Mandatory Breaktime for Nursing Mothers at Work

As provisions of “Health Care Reform” take effect, employers and employees should pay attention. The legislation has far-reaching impact and can catch some by surprise who think it only regulates health insurers. There were two separate bills passed that comprise the “Health Care Reform” package: the Patient Protection and Affordable Care Act (PPACA) (full text) and the Health Care and Education Reform Act of 2010 (HCERA) (full text). (See a very comprehensive discussion of both on Wikipedia and a convenient collection of links to Congressional Record items related to both published by the GPO.)

This post focuses on one of the important but often overlooked changes that affect the workplace: mandatory break time for nursing mothers. The Department of Labor recently published Fact Sheet #73 to provide general information on this new requirement. In a nutshell, the new law provides that:

1. It is secondary to state laws if those laws are more generous in this area

2. It applies to “non-exempt” lactating employees only

3. “Reasonable break time” must be allowed for up to 1 year from child’s birth “each time” the employee needs to express breast milk

4. Employers must provide a place, “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” and functionally suitable

5. The breaks can be uncompensated, except to the extent the covered employee uses otherwise compensated break time, but only if the employee is completely relieved of duty during the break

The provision went into effect immediately and applies to all employers. However, employers with less than 50 total employees, counting all locations together, who can show that compliance would impose an undue hardship, may be exempt. There are no detailed regulations or guidance on how to show undue hardship, but the statute’s definition of “undue hardship” is “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.” (29 U.S.C. 207(r)(3); PL 111-148, March 23, 2010) There also are no guidelines yet as to whether an employer must apply for confirmation of exemption in advance or rely on its own evidence in defense of an enforcement action.

The DOL expects to issue further guidance sometime in the future and hopefully will produce compliance assistance on this statute, per Fact Sheet 73. Employers and employees will benefit from more clarification. For example, is the PPACA’s requirement of an uncompensated break whenever the nursing mother needs it “more generous” than a state’s requirement that the time run concurrently with a compensated break “if possible?”

In the meantime, employers can look to resources and guidance from states that have had similar provisions for nursing mothers who return to work. The National Conference of State Legislatures has an updated survey of national and state Breastfeeding Laws. Susan Heathfield wrote a blog post, “Lactation Accommodation Policy,” that appears to pre-date the PPACA but provides guidance to employers drafting policies.

California already had a lactation accommodation law and is a rich resource for those looking for tested strategies and ways to avoid potential issues. The University of California-San Diego’s Lactation Accommodation policy is available online, for example.

Employers want their employees back at work happy, healthy and productive following maternity leave. Returning mothers who breastfeed need accommodation to be able to focus on work between pumping breaks. When these goals align, both win.

What You Should Know When Selecting Software for Your Organization - Part Four

After reading Susan Cramm's book, 8 Things We Hate About IT, available through Harvard Business Press, I saw the need to supplement this series.*

(* For prior posts in this series, click to go to Part One (preliminary phase), Part Two (product search phase), or Part Three (final selection phase).)

Cramm, who is also author of the Harvard Business Review blog, "Have IT Your Way," clearly boils down her extensive experience into a simple handbook for the "IT-Challenged" manager. Here are a few points that are applicable to those in my series on purchasing software:

1. Before running headlong into a purchase, (a) evaluate the idea from the perspective of your boss's boss, (b) check to see whether the capability already exists, (d) ensure that you are ready to devote the necessary resources and (e) verify that the idea is as good as you think. (Cramm, p. 81)

2. Dramatically increase the odds of success for your initiative by (a) defining a clear purpose, (b) engage the "head, heart and hands" of those involved in your project, (c) integrate and streamline business processes, (d) leverage existing technology and (e) use a "fast cycle" approach that delivers at least some value every 3-6 months throughout the project. (Id., p. 89)

Rather than trying to digest the book for you here, I recommend you pick it up as soon as you can, especially if you are already planning a new IT project for your organization. It is concise yet you will use it as a reference book for a long time.

If you are the CIO, then get a copy for your "less-than-IT-enabled" managers who impact IT decisions and budgeting. And do it yesterday!

Are Your Legal Processes Ready for Outsourcing?

As legal departments around the world look for ways to keep up with demands without growing their budgets, “legal process outsourcing” (LPO) appears to be taking root (1). LPO promises a way to offload certain work to vendors while containing costs and freeing up your in-house resources. LPO is not the same thing as hiring outside counsel, though some outside firms now offer or claim to offer LPO services. LPO is an effort to focus your legal department on its highest and best uses while diverting mundane tasks to those who specialize in them and have thus developed highly efficient workflow without sacrificing quality.

Before you decide whether LPO is right for your department (2), however, or look for a vendor, determine whether your legal processes are suitable for outsourcing. Just because work is done by someone in your office does not mean it is necessarily “legal” or a “legal process.” And just because it is a recurring task does not necessarily mean that it is ready to outsource. The best work for a legal department or firm to outsource is recurring, repeatable, capable of sound quality control and measurable. Anything less than that will be ripe for problems very likely to more than wipe out any cost savings you seek from outsourcing.

Is the process “recurring?”

Given the amount of effort that is necessary to assure results in line with outsourcing expectations, it makes little sense to use an LPO vendor for unique legal work. Traditional outside counsel would most likely outperform the LPO options once you take into consideration the learning curve, knowledge transfer efforts and other intangible aspects of establishing a viable LPO relationship.

However, just because the work is unusual or has come up very rarely does not itself make LPO unworkable. It could be that the project is so large and involves so many smaller recurring, repeatable, measurable processes that those tasks can be cost effective to outsource, leaving the remainder of the project handled in-house or by traditional outside counsel. Document review within an unusually-large litigation matter is one example of this situation. With ten million pages to review, LPO vendors may offer better cost-benefit ratios than hiring your own army of contract document review attorneys.

Is the process “repeatable?”

Not all legal work is ideally suited for outsourcing. Work that is unusual for your clients and for which a significant amount of strategic legal analysis is required will be better off kept in-house or sent to outside counsel. The work must be something you can quickly teach another lawyer to do well.

Look first for the tasks that require the least amount of judgment calls, legal analysis and iterative client approvals. You may already have nonlawyer staff performing these in your office. If you are using contract, temporary attorneys for any tasks, those are also prime candidates for LPO.

Ask yourself these things about the work to evaluate suitability for easy outsourcing:

1. Can I write out the exact steps to complete this task accurately?
2. Can I provide adequate written guidelines for any decision points in the task?
3. Can someone who has never set foot in my department complete the task using those instructions and guidelines?
4. Can someone on my staff easily monitor output quality and quantity?

The idea here is to fashion a set of written procedures so that the work can be done in efficient, repeatable steps by interchangeable outsiders without a lot of questions and direct oversight by your legal staff but with consistently high quality. In other words, work you can re-sell to your clients as your own without an apparent loss of value. Those are “repeatable legal processes.”

Is the process capable of solid quality control?

If you lose more sleep by outsourcing than you gain, then something is wrong. You need confidence in the vendor as well as the quality of their work. When deciding which tasks might be suitable for LPO, “begin with the end in mind,” as Steven Covey advises.

Take some time to envision the ideal LPO arrangement for each set of outsourced tasks:

1. What will the output look like?
2. How will my staff monitor progress and accuracy?
3. How easily can errors be identified and corrected?
4. Who will correct the errors?
5. Will my staff need to or be able to add value to the work product before delivering to our clients?

Is there a reliable way to measure the work?

Most LPO vendors will likely have alternative pricing options for the types of tasks you seek to outsource. Some can be priced by the “piece” (such as a set fee per page, like court reporters charge) while others are priced by the hour with a maximum cap for the project. Before you engage vendors, take some time to think about ways to measure and pay for the tasks. The billing arrangement should dramatically shift the risk of inefficiency to the LPO vendor. After all, you are primarily looking for ways to contain costs without sacrificing quality. Otherwise, the LPO route is not likely going to be attractive.

Taking a page from litigation support vendors, some LPO companies look for piece rate options and then seek to set a fee that provides ample margin for their expected inefficiencies and profit. Tasks such as document review, permit applications, routine contracts and routine correspondence (demand letters, notifications, etc.) fit in this category. It will help quite a bit if you already know how much the tasks cost your department before you field bids from LPO vendors. At the least, work through some formula that allocates salary, benefits, overhead and supervision to the work so you have a basis for evaluating bids.

Other LPO vendors request hourly rates that undercut outside counsel but still provide adequate margins for themselves. The key here is naming an acceptable guaranteed quantity per hour or day so you are assured of those savings, assuming quality is at least as high as the work by your own staff or present outside counsel. Legal research and briefing support typically fits in this category. Again, if you understand what the work costs you to perform in-house, you can better evaluate any bids from vendors. Also, determine the realistic turn-around time for your in-house staff. If they are capable of doing the work in less than four hours, but have two weeks of backlog ahead of the task, find a way to evaluate that “delay factor” in your analysis.

Have you considered all the pros AND cons?

There are many other aspects of beginning an LPO arrangement to consider, of course. (3) The points above are directed primarily at your evaluation of the work you want to outsource. Even so, LPO is a growing industry and large corporate legal departments such as General Electric and Rio Tinto have already made large moves to take advantage of the perceived potential benefits.

NOTES:

1 For a very thorough description of LPO by then-Tufts University 3L Maya Karwande, see: “Student Research examining the Legal Process Outsourcing.”

2 This post is addressed to counsel in for-profit businesses in the U.S., though the same considerations are generally applicable to government counsel, some law firms and some nonprofit legal counsel.

3 In another post, I will explore the ethical considerations for LPO work, including the differences between “near-shoring” and “off-shoring” the tasks for U.S. counsel.

What You Should Know When Selecting Software for Your Organization - Part Three

In Part One of this series, “Assess, then Search,” I began with a description of the needs assessment phase. For Step Two, I described the actual product search phase. Here, in Step Three, I turn to the evaluation and decision phase.

Sifting through the rubble

Depending on the type of procurement, you may have anywhere from zero to 30 responses to an RFI. It may seem daunting, but there are tricks to sorting through the responses to help you narrow the list to a few key options.

Start with your most firm requirements. Do you need something that allows a certain number of concurrent connections without performance loss? Does each product work with the other applications you plan to keep? Will it adequately accommodate your remote access needs? Does it work with your server OS? Whatever they are, the core “must have” features should drive your first pass through the product materials and RFI answers. Create your short list and set the others aside in case you need to go back to them.

Next, rank the “nice to have” features and start with a weighted rating system. Some product selection committees use the “greatest number of hits” method (where every positive answer gets one point). Others use a weighting and voting formula that assigns a relative value to the features based on importance, then rates how well the solution addresses each item. For example, Mac compatibility may get a relative value of 6, compared to Windows compatibility’s 10. If the product is very strong on its Mac OS compatibility, the most that vendor will get is a 6, whereas if it also is not ideally used on a Windows PC, it might get a 5 or 6. Because the Windows feature is more important, even a 50% rating counts about the same as a 100% hit on the Mac feature.

Do your homework

Armed with a short list, the committee members need to become sleuths, using all available tools to find out as much as possible about the company, the product and the customers who use it. Try web searches (and be sure to browse at least 3-5 pages deep into the results), call references (and ask them for the names of other customers who use the product in your industry who may have not been put on the reference list), contact companies listed as technology partners (find out if the partnership is robust or just passive) and go visit the company’s office (make sure you are dealing with more than a garage project). "Trust, but verify."

If you have the time and budget, go sit with users who already employ the solution in business environments like yours. You can learn more from just one of these trips than you may learn in a product demo by a skilled sales rep. If you divide and conquer the list of customers, make sure each person uses the same checklist and reporting form to get data for apples-to-apples review back in the office.

Structure the demo

With a lot of good background information, it is time to prepare for the product demo. Even if you have seen a generic product demo already, go to the effort to host a quasi-proof of concept. Based on your own expected daily usage, write a script of challenges that you will expect the software to handle once the product has been installed. Explain your goals for each scenario (“to see how fast a typical user can accomplish the task,” for example, or “to see how many efficient ways a user may complete the task”) and the other systems that would normally be involved.

Allow adequate time for the vendors to perform each scenario, followed by specific question & answer time to review the results. Your research will help you target questions as you address any concerns uncovered when talking to other customers, for example, or that have arisen since the RFI responses came back.

Make sure you carefully manage the demo to avoid wasting time on lesser topics to the detriment of discussions on important matters. If necessary, have a facilitator who can make sure the discussion moves around the room and one or two eager participants who may not accurately represent all interests do not dominate the Q&A session.

Consider the consequences

Once the demos are over, reconvene the committee for a frank discussion. The risks you must worry about at this step are typically bias, hidden agendas and ignorance. Some people got on the committee in order to make sure their department’s needs receive priority over others’ needs, while other people may simply have had their minds made up before the entire process began. One of the worst and typically unexpected obstacles for product selection committees, however, is ignorance.

You cannot safely assume that everyone in the group came equipped with the same knowledge or comprehends the needs or solutions. Ask. Does everyone know about the platform compatibility issues you have or expect? Does everyone understand the new technologies proposed and how to compare them? Does everyone have a clear understanding of how each vendor proposes to address need X? You cannot rely on the vendors’ ability to sell their solution unless you are willing to take the risk that you may not end up with the best result.

Consistency in Employment Practices: Angel or Hobgoblin?

There is an old saying, “consistency is the hobgoblin of small minds,” that is often used by those who reject accountability and rules. But these people misquote Emerson, who actually wrote, “foolish consistency is the hobgoblin of small minds.”

In fact, based on decades of court decisions in employment law cases, consistency is the simplest way to limit many employment law claims against the employer. I am sure Emerson would agree that such consistency is neither foolish nor a hobgoblin.

To begin with, you need clear, written policies and procedures. (See earlier post, "The Importance of Written Policies.") That seems obvious, but for too many small businesses (defined here as organizations with annual revenues under $25 million), management continues to believe they are “too small” to worry about such formalities or, as I have heard stated a number of times, “we cannot afford to act like a larger company.” (See earlier post, "Managing Risk Through Compliance.")

Perhaps an ulterior motive for not writing down policies and procedures is that managers want to avoid accountability for themselves. The downside, unfortunately, is that it creates a greater risk of exposure to employment practice-based lawsuits. Worse, it makes those suits more expensive because there is more litigation over establishing what the employer’s actual policies were in practice, rather than focusing only on the grievance at the root of the claim.

Especially in a small organization, “flexibility” can appear suspiciously like bias in favor or against a particular race, gender, nation of origin or other protected class. Even where the EEOC lacks jurisdiction, private law suits can threaten significant financial injury to small businesses and organizations. Grant one employee’s request for flexible work hours but deny another and you may face allegations of illegal discrimination without the support of written policies and documented business needs.

If you lack written policies and procedures, make sure you provide true business reasons for your personnel decisions and document them thoroughly—ideally in a written answer to the request. But beware: even a drowsy jury will perk up and spot a sneaky effort to cloak a preferential favor with a fake business reason. And the verdict will not likely be pretty.

7 Items You Should Have in Separation Agreements for U.S. Workers Over 40

The Age Discrimination in Employment Act of 1967 (“ADEA”), was signed into law by President Johnson. Its stated goal is to protect workers age 40 and older from age discrimination. Since enactment, the ADEA has been amended several times, including changes within the Older Workers Benefit Protection Act (1990). Since the OWBPA, the general practice followed by most employment law attorneys has included formal separation agreements in order to foreclose claims and prevent problems while the employee is willing to trade a release for valuable consideration.

Before the Termination Notice

When an employee does not perform as required, it is vital that the employer document the substandard performance and the employer’s efforts to obtain satisfactory performance from that employee. (See earlier post, “Wasting Money With The Wrong Staff.”) You should ensure that you adequately communicated those performance expectations and that those standards are reasonable and consistent for all employees in the same job classification. (More on that in a later post.)

If the termination is for economic reasons, you have less concern about performance but new concerns when hiring afterwards. The laid-off employees will pay close attention to anything that looks like an effort to replace them with younger (and presumably cheaper) staff. Make sure you maintain documentation of the economic considerations other than the relative cost benefits of hiring younger staff at lower salaries. Eliminating an entire department is more defensible than only part of the department.

Make certain the documentation is complete and the personnel file is in order. (For suggestions on important employment agreement documents and terms, see my earlier post, "When Hiring, Consider Firing First".) It is essential that you follow your own policies and procedures to the letter. And never attempt to cover up an economic termination with manufactured performance failures.

Magic Paperwork

At the separation conference with the employee, you should already have prepared the following documents:

1. Separation Agreement with Release of All Claims
2. COBRA notification paperwork (if applicable)
3. Final paycheck as required by state law

The separation agreement, even for terminations for cause, should include these seven things:

a. A brief statement of the reason for separation. If the termination is for cause, the employer usually has more leverage than in other situations. This section does not have to restate the list of violations in detail, but can simply categorize the grounds as “for cause” or other terms used in the organization’s personnel manual or collective bargaining agreement.

b. A release of all claims against the employer. This need not be mutual, but cannot be prospective under federal and most states’ laws. The goal is to foreclose any claims based on anything that occurred prior to the effective date of the agreement. You do not want a stray overtime or discrimination claim to pop up later based on events prior to termination.

c. A statement of the compensation terms. All contracts must be supported by an adequate exchange of value. In return for the employee’s agreement to never pursue any claims he may have, the employer should provide something of obvious value. This can be cash, health insurance premiums, payment of unused leave beyond what the employee is entitled to receive, or other forms of compensation. You want the employee to see the benefit of accepting the offer, so frame the compensation accordingly without going overboard.

d. An ADEA/OWBPA clause. Workers over 40 must have at least 21 days to review the agreement or take it to their own legal counsel. They also have 7 days to revoke their signature. Never count the day you provide the document or the day it is signed. Therefore, you should not give the compensation until the 8th day after the employee has returned the signed agreement, counting the day after you receive it as the first day.

e. A confidentiality clause specifically for the separation agreement. Again, it need not be mutual. You want the employee to keep secret the existence of the agreement and any payments under it. A penalty clause may be difficult to enforce unless you spread compensation over a lengthy period, but you should include it, anyway. The risk of attorneys fees, litigation and even embarrassment may be enough to discourage violation, even for a “judgment-proof” former employee.

f. A jurisdiction and venue provision. Within the confines of your local employment laws, attempt to limit the places where the employee may litigate any disputes under the agreement. You want all litigation to take place where it is convenient for your lawyers to handle any disputes.

g. A general confidentiality clause for the organization’s secrets. You should have a confidentiality agreement already in place and signed at hiring, but consider re-stating it in the separation agreement. If you do not have one signed by the employee, then make certain to include it. Consider adding stipulated penalties and remedies to the extent appropriate in your jurisdiction. For some secrets, such as data covered under personal data privacy act, you probably have a duty to exact this agreement or confirmation.

Closing the Deal

Walk the employee through the documents, answer questions—but do not give legal advice—and make sure the employee understands the OWBPA timeframes. It never hurts to explain how the employee will benefit from accepting the package deal rather than refusing to sign, as long as you do not cross the line into legal advice, coercion or threats. If the worker is under age 40, you can agree to making payments faster than the OWBPA times, but you do not have to.

Some managers have balked at the prospect of “paying off” employees they terminate for cause. There is a good argument that such compensation is not necessary. However, if the goal is certainty and “buying peace,” a modest payment can be far cheaper than the deductible under your employment practices insurance policy. Unless you are a law firm, litigation will be a distraction from your primary mission and will involve significant non-financial costs even to win. Even for law firms, time spent suing or defending your own firm is money lost from work that could be billed to the firm’s clients. When the odds against collecting your legal expenses from a former employee are very low, you have a lot to gain from this strategy.

Whether for cause or economic reasons, employers who terminate staff need to always keep the ADEA and OWBPA in mind. It is generally a good practice to follow these same guidelines for all involuntary separations, but doing so with so-called older workers can help avoid costly employment discrimination claims.

_________________________

NOTE:
This article is only a general guideline based on U.S. law. It is not intended to be and should not be relied upon as legal advice. Your state and local laws may give you more or fewer options in employment situations and local laws vary considerably. You should only use this as a discussion guide when reviewing your particular situation with a lawyer licensed in your jurisdiction.

Avoiding Problems After a Major Disaster Hits Your Home

This week, my post is featured on another blog, the LSLA Newsroom. Please read it there: "LSLA NEWSROOM: Avoiding Disaster After a Major Disaster Hits Your Home."

Drafting Good Policies for Social Media Use at Work – Part One

The Risks and Reasons

Social media is not going away. It is going to explode on the work scene. New tools like Google’s Wave are coming out, which means FaceBook-type communication is becoming the norm, not the exceptional. If you think the lines between personal and work life are blurred now, just wait.

The benefits of limited social media usage at work have become more clear, especially in very dynamic industries. B2C businesses can put their fingers on the pulse of consumer frenzies as they develop and build both brand awareness and loyalty with direct connections to their prospective customers. B2B businesses can monitor industry developments and buzz about their competitors by customers while shoring up their reputations and proactively cutting off damaging rumors as they start. Advocacy groups can connect easily and see instantaneous developments that may be successful in other places while gathering supporters who are passionate about their cause. Communities of all kinds have sprung up across the social mediasphere and continue to multiply.

There are many risks hidden beneath each social media (SM) page, however. Most can occur very easily both intentionally and unintentionally:

+ Divulging trade secrets
+ Violating data privacy laws
+ Libel and defamation
+ Violating federal and state securities laws
+ Breaches of professional confidentiality obligations
+ Misrepresentation of authority
+ Brand dilution
+ Harassment

Because intentional acts are obviously a threat, I will focus on unintentional ways your staff may cause problems for themselves and your organization through their SM usage.

1. Identity & Authority
When a person speaks, the audience often looks to see what authority she has. Online, the clues can be found in the commentator’s profile: email address, employer name, job title and even business address. If your staff use their work email addresses for their personal online socializing, there is a risk of confusion by the public as to which positions, photos and postings are the employees and which ones represent the employer.

It is one thing to embarrass oneself online with pictures showing a wild time. It is another thing to put your employer in a bad light by linking your crazy cavorting to the company—or worse, posting pictures from a company event without company approval.

2. Breaches of Confidentiality
A recent case where a law firm associate publicly Tweeted as he was reviewing documents during discovery grabbed headlines in some circles. He did not reveal any names, but his opposing counsel was listening and learned through implication about the existence of a potential treasure trove of evidence that the firm had not yet even evaluated, much less disclosed during litigation. In technology, the risk of divulging trade secrets is high, as many senior managers are unaware how decipherable some comments are to those who know the programming language or engineering terms. If a tech grumbles about a particularly thorny challenge with enough detail, the cat will be out of the bag about what he is working on before anyone has a chance to prevent it.

Data privacy laws apply to the employees of an organization as well as the organization itself—even when the employees are “off the clock,” so to speak. There are serious consequences for violating various privacy and confidentiality laws, even if there is no immediate, actual harm.

3. Insider Information
Public companies always run the risk of crossing lines related to their stock. If some news leaks through a few FaceBook photos or updates, then an executive buys or sells shares even coincidentally, the company and the executive can spend dozens of hours and a lot of money defending allegations of improper trading even when they are not guilty. Likewise, in the age where your competitors “listen” with ears not to the ground, but to their Twitter space, random, disparate Tweets by different people located thousands of miles apart aggregate into a picture that can cost you your edge.

4. Harassment
Abusive language and constant messaging would not be tolerable inside the organization’s network. But some employees feel the freedom to act disrespectfully when in their own little SM worlds. They forget about the profile information that lists where they work, their work email address or even what they do, and then blast a peer or worse, a supervisor, and think no one will tie the post back to their place of employment. Cyber stalking and cyber bullying have become well-known terms, which is unfortunate.

In the next post in this series, I will survey some of the guidance available when crafting your own social media policy.