The Blawg will be taking the rest of the week off.  I hope you and your family have a wonderful and restful Fourth!

Enjoy!

Mark

Yesterday, United Health Group agreed to pay $895 million and to implement sweeping corporate governance changes as part of a tentative settlement of a stock option backdating lawsuit.

United Health agreed to:  (1) take the company’s performance into account when setting executive compensation; (2) create a shareholder-elected position on its board of directors; (3) implement stringent director-independence policies; (4) mandate an options holding period for all executives; and (5) require shareholder approval prior to any option repricing.

Excluded from the settlement are the company’s former CEO, William McGuire and former top lawyer, William Lubben.  In 2007, McGuire agreed to pay the Securities and Exchange Commission $468 million related to the backdating allegations.  Several lawsuits remain pending against the two former executives.

The Lesson

Stock option lawsuits have rocked the business and HR world for the past several years.  As discussed previously here on the Blawg, some HR execs have even gone to jail when they failed to blow the whistle on backdating schemes.

HR leaders have a tremendous opportunity to influence others to do right — or to do wrong.  One of our Top Ten Greatest Hits of Employment Law Advice is “The Mom Test.”  When making decisions, ask yourself:  “What would my mom think if she read about this on the front page of the paper?”  If it would disappoint mom, don’t do it.

The lesson is simple:  failing to do the right thing as an HR leader can land you and your company in legal hot water.  It could cost you your job, your money and your reputation.  Don’t let that happen to you.  Know the law, follow it and help others to do the same.

Yesterday, a Minnesota judge awarded a class of more than 56,000 Wal-Mart employees $6.5 million in back pay for meal and rest period violations.  An October 20 penalties hearing could result in an additional $2 billion in damages.

The Facts

The employees alleged that Wal-Mart required them to work off the clock for training and didn’t allow full meal and rest periods in line with state law.  Wal-Mart denied the charges and argued that it fully complied with state law.

One of the centerpieces of the case was a series of internal audits conducted by Wal-Mart itself.  The audits showed that employees were missing breaks and one audit rated every Minnesota store “unsatisfactory” in the handling of rest periods.  Wal-Mart tried to argue that the audits were flawed.  The court rejected that argument, finding that it was Wal-Mart’s responsibility to correct or stop the audits if they weren’t accurate.

The court also pointed to the fact that Wal-Mart stopped using an electronic punch in/out system.  Once it did so, it no longer had a means to track break periods accurately.

The Lessons

The primary lesson is pretty simple:  pay employees for time spent working.  Break periods aren’t break periods if employees aren’t truly relieved of their duties.  With respect to meal periods, the Department of Labor states:  “The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.”  The solution is simple as well:  create a clear break policy and enforce it fairly and consistently.

Also, be careful when you conduct internal audits.  They can be a great way to monitor and improve compliance.  However, if you ignore the results and fail to make appropriate changes, you run the risk of creating Exhibit A for your next lawsuit.

(Special thanks to the Ohio Employer’s Law Blog)

Many employment disputes arise out of claims that employees are over-stressed and over-worked.  With that in mind, here was last week’s question, along with your responses . . .

Just how hard do we work?  How much time does the average full-time employee spend at work and commuting each day and is the trend going up or down?

a.  7.8 hours; up (7%)
b.  8.7 hours; down (13%)
c.  8.9 hours; up (35%)
d.  9.6 hours; up (43%)
e.  24 hours; same as last year (2%)

Somewhat surprsingly, the correct answer is “b.”  According to the latest BLS American Time Use Survey, the average full-time employee spends 8.7 hours at work and commuting each day.  Contrary to popular opinion, that number is actually down 0.1 hours compared to the prior year.  So, the next time your employees tell you that they’re over-worked and over-stressed, you can tell them that they’re actually working .01% less this year.

I’m shocked that I’m the the only person who selected “e.”  I must be in the wrong profession.

Some other fascinating stats from the survey:

Despite missing this one, our readers are now batting a respectable .483 (14 right, 15 wrong) on our Questions of the Week.  The next one will be coming your way soon.

Thanks for your participation!

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 holidays/celebrations your employees might be observing this month.

Just to make sure you’re paying attention, I have included one made-up day on our list.  The rest are very real.  The first person to send an email to blawg@manpower.com identifying the made-up day will win a valuable prize.

Month-long Celebrations

• International Blondie and Deborah Harry Month
• Air Conditioner Appreciation Days
• National Doghouse Repairs Month
• National Grilling Month

Weekly Celebrations

• International Chicken Wing Week (5-7)
• Be Nice to New Jersey Week (6-12)
• Nude Recreation Week (6-13)
• Rabbit Week (15-21)
• National Make Someone Smile Week (20-26)

Daily Observances

• International Joke Day (1)
• Second Half of the Year Day (1)
• Canada Day (1)
• Praise a Postal Worker Day (1)
• I Forgot Day (2)
• Compliment Your Mirror Day (3)
• Stay Out of the Sun Day (3)
• Independence Day (4)
• Independence from Meat Day (4)
• Workaholic’s Day (5)
• Cherry Pit Spitting Day (5)
• Chocolate Day (7)
• Video Games Day (8)
• Blonde Day (9)
• Don’t Step on a Bee Day (10)
• National Pina Colada Day (10)
• Chicken Day (11)
• Cheer Up the Lonely Day (11)
• Hot Dog Day (12)
• Embrace Your Geekness Day (13)
• Gruntled Workers Day (13)
• Bastille Day (14)
• International Town Criers Day (14)
• Baby Food Day (15)
• Gummi Worm Day (15)
• Respect Canada Day (15)
• Toss Away the “Could Haves” and “Should Haves” Day (19)
• National Ice Cream Day (20)
• National Lollipop Day (20)
• Cow Appreciation Day (21)
• National Get out of the Doghouse Day (21)
• Rat-catchers Day (22)
• Gorgeous Grandma Day (23)
• Coffee Day (24)
• National Drive-thru Day (24)
• Act Like a Caveman Day (25)
• National Cowboy Day (26)
• Take Your Plants for a Walk Day (27)
• Hula Hoop Day (27)
• Walk on Stilts Day (27)
• Singing Telegram Day (28)
• Accountant’s Day (28)
• Rain Day (29)
• Bring Your Unemployed Relatives to Work Day (30)

What this means for employers.  If your employees suddenly start coming to work nude, saying nice things about New Jersey, acting unusually “gruntled,” bringing bunnies and cows to the office, taking their plants for a walk, yelling “the British are coming,” acting like cavemen, embracing their geekiness, hugging postal workers, Canadians and accountants, grilling hot dogs and chicken wings in their cubes, holding cherry-pit-spitting contests, heaping undue amounts of appreciation on the company’s air conditioner units, playing Call of Duty instead of conducting mid-year evaluations, dying their hair blonde while singing “The Tide is High” and/or guzzling ice cream, chocolate, baby food, gummi worms, lollipops, coffee and pina coladas, now you know why.

Enjoy the month!

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

At our last webinar, we asked the attendees to select the topic for our next session.  Their choice:  Every Employment Law in 60 Minutes or Less.

So, please join us on July 30 from 11:00 a.m. to 12:00 p.m. Central Time, where we’ll tell you absolutely everything you need to know about employment law.  Best of all, it’s FREE.

To register, just click on the registration button at the upper left of the Blawg.  If you have questions you’d like us to consider answering during the webinar, please send ‘em in advance to blawg@manpower.com.

Our last webinar had more than 1,700 participants.  We’re shooting for 87 million on this one.  Hope you can join us!

The National Labor Relations Board — the government entity charged with overseeing labor relations issues across the U.S. — appears to be having labor troubles of its own.

The National Labor Relations Board Professional Association (NLRBPA), a union representing employees who work at the NLRB’s headquarters, issued a press release slamming a new performance evaluation system implemented by the NLRB.  In a somewhat unusual development, the NLRBPA’s complaints are centered on the Board’s Democrat member, rather than the typically-targeted Republicans.

The NLRBPA says it is trying to prevent a “September massacre” of “unfair and discriminatory mid-year appraisals and reprisals against its members.”  At the center of the hullabaloo is a “forced distribution” system (lovingly dubbed ”rank and yank” by the NLRBPA), similar to the the one popularized by GE and other corporations.

The NLRBPA contends that the new system requires that managers force employees into a pre-established distribution.  As a result, many employees who have long been given high ratings are now being placed into lower-rated categories.  More than a third of the 45 employees filed grievances.  In addition, the NLRBPA says that the system discriminates against older, female and disabled workers, which resulted in a number of charges being filed with the EEOC.

The NLRBPA alleges that the Wilma Liebman, the NLRB’s lone Democrat, “has not settled a single grievance and threatened reprisals against grievants and a union officer.”  Interestingly, the union says that NLRB Chair Peter Schaumber, “despite his conservative, pro-employer reputation, has cooperated with the union to settle most of the appraisal grievances of the attorneys assigned to him.”

Stay tuned for more. 

(Special thanks to the Workplace Prof Blog)

A few months ago, we debuted the world’s first HR-themed interactive online novel, entitled Bob Sits In His Cube (And Other Exciting Adventures).  We gave you the first installment and asked you what should happen next.

We have now sifted through all your highly creative, intriguing and entertaining suggestions.  To see the next installment, click here or on the button at the upper left of the Blawg.

Then, help make literary history by telling us what Bob should do next.  Send your suggestions to blawg@manpower.com.

Thanks for your help!

Several months ago here on the Blawg, we reported on the proposed ADA Restoration Act of 2008.  That bill was attacked by employer advocate groups and had little likelihood of passage without major modification.

We conducted a poll of our readers to see how they felt.  A whopping 71% said they felt that the ADA was in need of restoration.

This week, a compromise bill — the ADA Amendments Act of 2008 — breezed through the House by a 402-17 margin.  The bill is generally supported by both pro-employee and pro-employer groups, including the National Association of Manufacturers (NAM) and the U.S. Chamber of Commerce and could become law in the near future.

What Would Change?

The bill would overturn several key Supreme Court decisions.  Here are the highlights:

• Mitigating measures.  One of the biggest changes would be the rejection of Supreme Court cases requiring “mitigating measures” to be taken into account in determining whether an individual has a disability.  Under the proposed law, assistance from medication, technology, equipment, devices and other similar aids would no longer be part of the equation.  One notable exception:  glasses and contact lenses could still be considered.

• Remission.  A condition that is in remission or episodic qualifies as a disability if it would substantially limit a major life activity when active.

• “Substantially Limits” Defined.  The bill defines “substantially limits” as “materially restricts,” rejecting narrower interpretations from the Supreme Court.

• Expansion of “Major Life Activities.”  The bill provides specific examples of “major life activities,” including “major bodily functions” such as “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

• “Regarded As” Narrowed.  The bill excludes from ”regarded as” claims minor/transitory conditions lasting six months or less.

What Are People Saying?

SHRM President Susan Meisinger:  “Both the employer and disability communities have been able to unite behind this bill for a reason:   it is an effective remedy that is perfect for no one, but fair for everyone.”

Nancy Zirkin of the Leadership Conference on Civil Rights:  the bill is the culmination of “an unprecedented act of cooperation” among an “extraordinary coalition of the civil rights, disability and employer communities.”

What’s Next?

Senator Tom Harkin (D-Iowa), one of the bill’s chief proponents, predicts it will pass the Senate “in the near future.”  The Bush Administration generally supports the bill but has expressed concern that it could “unduly expand coverage” and lead to increased litigation.

Click here to see the full text of the bill and here for an article from the New York Times. 

Stay tuned for more.

Each week, we post a though-provoking question for your consideration.  Submit your answer, see what others think and then next we’ll give you the correct answer.

Many employment disputes arise out of claims that employees are over-stressed and over-worked.  With that in mind, here’s this week’s question:

As always, thanks for your participation!