Employers should note that no federal law currently makes caregivers a protected class. However, the EEOC is increasingly investigating and in some cases filing suits on complaints from caregivers.
Caregiver discrimination is an easy mistake for the employer to make. Suppose Sue has two daughters under the age of 6. One of her daughters has special needs due to a congenital disability. Sue’s employer decides not to promote her to a regional sales position that requires travel, because of her personal situation. The employer assumes that Sue will be unable to travel, or will do a poor job in the new position, because of her caregiver responsibilities. This is illegal discrimination. Sue is losing out on a promotion she would otherwise receive, simply because she is associated with a disabled person – a type of illegal discrimination prohibited under ADA, the Americans with Disabilities Act.
Caregiver responsibilities can include (more…)
The complete OSHA guidance on Swine Flu Preparedness is available free to employers.
The possibility of a global influenza epidemic – or pandemic – is not recent. For years, OSHA has recommended that every employer have plans in place for a major influenza epidemic, just as they have emergency plans to cope with a power outage or a severe winter storm.
A global influenza epidemic would occur when the flu virus mutated to produce a new strain. The popular flu shots would not be effective against the new strain. That is exactly the current situation with the swine flu.
There is no evidence that the current swine flu outbreak in Mexico will become a pandemic – but it is the type of flu that is most likely to cause a pandemic. This is a great time for employers to review their emergency precautions.
There has not been an influenza pandemic since1918. The Spanish Flu afflicted 50% of the world’s population, affecting people in every city and town. About 50 million people died, a number comparable to 33% of the population of Europe at the time. The pandemic killed more people than World War I.
Seasonal influenza outbreaks are usually fatal only to small children, the elderly and those with major health problems. Pandemics occur when a new strain of the virus appears, because humans have no antibodies to fight the new strains. Most of those who died from the Spanish Flu were otherwise healthy young people in their late teens, twenties or early thirties.
Because there would be no defense against the flu during a pandemic, employers are urged to have plans in place to minimize contact between employees. This would include allowing employee to work from home, and scheduling conference calls or remote meetings using laptop cameras, rather than face-to-face business meetings. They also urge that businesses such as retail stores use delivery or drive-thru windows to minimize contact between employees and the public.
During a pandemic, most businesses would suffer staffing shortages due to the absence of afflicted workers. Theaters, malls, restaurants and other public gathering places would likely be deserted, as people remained isolated in an attempt to avoid spreading the flu.
However, certain businesses would likely be overwhelmed by demand during an influenza pandemic. Pharmacies and grocery stores would experience unusual demand. Hospitals, doctor’s offices and clinics might be overwhelmed. Employers should make plans now – before they are needed – to deal with those situations.
According to a recent report, state and federal age discrimination claims were up 29% in 2008. This is almost double the increase in overall discrimination complaints, up 15%. And that number is not just complaints filed by workers – it is actual lawsuits filed by the EEOC or state agencies.
The federal ADEA or Age Discrimination in Employment Act, prohibits employers from discriminating against workers between the ages of 40 and 70 in any employment decision, including hiring, firing, promotions, salary, benefits, training, etc.
According to the EEOC, age should not be a factor in determining which employees are laid off. It is fairly common for an employer to thin, “Joe is eligible for retirement in a few years anyway, we’ll lay him off.” However, it is illegal discrimination based on age. Some employers take such actions because they think older employees will be impacted less by a layoff. Others do it to save potential pension and medical expenses. Either way, it is illegal.
The AARP, of course, is the international association of people over the age of 50.
“The wave is still building,” says Gerald L. Maatman, Jr. of Seyfarth Shaw, a Chicago law firm that analyzes both state and federal discrimination suits against employers. It is expected to peak in the 3rd quarter of 2009.
Employers should always base decisions on which employees to lay off on objective criteria that do not include age. Acceptable criteria include job performance, seniority, diverse skills or a combination of those factors. Employers should justify that decision in writing, and keep careful written records of the basis for the decision.
It is also illegal for an employer to discriminate against one older worker in favor of another older worker. A recent trend has been for employers to lay off workers in their 50s, in favor of workers in their 40s, based partly on age. Although both workers are covered by the ADEA, this is still age discrimination.
Southern Air, Inc. specializes in long haul, heavy-lift air freight operations using the company’s B747 fleet of cargo planes. Based in Norwich, the company has been in operation since 1999 when it acquired the fleet of the former Southern Air Transport Company.
Southern Air filed a defamation suite against 9 former employees in Connecticut Superior Court in May 2008 after some of the workers raised safety concerns with Southern Air, OSHA and the FAA or Federal Aviation Administration. The workers were all former flight crew members and subsequently filed a whistleblower complaint with OSHA.
OSHA’s investigation found that the company’s lawsuit was filed in retaliation for the worker’s protected activities under the whistle bower provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century or AIR21.
“This order sends a strong and clear message that these and other workers have the right to raise safety issues with their employers and regulatory agencies without fear of retaliation and intimidation,” (more…)
The most recent regulations were announced by the U.S. Citizenship and Immigration Services (USCIS) on March 20, 2009.
Employers who receive TARP funds will need to provide additional statements to the U.S. Department of Labor showing that they have made good-faith attempts to fill the positions with qualified American workers. In addition, the employers are not permitted to pay the foreign workers less than American workers with the same skills.
The new regulations are generated under the Employ American Workers Act or EAWA, a portion of the ARRA signed on February 17, 2009. The new provisions are in effect only until February 17, 2011 (unless extended by law.)
H-1B visas are granted to highly-skilled, temporary foreign workers for a maximum of 6 years. The visas are granted to just 65,000 workers per year, although an additional 20,000 visas are granted to workers with a master’s degree or equivalent. Many of the H-1B visas are granted to workers in (more…)