A Message from Steve Paskoff

Ten Trends for '10

As we close out a challenging 2009, it soon will be time for resolutions and plans for 2010. Here's what I see as Ten Trends for '10, specifically as they apply to Civil Treatment^® topics:

• Leader misconduct will become more public. Celebrities like Tiger Woods and David Letterman have learned that their private misdeeds are public as a result of new information technologies and the Internet. Employees will increasingly use these tools to publicize the actions of their leaders, especially those who are abusive, unprofessional, and in conflict with their organization's stated values.
• FLSA claims will grow and expand into "non-traditional" applications. Lawyers are going to be looking for pockets of workers who have not traditionally been classified as non-exempt under the FLSA. Lawsuits against major accounting firms who don't pay overtime to salaried associates are recent examples.
• EFCA will be on again and off again, and nothing will happen legislatively until mid-year at the earliest. Nevertheless, there will be developments that will make it easier for unions to organize. The National Labor Relations Board will continue to expand case interpretations favoring union organization as the number and influence of the president's appointees on the NLRB expand.
• Employers will use the Internet and social media to track references and find out about applicants more extensively than before. Social networks will become a cost-effective screening tool.
• Learning will be increasingly differentiated from training. Learning is what "sticks" and is applied, rather than that which is taught. Organizations will direct their "learning" resources to those lessons that are remembered and reinforced beyond the classroom and the desktop.
• There will be two key trends for those in their '20s and just out of college. One group will try to start their own enterprises and avoid the fates of their parents, many of who were released after years of loyal service during the recent downturn. Others will seek stability more than the excitement of frequent new assignments, a hallmark of Generation Y and the pre-recession mentality.
• The world is changing so rapidly that there will be an emphasis on seeking out candidates who have analytical and creative skills and an ability to learn, absorb new concepts, and think abstractly. These talents will prove more valuable than specialized skills like accounting, engineering, and law, which may be viewed as global commodities.
• Juries will continue to side with employees perhaps even more frequently than in the past. The harshness of this economy has terrified and enraged the population. Jurors will be sympathetic to virtually all claims of discrimination when there are overt acts linked to adverse employment actions.
• Organizations will increasingly come to recognize that uncivil, abusive treatment, whether legal or not, causes business risks that exceed the economic costs of employment claims and must be reigned in during a period of diminished resources. This is being recognized in healthcare and will continue to spread to other industries as well.
• "Lean and clean" will replace "lean and mean." Too many have suffered too much because of greed and corporate corruption. There will be a renewed focus on values such as integrity that will replace the "greed is good" mentality prevalent in many organizations over the past 25 years.

To our friends and colleagues, all of us at ELI^® send our best wishes for the holiday season and for a healthy and productive New Year.

Steve Paskoff
President and CEO, ELI^®

Legal Updates

2010 National Defense Authorization Act Extends FMLA Military Leave Rights

On October 28, 2009, President Barack Obama signed the 2010 National Defense Authorization Act (NDAA), which expands certain FMLA military leave rights that were originally created pursuant to the NDAA of 2008.

The 2008 NDAA provided the child, parent, or spouse of a service member in the National Guard or Reserves with 12 weeks of unpaid leave to deal with any "qualifying exigency" related to the reservist being on active duty or being called to active duty. In January 2009, the Department of Labor issued regulations that defined activities that would constitute qualifying exigencies, including short notice deployment, military events and activities, childcare and school arrangements, financial and legal arrangements, counseling, rest and recuperation, and post-deployment activities.

Prior to the 2010 NDAA, FMLA leave for qualifying exigencies did not apply to a member of the Regular Armed Forces. The 2010 NDAA extends FMLA leave for qualifying exigencies to members of the Regular Armed Forces provided that the service member is deployed to a foreign country.

Additionally, the 2008 NDAA provided the spouse, child, parent, or next of kin to a member of the Armed Forces injured in the line of duty with 26 weeks of unpaid leave to care for the injured military member. This leave is often referred to as "caregiver leave" and is applicable to the care of any active service member, whether a reservist or regular military.

Prior to the 2010 NDAA, the caregiver leave was not available to care for a former member of the armed forces. The 2010 NDAA expands the coverage for caregiver leave and provides that 26 weeks of unpaid leave may be taken for the care of veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness that occurred any time during the five years preceding the date of treatment.

ELI^® will be updating its Civil Treatment^® for Managers (CTM) course at the beginning of 2010 to reflect these changes to the NDAA. Replacement pages will be e-mailed to all facilitators using the 2008 version of CTM as well as posted on the Certified Instructor Community (CIC) website. If you have questions, please contact ELI^® at info@eliinc.com.

Court Affirms $7M Award to Teen Employee Subjected to Strip Search and Sexual Assault as Part of an Ongoing Hoax

A Kentucky Court of Appeals affirmed a jury award of more than $7 million to a teenaged McDonald's employee who was subjected to a strip search and a sexual assault at the direction of an unknown caller. The caller falsely identified himself as a police officer and claimed he was investigating a recent theft at the restaurant. The caller identified an individual that the assistant manager believed to be the teen employee. Following the directions of the caller, the assistant manager subjected the employee to a strip search that ultimately involved several employees and one non-employee who sexually assaulted the teen. After more than three hours, employees determined the call was a hoax and terminated the search.

A lengthy period of discovery revealed substantial evidence that McDonald's corporate legal department was aware of several similar incidents at other of its restaurants but took no action to train or warn restaurant employees so as to prevent future incidents. This evidence led to a liability against McDonald's on claims of sexual harassment, false imprisonment, premises liability, and negligence.

McDonald's Corp. v. Ogborn (KY Ct. App. 11/20/09).

EEOC Takes Claims of Sexual Harassment Against Teens Seriously

The EEOC recently filed a lawsuit against a Dunkin' Donuts store, alleging teen employees were subjected to severe and pervasive sexual harassment. In its lawsuit, the EEOC claims the manager of a New York Dunkin' Donuts store sexually harassed several female teen employees by grabbing their buttocks and breasts, kissing them on the neck, and hugging them against their will. The manager also allegedly told the female employees they were "hot," asked them about their sex lives, and described sexual acts he wanted to perform on them. The manager warned the employees not to tell anyone what he had said. The EEOC alleged that despite complaints about the manager's behavior, the company failed to take adequate measures to prevent and/or stop the harassment.

In a press release, the EEOC stated, "Companies need to understand that they must be vigilant about protecting employees from harassment... The EEOC takes allegations of sexual harassment very seriously, especially when the employees being harassed are teens. For many of these employees, this is their first job and they don't know how to complain, especially when the harasser is their manager."

Archived Webcasts

2009 was a busy year for informational webcasts at ELI^®. Topics included mandatory sexual harassment training laws, the Employee Free Choice Act, and the Fair Labor Standards Act and wage and hour issues. Did you miss any of these webcasts?

Click here to listen to recorded sessions or view the PowerPoint slides.

Upcoming Events

ELI^® CEO Steve Paskoff will be a featured speaker at several upcoming national conferences this year. Join Steve to learn about the following topics:

Treating Workplace Culture: A Prescription for Values-Based Leadership

American College of Healthcare Executives' (ACHE) 2010 Congress on Healthcare Leadership
March 22, 4 p.m. - 5:30 p.m.
March 23, 8:45 a.m. - 10:15 a.m.
Hyatt Regency Chicago

Click here for more information.

2010 CIP Calendar

Have a colleague who is interested in becoming an ELI^®-certified trainer?

Click here to view the public 2010 Certified Instructor Program schedule.

Helpful Tools Available on the ELI^® Website

Click here to learn more about sexual harassment training requirements in all 50 states.
 
To access ELI's 50 state wage and hour survey, click here.

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