http://www.elinfonet.com/blog/index/site/index/ Employment Law Blog en jmahoney@tullylegal.com Copyright 2010 2010-02-04 http://www.elinfonet.com/blog/index/site/federal_overtime_pay_who_gets_it_and_how_/ http://www.elinfonet.com/blog/index/site/federal_overtime_pay_who_gets_it_and_how_/#When:20:57:48Z By John P. Mahoney, Esq. Partner, TULLY RINCKEY, PLLC, Washington, DC† (http://www.FedAttorney.com)  Since 1974, federal government employees have been eligible to receive overtime pay under the Fair Labor Standards Act (FLSA).  The Office of Personnel Management (OPM) administers the FLSA in the federal government.  Generally, the FLSA requires that employers pay one and one-half times the regular hourly rate of pay to employees for any worked performed in excess of 40 hours in a given workweek.  However, the FLSA does not apply to everyone.  The statute identifies several categories of employees exempted from the overtime provisions of the Act.  The group of exempt personnel includes those “employed in a bona fide executive, administrative, or professional capacity.” FLSA exemptions are to be “narrowly construed,” and limited to those employees plainly and unmistakably within their terms and spirit.  The FLSA, in effect, presumes non-exempt (covered) status.  The employing federal agency clearly has the burden of establishing an exemption.  This means that the agency must prove each element of a claimed executive, administrative, or professional exemption.  Otherwise, the agency is required to pay time and one-half overtime pay. OPM has issued regulations that supplement the FLSA.  See 5 C.F.R. Part 551.  Those regulations state that if an employee is properly classified at the GS-4 level or below (or the equivalent level in other white collar pay systems), they are automatically considered nonexempt, which means they must be paid overtime, pay at time and one-half their regular hourly rate.  Employees properly classified at the GS-5 through GS-10 levels, or their equivalent, may be exempt only if they are an executive, administrative or professional employee. Executive employees are managers and supervisors who have the authority to select, promote, advance in pay, or remove employees while exercising discretion and independent judgment.  If you are a GS-5 or 6, or a law enforcement employee at the GS7-9 levels, you must spend 80% or more of your work time on supervisory duties. Administrative employees are those who are considered advisors, assistants, or representatives of management, such as management consultants, systems analysts, and human resources specialists, employees who perform work that is intellectual and varied in nature or of a specialized or technical nature that requires considerable special training, experience, and knowledge, and frequently exercise discretion and independent judgment under only general supervision.  To be exempt as an administrative employee, someone graded at the GS-5 or 6 level must spend 80% or more of his/her work time performing essentially administrative functions. Professional federal employees, teachers, and school administrators are also exempt under the FLSA.  Professionals are those employees who require knowledge in a field of science or learning usually acquired through education or training at the bachelor’s degree or higher level or in a recognized field or artistic endeavor that is original or creative in nature. Federal employees exempt under the FLSA receive overtime pay under Title 5 of the United States Code.  Under Tile 5, overtime pay is computed at the rate of one and one-half times the employee’s rate of basic pay or the GS-10, step 1 rate of basic pay, whichever is lower.  Employees who want to challenge their status under the FLSA can file a grievance under their union’s collective bargaining agreement with their federal employer or in an overtime pay claim with their employing federal agency or OPM.  OPM encourages non-union federal employees to first obtain a decision on the claim from their employing agencies before filing an OPM overtime claim, although employees are not required to do so.  Going to the employing federal agency first may give the employee “two bites at the apple,” but OPM will generally side with the agency anyway, so it may not be worth going to the employing agency first.  Federal employees not covered by union contracts may file overtime claims under the FLSA with the United States Court of Federal Claims or the appropriate U.S. district court.  However, the district courts can only hear claims that are less than $10,000.  If the claim is for more than that, it must be filed in the Court of Federal Claims.  Moreover, filing an administrative claim with an agency or OPM does not stop the running of the two-year statute of limitations (three years if the violation was willful or intentional) governing claims filed in court from when the claim arose.  The date on which the employing agency or OPM receives the claim is the date used to determine whether the claim is timely.  If an FLSA claim is successful, the prevailing employee will be entitled to double pay (called “liquidated damages”) for a period of up to two or three years back from the date on which the claim is received, plus an award of attorney’s fees.  However, under certain circumstances, federal agencies may grant compensatory time off instead of overtime pay for an equal amount of time off.  The key is to secure the advice of a qualified attorney to assess the merits and value of your overtime pay claim before you file it.    * Copyright© 2010 by TULLY RINCKEY, PLLC.  All rights reserved. † John P. Mahoney, Esq. is a Partner in the Washington, DC Federal Employment Law Firm of TULLY RINCKEY, PLLC.  (http://www.fedattorney.com).  Mr. Mahoney specializes in representing federal government agencies and officials, as well as federal contractors, in all facets of federal employment law, including overtime pay litigation. Employment Law 2010-02-04 http://www.elinfonet.com/blog/index/site/FEDERAL_SECURITY_CLEARANCES_FIGHTING_TO_GET_KEEP_ONE/ http://www.elinfonet.com/blog/index/site/FEDERAL_SECURITY_CLEARANCES_FIGHTING_TO_GET_KEEP_ONE/#When:19:27:50Z FEDERAL SECURITY CLEARANCES:  FIGHTING TO GET & KEEP ONE* By John P. Mahoney, Esq., Partner, TULLY RINCKEY, PLLC, Washington, DC† (http://fedattorney.com) The Federal Government is pretty good at keeping secrets.  When it comes to national security, the Feds do their best to ensure that only trustworthy people have access to classified government information and operations.  In order for federal employees and federal contractor company employees to have access to national security secrets, their personal backgrounds must be thoroughly investigated and they must be granted security clearances.  Since September 11, 2001, most workers on federal government facilities are required to qualify for and possess a security clearance as a condition of their continued employment.  For such employees, the loss or suspension of their security clearance means the loss of their jobs.  There are due process rights that apply when a federal agency proposes to suspend, revoke, or deny an employee’s security clearance.  However, unlike most federal employment due process procedures, there is no right to court review of an adverse federal agency’s security clearance decision, as the privilege to possess a federal security clearance is solely within the discretion of the Executive Branch of the Government of the United States.  Given that, an employee fighting to get or hold on to a security clearance must convince the Executive Branch that he or she qualifies for that employment privilege.      Federal employees and contractors are often hired for their secured jobs before all their background checks have been completed.  On occasion, the government may ultimately determine that a provisionally hired employee or contractor is not suitable to possess a security clearance.  If the employee is unsuccessful in convincing the government to change its initial determination, he or she will be terminated.  People who are ultimately terminated by the federal government based upon a denial or revocation of a security clearance will often find it very difficult to secure another job, either in the federal or private sectors, as getting fired by the federal government based upon national security concerns does not make one very employable thereafter. For most federal employees, the process of deciding to revoke a security clearance is governed by Executive Order 12968, which was signed by President Clinton on August 2, 1995.  Under that Executive Order, a federal employee has the right to a “personal appearance” before a federal administrative judge, which is akin to an oral reply in a federal disciplinary case.  Federal contractors actually have more due process rights than do federal employees, as contractors have the right to a full contested evidentiary hearing before a judge.  In the case of a federal employee, the judge’s decision is merely recommended, as the employing agency has the final decision as to who receives a security clearance from that particular agency.  For a contractor, the judge’s decision is final, although it can be appealed to the Department of Defense’s Office of Hearings and Appeals.  When an agency initially determines that an employee does not meet the standards for access to confidential information, that employee shall be: 1. Provided as comprehensive and detailed a written explanation of the reasons for the denial of the clearance as national security interests and applicable law permit, usually called the “Intent to Revoke Access Eligibility” or the “Statement of Reasons”; 2. Provided documents, records and reports upon which the clearance denial is based, to the extent such documents would be provided under the Freedom of Information Act and the Privacy Act, within 30 days; 3. Informed of their right to counsel or other representative, to request documents, and to request the entire investigatory file,  If requested, these materials shall be promptly provided prior to the time set for the written reply; 4. Provided a reasonable opportunity to reply in writing to the determination, and to request a review of that determination; 5. Provided written notice of and reasons for the results of the review, the identity of the deciding official, and written notice of the right to appeal; 6. Provided an opportunity to appeal in writing to a high-level panel appointed by the agency head.  The panel shall be compromised of three members, two of whom shall be selected from outside the security field.  Panel decisions are to be in writing and are final; and 7. Provided an opportunity to appear personally and to present relevant documents, materials, and information at some point in the process before an adjudication or other authority, other than the investigative authority, as determined by the agency head in an ex parte nonadversarial hearing.  A written summary or record of such appearance shall be made part of the employee’s security record, unless the appearance occurs in the presence of the panel.   The purpose of the security clearance review process is to give the employee or contractor the opportunity to convince the federal government that, when considered as a “whole person,” any security concerns that the agency had against the employee are sufficiently mitigated by corrective action taken by the employee in a timely fashion so as to convince the government that it is clearly in the national security interests of the United States that the employee’s clearance be granted or restored.  Given the complexities and stakes of a federal security clearance decision, it is advisable that someone facing the denial or revocation of their security clearance seek representation by a qualified attorney who specializes in security clearance representation. * Copyright© 2010 TULLY RINCKEY, PLLC.  All rights reserved. † John P. Mahoney, Esq. is a Partner in the Washington, DC Federal Employment Law Firm of TULLY RINCKEY, PLLC.  (http://www.fedattorney.com).  Mr. Mahoney specializes in representing federal government agencies and officials, as well as federal contractors, in all facets of federal employment law, including security clearance litigation. Employment Law 2010-01-26 http://www.elinfonet.com/blog/index/site/workplace_violence_employers_need_to_be_better_prepared/ http://www.elinfonet.com/blog/index/site/workplace_violence_employers_need_to_be_better_prepared/#When:16:16:16Z As an employment attorney and President of an HR Consulting Firm who makes my living conducting employment law training, I am hard-pressed to understand why employers are not better prepared for workplace violence.  I guess that one reason is that it takes years of litigation for employers to “get it”.  Similar to sexual harassment that first appeared in the 1970’s which took almost 35 years for most employers “to get” and to come to understand that they had to conduct training to avoid liability under the employment discrimination laws, I assume that the same is true of workplace violence.  Perhaps we are just in its infancy when many employers are not yet aware that it could happen in their workplace and also do not really know how to prepare.  Or perhaps it is due to the fact that many employers just really do not understand the consequences of having an instance of workplace violence occur in their workplace. What are some of the consequences of workplace violence in a workplace?  Of course there is the immediate consequence of the horrific loss of life and unnecessary violence they and their employees have to endure.  In addition, there is the PR nightmare of being known as a company that failed to prepare for workplace violence and the appearance of your company on the evening news with police crime scene tape all around your workplace.  But perhaps employers don’t understand the deeper implications that failing to prepare for workplace violence can have on them. What deeper implications you ask.  Well, first of all there is the possible liability under OSHA since all employers have an obligation under the general duties clause to provide a safe workplace for their employees.  Specifically, under OSHA employers must provide a place of employment “free from recognizable hazards that are causing or likely to cause death or serious harm to employees”. But in addition, there is what is perhaps even more startling for employers, the fact that they can be held liable for the injuries caused by these instances of workplace violence under many creative theories of liability that plaintiff’s attorneys utilize. First there are the negligent hiring theories of liability.  What does this mean? This means for example that a good plaintiff’s attorney would argue that had your human resources department done their part to check this employee’s background prior to hiring the employee, you would have known that he had been fired from his prior job for an instance of violence or that he had prior criminal convictions.  By failing to check his background, you were negligent in the hiring process and brought this dangerous employee onto your premises where there was a likelihood that he would be violent again.  What kind of damages are we talking about in these cases?  Damages that can be in the millions.  One reason this is such a worthwhile claim for plaintiffs to allege is because they can be awarded punitive damages in addition to compensatory damages.  This makes it very appealing as a claim for many plaintiff’s attorneys. Then there are the negligent retention theories.  This is where the plaintiff alleges that you the employer were aware of the disgruntled worker’s tendency for violence and for jumping off the deep end and yet you failed to discipline him when he worked for you and failed to terminate him.  Thus, the theory goes that by retaining him without warning him to not continue to engage in discipline and by not getting rid of him, you subjected your employees to a person prone to violence and were thus negligent. Either theory can lead to liability for employers.  For instance, in Yunker v. Honeywell, Inc., (496 N.W.2d 419 (Minn. Ct. App. 1993)) an employee at Honeywell had been previously fired for strangling an employee. The employee served five years in prison and then when he got out he applied to work for Honeywell again.  Honeywell hired him.  The HR professional who hired the employee hired him knowing he had been terminated for this prior incident of workplace violence.  Once the employee was rehired he engaged in numerous instances of harassing and threatening behavior toward co-workers and also became interested in a female co-worker.  After she rejected his romantic advances toward her, he shot and killed the co-worker in her driveway outside of her house.  The family of the victim sued Honeywell claiming both negligent hiring and negligent retention.  The court rejected the negligent hiring claim because he was rehired as a janitor whose job had very little interaction with other employees.  However, the court upheld the negligent retention claim on the theory that Honeywell had notice of the possibility of violence since the employee had harassed this woman at work and had painted a death threat on her locker door.  She had complained to the company and they had done nothing.  By failing to take action while continuing to retain him as an employee, the Court held that Honeywell had negligently retained the employee and they were held liable. In another negligent hiring case, B&L Motor Freight was held liable for 4 million dollars for negligently hiring an employee who had prior criminal convictions even though he had stated he had none on his employment application.  This employee had raped another employee.  The court held that the employer should have checked his background for criminal convictions since he had access to interactions with others.  Similarly, in a Goodwill Industries case, the employer was held liable for 5 million dollars when a 15-year old employee was raped and murdered by an employee with a criminal background.  The employer had failed to do a background check on this employee. What is the lesson for employers?  In my mind it is simple, training.  Training your managers and HR professionals to understand everything they need to know to prevent workplace violence.  Your managers and employees need to be trained on the importance of conducting background checks as well as on how to recognize the warning signs of workplace violence.  They also need to be trained on the importance of taking appropriate disciplinary action against employees for violent behavior they exhibit in the workplace. Instances of workplace violence clearly are occurring more and more frequently.  Since the beginning of 2010 there have already been two serious incidents of workplace violence.  First there was the recent instance of workplace violence in St. Louis, Missouri on January 7, 2010 that left 4 dead including the shooter, Timothy Hendron.  Apparently Mr. Hendron was a disgruntled assembly-line employee upset about the high cost of his retirement benefits.  He worked at ABB Group, a transformer manufacturing plant in St. Louis.  He was so upset that he apparently had instituted a lawsuit against his company.  Seeking to take matters into his own hands, on January 10, 2010 he walked into the plant carrying an assault rifle and handgun and started shooting.  His actions left 4 dead including himself.  Witnesses described the scene as utter chaos. Then there was the instance in which a former employee on January 12, 2010 returned to his former workplace, a truck rental company, and opened fire, killing 3.  Five others were also injured in this second instance of workplace violence in 2010.  Although we can never be ready for such instances of violence, I still find myself wondering if such incidents could not have been prevented by simple training and preparation that these employers might have done that could have saved these lives.  Were there missed warning signs by those who managed and worked with these employees? Missed warning signs has emerged as a major factor in the violence that occurred at the Fort Hood shooting massacre in November 2009.  The Pentagon Report which was recently released indicated that there were numerous warning signs that supervisors did not see or failed to report.  Warning signs that if paid attention to could have possibly prevented the horrific instance of violence that took place in November at Fort Hood.  Warning signs that properly trained managers might have noticed and acted on.  In fact, the Army Report recommended severe reprimands for Hasan’s managers who should have noticed these warning signs and yet failed to act. What lesson does all of this provide for employers?  I think the message is simple and clear.  Employers that wish to be proactive and protect and prevent workplace violence in their workplaces need to recognize that this is a case where an ounce of prevention can be worth a pound of cure.  What type of prevention?  First and foremost, employers should have a well-drafted workplace violence policy.  Next, they need to provide training as discussed above both on their workplace violence policy as well as on workplace violence in general.  Such training can be essential when it comes to having a viable defense to a case seeking to hold the employer liable for the workplace violence.  It shows that the employer recognized that there could be a problem and took affirmative steps to prevent such a problem.  Employers should also ensure that they thoroughly check references for all candidates including prior criminal convictions, driving records and any other relevant information.  They also need to ensure that they act promptly and impose discipline, up to and including termination if necessary, when an employee has evidenced violent tendencies on the job so that they can avoid any claims of negligent retention. Clearly, this is where employers need to focus their training efforts in the coming months.  Training your workforce on how to recognize the warning signs of workplace violence and on how to prepare for instances of violence can help you prevent and be better prepared if violence should arise in your workplace. Submitted by: Melissa Fleischer, Esq. President and Founder HR Learning Center LLC http://www.hrlearningcenter.com info@hrlearningcenter.com Employment Law 2010-01-25 http://www.elinfonet.com/blog/index/site/department_of_labor_publishes_cobra_subsidy_extension_model_notices/ http://www.elinfonet.com/blog/index/site/department_of_labor_publishes_cobra_subsidy_extension_model_notices/#When:03:21:06Z The government has published updated model forms for the recently extended COBRA subsidy. Congress passed legislation on December 19th extending the COBRA subsidy eligibility period and coverage period. The extension came as part of the Fiscal Year 2010 Defense Appropriations Act. The 2010 DOD Act extends the COBRA premium reduction eligibility period for two months until February 28, 2010. This means that employees who are terminated on or before February 28, 2010 may be eligible for the subsidy. Additionally, the legislation increases the maximum period for receiving the subsidy for an additional six months (from nine to 15 months). The legislation also helps those who already exhausted their subsidy period under the original legislation. Individuals who had reached the end of the reduced premium period before the legislation extended it to 15 months will have additional time to pay the reduced premiums related to the extension. To continue their coverage they must pay the 35% of premium costs by 60 days after date of enactment or, if later, 30 days after notice of the extension is provided by their plan administrator. Individuals who lost their subsidy and paid the full 100 percent premium in December 2009 should be told to contact their plan administrator or employer sponsoring the plan to discuss a credit for future months of coverage or a reimbursement of the overpayment. In addition to the notice requirements already mandated under ARRA, the 2010 DOD Act requires employers to provide notice of the new rights. The employer or its group health plan administrator must give notice to any individual who was already eligible for the subsidy as of October 31, 2009. The notice must be given within 60 days of enactment (i.e. by February 21, 2010). The notice must also be given within 30 days to any individual who becomes eligible for the subsidy (i.e. terminated) on or after October 31, 2009. The new notice must provide information regarding the 2010 DOD Act amendments. The Act also requires notice to individuals who either dropped COBRA or paid the full premium for it when their nine-month subsidy ended. The notice explains that they have two options: to either reinstate their coverage retroactively at the 35% subsidized rate, or to receive a credit or refund. The DOL has published the updated model forms on its website, which can be found at this link. Submitted by: Christopher W. Olmsted, Esq. Barker Olmsted & Barnier, APLC Employment Law 2010-01-20 http://www.elinfonet.com/blog/index/site/dol_publishes_a_safe_and_sober_message_about_workplace_parties_and_drinking/ http://www.elinfonet.com/blog/index/site/dol_publishes_a_safe_and_sober_message_about_workplace_parties_and_drinking/#When:22:33:12Z The U.S. Department of Labor has published a message regarding safe and sober workplace parties. The workplace is frequently a place where employees and employers get together to celebrate special events. Workplace parties typically mean lots of music, food and drinks. If the drinks include alcohol the potential for unfortunate consequences greatly increases. Opinions vary regarding the appropriateness of making alcoholic beverages available at workplace parties or other company-sponsored events. Ignoring the possibility that some employees or guests may drive home “under the influence” invites trouble. Improper use of alcohol may expose employers to liability under tort, workers’ compensation or other laws. For example, an employer may be held liable if a person consumes alcoholic beverages at a company-sponsored party and subsequently causes a crash. Some employers have been held liable because negligent acts by employees under the influence of alcohol consumed at employer-sponsored events were found to be within the scope of their employment. In other cases, individuals have been held liable merely because they provided alcohol to social guests. Each time an employee is involved in an impaired driving crash, businesses pay in the form of increased absenteeism and use of health-care benefits. According to the National Highway Traffic Safety Administration’s (NHTSA), the annual employer cost of motor vehicle crashes in which at least one driver was alcohol-impaired is more than $9 billion, including wage-risk premiums. Furthermore, if the employee caused the crash or is arrested for impaired driving even if a crash did not occur, administrative and legal procedures such as court time and traffic school may require further time away from work. And certainly no employer can deny the emotional difficulty and decreased morale employees experience when a colleague suffers from a severe injury or dies-two unfortunate, but not uncommon, outcomes of mixing alcohol and driving. Depending on the nature of their business, some employers may have additional incentives to ensure their employees are educated about the potential legal vulnerabilities associated with impaired driving. Employers whose businesses serve or sell alcohol may be held liable if an individual consumes alcohol at their establishment and subsequently causes a crash. Employers with employees who drive as part of their job-such as couriers, delivery persons and sales representatives-may also be subject to legal action if the impaired employee causes a crash while conducting business. These employers must consider the costs of insuring and maintaining company vehicles, in addition to the time managers spend taking care of these procedures. The return on investment for employer-sponsored impaired driving prevention is considerable when compared to the financial burden caused by just one crash, especially for small businesses. All employers run a risk if they serve alcoholic beverages at workplace celebrations and other company-sponsored events because they may be held liable if a person causes a crash subsequent to consuming alcoholic beverages at such an event. However, if an employer does decide to provide or allow alcoholic beverages at an office event, state laws regarding their use and resulting employer legal responsibilities should be consulted and addressed. Also, there are several measures employers can take in attempt to minimize any negative consequences of alcohol consumption. The good news is that employers have enormous power to protect their businesses from the negative impact of impaired driving by educating employees about its harmful effects and supporting efforts to prevent it in their communities. By doing so, employers do more than just safeguard their business assets-they contribute to the nationwide campaign to eliminate a devastating and preventable crime and play a part in making their communities safer for their friends and families and those of their employees. The DOL’s publication can be found at this link. Submitted by: Christopher W. Olmsted, Esq. Barker Olmsted & Barnier, APLC Employment Law 2009-12-24 http://www.elinfonet.com/blog/index/site/to_salt_or_not_to_salt/ http://www.elinfonet.com/blog/index/site/to_salt_or_not_to_salt/#When:20:04:32Z I am in house counsel to a cell phone company with 300 employees in 8 states.  Our corporate office is in Oklahoma.  Recently the sky opened up and freezing rain soon coated our lovely red dirt and open plains with a lethal layer of ice.  I commute about 100 miles between the corporate office and my home and was lucky enough to be caught on the road when the ice began to fall.  I was frantically avoiding jack-knifing semi’s when my cell phone rang. The question of the day: should we put salt down on the doorsteps and front walks of our 45 stores in Oklahoma?  Common sense dictated that this would be a good idea.  But, then my little employment lawyer brain began to churn.  What if one of our employees slips and falls while putting down the salt?  Several of my store managers argued that it was worse to put down salt, because it gave customers a false sense of security.  I grappled with the pros and cons of salting.  At about that time, I pulled into Target to buy provisions to endure the storm.  I scrambled out of my vehicle, and as I stepped onto Target’s front walk, the elderly woman in front of me slipped on the ice and bashed the back of her head on the ground.  After calling for help, I made one more call- back to the corporate office - instructing them to have each store put down salt, and lots of it!  Of course, I also dictated a brief email communication asking for employees to use extreme care when putting out salt, to wear appropriate footwear and to contact their manager if they did not feel comfortable participating in this activity.  This is one of those times that common sense was the order of the day.  (I’ll keep you posted on the worker’s compensation claims.) Employment Law 2009-12-09 http://www.elinfonet.com/blog/index/site/bmissed_warning_signs_of_workplace_violence_in_fort_hood_and_orlando_shooti/ http://www.elinfonet.com/blog/index/site/bmissed_warning_signs_of_workplace_violence_in_fort_hood_and_orlando_shooti/#When:18:16:23Z In the wake of the November 5, 2009 Fort Hood tragedy that left 13 dead and 42 wounded, employers can learn an important lesson about not ignoring the warning signs of workplace violence.  Apparently military psychiatrist Major Nidal Hasan had shown warning signs for years even since his residency in medical school.  However, no one picked up on these or recognized them.  Understanding how to recognize the warning signs of workplace violence is an important step that employers can take to avoid workplace violence. What types of warning signs are there? In this case, apparently there were many.  For instance, the fact that Hasan had many communications with a suspected terrorist advisor, Anwar al-Awlaki, a former imam at the Dar Al-Hijrah Islamic Center in Falls Church, Virginia.  Anway al-Awlaki was allegedly a “spiritual advisor” to some of the terrorists and hijackers involved in the 9/11 terrorist attacks.  Apparently, the military looked into these communications but then decided they were not important since violence or terrorist plots were not mentioned.  In addition,  a former classmate of Hasan’s who attended school with him in Maryland for two years described him as a “ticking time bomb” and stated that when he was a student in Maryland he gave a presentation justifying sucicide bombings.  Hasan also reportedly told this classmate that he is a Muslim first and then an American.  In addition, there were many warning signs in the months immediately leading up to the shooting spree that were ignored by all.  Apparently, at the Mosque that he attended he made many comments to Congregants at the Mosque stating that Muslims should not have to be in the military and go over seas to fight against other Muslims in the War on Terror. He had also complained to many about his upcoming deployment because he did not feel comfortable going overseas to fight other Muslims.  All of these signs were unfortunately missed by the Military.  Had they taken the time to notice them and perhaps connected the dots, they might have seen that Hasan was on the verge of engaging in this violent massacre.  The next day in Orlando, Florida another workplace shooting took place.  This one by Jason Rodriguez who also had many of the warning signs.  Mr. Rodriguez had been fired from his engineering firm, Reynolds Smith & Hills more than two years ago. He obviously was quite upset about his termination and told a reporter who asked him why he had done this that it was “because they left me to rot”.  Apparently, he had never forgotten the anger nor moved on from the resentment caused by his termination.  In addition, his marriage had ended, he could not pay the child support for his son, his home was taken in foreclosure and he had to declare bankruptcy.  Faced with all of these stresses, Mr. Rodriguez was driven over the edge and on November 6, 2006 walked into his former office and began shooting, killing one and wounding five other employees.  His neighbors and mother had noticed that he had in recent weeks become dishelved but again no one had done anything about some of the warning signs he showed.  In fact, in many of the workplace violence cases, investigators have always reported that there were telltale signs prior to the violence that should have been noticed by others.  The gunman at Virgina Tech was a loner who rarely spoke to others.  This is a clear warning sign of a person that might be prone to engage in such violence.  He also had been found to be a danger to himself and others by a public agency but no one did anything about this.  What are some of the warning signs that employers should watch out for? Employees who display any or some of the following warning signs may be more likely to engage in some sort of violence at work.  • Confrontational Attitude • Talking about an attack • Paranoid thoughts • Threatening Co-Workers • Threatening Bosses • Showing guns or bragging about guns to Co-workers • Harassment of Other Employees • Showing Signs of Substance Abuse • Aggressive Behavior • Unusual Behavior • Being a Loner • Excessive Cursing • Bullying Others • Outbursts of Anger • Frequent Absenteeism • Sudden Withdrawal Warning signs are important for employers to not ignore because they signal that the employee may be on the verge of “losing it” and if the employer were to step in and help they might be able to avoid an instance of violence in their workplace.  Employers should have Workplace Violence Prevention Policies and provide training to their employees on workplace violence prevention.  These training seminars can help train employees to be aware of the warning signs of workplace violence and will help educate employees on ways to make the workplace safer.  The efforts that employers put in to avoiding workplace violence can go a long way to protecting their employees and workplaces from unnecessary violence.  For more information, or to schedule a workplace violence prevention seminar for your workplace, please contact us at info@hrlearningcenter.com or visit our website.  You may also visit our workplace violence prevention page. Submitted by: Melissa Fleischer, Esq. President and Founder HR Learning Center LLC http://www.hrlearningcenter.com info@hrlearningcenter.com Employment Law 2009-11-14 http://www.elinfonet.com/blog/index/site/department_of_homeland_security_rescinds_no_match_rules/ http://www.elinfonet.com/blog/index/site/department_of_homeland_security_rescinds_no_match_rules/#When:05:37:33Z After much controversy and litigation, the Department of Homeland Security threw in the towel and rescinded its proposed No Match rules. For years, the Social Security Administration (“SSA”) has been sending “No-Match Letters” to employers who employed individuals whose social security numbers (“SSN”) did not match their personal information. The SSA, however, provided unclear guidance for responding to the letters. Seeking to fill the void, DHS the agency responsible for enforcement of our immigration laws,  issued a new rule describing the steps an employer must take when it receives a “no match” letter from DHS or the Social Security Administration (SSA). In October 2007, the AFL-CIO labor union obtained a court injunction prohibiting enforcement of the new rule. The DHS subsequently issued amended regulations, seeking to address some of the flaws raised by the union. But the effort lost steam, particularly after the new administration took over. “After further review,” wrote the agency in its rescission notice, “DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.” The rescission becomes effective November 6, 2009. DHS notes that employers should still react when receiving a no match letter. An employer who receives such a letter may be seen to be on notice that the worker could be illegal. “Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘‘constructive knowledge.’’ A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information.” “Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.” Thus, the government has put employers between a rock and a hard place, shrugged its bureaucratic shoulders, and said “Too bad for you.” Employers who receive No Match letters should take action to protect themselves from possible immigration enforcement actions. First, upon receipt of a No Match letter, the company should research its own records to check for typographical errors. If no errors are found, the employer should notify the employee that the SSN is incorrect. Ideally the notice should be in writing. The company should advise the employee to resolve the issue with the SSA within a reasonable period of time.  Thirty to ninety days ought to be sufficient. If the employee is unable to resolve the discrepancy then the employer should probably terminate the employee. Employers should be aware that improper terminations may be a violation of federal law. The DHS wrote in its commentary that it “acknowledges that an employer who terminates an employee without attempting to resolve the issues raised in a No-Match letter, or who treats employees differently based upon national origin, perceived citizenship status, or other prohibited characteristics may be found to have engaged in unlawful discrimination under the anti-discrimination provision of the Immigration and Nationality Act of 1952 (“INA”). Related Articles: EEOC’s Proposed GINA Regulations Limit ADA Inquiries New Federal Legislation: GINA Submitted by: Christopher W. Olmsted, Esq. Barker Olmsted & Barnier, APLC Employment Law, Immigration 2009-11-04 http://www.elinfonet.com/blog/index/site/eeoc_publishes_poster_supplement_for_gina_compliance/ http://www.elinfonet.com/blog/index/site/eeoc_publishes_poster_supplement_for_gina_compliance/#When:17:51:39Z The law requires an employer to post notices describing the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. EEOC has revised its “Equal Employment Opportunity is the Law” poster. This new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008). The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor. Employers can either download and post the poster supplement, or download a new version of the whole poster. Visit the EEOC’s website at this link: http://www.eeoc.gov/posterform.html Submitted by: Barker Olmsted & Barnier, APLC Employment Law 2009-10-28 http://www.elinfonet.com/blog/index/site/Protect_your_Workplace_from_Violence_/ http://www.elinfonet.com/blog/index/site/Protect_your_Workplace_from_Violence_/#When:18:52:36Z Don’t let an incident like the murder of Annie Le at Yale University happen in your workplace.  Incidents of workplace violence happen regularly throughout the United States and threaten employers with liability on a daily basis.  Yet statistics reveal that most employers fail to provide training on workplace violence and many do not even have a workplace violence policy.  All of these are big mistakes for employers!  Let’s start at the beginning and understand the definition of workplace violence and how it can impact your workplace.  Workplace violence is considered to be “any physical assault or threatening behavior or verbal abuse occurring in the work setting”.  So, as you can see, it is clearly much broader than just the homicides that get reported in the media.  Some examples of workplace violence include: • Intimidation • Harassment • Bullying • Shootings • Threats • Verbal Abuse • Stabbings • Rapes • Suicides Since the definition and the types of incidents that workplace violence includes are so broad, it is extremely important that employers have workplace violence policies to protect the employers from liability.  The policy will help managers and employees understand that workplace violence includes instances of bullying and harassment and not just murders.  Once your policy defines that bullies and harassers are included in the definition of workplace violence and once your policy sets forth that all instances of workplace violence must be reported, an employer would be better protected than Yale University was in the Annie Le case.  Because had Yale had such a policy and had they conducted training on their policy (I don’t have any personal knowledge of whether in fact they had such a policy or conducted such training) then perhaps the other workers in the lab would have known that when the lab technician arrested for the murder of Annie Le, Raymond Clark, was allegedly harassing other workers about the cleanliness of their mice cages, that this constituted workplace violence and should have been reported to human resources immediately.  Perhaps if it had been reported to human resources, Mr. Clark would have been disciplined and/or terminated which could possibly have prevented the ensuing violence in which Annie Le lost her life.  Thus, the best way for an employer to protect itself is to have a policy, to provide workplace violence training and to take affirmative steps to make the workplace safer.  What are some of those steps?  There are of course the obvious steps such as installing better lighting, security cameras and alarms and then there are the less obvious ways to make the workplace safer.  These usually involve human resources.  HR should strive to conduct background checks on all employees as well as to conduct exit interviews when an employee terminates his/her employment with that company.  This is especially important because of the various theories of legal liability that plaintiff’s lawyers love to use in these cases that include negligent hiring and negligent retention.  Negligent hiring is based on the theory that the employer failed to conduct a background check on the employee prior to hiring the employee.  The theory surmises that had they conducted a background check they would have known that the violent employee had a history of violence in prior employment situations and thus they would have not hired him/her.  Thus, the employer was negligent in bringing this violent employee into the workplace without checking the employee’s background.  In addition, when the employee during the course of his/her employment has acted in a manner that demonstrates that he/she may be prone to violence, such as the reports that had come out that Mr. Clark allegedly harassed other employees about the cleanliness of their mice cages, and the employer has done nothing to discipline that employee, the negligent retention theory suggests that management was negligent in retaining that employee despite clear indications that the employee had previously been violent in the workplace.  Another important way that employers can protect themselves from this type of violence is by training their managers and employees to be sensitive to the warning signs of an employee who could likely engage in workplace violence.  Time and time again in the aftermath of these tragedies, the witnesses and friends all agree that in hindsight there were warning signs that people just ignored or brushed off and did not know to report.  Such as Cho, the lone gunman at Virginia Tech who witnesses reported to be a loner who rarely spoke to anyone and someone who had been previously reported to be a danger to himself and others, all clear warning signs that were ignored.  In the recent workplace violence case at the LA Fitness gym in a Pittsburgh, Pennsylvania suburb where a lone gunman entered the gym and started shooting, people who knew the gunman also reported that he was a real loner who always kept to himself.  Such warning signs can tip off others so that they report these warning signs to human resources to be investigated which can help to prevent these instances of workplace violence.  So employers can take actions to prevent their workplaces from the tragedy that happened to Annie Le at Yale University.  Employers can develop policies prohibiting workplace violence, deliver training on the warning signs of workplace violence and take steps to make their workplaces safer.  For more information or to schedule a workplace violence training seminar for your workplace, please contact Melissa Fleischer, Esq. at 914-417-1715 or via e-mail at info@hrlearningcenter.com.  Please feel free to visit our website at http://www.hrlearningcenter.com. Submitted by: Melissa Fleischer, Esq. President and Founder HR Learning Center LLC http://www.hrlearningcenter.com info@hrlearningcenter.com Employment Law, Human Resources 2009-09-25