SHRMA – legislative update 3/15/2008
Federal
Labor/Employment
Supreme Court Defines ADEA Charge Permissively
An intake questionnaire filed with the Equal Employment Opportunity
Commission (EEOC) might constitute a charge under the Age
Discrimination in Employment Act (ADEA), the U.S. Supreme Court decided
on Feb. 27, 2008. The attention that the case has brought to the issue
of what exactly constitutes a charge already has resulted in a spike in
the number of charges filed with the EEOC this fiscal year.
An intake questionnaire may constitute a charge even if an individual
does not subsequently file the EEOC’s charge form if in addition to the
information required by the EEOC regulations (i.e., an allegation and
the name of the charged party), the filing can “reasonably be construed
as a request for the agency to take remedial action to protect the
employee’s rights.”
The Supreme Court acknowledged that “it is true that under this
permissive standard a wide range of documents might be classified as
charge.” But it said this result was consistent with the purpose of the
ADEA, particularly since many individuals represent themselves and do
not hire lawyers when seeking assistance at an administrative agency.
The EEOC does not have to treat every completed intake questionnaire as
a charge, the Supreme Court noted. But it said “there might be
instances where the indicated discrimination is so clear or pervasive
that the agency could infer from the allegations themselves that action
is requested and required.”
The EEOC has, as a result, docketed 10 percent more charges this fiscal
year than a similar period last fiscal year.
In a release, the EEOC stated, “as the court noted, the EEOC has taken
steps to ensure timely notification to respondents of receipt of intake
questionnaires or other correspondence that constitute charges. We will
continue to review our procedures as the court has suggested to ensure
that they are clear to the public and consistent with our statutes and
regulations.”
Immigration – Employment Verification
SHRM-Backed Employment Verification Bill Introduced in the House
Last week, the SHRM-led "HR Initiative for a Legal Workforce" coalition
announced the introduction of H.R. 5515, the "New Employee Verification
Act" (NEVA). The bill would replace the federal government's current
employer verification process with a new, more convenient and reliable
electronic system.
During the press event, SHRM President and CEO Susan R. Meisinger
noted, "The government hasn't given employers the right tools to ensure
a legal workforce. This bill is a major step toward doing something
meaningful to stop illegal immigration." Under H.R. 5515, employers
would be required to use their state's "new hire" reporting process,
which is currently utilized for child support enforcement, to begin the
new electronic verification process. This would allow employers to
confirm the work eligibility of U.S. citizens through the Social
Security Administration database and the work eligibility of non-
citizens through the Department of Homeland Security (DHS) database.
The bill also would establish a voluntary biometrics option that
employers could choose to use in the verification process. This system
would include a standard background check and the collection of a
"biometric" characteristic -- such as a thumbprint -- to secure an
employee’s identity and prevent the illegal use a Social Security
number, stolen or fraudulently-obtained drivers’ license, or altered
identification documents.
To protect employers from liability, the legislation would provide a
safe harbor.
Other key NEVA provisions of interest to HR professionals include:
Allows all employment verification requirements to be completed
electronically, as well eliminates the current Form I-9.
Applies only to newly hired employees and would not require employers
to re-verify all existing employees, as is required by other bills
pending in Congress.
Allows employers to check the employee through the electronic system
beginning on the date of hire and ending at the end of the third
business day after the employee has reported to work.
Provides that federal immigration law preempts any state law with
regard to employer fines or sanctions for immigration-related issues or
in requiring employers to verify work status or identity for work
authorization purposes.
Requires employers to be responsible only for the hiring decisions of
their own employees, not those of their subcontractors.
House Passes Mental Health Parity
On March 6, the U.S. House of Representatives passed H.R. 1424, the
"Paul Wellstone Mental Health and Addiction Equity Act of 2007," by a
vote of 268-148. The bill, sponsored by Representatives Patrick Kennedy
(D-RI) and Jim Ramstad (R-MN), expands the Mental Health Parity Act of
1996 to establish parity (treatment and financial requirements) between
coverage for mental illnesses and substance abuse and medical/surgical
benefits.
Key provisions of H.R. 1424 that SHRM has cited as problematic for HR
professionals include:
Benefit Mandate — H.R. 1424 imposes a broad benefit mandate that
preempts lesser state mandates. Employers would be required to cover
all conditions in the Diagnostic and Statistical Manual of Mental
Disorders.
Medical Management — The bill lacks adequate protection for medical
management of benefits by allowing state laws to undercut medical
management. Employers rely on medical management of benefits to ensure
the quality of care and the affordability of coverage.
Preemption — H.R. 1424 allows states to enact more extensive laws,
including an alternative remedy structure for mental health or
substance abuse benefits. Employers would face an uneven patchwork of
state requirements, increasing costs, and the complexity of benefit
administration.
Network Coverage — Employers rely on provider networks to encourage
higher quality care and lower coverage costs. H.R. 1424 undercuts both
of these objectives by mandating out-of-network coverage if any other
benefit is offered on an out-of-network basis.
Genetic Non-Discrimination — Although the House already has passed
genetic non-discrimination legislation (H.R. 493, the Genetic
Information Non-Discrimination Act), this legislation was added to the
mental health parity bill before the final House vote. As a result,
House-passed genetic non-discrimination bill (H.R. 493) is now part of
H.R. 1424.
Last year, the Senate unanimously passed a less onerous mental health
parity bill (S. 558) on September 18, 2007. S. 558, the Mental Health
Parity Act of 2007 sponsored by Senators Kennedy (D-MA) and Enzi (R-
WY), is strongly supported by SHRM, as well as major health plan
providers, employers, and the mental health community. Now, the House
and Senate will work on merging their respective bills and produce a
single, compromise mental health parity bill.
State
Lactating employees - House Bill (HB) 1073, currently before the House
Appropriations Committee, would bar employers from refusing to hire,
and from barring, discharging, withholding pay from, demoting,
penalizing, or otherwise discriminating against an employee who is
lactating because the employee breastfeeds or expresses breast milk at
the workplace. It would also bar employers from telling employees who
are lactating that they may not express breast milk during meal or
break periods.
Immigration - HB 2169, currently before the House Committee on State
Government, would require all public employers to register with the
federal government’s system of verifying the legal work status of
prospective employees. It would also bar public employers from
contracting work out unless the contractor also registers for and
participates in the program. Similarly, the contractors themselves
would be barred from entering into a public contract without
registering for and participating in the program. The proposal would
also give U.S. citizens a cause of action if the company discharges a
citizen while employing unauthorized aliens.
Youth employment tax credit - HB 2196, currently before the House
Finance Committee, would give employers a credit against their state
income tax for expenses associated with hiring state residents between
the ages of 14 and 21 whose median family income is less than 235
percent of the federal poverty level.
Such expenses would include wages, fringe benefits, and related payroll
and training expenses. To obtain the credit, the employer would have to
submit a youth employment incentive tax credit application to its local
workforce investment board. If the employer’s application is approved,
the employer would then execute a commitment letter with the Department
of Economic Development describing the employer’s project, the number
of new jobs to be created, and the maximum youth employment incentive
tax credit the employer may claim.
Pennsylvania: Workers’ Comp Premium Rates Decreased
The Pennsylvania Compensation Rating Bureau (CRB), an organization
which proposes workers’ compensation premium rates to the official rate
makers at the Pennsylvania Insurance Department, has decreased
Pennsylvania employers’ workers’ compensation premium rates by an
average of 10.22 percent, starting April 1, 2008.
“Right now, Pennsylvania employers are benefiting from the excellent
job they are doing to provide safe workplaces for their employees,”
said Pennsylvania Governor Edward Rendell while announcing the decrease
on Feb. 12. “Additionally, our workers’ compensation insurance system
remains strong and competitive. Today’s announcement is a win-win for
business.”
When it proposes premium rates, the CRB calculates the average cost of
medical and disability benefits and recommends rate adjustments for
insurance companies. It also takes into account insurers’ and
employers’ initiation or continuation of accident prevention and loss
management programs, along with any initiatives for preventing,
detecting, and prosecuting comp fraud. Its recommendations aren’t
mandatory, but insurers generally use them as a guide or starting point
in their own decisions for the rates they charge to their customers.
The Insurance Department’s approval of the proposed rates will result
in some employers seeing decreases of greater than the 10.22 percent
average. Among the industries that will see greater decreases are
clerical offices (12.1 percent decrease); landscape contractors (13.5
percent); attorneys (20 percent); accountants (18.2 percent); insurance
companies (16.7 percent); candy manufacturing (15.2 percent); paper
container manufacturing (17.0 percent); printing (16.0 percent); rubber
goods manufacturing (14.5 percent); car manufacturing (15.3 percent);
printed circuit board assembly (20.7 percent); communications equipment
manufacturing (17.6 percent); instrument manufacturing (17.3 percent);
drug manufacturing (14.0 percent); chemical manufacturing (19.2
percent); and wholesale meat dealers (15.7 percent). Employers whose
decreases will be less than the proposed 10.22 percent include public
libraries (7.6 percent decrease); auto parts stores (4.3 percent);
outdoor amusements (2.0 percent); and police and firemen (4.1 percent).
Pennsylvania: Court Examines Workplace Flirtation
When does an office flirtation cross the line into sexual harassment? A
federal court sitting in Pennsylvania recently faced such a situation.
What happened. A woman took a temporary job as an administrative
assistant with Cingular Wireless in June 2004. In October 2004, her
manager allegedly began to make sexual comments to her, indicating that
he was interested in her sexually. One incident involved a long Instant
Messenger (IM) conversation during which the manager described a sexual
dream he had had about her. Over the following weeks, she said, the
manager began verbally harassing her almost daily, explicitly stating
his interest in—and sexual fantasies about—her. She also stated that
the manager implied that if she had sex with him, he could help her
find a permanent position.
She sought to put a stop to this behavior by meeting with him in his
office, and during that meeting, he made sexually suggestive comments
and tried to grab and hug her to prevent her from leaving the room. She
filled out a sexual harassment complaint with Cingular, which
investigated, but didn’t discipline, the manager. She left the company
in mid-December 2004 and later sued it on a number of bases, including
maintaining a sexually hostile work environment. Cingular asked the
court to dismiss the case at an early stage.
What the court said. In order to prove a hostile work environment
claim, the employee had to show:
• She suffered intentional discrimination because of her sex.
• The discrimination was severe or pervasive.
• It detrimentally affected her.
• It would have detrimentally affected a reasonable person in like
circumstances.
• There is a basis for employer liability.
The court examined the manager’s behavior against this standard.
On the IM exchange, the court said it wasn’t evidence of an objectively
hostile environment because the employee willingly discussed the sex
dream with the manager. The court decided that a reasonable person
wouldn’t find that the IM conversation between the two constituted
anything other than flirtation. The court warned against mistaking
ordinary socializing in the workplace, such as male-on-male horseplay
or intersexual flirtation, as discriminatory conditions of employment.
In regard to the other events, even assuming that they constituted
harassment, they were at best sporadic and isolated, and none were
sufficiently severe to rise to the level of a hostile work environment.
The court granted Cingular’s motion.
Professional Pointer: Isolated incidents of sexual behavior are usually
not enough to prove a sexually hostile environment. Such behavior, to
be actionable, must permeate the workplace and change the very nature
of the plaintiff’s employment.
Save the Date
April 15, 2007
The Pennsylvania State Council of SHRM, Inc.
Presents the 8th Annual Pennsylvania State
Legislative & Legal Conference at Hilton Harrisburg & Towers
Harrisburg, PA