May 2009 | Volume 27 / Number 12
Be Aware of New HR-Related Laws, Tougher Enforcement: Legal Expert
By Brendan B. Read
To avoid such litigation she recommends that employers first clear up any internal discrimination or harassment complaints or claims to avoid even the faint appearance of singling out staff. They can then devise downsizing plans based on fairly-administered criteria that would stand up in court. These include job elimination, office, or facility closure providing that the firms do not open, expand, or have similar jobs openings in the same metro area, and staff layoff selection based on dates hired and objectively-determined-andmeasured employee performance. Crain also suggests going one step further: offering employees severance and/ or healthcare insurance in exchange for signing waiver agreements that release their right to sue. The new economic stimulus package includes a COBRA (Consolidated Omnibus Budget Reconciliation Act) subsidy that cuts employer costs to 65 percent from 80 percent, though only for nine weeks
• The Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The new law changes and broadens the definition of disability in four ways. These are: impairment must be considered without corrective measures; impairment can be episodic or in remission if the medical condition would be a disability when active; major life activities now include bodily functions; and the interpretation of “substantially limits” has been broadened. The ADAAA requires employers to make reasonable accommodations for workers with disabilities once the worker requests an accommodation. Crain advises employers to discuss with employees who say they are disabled how to effectively and fairly provide accommodation. These need not be expensive: they can be as simple as permitting them to get out of their workstations every two hours to walk around. They can also include working from home, which according to The Telework Coalition can benefit employers by cutting facilities costs and bolstering productivity
• A Family and Medical Leave Act (FMLA) amendment signed also in 2008 that permits employees to take up to 26 weeks for every 12 month period to care for injured or ill family members who are active duty military personnel. These individuals are hospitalized for periods of time and then they are in rehab or outpatient situations but they still need care. The definition of family members is broad: spouses, offspring, parents, and next of kin.
Crain recommends that employers build in enough flexibility into their HR and staff management to allow for additional leave. These strategies include budgeting for hiring temporary staff and dividing up the work
• Liability and tax issues over contracted staff: including on-premises outsourced a.k.a. insourced and independent home-based staff such as contact center agents.
One of the most common matters that arise with such arrangements is liability for discrimination, harassment, and workplace injuries at contracting organizations’ premises. Crain says courts have ruled that both parties: the contracting firms whose site the work is being performed at and the contractors share equal responsibility for such matters.
Another related issue is treating contracted insourced and independent workers as employees, such as by ordering them to work more hours or taking on added tasks than provided for in the contracts. Such incidents happen because line managers sometimes do not see the distinction between insourced workers and employees especially if they are in the same premises. These matters can best be handled by educating managers on procedures.
“While these agreements are typically very flexible to allow for added work and duties in certain cases, “says Crain, “this is an extra step that avoids being liable for companies’ incurred current and back overtime, payroll taxes, tax withholding, and workers’ comp costs.”