Washington Employers: Workplace Posters

The Department of Labor and Industries has updated three of its workplace posters which are required to be posted in a conspicuous place in the workplace. The updated posters are:

1. Job Safety and Health Law (click here to download)
2. Your Rights as a Worker (click here to download)
3. Notice to Employees-If a Job Injury Occurs (click here to download)

Make sure you get these downloaded and posted as soon as possible.

Later,

Rod

Correction to Cobra Bites Post

Last week I posted an update on the legislative changes to COBRA that are part of the economic stimulus package. In that post I indicated that individuals that paid for COBRA at the full rate since September 1, 2008 would be able to receive a reimbursement for 65% of the premiums paid since under the terms of the new legislation they are "assistance eligible individuals." One of my readers, anonymous, told me I was wrong about this since the legislation speaks of subsidizing premium payments from the date it is sign (2/17/09) forward. I responded that I didn't think that was the case since the definition of an assistance eligible individual is someone who was involuntarily let go on or after September 1, 2008 and before January 1, 2009. I felt the legislation was not clear on the issue and, let's be honest, I just couldn't accept that a person who found a way to pay the premium between September 1, 2008 and February 17, 2009 should be penalized. I mean, hey, this is an economic stimulus package after all and if you reimburse an assistance eligible individual for past premiums, then they will use that money to stimulate the economy. Well, I was wrong. I just found the following on the Department of Labor website:

The premium reduction provisions relate only to premiums for coverage periods beginning after the new law was enacted on February 17, 2009. The law does not allow reimbursement of premiums for coverage periods beginning before February 17, 2009. Qualified individuals can, however, receive the premium subsidy going forward, for up to nine months.

Your plan administrator should provide to you a notice of your right to apply for the premium reduction. You may also want to contact your employer directly to ask about getting the premium reduction and how to reconcile any amounts you might have overpaid after February 17, 2009.

So there you have it. I stand corrected and thanks for the heads up Anonymous. In the meantime, I will keep you up to date on additional information I learn about COBRA.

Take care,

Rod

EEOC settles sex harassment case for $200K plus

According to the EEOC, a female employee (Bell) that worked in the Service Department at Murphy Ford, in Chester, Pennsylvania, was the victim of sexual harassment perpetrated by the store Service Manager. The Service Manager is alleged to have made explicit sexual remarks, commented about oral sex, and grabbed his private parts in the presence of the Bell and other females. Bell went to upper management and ownership in an attempt to get the matter resolved. Shortly, after her reports she was abruptly terminated.

The dealership settled the case for $244,000.

Take Aways:

1. Take all complaints seriously.

2. When a complaint is received investigate immediately.

3. While the investigation is pending give consideration to what steps can be taken to avoid retaliation.

4. In the event you are able to confirm serious misconduct by the alleged perpetrator. Act swiftly and meaningfully. Make sure your disciplinary action is tailored to the seriousness of the conduct such that it will have the effect of stopping it. Don't be afraid to terminate. Trust me, your lawyer would rather defend the wrongful termination claim than the sexual harassment claim.

5. Think twice and then a third time before firing an employee that has raised issues of harassment or retaliation. Even if there is not enough to establish a claim for harassment or discrimination, your actions in terminating the employee will be viewed as retaliatory. Courts, and juries, place a great deal of weight on the temporal relationship between the report of harassment and discrimination and the adverse action. In plain English: Timing is everything. If the action you take looks bad, juries will assume it is bad.

6. Be proactive. Train, train and train some more. Even in difficult economic times it takes a whole lot of training to add up to $244,000.

Just some thoughts,

Rod

CAUTION: COBRA may bite.

Employers that employ 20 or more people are required to comply COBRA. What that means is these employers have to allow departing employees the option to continue their health insurance by paying the premium, as well as, a 2 % administrative fee. Most employees, unless they have a serious health condition, do not elect to have COBRA coverage. They make this decision for a variety of reasons. Typically, they can find similar insurance for less or they conclude the benefit is cost prohibitive.

Enter the stimulus package. Under the stimulus package signed by President Obama today, the government is going to subsidize 65% of an employee's COBRA premium provided the employee became involuntarily unemployed (that's a nice way of saying someone done stole your cookies) between September 1, 2008 and December 31, 2009.

My first thought was, "How does this all work?" The answer appears to be that when an employee elects to receive COBRA benefits, after becoming "involuntarily unemployed" the employer pays 65% of their COBRA benefit. Then the employer will be able to offset that premium payment against their payroll taxes. (More business for my CPA buddies.) In addition, employers must contact their employees who elected to receive COBRA on or after September 1, 2008 and notify them that they are entitled to have their former employer reimburse them the 65% of the premiums paid to date. Let me see if I can anticipate the next question. What if you did not elect to receive COBRA because of the cost and the election period has expired? Well, all is not lost. Apparently, you will get a new election period. That means that employers will have notify employees let go between September 1, 2008 and February 16, 2009 to allow them a second opportunity to elect receipt of COBRA benefits, this time under the terms of the stimulus plan. Once notified, employees will have 60 days to make that election.

The bad thing about legal training is that your brain gets to a stage where it never stops churning. So I don't know whether employees who were terminated before September 1, 2008 but whose COBRA election period expired on or after September 1, 2008 will be entitled to receive a second chance at the new and improved stimulus COBRA. My suspicion is they won't. I'll let you know what I find out.

For those of you, like me, that can brag that tax was their worst class in law school and believe that Calculus was conceived to flummox us average folk, here is a video to explain the economic stimulus package.

Later,

Rod

Blog to watch

Kimberlie Ryan is an attorney, teacher, television legal analyst and author in Colorado. I ran across her Blog (Kimberlie Ryan's Hot Button Forum) after reading an article she published on severance agreements on the website of a Colorado television station. Her Blog is a good read. In her Blog she talks law, politics, and offers some opinion. You may not always agree with her, but she'll at least get you thinking. To read Kimberlie's Blog click here or scroll down to my Blogroll.

Got to go. My paralegal is telling me its time to get seminar materials, due next Monday, done. First things first, I think I'm going to take the jump and try Twitter. You should see the link to Twitter come up soon.(Unless I mess it up and crash the Internet.)

Later,

Rod

1.55 Million Reasons to get your act together...

The EEOC recently announced that it settled a claim brought against Merrill Lynch for the sum of $1,550,000. In it's lawsuit the EEOC alleged that Merrill Lynch refused to promote and terminated Majid Borumand because of his Muslim faith and Iranian descent. According to the EEOC, at this same time Merrill Lynch promoted a less qualified individual. In addition to the financial terms of the settlement, Merrill Lynch had to agree to provide training on discrimination based on race and national origin. In addition, it had to agree that it will not discriminate based on race and national origin, nor will it retaliate against those who oppose discrimination in the workplace.

Employers it's time to pay attention to these claims they are on the rise and this case is not an aberration in terms of value. Just recently, a federal appeals court upheld a $756,000 damage award against AT&T in favor of two Jehovah's witnesses who were fired after attending an annual convention for members of their faith.

Law Firm sues former Associate for educational expenses.

When employees elect to leave an employer, they often fail to consider whether they have obligations to their employer. Although I don't know if that was the case in a matter involving an associate at the Perkins Coie law firm but according to a recent article (click here to read), Perkins Coie is suing one of its associates for approximately $36,000 in educational expenses paid by the firm. That employee left for a rival law firm. According to the article, Perkins advanced educational expenses that the employee could then work off over time. When the associate left, he had not worked off his expenses and Perkins must have decided its time to pay up. I haven't seen anything other than the article linked above so I won't address the merits of the claim or any potential defenses.

Why write about it? Well for a couple of reasons. Employees sometimes get the impression when they take a new job that they can leave without any obligations to their current employer. That is not always the case. Unfortunately, most employers offer to help with things like educational assistance but don't think about what will happen if the employee decides to leave shortly after they have received the benefit. To be fair, the employee does not give thought to this either. Typically, these agreements are made between the employee and employer during what I refer to as the honeymoon period. It's just human nature that we don't want to think about what will happen if things sour. That's a mistake. These things need to be discussed and memorialized (that's a lawyer term for get it in writing). Please be a little more detailed than reciting, "Joe agrees to repay our company for educational expenses if he leaves." Consider including the following:

1. How will it be repaid? In lump sum or over time?
2. Can the employee discharge all or a portion of the obligation by meeting performance goals and/or through length of service?
3. If a law suit becomes necessary will it be heard in court or in an arbitration proceeding?
4. In what jurisdiction will the dispute be heard?
5. Will the prevailing party be entitled to recoup their attorney's fees and court costs?

Finally, if you are an employee and are concerned about having to repay your employer for a job benefit, raise that issue before you leave. By being transparent with your employer, more often than not, you will find that these issues can be worked out.

Rod

Rod's Reminder:
Don't forget about the WLAD

Washington is one of those few states that has a strong state law against discrimination, the Washington Law Against Discrimination (WLAD). Too often when employers enter into to a dialogue of sexual harassment, and other forms of discriminatory conduct, they tend to focus on the federal components of the law (i.e. Title VII, ADA, FMLA). In so doing they fail to take into account that they may have a greater obligation to act under corresponding state law. In addition, keep in mind that an experience employment law attorney will always examine the facts of their client's case to determine which law affords a greater degree of protection.

The lesson: Ignore state law at your peril.

Later,

Rod