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Employment Law Update

Some of the largest member unions—including the Services Employees and Teamsters—have announced that they are leaving the national AFL-CIO to form their own association of unions. This represents a loss of about one-third of the national association’s dues-paying members. At first blush, this would seem to be good news for employers, suggesting that the union movement is disorganized and in great disarray. However, it likely means that most unions will be more aggressive and activist than before, at least in the short term. The dissident unions broke off from the AFL-CIO because they felt it had not been aggressive enough in organizing campaigns and in bargaining. Thus, in response to the rift, both the old and new union associations are likely to be more active in both arenas. And in Utah, local leaders from both sides of the labor schism have expressed hope and optimism that they can continue to work together.

An Affair to Remember, a Practice to Forget

Employees not sleeping with the boss now may be as much a risk for lawsuits as those persons who are doing so. The California Supreme Court recently decided that an employee not involved in an office romance can sue for sexual harassment if he/she feels disadvantaged—e.g., not advancing in the company—because the boss is having affairs with other workers who are advancing. Typically, under federal law and in most states, only employees directly impacted by a supervisor’s sexual overtures have been allowed to sue for sexual harassment. The California ruling, however, concludes that the favoritism that often results from even consensual affairs is a possible form of sexual harassment under the State’s law. Thus, those negatively impacted by it because they are not romancing the boss can now sue. It is unclear whether or not courts outside of California will accept this ruling but they may do so, because it certainly seems unfair that someone fails to advance at work because they are not sleeping around. What is clear is that supervisors—and not just those in California—need to understand that now, more than ever, there are many, many risks associated with office affairs and they should be avoided.

What’s in a Name? Maybe Bias. . .

So, besides not sleeping with their employees, what else should supervisors remember to do? How about calling employees by their real names? A California appeals court has ruled that an employer is liable for national original discrimination because a supervisor insisted on calling an employee “Manny,” despite the employee’s objections to the nickname, instead of his actual Arabic name (Mamdouh El-Hakem).

Quick Review

OK, here is a quick review for your supervisors. Rule 1, don’t sleep with the employees. Rule 2, call the employees by their real names. And you all thought employment law compliance was difficult?

New EEOC Publications

Although it has not published compliance information quite as concise and/or blunt as the one I gave you just above, the Equal Employment Opportunity Commission (EEOC) does publish many guidelines designed to help employers comply with the laws prohibiting discrimination, harassment and retaliation The EEOC recently announced the release of two new such publications. One is a revision to the EEOC compliance manual (used by investigators when reviewing charges) that addresses when a charge must be filed to be consider timely (for further information, see http://www.eeoc.gov/press/7-21-05.html ). The other is a guideline discussing when persons with cancer are protected by the Americans With Disabilities Act (see http://www.eeoc.gov/facts/cancer.html ). Given that cancer is a far-too-common disease, the latter publication should be of great use to employers trying to assist their employees who suffer from the affliction.

Employment Law Briefs

Here is some recent news on Social Security numbers and stock options. Numbers: CCH reports that Social Security Commissioner Jo Anne B. Barnhart has announced that all employers can use the Internet to check whether employees' names and Social Security numbers match. The Social Security Number Verification Service (SSNVS) allows an employer to enter 10 names and numbers and find out, almost instantly, if they match. The system apparently will provide some type of explanation of a mismatch and also will let the employer know if the name or number is for a dead person. However, SSNVS will not provide the employer with an alternate number when a mismatch occurs. To be able to use the SSNVS, an employer must register for the SSA's Business Services Online (BSO) (http://www.socialsecurity.gov/bso/bsowelcome.htm). Options: CCH also reports that the Internal Revenue Service (IRS) has withdrawn proposed regulations that would have required employers issuing statutory stock options to pay FICA and FUTA taxes and withhold income tax on them when the options were exercised by employees. The 2004 American Jobs Creation Act overrode the proposed regulations, excluding from the requirement both incentive stock options (ISOs) and options granted under employee stock purchase plans ESPPs. The proposed regulations were highly controversial.

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). Contact him at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.


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