Employee Relations Issues

October 2006 — Pension Suspension — Companies move to freeze pension plans, enroll employees in 401(k) accounts

New employees at the Richmond (Va.) Times-Dispatch, Winston-Salem (N.C.) Journal and The Tampa Tribune starting after Dec. 31 will receive a compensation package somewhat unfamiliar to many of their colleagues. Instead of the guaranteed pension plan all Media General Inc. properties had previously offered full-time employees, new hires will instead receive a 401(k) retirement account option.

Media General, based in Richmond , isn't alone among U.S. companies in making the switch, and it's a group that will likely increase with time. A pension reform bill signed into law in August by President Bush requires companies to fully fund their pension plans by 2011, and encourages the automatic enrollment of employees into 401(k) accounts.

Defined-benefit programs, such as pensions, allow an employee to receive specific benefits, often provided by the company and are guaranteed no matter how the investments perform. Defined-contribution programs—the most popular ones are 401(k)s; 403(b)s, which are often offered by nonprofit organizations; and 457 plans, which are available to government workers—allow employees and employers to both contribute to an investment account that grows based on how the investments perform. Unlike pensions, however, the bulk of contributions come from employees, through pretax salary reductions. Read more.

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EEOC Issues Revised Regulations on Age Discrimination

On July 6, 2007, the U. S. Equal Employment Opportunity Commission issued revised regulations on age discrimination to conform to the U.S. Supreme Court ruling in General Dynamics Land Systems, Inc. v. Cline , 540 U.S. 581 (2004). The revised regulations clarify that the Age Discrimination in Employment Act does not prohibit employers from favoring an older employee over a younger one when both are protected by the Act.

The regulation revised Section 1625.2 of the ADEA to read:

It is unlawful for an employer to discriminate against an individual in any aspect of employment because that individual is 40 years old or older, unless one of the statutory exceptions applies. Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old. However, the ADEA does not require employers to prefer older individuals and does not affect applicable state, municipal, or local laws that prohibit such preferences.

"With the graying of the American workforce, the ADEA has become more relevant than ever to both employers and employees," said EEOC Chair Naomi C. Earp. "These revisions harmonize the Commission's age discrimination regulations with the Supreme Court's ruling in Cline, which clarified the law on this question. The decision, along with the revised regulations, will aid the EEOC in its enforcement efforts."

The full text of the EEOC's final rule is located in the July 6, 2007 Federal Register notice, Vol. 72, No. 129, page 36873.

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Independent Contractor White Paper

The newspaper industry has a long tradition of obtaining services through independent contractors. Most newspapers' distribution systems utilize independent contractor distributors and carriers. Many newsrooms obtain higher quality local and specialized coverage through the use of independent contractor stringers and free lance writers. New advertising customers sometimes are solicited by independent contractor advertising salespersons.

Changing demands on newspapers and heightened government attention to the potential abuse of independent contractors status have forced newspapers to exercise additional care in structuring their use of independent contractors. Many newspapers are re-evaluating their use of independent contractors to make sure that the benefits of such status outweigh the disadvantages. NAA has provided a White Paper (NAA members only. Please log in to access it) to raise the awareness of its members of the legal issues primarily challenging the independent relationship between newspaper and contracted distributor.

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NLRB Holds E-mail Policy Does Not Violate National Labor Relations Act

On Dec. 16, 2007, the National Labor Relations Board determined that the Register-Guard did not violate Section 8 of the National Labor Relations Act by enforcing an e-mail policy prohibiting employees from using the newspaper’s e-mail system for “non-job-related solicitations”.  The Register-Guard’s policy, implemented in October 1996, specifically banned the use of the newspaper’s communications systems and equipment for proselytizing commercial ventures, religious or political causes, outside organizations or any other non-job-related solicitations.

In May and August 2000, the Union’s president, Suzi Prozanski, received two written warnings for sending three e-mails to employees at their Register-Guard e-mail addresses.  The first e-mail, sent in May, attempted to clarify the facts surrounding the newspaper’s call to police about possible anarchists attending a Union rally.  Prozanski received a written warning on May 5 for violating the policy allegedly by using e-mail “to conduct Guild business”.  She received a second written warning on August 22 for two e-mails sent on August 14 and 18 from a computer in the Union’s office.  The August 14 e-mail asked employees to wear green to support the Union’s position in upcoming negotiations with the newspaper.  The August 18 e-mail asked employees to participate in the Guild’s entry in an upcoming town parade. Read more.

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EEOC issues new Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities

The U.S. Equal Employment Opportunity Commission (EEOC) on May 23, 2007 issued new Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities . The document illustrates circumstances under which discrimination against a working parent or other caregiver constitutes unlawful disparate treatment under federal law. The Commission issued the document, recognizing that changing workplace demographics, including women's increased participation in the labor force, have created the potential for greater discrimination against working parents and others with care giving responsibilities. The guidance is intended to assist employers, employees, and Commission staff in determining whether discrimination against persons with care giving responsibilities constitutes unlawful disparate treatment under federal anti-discrimination statutes.

Although caregivers are not a protected group, the Family and Medical Leave Act grants certain rights to caregivers and other federal laws prohibit discrimination based on a protected characteristic such as sex or race. In addition, some state and local laws provide broader protections for caregivers. Unlawful disparate treatment can arise where a worker with caregiving responsibilities is subjected to discrimination based on a protected characteristic under federal EEO law.

Examples include:

•  Treating male caregivers more favorably than female caregivers : Denying women with young children an employment opportunity that is available to men with young children.

•  Sex-based stereotyping of working women :

•  Reassigning a woman to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job .

•  Reducing a female employee's workload after she assumes full-time care of her niece and nephew based on the assumption that, as a female caregiver, she will not want to work overtime .

•  Subjective decision-making : Lowering subjective evaluations of a female employee's work performance after she becomes the primary caregiver of her grandchildren, despite the absence of an actual decline in work performance.

•  Assumptions about pregnant workers : Limiting a pregnant worker's job duties based on pregnancy-related stereotypes.

•  Discrimination against working fathers : Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver.

•  Discrimination against women of color : Reassigning a Latina worker to a lower-paying position after she becomes pregnant.

•  Stereotyping based on association with an individual with a disability : Refusing to hire a worker who is a single parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable.

•  Hostile work environment affecting caregivers:

•  Subjecting a female worker to severe or pervasive harassment because she is a mother with young children.

•  Subjecting a female worker to severe or pervasive harassment because she is pregnant or has taken maternity leave .

•  Subjecting a worker to severe or pervasive harassment because his wife has a disability.

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NLRB Holds E-mail Policy Does Not Violate National Labor Relations Act

On Dec. 16, 2007, the National Labor Relations Board determined that the Register-Guard did not violate Section 8 of the National Labor Relations Act by enforcing an e-mail policy prohibiting employees from using the newspaper’s e-mail system for “non-job-related solicitations”.  The Register-Guard’s policy, implemented in October 1996, specifically banned the use of the newspaper’s communications systems and equipment for proselytizing commercial ventures, religious or political causes, outside organizations or any other non-job-related solicitations.

In May and August 2000, the Union’s president, Suzi Prozanski, received two written warnings for sending three e-mails to employees at their Register-Guard e-mail addresses.  The first e-mail, sent in May, attempted to clarify the facts surrounding the newspaper’s call to police about possible anarchists attending a Union rally.  Prozanski received a written warning on May 5 for violating the policy allegedly by using e-mail “to conduct Guild business”.  She received a second written warning on August 22 for two e-mails sent on August 14 and 18 from a computer in the Union’s office.  The August 14 e-mail asked employees to wear green to support the Union’s position in upcoming negotiations with the newspaper.  The August 18 e-mail asked employees to participate in the Guild’s entry in an upcoming town parade. Read more.

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