Recently, the US Equal Employment Opportunity Commission (“EEOC”) announced that Trinity Products, Inc (“Trinity”), a billboards and signposts manufacturer, agreed to pay $55,000 to settle a sexual harassment and retaliation suit filed by the EEOC. The EEOC alleged that a “high level manager harassed his assistant with offensive language and gestures and requests for sexual favors and sought to replace her after she complained to other supervisors about his conduct, resulting in her discharge.” (EEOC, et al. v. Trinity Products, Inc., et al., Case No. 4:09-CV-01617 CAS). As part of the settlement, Trinity must distribute a notice informing employees of their rights under federal anti-discrimination laws and provide sexual harassment training for all managers.

The above case is a reminder that the “language” used by one employee can easily be considered “offensive” and sexual harassing by another employee. An employee’s stray comment, sexual inference or joke is often considered sexual harassment by a co-worker. Interestingly, the improper comments are often made by those employees in a supervisory, management or senior executive position.

To reduce company liability and prevent harassment allegations, claims and lawsuits, many companies conduct sexual harassment prevention training on an annual basis. Employees should be provided with the legal definition of sexual harassment, given examples of sexual harassment based on common work-day interactions, provided the company’s reporting procedures and encouraged to report all incidents without fear of retaliation.

Creating a culture where employees are empowered to report sexual harassment often starts with a well drafted employee handbook that clearly defines the company’s reporting procedures. To prevent sexual harassment, we recommend that all employers review their handbook policies for clarity and consider sexual harassment prevention training on an annual basis. Indeed, this training is a requirement for employers with more than 50 employees, which includes contractors and part-time employees.  Additionally, the training should be considered by smaller employers to bolster their defenses in the event of similar litigation.

Liberty Law provides economical harassment prevention training that complies with the law, adding to the employer’s defense in the event of litigation. Additionally, Liberty Law will provide this training and seminar free of charge to its level 2 and 3 monthly subscribers (more details here) after 6 months of engagement.

A recent decision by the California Court of Appeal has basically banned unions from picketing on business property within California. In its opinion the court invalidated two California laws designed to protect union demonstrations on business property.  The reviewing court ordered the trial court to grant an injunction restraining the United Food and Commercial Workers Union (“the Union”) from picketing in front of a Sacramento warehouse store owned by Ralphs Grocery Co. (“Ralphs”). Ralphs Grocery Co. v. United Food and Commercial Workers Local 8, No. C060413 (Cal. Ct. App. July 19, 2010).

Facts: The dispute arose when several members of the Union picketed in front of Food Co., a subsidiary of Ralphs, for being a nonunion store. Ralphs sued for trespass and sought to enjoin the unauthorized picketing after an unsuccessful attempt to require the Union to follow Food Co.’s rules for speech on the property. The rules prohibited, in part, the distribution of literature, physical contact with any person, display of signs larger than two feet by three feet, and speech within 20 feet of the store entrance. Ralphs alleged that the Union didn’t follow the rules ; specifically, that the Union  was handing out flyers and enlisting supporters within five feet of the entrance.

In bringing suit, Ralphs challenged the constitutionality of California’s Moscone Act, which deprived state courts of jurisdiction to issue injunctions against “peaceful picketing or patrolling” involving any labor dispute. Ralph’s lawsuit also challenged California’s Labor Code section 1131.8, which imposed severe restrictions on a property owner’s right to obtain injunctive relief against union activities. The trial court ruled that the Moscone Act was unconstitutional because it constituted content based discrimination in violation of the First Amendment and Equal Protection Clause. The trial court, however, upheld the constitutionality of California’s Labor Code section 1138.1 in light of a prior appellate decision which held that Labor Code section 1138.1 did not violate federal and state constitutional guarantees of equal protection. Applying Labor Code section 1138.1, the trial court denied Ralphs’ motion for a preliminary injunction. Ralphs appealed.

Decision: Three questions of law were at issue on appeal:

1) Is the entrance area of Food Co., where the picketing was taking place, a public or private forum? If public, the California Constitution required that any time, place, and manner restrictions on free speech be reasonable. The court found that Food Co.’s entrance area was not a public forum, so the company was free to restrict the type of speech allowed at its entrance.

2) Is California’s Moscone Act, which limited the ability of courts to issue injunctions in labor relations cases, constitutional? The constitutionality of the Moscone Act was at issue because the Act’s selective restriction was based on the content of the speech. The court held that the Moscone Act was unconstitutional under the First and Fourteenth Amendments because it afforded preferential treatment to speech concerning labor disputes over speech about other issues.

3) Is the requirement of California’s Labor Code section 1138.1 that factual showings be made before a court is able to grant an injunction in a labor dispute constitutional (i.e., that unlawful acts have been threatened and will be committed and that substantial and irreparable injury to the property would result)? The court found that this Labor Code section was unconstitutional for the same reasons as that of the Moscone Act.

Stay Tuned: Although the decision may be subject to further appeal, this case provides important guidance for employers dealing with the issue of regulating union activity on business property. The court’s ruling is seen as a major victory for California retailers who have endured loss of business and damage to their image resulting from union picketing on their properties. A wide spectrum of businesses ranging from hospitals to retail chain stores are expected to be impacted by this decision. Employers need to have a firm grasp of what constitutes public and private forums under California law and be able to determine the types of content neutral restrictions that are enforceable on their premises.

The Wall Street Journal writes that the U.S. economy slowed in the second quarter of this year and the government said the recession was deeper than earlier believed, adding to concerns over the recovery’s strength.  The Commerce Department Friday said U.S. gross domestic product, or the value of all goods and services produced, rose at an annualized seasonally adjusted rate of 2.4% in April to June. In its first estimate of the economy’s benchmark indicator, the government report showed growth was lifted by business investments and exports. Consumer spending, a key growth engine for the U.S. economy, made a smaller contribution to growth.

Economists polled by Dow Jones Newswires were expecting GDP to rise by 2.5% in the second quarter. In the first quarter, the economy grew by 3.7%, revised up from an originally reported 2.7% increase. But growth estimates all the way back to the start of 2007 were revised lower.

After suffering its worst downturn since the 1930s, the U.S. economy began taking small steps forward about a year ago, helped by the Federal Reserve’s slashing of lending rates and the government tax cuts. But recent data have raised questions about the recovery’s durability. The job market remains weak, with almost one in 10 Americans unemployed, and growth in consumer spending and manufacturing appears to be slowing down.  The government revision of data over the past three years showed that the economy’s exit from its deep slump was weaker than previously estimated. In the final quarter of 2009, for example, GDP rose at an annualized rate of 5.0% as consumer spending didn’t grow as much as previously thought. The earlier estimate was that GDP increased by 5.6%.

In the most recent quarter available, consumer spending rose by a moderate annualized rate of 1.6% in April to June. Spending by Americans, which accounts for more than two-thirds of the economy, rose by 1.9% in the first three months of the year.  Meantime, business spending on equipment and software continued to surge, increasing by 21.9% in the second quarter, compared with a 20.4% rise in the first three months. The figures highlight the contrast in the economy between high company profits and a persistently feeble jobs market keeping consumers at bay.

Federal Reserve Chairman Ben Bernanke, who last week said the economy’s outlook was “unusually uncertain”, has stressed the strength of the recovery will depend on whether consumers spend and companies invest enough to make up for fading support from the government. With unemployment still at 9.5% and Americans worried that taxes will need to rise to cut a huge budget deficit, that remains in doubt. When they meet Aug. 10, Fed officials are widely expected to repeat they see interest rates staying close to zero for a while and are likely to at least discuss ways in which they could support the economy further. A Fed official Thursday warned that deflation is a growing risk for the economy.

Economic growth in the U.S. during the second quarter slowed to 2.4%, indicating that the recovery has been weaker than previously expected. David Wessel, Dennis Berman and Evan Newmark discuss. Also, Dennis Berman tells the story about one of the leaders at Tiananmen Square who is now one of the top candidates to manage Berkshire Hathaway’s investment portfolio.

In a sign of the economy’s weakness, Friday’s report showed price increases continued to move down in the second quarter from already low levels.

The underlying inflation rate — which excludes volatile moves in food and energy prices and is closely watched by the Fed — increased by 1.1% in the April-to-June period from the previous quarter. That was the lowest reading of the core personal consumption expenditure index since the first three months of 2009 and came after a 1.2% rise in the first quarter of this year.

Other inflation gauges within the government’s report were also muted. The overall price index for personal consumption expenditures rose by only 0.1% in the second quarter, slowing sharply from a 2.1% gain in the first quarter. Gross domestic purchase prices rose just 0.1%, after a 2.1% increase in the first quarter. The chain-weighted GDP price index increased by 1.8%, compared to 1.0% in the first three months.

For all of 2009, the government said the U.S. economy contracted by 2.6%, compared to the previously estimated 2.4% decline. In the whole of 2008, GDP was flat, instead of rising 0.4% as previously estimated. In 2007, the world’s largest economy expanded by 2.1%, down from an originally reported 1.9% increase.

In this post by Sarah Needleman of the Wall Street Journal, she points out a new tax credit that may be available to small business owners who pay for health insurance for their employees:

Uncle Sam wants small-business owners to take notice of a new health-care tax credit — one of the first provisions of the recently enacted health-reform law to go into effect.

Last week, the Internal Revenue Service announced that it’s sending postcards to more than four million small businesses urging them to check if they qualify for the tax break. It’s being offered in two phases, with the first worth up to 35% of qualifying businesses’ premium health-care costs for tax years 2010 through 2013. The rate increases to 50% in 2014. The maximum length of potential coverage for qualifying employers is six taxable years: four years under the first phase and two years under the second.

In general, to be eligible for the tax credit, businesses must cover at least 50% of the cost of health-care coverage for some of their workers, employ fewer than the equivalent of 25 full-time workers and pay average annual wages below $50,000. The IRS says the tax break is designed to encourage smaller businesses – which are not mandated by 2014 to provide health care, unlike companies with more than 50 employees – to offer health coverage to their low- and moderate-income workers.

Tammy Rostov, owner of Rostov’s Coffee & Tea in Richmond, Va., says she received the IRS’s postcard and expects her small retail business to be eligible for the credit. She offers health coverage to her five full-time employees and pays 100% of the premium, an amount that she says has increased by more than 200% over the past six years. She describes the tax credit as a welcome relief. “It’s a step in the right direction,” she says.

But other qualifying business owners are less enthusiastic, arguing that the tax break won’t make a significant impact on their bottom lines.

Pascal Helou, owner of Globotron LLC, a technology-consulting company in New York, says affording health insurance for his three employees is a non-issue given that he’s struggling these days just to stay in business. Since 2007, he says sales have declined 30% every year and his firm now has four clients, down from 15.

“For my business, this type of tax credit will not make a difference,” says Mr. Helou, adding that he has yet to receive the IRS’s postcard about it. “The real issue is the amount of business we’re getting. Nobody’s willing to spend money” on technology-consulting services.

Meanwhile, there are also some entrepreneurs who don’t believe the government should provide financial incentives for small businesses to offer health coverage to workers in the first place.

Jim Fab, owner of Fab Electric Inc., an electrical contractor business in Gaithersburg, Md., falls into this camp. Providing health insurance and other benefits to his 18 employees, he says, is “hopefully what separates me from the electrical contractor that doesn’t.”

Some small businesses appear to be left without any government aide under the new piece of health-reform legislation. These include organizations with between 25 and 50 employees and ones with less than 25 employees but payrolls that average $50,000 or more.

Tracy Betts, says her Springfield, Va., Web-design business, Balance Technology Group Inc., doesn’t qualify for the credit. While she employs the equivalent of eight full-time workers, their salaries’ average $71,000. “For me, it’s all about the programmers, and I can’t hire anyone for less than $90,000 (in annual pay),” she says.

Ms. Betts says a year and half ago she told her staff she could only afford to offer them either health-care coverage or a retirement-savings plan with a matching contribution from the company. All but one chose the latter benefit, she says.

This Smart Money article by Diana Ransom posted at the Wall Street Journal web page discusses several future growth industries.

Much has been said about the Obama administration pushing through new regulations on everything from health-care companies to banks — not to mention the impact these changes will have on the overall economy. But less attention has been paid to the way the new regulations will play out for entrepreneurs: Will stepped-up regulation stifle or stimulate growth? SmartMoney spoke with business owners, venture capitalists and analysts for a snapshot of six industries poised for growth.

Telecommunications

Even though shares of telecom giant Verizon Communications and its Finnish counterpart Nokia fell last week after reporting lackluster first-quarter results, there may be wind in their sails yet, says Drew Clark, director of strategy for IBM’s Venture Capital Group in San Mateo, Calif. One boost may come from the president’s National Broadband Plan, a program that aims to increase access to mobile broadband and support a nationwide public safety wireless broadband network. These firms, along with others, will likely benefit, says Clark. Per the Obama administration’s 2009 stimulus package, the government plans to spend $7.2 billion on the nation’s broadband projects.

Hosted Services

Perhaps the greatest beneficiaries of the president’s broadband agenda are the small companies that will have better access to faster web channels. FlexiSphere, a Hawthorne, N.Y., firm, offers financial services firms so-called cloud computing — technology that allows firms to share the server of a larger company via the Internet. As the nation’s infrastructure improves, so will access to the company’s products and services, says Tom Saleh, the company’s founder and CEO. “Cloud computing is all about better, faster, cheaper,” he says, adding that this is just a first step. “Cloud computing is doing for computing what the Internet did for communications,” Saleh says.

Information Technology

So far, the government hasn’t suggested the need to further regulate the information technology field, giving these firms a distinct advantage. That’s because the uncertainty surrounding regulatory reforms can both stymie a small company’s ability to make decisions and trigger a pullback in investment. In the first quarter of 2010, the IT industry raised $1.5 billion for 192 deals — the most of any other industry tracked by Dow Jones VentureSource, a research firm owned by News Corp., which also publishes SmartMoney.com and The Wall Street Journal.

Further, there’s a lot of pent-up demand for technology, says Karl Mills, the president and chief investment officer for Jurika Mills & Keifer, an independent investment advisory firm in Oakland, Calif. “Old inventory of technology gets written off quick when it becomes obsolete. However, during the downturn, many consumers and businesses put off buying new equipment,” he says. Plus, many of the larger companies in this arena, which often scoop up their smaller brethren, are well capitalized. “Microsoft could write a check and bail out Greece,” Mills says.

Media, Content Production

With that enhanced infrastructure, other beneficiaries include media companies and other content providers, which have struggled in recent years thanks to a precipitous drop in advertising revenues, says Sal Tirabassi, a partner at M/C Venture Partners in Boston. Between downloading movies and watching TV online at home or on a web-enabled mobile device, consumers’ appetites for content will likely expand, as will advertising opportunities. “Advertisers are increasing their budgets slightly again,” he says. “There will be a bit of a rebound there.”

Health Care

Thanks to federal and state stimulus dollars, the health-care infrastructure in the U.S. is about to get a triple bypass. Not only does the government plan to plow $20 billion into computerizing health records, the angel investment community has taken an interest in the sector. In 2009, health-care services, medical devices and equipment attracted 17% of total angel investment dollars, or nearly $3 billion, according to the Center for Venture Research at the University of New Hampshire. “We’re seeing a lot of companies come through here with technology solutions for innovating medical records,” says Michelle Murcia, the chief financial officer of TechColumbus, a business incubator and venture firm in Columbus, Ohio. “Health care IT is a huge growth area.”

Clean Energy

The U.S. Energy Information Administration projects that global energy consumption will jump 33% between 2010 and 2030. This added demand, combined with a mix of venture-capital investment and $43 billion in federal stimulus spending bodes well for businesses that make everything from solar panels and wind turbines to electricity grids and batteries, says Clark from IBM.

In addition, the government recently sweetened the tax incentives and subsidies for homeowners and businesses to install solar and other forms of energy-saving equipment. “Despite the fact that we’ve been in one of the worst recessions in decades, business in the industry has grown,” says David Kaltsas, president of SunWize Technologies’ systems group, a solar-panel installation and sales firm in Kingston, N.Y., which recently launched an installation franchise program. “Last year was tough, but we’ve since grown double-digits in our direct-installation business.”

As discussed in my earlier posts  here, congress has repeatedly extended the benefits to employees under COBRA. And now, for the third ime, the COBRA premium subsidy program has been extended, this time through May 31, 2010, under the Continuing Extension Act of 2010 (Act). The key provisions of the Act include:

• The extension of the eligibility period for the COBRA subsidy through May 31, 2010.
• A new special election period and related notice requirement for individuals who experience a qualifying event that is related to a termination of employment on or after April 1, 2010, and before April 15, 2010.

The excerpts below are from an article posted by the law firm of Drinker Biddle, a large national law firm.

Special Election Period

A health plan must extend a special COBRA election period to an individual who experienced an involuntary termination of employment on or after April 1, 2010, and prior to April 15, 2010, and who would be an “assistance eligible individual” (AEI) but who does not have a COBRA election in effect on April 15, 2010. The special election period runs from April 15, 2010, through the date 60 days after the Notice of Special Election Period is provided to that individual.

Note about effective date of COBRA subsidy. Although not specifically addressed in the Act, due to the short, 15-day gap between the expiration of the COBRA subsidy on March 31, 2010, and enactment of the Act, we believe that an individual’s COBRA subsidy becomes effective as of the first day of COBRA coverage if he or she elects coverage during the special election period.

Notice of Special Election Period

In the case of any individual who experienced a qualifying event related to a termination of employment on or after April 1, 2010, and prior to April 15, 2010, a plan administrator must provide the general COBRA notice, including a description of the availability of premium reduction in the case of a qualifying event that is an involuntary termination of employment, within 60 days of enactment of the Act (i.e., by June 14, 2010). If the plan administrator has already distributed the general COBRA notice to such individuals, then the plan administrator may simply supplement it with an additional notice describing the extension of the availability of premium reduction with respect to involuntary terminations through May 31, 2010, and the special election period.

Note about the notice requirement. The Act is not clear on whether this notice applies only to AEIs, or to any individual who has a qualifying event related to a termination of employment, whether voluntary or involuntary, during the period April 1, 2010, through April 14, 2010. The more conservative approach is for a plan administrator to provide the special election notice to any individual who experienced a qualifying event related to a termination of employment on or after April 1, 2010, and prior to April 15, 2010, in order to notify all individuals who may potentially be eligible for the COBRA subsidy, including those who an employer may have incorrectly classified as voluntarily terminated.

A Reminder – Expansion of Assistance Eligible Individuals

Under ARRA, only individuals who experienced a qualifying event that was an employee’s involuntary termination of employment could become AEIs and take advantage of the COBRA premium subsidy. The Temporary Extension Act of 2010 expanded the premium subsidy to include as a qualifying event for purposes of the subsidy, a reduction of hours that occurred at any time on or after September 1, 2008, and is followed by an involuntary termination of employment that occurs on or after March 2, 2010 (and before June 1, 2010). Individuals who experience a qualifying event that falls under this expanded definition and are otherwise eligible AEIs (Reduced Hours AEIs) will be eligible for the COBRA subsidy beginning with the first day of the first period of coverage for which the individual is a Reduced Hours AEI. The Reduced Hours AEI’s maximum continuation coverage period is determined as if the individual had elected COBRA when initially eligible due to the reduction of hours.

Action Items

Plan sponsors and administrators should consider the following immediate action items:

• Notices. Plan administrators should update their COBRA notices and other plan communications to include the extension of the eligibility period to May 31, 2010.
• Assess Prior Terminations. Identify covered employees (and their qualified beneficiaries) who became eligible for COBRA on or after April 1, 2010, and before April 15, 2010, as well as their COBRA elections. Provide an updated COBRA notice to these individuals that includes a description of the extended eligibility period and the special election period. Identify those employees and beneficiaries in the group whose qualifying event is the employee’s involuntary termination of employment and who are eligible for the COBRA subsidy.
• Continue to Monitor Reduced Hours AEIs. Plan administrators should continue to identify any Reduced Hours AEIs, and provide a new notice to them upon involuntary termination. An individual in this group may be eligible for the special election period if, upon a reduction in hours the individual did not elect, or elected and later discontinued, COBRA.
• Stay Tuned. Two separate bills in Congress propose to further extend the COBRA subsidy eligibility period through June 30, 2010, or year end.

COBRA Update, Again…

Justin Scheck of the Wall St. Journal writes that “for years, Dell Inc. has relied on sales to small businesses for a big chunk of its revenue. It sells more personal computers to small companies than any tech supplier. Now, it is offering more credit to spur small business purchases.”

He goes on to note that “The financing strategy is showing promise. Its small-and-medium-business division posted a 10% gain in revenue in the company’s fiscal fourth quarter ended Jan. 29 from the same period last year, versus an 11% gain for the company as a whole. Operating-profit rose 17% from the same quarter last year to $282 million, surpassing the $281 million in operating profit from Dell’s large-business unit, which posted an 8.4% rise from last year.”

You can read the entire article here, and check out Dell’s page to see if anything interests you! A market snapshot on Dell here.

I saw this guest post by Tim Flood (assistant professor of Management and Corporate Communications at the University of North Carolina’s Kenan-Flagler Business School ) posted at the Wall St. Journal regarding the 10 most common mistakes management makes in connection with emails, and I thought I would pass it along, enjoy!

Many of us think we use email well. We don’t.

Too many of us rush, causing confusion and requiring more time to clarify misunderstandings later. We miss chances to build relationships, motivate others, close deals and convey important information.

Avoid the following ten mistakes.

1. Using vague subject lines. “Meeting,” “Update,” or “Question” provide no value as subject lines.

Maximize the subject line’s message. PDA users will get the message quickly; everyone will appreciate the clear summary. You can communicate plenty in a five to 10 word subject line: “Your Action Items and Minutes from Last Week’s Meeting” or “Sam: See You at 10:00 Tuesday with Report In-Hand?”

2. Burying the news. Convey the important points first: put dates, deadlines and deliverables in the first one to three lines of the message (if not also in the subject line). PDA limitations, time pressures, cultural distinctions and value judgments keep many readers from reading further.

3. Hiding Behind the “BCC” field. At best, the ‘blind copy’ field is sneaky and risky. At worst, it’s deceitful or unethical. Plus, blind recipients sometimes hit “reply all,” revealing the deception. Instead, post the initial message and BCC no one. Then forward your sent message to others with a brief explanation.

4. Failing to clean up the mess of earlier replies/forwards. Few readers will wade through strings of previous messages.

• State your position clearly, even if context follows below in the email string. “Yes” helps less than “Yes, you can have the extra funding to hire 5 temporary workers.”
• Summarize the discussion to date: “See below: R&D is looking for more time but Sales risks losing customers if we don’t act now.”
• Force focus when necessary: “Let’s focus on cost now and revisit the morale and equity issues at our staff meeting next week.”

• Change subject lines cautiously. Tighter, more relevant subject lines work best, but even one letter’s difference upsets inbox sorting mechanisms.
• Cut extraneous or repetitive information.

5. Ignoring grammar and mechanics. PDAs have granted us certain sloppy flexibility, which means you’ll impress readers even more when you write precisely.

• Follow standard punctuation, capitalization and spelling rules.
• Think carefully about the tone different punctuation conveys. “Dear Betty,” is standard, neutral; “Dear Betty:” is professional, perhaps distant; “Dear Betty!” is personable, perhaps excessively so; “Dear Betty.” prefaces bad news.
• Avoid over-stylizing with high-priority marks, disorienting color or complex backgrounds.

• Avoid all-caps and excessives (like “!!!!” or other strings of punctuation).

6. Avoiding necessarily long emails. Longer messages sometimes work best; they can help avoid attachments’ hassle and security fuss. Don’t fear long emails but outline your structure and motivate reading up top.

• Provide a ‘mapping statement’ to allow readers to skim for key information: “I’ve included information, below, on the background, costs, implementation schedule and possible problems.”
• Emphasize the specific response you seek: “Please let me know, before Monday, how this project will impact your team.”
• Indicate an attachment’s presence and value: “I’ve attached slides that I need you to review before our meeting; those slides identify total costs and break down the budget.

7. Mashing everything together into bulky, imposing, inaccessible paragraphs. Length does not discourage reading; bulk does.

• Keep your paragraphs short, ideally no more than three to five lines of type.
• Open each paragraph with a bottom-line sentence.
• Use section headings (in all-caps) to facilitate skimming.

• Include blank lines between paragraphs and section headings.
• Avoid italics, boldface and other typeface changes which do not reliably carry across email systems.

8. Neglecting the human beings at the other end. Email travels between actual people, even though we don’t see or hear each other directly.

• Praise, precisely. “Great job” takes little time and space but can work wonders. Quickly wishing someone a good weekend, at the end of an email, might perk someone up without cluttering your message.
• Avoid conveying blame or delivering negative feedback over email. Talk to the person instead.
• Avoid sarcasm, caustic wit, off-color humor and potentially inappropriate remarks —all of these elements tend to confuse, disorient or fall flat over email.

• Consider using emoticons and exclamations (“!” but also “ha, ha” or “just kidding”) when they convey useful emotional context.

• Adjust your style to suit your audience. For people who don’t know you, a terse style might seem rude; a wordy style might seem unfocused.

9. Thinking email works best. Email is not always the best way to communicate.

• Need a quick answer from someone nearby? Stop by for a visit.
• Want a reply to several unanswered emails? Pick up the phone.
• Looking for more gravitas? Mail a letter.

• Need to explain a complex or sensitive situation? Arrange a meeting.

10. Forgetting that email lasts forever. Most of us read, send and discard emails at lightning speeds. But don’t forget that emails remain on a server somewhere as easy-to-forward proof of any error, offense or obfuscation we made.

Top 10 email mistakes made by management

Apparently, there is a new set of class action cases that have been filed recently against several large employers for alleged “seating” violations under the California Labor Code (“Labor Code”). In these cases, plaintiffs seek to enforce Section 14 of the relevant Industrial Welfare Commission (“IWC”) Wage Orders, which until recently was a largely unnoticed provision of the Order that requires employers to provide seating for their employees under certain circumstances. While past case law gave employers some comfort, a new Northern District of California decision, Curie-White v. Blockbuster, has expanded damages available to plaintiffs in such cases, and will likely lead to further claims being filed.

Section 14 of IWC Wage Order 7 (entitled “Seats”), which is typical of several other industry specific wage orders, requires that (a) all workers shall be provided with suitable seating when the nature of the work reasonably permits it; and (b) when the nature of the work requires standing, the employer must provide reasonable seating in proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.  However, Section 14 does not contain its own penalty provision and does not address seating claims.

The new class action claims assert that employers who fail to comply with Wage Order seating requirements violate Section 1198 of the Labor Code, which makes it illegal to employ an employee under conditions that are prohibited by an IWC Wage Order.  These new seating claims have been brought under the Private Attorneys General Action of 2004 (“PAGA”), which allows recovery for violations of all provisions of the Labor Code except those for which a civil penalty is specifically provided.  PAGA penalties consist of $100 for each aggrieved employee per pay period for the first violation, and $200 for each aggrieved employee per pay period for each subsequent violation.

Prior to the decision in Curie-White v. Blockbuster, the only court opinion to address a seating claim was in Hamilton v. SF Hilton and the decision there weighed heavily in favor of the employer.   However, In Curie-White, the court significantly undermined several of the key defenses that had succeeded in the Hamilton case.  Most significantly, the court ruled that plaintiffs may seek civil penalties under PAGA because the penalty provision of the Wage Order “does not provide a penalty for the violation…specifically a failure to provide seats for employees.”

Given the conflict between the Hamilton and Curie-White decisions, it is likely that the issue will continue to be litigated in the more recent seating claims cases.  The ultimate resolution in those cases will likely determine whether the these seating claims form a new fad in class action litigation.

WHAT TO DO:

• Document any efforts that have been made to determine whether seats are necessary;

• Review and analyze current job descriptions and customer service standards to determine whether they clearly identify jobs where continual mobility and standing are essential functions of the job, and incorporate those standards into the job descriptions;

• Provide an adequate number of suitable seats in a nearby break room and allow employees to use the seats when it does not interfere with the performance of their duties.

Here is a link to Wage Order 7, which contains the relevant Seating Requirements at Section 14

Is there a new wave of Class Action cases coming in California?

In September 2009, the First Appellate District of the California Court of Appeal affirmed a Marin County trial court decision awarding an Albertson’s employee $200,000 in damages for a FEHA violation (CA Gov’t Code Sections 12900-12996).

The employee, a cashier, sued Albertson’s for failure to provide her with reasonable accommodations for her disability.   She had notified Albertson’s about one year prior to the event, due to side effects from her chemotherapy treatment, she needed to drink water constantly and, consequently, had to urinate frequently.   Albertson’s normally did not allow its employees to have beverages at the check-stand.  However, when she told the managers what she needed, she was told it was not a problem and that she was to let the duty-managers know when she needed to go to the bathroom and they would cover for her.

In February 2005, while the employee was on duty at the check-stand, only one manager was in the store, along with a courtesy clerk.  The employee called several times to the back of the store requesting a bathroom break, but was denied because the manager was too busy.   Eventually the employee, unable to control the urinary urge, and unable to leave the check-stand, urinated on herself in front of customers.  The employee left the store in tears and subsequently underwent a major depression and hallucinations of continuing body odor.  She entered a psychiatric hospital.  There is no evidence that the employee mentioned her accommodation to the on-duty manager that day, or that the on-duty manager was aware of the accommodation granted to the employee.

The jury heard evidence of the employee’s susceptibility to emotional distress.  She had grown up in El Salvador during a period of civil war, had seen people killed, had been robbed at gunpoint, and underwent a myriad of other stressful experiences.  Albertson’s position was that the employee was unusually susceptible to depression, contending that the February 2005 incident triggered a shift from general anxiety disorder to a more severe psychotic disorder.  The jury disagreed.

Albertson’s had a written procedure for processing employee requests for reasonable accommodation, and decisions about such accommodation were made by Albertson’s HR mangers for the Northern California district, not by store managers.  If a store manager granted an ongoing accommodation to an employee, a record of such should be made to pass along to a new manager, but sometimes no record was made.  None was used in the employee’s case.

Under the FEHA, an employer that fails to make reasonable accommodation for an employee’s known physical disability engages in an unlawful employment practice.  It is also an unlawful employment practice for an employer to fail to engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee requests one.  These two aspects are separate.  Albertson’s argued that the employee had a continuing duty to notify managers of her disability and agreed-upon accommodation.  The Court found otherwise.  Once a reasonable accommodation has been granted, then the employer has a duty to provide it.

Employers need to make sure they are providing reasonable accommodations that do not pose an undue hardship to the employer. And as this case highlights, it is also important to continue engaging in the good faith interactive process to determine whether the accommodation is working and whether your supervisory personnel are properly implementing the accommodation.

The U.S. Equal Employment Opportunity Commission (“EEOC”) announced the release of a new mandatory supplement to the “EEO Is The Law” poster, which is a required posting for private employers, state and local governments, educational institutions and labor organizations. The new supplement is available for download here.

The new poster supplement reflects updated federal employment discrimination law, including the Americans with Disabilities Act Amendments of 2008. It also contains a new section about the Genetic Information Nondiscrimination Act of 2008 (“GINA”), effective November 21, 2009, along with updated EEOC contact information. There are also revisions affecting employers holding federal contracts or subcontracts, supplementing the “EEO Is The Law” poster promulgated by the Office of Federal Contract Compliance Programs (“OFCCP”) in August 2008. These revisions include a change to the Individuals with Disabilities section, a change to the Vietnam Era, Special Disabled Veterans section, a new section regarding Retaliation, and an update to the OFCCP contact information.

Employers may comply with the new requirement by downloading the supplement and posting it alongside their September 2002 EEOC poster.

Thanks to a new opinion letter by the California Department of Labor Standards Enforcement (DLSE), California employers have a new tool for cutting employment costs during the down economy.  The opinion letters, taken together with Wage Orders and the California Labor Code constitute the bulk of rules governing wage and hour compliance in California.

The August 19, 2009 opinion letter now authorizes employers to reduce exempt employees’ workweek from 5 days to 4 days, along with a 20% pay reduction, without violating the exemption classification, so long as the employee still meets the minimum requirements for exempt status, such as the minimum salary (currently 2 times minimum wage based on full time employment, or $2,773.33 per month) and the overall work duty requirements.

The opinion letter was in response to an inquiry by an employer experiencing economic difficulties who sought to reduce hours and salary until economic conditions improved.