually every employee said or did something inappropriate. As always, Michael led the pack, making comments about Oscar’s sexual preference and other things too disgusting to print here. Packer averages more vulgarities per second than any other character on TV.
    Risk: $$$$$$$

OFFICIAL “ARE YOU SMARTER THAN A LAWYER?” CONTEST: Anyone who leaves a comment below identifying an employment law issue that I missed will win a valuable prize. If you didn’t get a chance to see the episode, you can view it on NBC’s official web site here.

As always, thanks for your participation!

Here’s this week’s question, one that we’re asked approximately every 0.8 seconds:

Yesterday, Manpower released a brand new World of Work Insight paper offering solutions to help counter the lack of skilled trades workers around the world. For more on that issue from Reuters, click here.

You are hereby notified that you have a mandatory training session this evening. At 9/8c, you are required to tune in to your local NBC affiliate and watch this week’s episode of The Office. Failure to do so could result in disciplinary action.

In my humble opinion, The Office is the world’s greatest employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see.

TONIGHT’S EPISODE:

St. Patrick’s Day.  Here’s NBCs official description:  “Michael thinks he impressed the new boss, but he learns that someone else has caught her eye; Dwight makes trouble for Jim on his first day back, Andy, Erin’s date”.

OFFICIAL “ARE YOU SMARTER THAN A LAWYER?” CONTEST. Tune in tomorrow to see my detailed analysis of the episodes and exactly what I would tell Dunder Mifflin if I were its lawyer. Anyone who spots an employment law issue that I missed will be entitled to a valuable prize.

Enjoy!

According to Manpower’s 2010 Talent Shortage Survey, nearly a third of employers worldwide are struggling to find the talent they need, with skilled trades positions ranked globally as the most difficult to fill.

What should you do? Stop reading this right now and download Manpower’s new World of Work Insight paper, Strategic Migration—A Short-Term Solution to the Skilled Trades Shortage. In it, Manpower’s experts examine the underlying causes of this talent shortage and offer both short- and long-term solutions. Click here to visit the Manpower Research Center to access the full report.

Here are the highlights . . .

Why Is This a Big Deal?

Skilled trades work is vital to the maintenance and creation of the physical infrastructure of business, and unlike other positions facing a talent shortage, this place-based work can’t be relocated or offshored. This leaves employers facing a critical talent issue that will only get worse as more experienced workers retire without adequate replacements. If businesses, governments and trade associations don’t work together to develop long-term strategies to deal with this issue, future economic growth will suffer.

The Facts

Manpower’s 2010 survey of 35,000 employers across 36 countries revealed that skilled trades are the hardest jobs to fill around the world. Employers in six of the world’s ten largest economies ranked skilled trades as their #1 or #2 hiring challenge. U.S. employers ranked it #1.

The lack of skilled blue-collar workers can impede the progress of infrastructure projects and jeopardize national growth. Examples where this is occuring right now include transportation in India and power in Brazil, just to name two.

The shortage stems from several problems, including retirement of older workers without adequate replacements, technical training that’s inadequate to meet businesses’ needs and the perceived higher status of “knowledge” work over “manual labor” among those beginning their careers. Indeed, only 10% of young Americans see themselves in a high-skilled blue-collar job by age 30, according to a recent survey by the Organisation of Economic Cooperation and Development (OECD).

What Should Employers Do?

On a short-term basis, the solution doesn’t lie in the mobility of the actual work. Instead, it lies — at least in part — in the mobility of workers through strategic migration. Manpower’s paper offers loads of practical tips in this area. Long-term approaches where employers and others should look to innovate include (1) promoting positive attitudes toward skilled trades, (2) aligning technical training with business needs, (3) developing international certifications to accelerate mobility and (4) using strategic immigration policies alongside long-term domestic solutions.

Here are several immediate actions employers could take to reduce the impact of the skilled trades shortage in their business:

• Explore the benefits of worker mobility. Many forward-looking employers are either bringing in skilled workers on a temporary or even permanent basis to get the right skills in the right place at the right time.
• Partner with local educational institutions to provide training in key skills to give industry-relevant input into training courses and perhaps offer work experience for current students or grads.
• Work with trade associations to promote a positive attitude to skilled trades. Offer to speak to groups of interested young people, highlighting the benefits of a career in skilled trades and providing case studies of successful individuals from within your organization. Another option is to consider mentoring/shadowing opportunities where young people can see for themselves what’s involved in skilled trades work.

The Bottom Line

In short, as Manpower’s paper so aptly puts it: “employers, trade groups and educators must partner to create a societal mindshift that brings honor back to the skilled trades.” Well said.