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Employment & Workplace Issues

I started my compliance career on the content side of the house, writing online courses to teach employees about the legal and ethical requirements of their jobs. Most of the courses I wrote were story-driven—because people are wired to remember stories and also because sometimes it takes actually seeing a situation play out before an employee realizes: Hey, wait, that’s against the law?

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In a recently published report regarding the status of the Dodd-Frank whistleblower program, the Securities and Exchange Commission (SEC) provided some preliminary information on the systems it now has in place to collect tips, complaints and referrals from the general public. Additionally, the SEC also included some initial statistics from the first 7 weeks of the whistleblower program (mid-August thru the end of September) indicating that awareness of the Dodd-Frank incentives may already be quite widespread.

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In June, the Open Compliance and Ethics Group (OCEG) conducted a short survey of its membership to find out more about how organizations plan to respond to the new Securities and Exchange Commission (SEC) whistleblower rules. OCEG released its final poll results this week and they indicate that many companies may actually be taking a wait-and-see approach to addressing the new rules.

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As the controversy over whistleblower protections continues to dominate the business headlines, two related stories broke this month, one involving aerospace giant Boeing and the other involving the controversial Dodd-Frank Act.

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There’s nothing like sitting in your work cubicle, in the dead of winter and during the middle of a swine flu epidemic, while listening to your nearest coworker coughing her heart out. Sympathy can quickly turn to resentment as jumpy employees around her worry that every cough is sending battalions of pesky microbes marching off in their direction.

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Here are five areas to consider as we approach 2010.

Organized labor will continue to push for passage of the Employee Free Choice Act (EFCA). If enacted in a form that replaces the secret ballot vote with a card check, EFCA will substantially ease the ability for unions to organize workers. Though the current anticipated compromise on EFCA would not contain card check recognition, it is expected to contain elements such as quick certifications of elections, tougher penalties for employer violations and binding arbitration imposing a labor contract on parties who fail to reach an agreement through direct negotiations.

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In the last installment of our swine flu series, we explained why swine flu will frequently not qualify as a "serious health condition" under the Family and Medical Leave Act. And because swine flu is ordinarily a short-term condition, it’s also unlikely to qualify as a "disability" under state or federal disability law.

That means that swine flu will usually not be a "legally protected absence" under employer attendance policies -- which in turn means that employees could accumulate attendance occurrences or points for absences related to swine flu. An employee accumulating enough of those points under a no-fault attendance system -- which assigns a point regardless of the reason for an absence, unless it is a legally protected absence -- is an employee looking at the prospect of discipline.

Disciplining an employee who is out because of the swine flu? The very idea strikes most employees and even many employers as preposterous.

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You can rest assured that if you ask any randomly selected 100 people whether the swine flu is a serious health condition, 99 will look at you as though you’re crazy and say "of course." The lone sheep will be an employment lawyer, and that’s because of the Family and Medical Leave Act ("the FMLA").

The FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave for a variety of reasons, including the "serious health condition" of an employee or the employee’s spouse, parent, or child (ordinarily only when the child is under the age of eighteen).

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Telling employees to stay home when they’re sick is old news. But this year, what happens when those employees fail to listen will have new and troubling consequences for employers.

Welcome to the brave new world brought your way courtesy of the H1N1 virus, more commonly known as swine flu. A Presidential Advisory Panel predicts that 1.8 million Americans could be hospitalized and as many as 90,000 Americans could die from the swine flu during the current flu season. This pandemic won’t just strain the American health system. It will also pose numerous legal challenges for U.S. employers.

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Getting state and federal military leave law right is hard enough for most employers. The task just got harder.

Under the new FMLA regulations, the Department of Labor has spelled out what is covered under the FMLA as military exigency leave -- itself an entirely new category of FMLA leave available to employees as a result of last year’s National Defense Authorization Act.

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