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Mark

Continuing the increased enforcement promised by the Obama Administration, OSHA is proposing more than $3 million in fines for 42 “alleged willful violations” at an Oregon, Ohio refinery.

The refinery “often ignored or severely delayed fixing known hazards,” according to Secretary of Labor Hilda Solis. “There is no excuse for taking chances with people’s lives.”

OSHA began inspecting the refinery in September 2009 as part of its National Emphasis Program. For more on the process and the specific allegations, click here. Under OSHA regulations, the company has 15 business days to comply, request an “information conference” with OSHA or contest the findings with the OSHA Review Commission.

The Lesson? The message from the government is loud and clear: it fully intends to follow through on its promise to enforce employment laws much more aggressively. It has invested millions of dollars and created dozens of new enforcement-focused positions to do exactly that.

Now is not the time to be lax in complying with the law — particularly in the area of employee health and safety.

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 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 NBC’sofficial description: “Michael struggles to impress his new boss.” Personally, I can’t imagine Michael NOT struggling to impress someone (particularly his rather sociopathic new boss, played by Kathy Bates).

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!

What’s the hottest employment law issue in the world right now?  Believe it or not, it is . . .

ARE YOU READY FOR MARCH MADNESS?

Beginning next week, every single NCAA basketball tournament game will be available live online. Employers have three options: (1) ignore the madness, (2) try to stop it or (3) embrace it.

The following is a detailed and highly scientific analysis of those three approaches, along with our recommendations.

Ignore the Madness. This is the option selected by most employers. They pretend as if what is arguably humankind’s most significant annual event never even happens. They can’t figure out why employee attendance suddenly drops precipitously in mid-March or why the few employees who actually come to work start traveling in packs wearing identical colors and disappearing into conference rooms from which occasional cheering and shouting can be heard. These employers are also surprised when the hopelessly overloaded IT system eventually blows up, prompting a mass exodus of employees in search of the nearest sports bar. The Verdict?  Not recommended.

Stop the Madness. Due to IT and productivity concerns, some employers try to put an end to the madness by banning all employees from even thinking about basketball in the workplace. Some even put fancy filters on their IT system to prevent employees from watching the games online. Typically, however, these employers’ computer systems will be just fine even without the filters because only a handful of employees will show up for work. The Verdict?  Not recommended.

Embrace the Madness. Some forward-looking employers take advantage of the situation and make an effort to incorporate March Madness into the whole work experience. To avoid IT meltdowns, they set up TVs in key gathering areas for certain games and encourage employees to do some bonding while whooping it for their favorite teams. Good feelings abound and grateful employees put in extra hours out of gratitude to the company. The Verdict?  Recommended.

Here’s a poll to help you get in the spirit of the games. Thanks in advance for expressing yourselves.

That’s the picture that’s starting to emerge, according to the more than 18,000 employers interviewed as part of the latest Manpower Employment Outlook Survey.

Year-Over-Year Increase: With a seasonally adjusted Outlook of +5%, employers indicate a moderate increase in hiring expectations compared to one year ago, when the seasonally adjusted Outlook was -2%.

Stability Continues: 73% of employers — a record-tying high — expect to keep staff levels stable, which is good news for the currently employed.

Industries Recovering: 12 of 13 industry sectors surveyed report positive Net Employment Outlooks, meaning that employers in most industry sectors plan to add staff during the second quarter. Increased hiring is expected in Leisure & Hospitality (+17%), Professional & Business Services (+15%), Mining (+11%), Nondurable Goods Manufacturing (+9%), Financial Activities (+9%), Durable Goods Manufacturing (+8%), Information (+8%), Transportation & Utilities (+8%), Wholesale & Retail Trade (+7%), Construction (+4%), Other Services (+4%) and Education & Health Services (+3%). The second quarter outlook is negative only for employers in Government (-1%).

Local Picture Improving: Among 201 surveyed Metropolitan Statistical Areas, 94% indicate a positive or neutral Net Employment Outlook, indicating that cautious optimism is becoming more widespread geographically.

Regional Picture Improving: A positive outlook is reported in all four of the U.S. regions surveyed. The Northeast has the strongest Outlook (+8%), followed by the South (+6%) and the West (+6%). The Midwest has the weakest Outlook (+4%).

Move to Alaska? What’s the absolute hottest area of the country in terms of hiring? Believe it or not, it’s Anchorage, Alaska (+22%).

About the Survey

Manpower releases the Manpower Employment Outlook Survey quarterly to measure employers’ intentions to increase or decrease the number of employees in their workforce during the next quarter. It is the only forward-looking survey of its kind and is unparalleled in size, scope, longevity and area of focus.

The complete results — including a breakdown of the 201 MSAs — are available here. Click here for a snappy video with the highlights of the results.

LinkedIn. Facebook. Twitter. What are you on?

We recently asked 1,987 HR and business professionals the following question:

Which social networking tools do you use?

Here are the responses:

• LinkedIn only: 14%
• Facebook only: 16%
• Twitter only: 0.3%
• LinkedIn and Facebook: 31%
• Facebook and Twitter: 3%
• LinkedIn and Twitter: 1%
• LinkedIn, Facebook and Twitter: 9%
• None:27%

Let’s break it down . . .

Looks like more and more of you are getting connected . . .

• The percentage of those who don’t use any social networking tools dropped pretty significantly since our last poll (from more than a third to slightly more than a quarter).
• The most popular tool is Facebook, followed closely by LinkedIn, both of which are used by more than half of our audience.
• Only 12% of you use Twitter, but that number more than doubled in the past quarter.
• The most popular combination of tools is LinkedIn and Facebook, followed by LinkedIn, Facebook and Twitter.

Thanks for your participation! Stay tuned for more on the latest trends affecting the wonderful world of workplace law.

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: The Delivery.

The Plot: Pam’s baby finally arrives.

My Analysis:

1. Issue: Exploiting Babies (and Fungi) to Make Sales
   Description: Jim and Pam both used the impending birth to wrangle sales out of sympathetic clients. Dwight cried foul but then tried to use his cousin’s goat fungus to make more sales himself. It didn’t work. While there is no clear cause of action under these circumstances, an enterprising plaintiffs’ attorney could claim that the resulting sales contracts were made under false/fraudulent pretenses.
   Risk: $
2. Issue: Pregnancy Discrimination
   Description: Several employees (primarily Michael, Dwight and Kevin) made remarks about Pam that could be construed as creating a hostile work environment for pregnant employees. Those comments combined with the approximately 274 previous pregnancy-related comments could form the basis of a nice little lawsuit.
   Risk: $$$$
3. Issue: Endangering Health
   Description: Michael’s actions in encouraging Pam to wait as long as possible before going to the hospital could have exposed the company to serious potential liability had there been a problem with the delivery. He also texted repeatedly while driving Pam and Jim to the hospital.
   Risk: $$$$
4. Issue: Ogling
   Description: Angela accused Nick of ogling her. Some courts have found that repeated ogling can constitute harassment. Here, the fact that it was just one seemingly innocent glance would likely not be enough for a cause of action.
   Risk: $
5. Issue: Nerd Discrimination?
   Description: Michael made several pernicious comments about Nick, including calling him a “weird IT nerd.” While nerds are not a protected class under Title VII or state law, if the comment was in any way related to any sort of perceived disability (unlikely here), it could form the basis of a claim.
   Risk: $
6. Issue: Theft of Company Time
   Description: Like every week, virtually no employees did any discernible work. Michael spent most of the episode trying to distract Pam from her “contraptions” (his term), eventually enlisting the help of the entire office. Kelli spent a considerable amount of time watching birthing videos on the Internet.
   Risk: $$
7. Issue: Sexual Harassment
   Description: Once again, virtually every employee made a sexually inappropriate comment. When he wasn’t trying to distract Pam, Michael spent lots of time acting as Cupid for various employees and making lots of ill-advised comments. Dwight and Angela negotiated the terms of a strange birthing/parenting contract on company time. Andy continued to stalk Erin, finally asking her out (after making her cry). Virtually everything that comes out of Meredith’s mouth is a reference to sex (this week was no exception).
   Risk: $$$$$
8. Issue: Workplace Violence
   Description: While acting as Cupid, Michael pretended to “shoot” arrows and other projectiles at his employees and then followed up by mimicking death and bloodshed. Dwight continued his pattern of bringing lots of dangerous weapons — including a sword and axe — onto the work premises in his car.
   Risk: $$
9. Issue: Invasion of Privacy
   Description: Andy spied on several employees by hiding behind various office plants.
   Risk: $$
10. Issue: Criminally Bad Dancing. Poetry and Recitation
    Description: Andy performed a truly awful version of the YouTube-famous “Evolution of Dance.” Ryan read a painfully bad poem out loud to his co-workers. Erin recited (badly) all the past Kentucky Derby winners. The cumulative effect of witnessing all of these actions could easily result in emotional distress claims.
    Risk: $$$
11. Issue: Illegal Parking
    Description: Michael ignored a “no parking” sign at the hospital, parking in a spot reserved for ambulances. He then compounded the problem by shouting out the name of his employer, throwing the keys into the woods and then running away.
    Risk: $$
12. Issue: Impersonating an Officer
    Description: After affixing a siren to the top of his Trans-Am and then leading a high-speed motorcade from the office to the hospital, Dwight was pulled over for impersonating an officer.
    Risk: $$
13. Issue: Damage to Property
    Description: Dwight and his friends destroyed Pam’s and Jim’s kitchen (among other things).
    Risk: $$$
14. Issue: Smoking
    Description: Michael violated hospital policy by smoking a cigar on the premises and then violated company policy by smoking in his office.
    Risk: $$
15. Issue: Defamation
    Description: Michael lied about Kevin, telling Erin that he had an “elephant heart” due to a childhood medical emergency.
    Risk: $
16. Issue: Various Other Inappropriate Comments/Noises/Actions
    Description: Once again, virtually every employee said or did something inappropriate. Michael made multiple inappropriate noises of a gastrointestinal variety. He also hugged Jim who was hugging Pam. Worst of all, he made a bad lawyer joke (when Jim and Pam were arguing just as the baby was about to be born, Michael said, “Stop arguing. What, do you want the baby to grow up to be a lawyer?”)
    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!

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 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. The Delivery. Here’s NBC’s official description: “The Office returns this Thursday with a special one-hour baby episode!”

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!

The Obama Administration is hinting that it might seek a recess appointment of Craig Becker to the National Labor Relations Board during Congress’ Easter break.

At yesterday’s annual AFL-CIO meeting, Department of Labor Secretary Hilda Solis told union officials that there will soon be “positive news” on Becker’s stalled nomination. She later told reporters that unions will be “very pleased” with the resolution of that issue.

President Obama upset some union leaders when he didn’t appoint Becker during Congress’ last recess. Last month, Senate Republicans blocked Becker’s confirmation, pointing to various public comments and his past work as a union lawyer with the Service Employees International Union (SEIU) as evidence that he would push a pro-union agenda at the NLRB. Business advocates are concerned that a Becker-led NLRB will use its rule-making authority to bypass Congress and put controversial measures like the Employee Free Choice Act (EFCA) into effect.

Stay tuned.

The President has signed an extension of the COBRA subsidy to March 31. Given that the prior extension expired on Sunday, the new extension is retroactive to include employees involuntarily terminated yesterday and Monday.

Click here for more.

One question often asked by our Blawg visitors is . . .

I have trouble keeping track of deadlines and key dates under all the new laws and regulations. Help me cut through all the legal blah blah blah. What do I REALLY need to know about?

Ask and you will receive. Here are some dates you might want to put on your calendar. Each of these items was addressed in our webinar last week. For a replay, click here.

• February 22: Enforcement of the HITECH Act’s personal health information (PHI) requirements began. Click here for more.
• March 9: Public hearing on OSHA’s proposed rule to revise the OSHA 300 Log to include musculoskeletal disorders (MSDs). Click here for more.
• April 1: H-1B filing season opens.
• April 5: Effective date of the Mental Health Parity Act. If your plan covers mental illness/substance abuse, it must treat those conditions the same as other covered conditions. Click here for more.
• April 19: Deadline for public comments on the EEOC’s proposed rule addressing the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA). Click here for more.

Hope this is helpful.