EMPLOYERS PAY THE FUTA PRICE OF THEIR STATE'S LACK OF FINANCIAL DISCIPLINE

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Employers pay federal unemployment tax (FUTA) at a rate of 6.0% on the first $7,000 of covered wages paid to each employee each year. However, employers can offset this tax with credits of up to 5.4% (the “normal credit”)  for amounts paid to a state unemployment fund by January 31 of the subsequent year. Thus, the net FUTA rate for many employers is only 0.6%.

Under federal law, states with financial difficulties can borrow funds from the federal government to pay unemployment benefits. However, if a state defaults on its repayment of the loan for at least 2 years, the normal credit available is reduced. This effectively increases the employer's FUTA tax rate by 0.3% for each year in which the loan isn't repaid. Are there states out there that have defaulted on repayment? Of course.

Is your state on the default list? Here is the list and how much it is costing their employers:

--0.9% credit reduction - Indiana.

--0.6% credit reduction - Arkansas, California, Connecticut, Florida, Georgia, Kentucky, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Rhode Island, and Wisconsin.

--0.3% credit reduction - Arizona, Delaware, and Vermont.

KEY PROVISIONS OF THE AMERICAN TAXPAYER RELIEF ACT

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Below is a summary of many of the key provisions of the Act. Interesting how the Act, when netted with the repeal of the Bush tax cuts, results in a large increases in income taxes – yet Congress still calls the this a “relief” act!

1. Individual Income Tax Rates. Retained at 10%, 15%, 25%, 28%, 33% and 35% (instead of moving to 15%, 28%, 31%, 36% and 39.6% as would have occurred under the EGTRRA sunset). A 39.6% rate applies to income above a certain threshold (specifically, income in excess of the “applicable threshold” over the dollar amount at which the 35% bracket begins). The applicable threshold is $450,000 for joint filers and surviving spouses, $425,000 for heads of household,  $400,000 for single filers,  and $225,000 (one-half of the otherwise applicable amount for joint filers) for married taxpayers filing separately. These dollar amounts are inflation-adjusted for tax years after 2013.

COMMENT: There is  a MAJOR marriage penalty here. Two single people living together would get two $400,000 exemptions (one each). A married couple gets hit when combined income exceeds $450,000. Perhaps some of those same-sex couples that are married under state law will not be happy now if the Supreme Court rules that they should be subject to the same tax rules as other married persons.

2. Personal Exemption Phaseout. Personal exemptions begin to phase out for those making $300,000 for joint filers and a surviving spouse, $275,000 for heads of household, $250,000 for single filers, and $150,000 (one-half of the otherwise applicable amount for joint filers) for married taxpayers filing separately. The total amount of exemptions that can be claimed by a taxpayer subject to the limitation is reduced by 2% for each $2,500 (or portion thereof) by which the taxpayer's AGI exceeds the applicable threshold. This is inflation-adjusted for tax years after 2013.

COMMENTS: Another big marriage penalty here. This phaseout, along with the itemized deduction phase-out, will increase the income taxes of persons below the $400,000/$450,000 amounts being bandied about in the media.

3. Itemized Deduction Phaseout. Itemized deductions are reduced by 3% of the amount by which the taxpayer's adjusted gross income (AGI) exceeds the threshold amount, with the reduction not to exceed 80% of the otherwise allowable itemized deductions. The starting thresholds are $300,000 for joint filers and a surviving spouse, $275,000 for heads of household, $250,000 for single filers, and $150,000 (one-half of the otherwise applicable amount for joint filers) for married taxpayers filing separately. Inflation adjustments apply after 2013.

COMMENTS: See 2. above.

4. Capital Gain and Dividend Rates. The top rate for capital gains and dividends will permanently rise to 20% (up from 15%) for taxpayers with incomes exceeding $400,000 ($450,000 for married taxpayers). For taxpayers whose ordinary income is generally taxed at a rate below 25%, capital gains and dividends will permanently be subject to a 0% rate. Taxpayers who are subject to a 25%-or-greater rate on ordinary income, but whose income levels fall below the $400,000/$450,000 thresholds, will continue to be subject to a 15% rate on capital gains and dividends.

COMMENTS: Don’t forget that the new 3.8% Obamacare taxes will also now apply to these items. The retreat from the threatened imposition of ordinary income rates on dividends is a big break here. The permanent nature of the lower dividend rate also encourages further use of the IC-DISC for those engaged in export transactions. Another hidden marriage penalty here, too.

5. Estate and Gift Tax Rates. The maximum rates are increased to 40%.

COMMENT: Well, its much better than the 55% rate that was scheduled to apply.

6. Unified Credit for Transfer Taxes/GST Exemption. Retained at $5 million, as adjusted for inflation. For 2013, this amount has been estimated at $5.25 million. Portability of unused credit between spouses has also been retained.

COMMENT: An unexpected “gift.” For those that feel they should not have entered into late 2012 gifting to use their credit before it was scheduled to be dramatically reduced, remember that for most of you good planning still resulted - future income and growth on those assets you gave away has been removed from your future taxable estates. The retention of the high credit amount makes prior concerns about “clawback” on prior gifts pretty much moot for now.

7. AMT Relief. Relief has been made permanent by a permanent increase in exemption amounts, and the index of those amounts with inflation. This should minimize the creep of more and more taxpayers into the AMT.

COMMENT: At last! However, getting rid of the AMT or higher exemption amounts would have been even better.

8. Extension through 2013 (and to include 2012) for tax-free distributions from individual retirement plans for charitable purposes.

COMMENT: Thanks, but what the heck is with these temporary extensions? Permanent relief here would be most appreciated.

9. Extension to January 1, 2014 for Subpart F exception for active financing income for controlled foreign corporations.

COMMENT: Again with the temporary extension?

10. Extension of look-through treatment of payments between related controlled foreign corporations under foreign personal holding company rules.

COMMENT: Again with the temporary extension?

11. Extension of 5 year built-in gains tax period for S corporations through 2013.

COMMENT: Again with the temporary extension?

12. Payroll Tax Cut Allowed to Expire. While technically not part of the new law, Congress has let the temporary reduction in payroll taxes expire.

COMMENT: Wage earners in all brackets will feel the pain of this expiration in their take-home pay starting now.

An Employment Lawyer's Debate Questions for President Obama

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This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

An Employment Lawyer's Debate Questions for President Obama

To contact us Click HERE
This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

EMPLOYERS PAY THE FUTA PRICE OF THEIR STATE'S LACK OF FINANCIAL DISCIPLINE

To contact us Click HERE

Employers pay federal unemployment tax (FUTA) at a rate of 6.0% on the first $7,000 of covered wages paid to each employee each year. However, employers can offset this tax with credits of up to 5.4% (the “normal credit”)  for amounts paid to a state unemployment fund by January 31 of the subsequent year. Thus, the net FUTA rate for many employers is only 0.6%.

Under federal law, states with financial difficulties can borrow funds from the federal government to pay unemployment benefits. However, if a state defaults on its repayment of the loan for at least 2 years, the normal credit available is reduced. This effectively increases the employer's FUTA tax rate by 0.3% for each year in which the loan isn't repaid. Are there states out there that have defaulted on repayment? Of course.

Is your state on the default list? Here is the list and how much it is costing their employers:

--0.9% credit reduction - Indiana.

--0.6% credit reduction - Arkansas, California, Connecticut, Florida, Georgia, Kentucky, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Rhode Island, and Wisconsin.

--0.3% credit reduction - Arizona, Delaware, and Vermont.

MORNING UPDATE

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For those waking up this morning (January 2) wondering if the House passed the Senate bill, the answer is yes, they did. Thus, the country goes over the tax portion of the fiscal cliff, albeit a lower cliff than it was a few days ago.

Other fiscal cliffs remain – the debt ceiling cliff is coming in a month or two, the sequester cliff in March (the current bill puts off the automatic sequester cuts for two months), the farm bill cliff in September, and the expiration of jobless benefits in December. So the spectacle continues.

Details on the new law to follow later.

EMPLOYERS PAY THE FUTA PRICE OF THEIR STATE'S LACK OF FINANCIAL DISCIPLINE

To contact us Click HERE

Employers pay federal unemployment tax (FUTA) at a rate of 6.0% on the first $7,000 of covered wages paid to each employee each year. However, employers can offset this tax with credits of up to 5.4% (the “normal credit”)  for amounts paid to a state unemployment fund by January 31 of the subsequent year. Thus, the net FUTA rate for many employers is only 0.6%.

Under federal law, states with financial difficulties can borrow funds from the federal government to pay unemployment benefits. However, if a state defaults on its repayment of the loan for at least 2 years, the normal credit available is reduced. This effectively increases the employer's FUTA tax rate by 0.3% for each year in which the loan isn't repaid. Are there states out there that have defaulted on repayment? Of course.

Is your state on the default list? Here is the list and how much it is costing their employers:

--0.9% credit reduction - Indiana.

--0.6% credit reduction - Arkansas, California, Connecticut, Florida, Georgia, Kentucky, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Rhode Island, and Wisconsin.

--0.3% credit reduction - Arizona, Delaware, and Vermont.

WAITING ON THE HOUSE OF REPRESENTATIVES

To contact us Click HERE

Yesterday, the Senate avoided the fiscal cliff by passing a bill to limit the raise in rates to single persons with more than $400,000 of income and $450,000 for married couples, although deduction phase-outs start at lower levels.

At this time (2:50 pm on Tuesday), we are awaiting action by the House of Representatives. Passage by the House is by no means assured (nor whether the Speaker will even bring it to the floor for a vote) – one report I read indicated that for each $1 of spending cuts, there are $40 of new taxes. This is a problem for many Republicans who are looking for more balance.

We will see how this pans out. If the House passes the bill, I will be back with more info on the new law law which presumably would be signed into law by President Obama.

An Employment Lawyer's Debate Questions for President Obama

To contact us Click HERE
This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.