Gruntled Employees

KnowHR on The New HR

For all you HR professionals out there, as well as managers and executives who care about HR, here is the first must-read post of the new year. (OK, so it's not really from this year; it's about five weeks old. But it feels new when you read it.) It's from Frank Roche and Sarah Chambers's incomparable KnowHR Blog, and it's called "10 Tenets for The New HR." Heck, read this, and you probably don't need to read anything else HR related till 2010. (But please do, anyway.) This post may be the best thing written about HR since Keith Hammonds's controversial paradigm-shifting Fast Company article, "Why We Hate HR."

Great post, Frank. Keep up the good work.

Change employers can believe in

Most management attorneys will tell you that 2009 will see a big increase in employment litigation and labor-union gains. On the employment front (that is, not related to unions), the combination of the recession and Democratic Party gains in Congress (and, of course, the White House) should drive employee lawsuits up.

Why? The recession means more layoffs and fewer new hires. This means more disgruntled employees (or would-be employees). The bedrock principle of this blog is that disgruntled employees are more likely to sue than are gruntled employees. While most employees understand that layoffs are usually economics driven, some take it more personally and lawyer up.

As for the Democratic successes in the election, both the Obama campaign/transition and the Democratic Congressional leadership have voiced there support for new, broader statutes that will help employees at the expense of employers. In the coming weeks, we'll take a closer look at these initiatives. But for now, take a gander at the Obama transition webpage on the economy, which talks about expanding the Family and Medical Leave Act (FMLA), raising the minimum wage, spearheading paid family leave, and targeting so-called "caregiver discrimination." Also, the new administration is expected to take a tougher enforcement stance than the outgoing one. (And remember, the outgoing conservative administration just brought you the ADA Amendments Act.)

As for the labor side (involving unions), the transition site trumpets the cynically named Employee Free Choice Act, which would do away with the protection from initimidation afforded by secret ballots for employees in union elections. The site also talks about plans to eliminate "supervisor" status for hundreds of thousands of employees to artificially increase the size of the unionized workforce. The new administration will also seek to eliminate getting rid of an employer's right to replace striking workers.

Some observers have argued that these pro-Labor moves could, when combined with an already-down economy, produce similar results to when the Supreme Court upheld the National Labor Relations Act in 1937.

With this anti-employer agenda about to fall into place, combined with a lousy economy, employers should prepare now for a serious increase in employment litigation in 2009.

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Here are a couple of excellent, pre-election posts about the likely workplace changes we will see this year as a result of the election: Michael Fox's always-excellent Jottings by an Employer's Lawyer and John Phillips's thorough The Word on Employment Law.

New Year, New Disability Lawsuits

Happy New Year!

Or is it?

Because today, January 1, millions of American employees will become disabled — including some of yours. No, we’re not predicting a rash of workplace injuries or a horrible epidemic. Instead, these workers got their newfound disabilities at the stroke of a pen. On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (ADAAA), significantly changing the Americans with Disabilities Act. The changes make it easier for individuals to show that they are disabled. The amendments also expand their protection under the law. Congress made the changes in response to court decisions that had narrowed the scope of protection over the 18 years since the ADA was passed.

Congress found that these court cases focused more on analyzing whether an individual’s impairment was considered a disability and less on whether employers had met their obligations under the ADA. The new amendments reverse that focus.

Before the amendments, disability lawsuits would sometimes turn on whether the employee was actually disabled — that is, did he or she have a “major life activity” that was “substantially impaired”? But the original ADA never explained what a “major life activity” was. The amendments change that, giving examples such as learning, reading, concentrating, thinking, and working.

The new law also relaxes the “substantially impaired” requirement. Congress determined that the original law created too high a bar to gaining ADA protections. Under the new law, the question of whether an individual is disabled requires little analysis.

Other court decisions had rejected disability status if the employee was able to use corrective measures — such as prosthetics, medications, and hearing aids — to overcome the impairment. But the amendments do away with this analysis; an employee is disabled even if she can hear with a hearing aid. Similarly, if an impairment is episodic or in remission, it still counts as a disability.

Because the ADAAA eases the definition of disability, employers should expect to see an increase in disability-discrimination claims. And those claims will now be harder to defend against, as employees who previously were not considered disabled now will be.

What you can do:

• Read the text of the ADA Amendments Act of 2008 here (PDF)
• Train supervisors to properly handle requests for accommodations
• Have procedures for handling employees’ health issues 
• Talk to your employment counsel as soon as an issue arises with a potentially disabled employee

Introducing The Client Revolution

So you're thinking, "Didn't there used to be a blog called Gruntled Employees that talked about workplace issues until it started going on about getting rid of the billable hour and so forth?"

OK, point taken. I admit, it has been a while. And we did get a bit off track with the lawyers-and-law-firms thing.

But with the new year, we have a solution to that problem. A new blog, solely devoted to clients, and how lawyers and law firms can better serve them. (That's right: the solution for not writing a blog for six months is to write two blogs. Well, whatever.)

Anywho, the new blog puts the focus back on the client, where it belongs. It's called The Client Revolution, and it's designed for businesspeople who have to deal with lawyers. And for the lawyers, too.

Clients are fed up, and they're ready for a revolution. Despite the economy going into recession, the National Law Journal reported that 71% of the nation's largest law firms raised their rates in 2008. (One firm even listed a rate of $1,260 an hour.) The Old World–guild model and its legacy systems put law firms' institutional self-interest ahead of clients' best interests.

Enough is enough. If you care about how lawyers serve clients, then join the Revolution. (That's just a figure of speech; you don't really have to "join" anything. But check it out anyway.)

In the meantime, the new, improved (look! the logo's blue now!) Gruntled Employees is back with renewed focus on making workplaces more profitable. So stick around, and Happy New Year.