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The City of Detroit recently settled an Americans With Disabilities Act (ADA) lawsuit filed by an employee who unsuccessfully sought a reasonable accommodation because a coworker’s perfume made it difficult for her to breathe.

Now, one might conclude that a municipality may have more inclination to settle than fight since it’s using OPM (other people’s money), whereas a private employer might try to win in court.

However, with ADAAA (ADA Amendments Act) regulations coming soon (July), the woman’s request for a reasonable accommodation and the city’s rapid settlement both make sense.

The ADAAA defines disability as anything that limits a "major life activity," and breathing is certainly a major life activity. The employer might argue that in this case the perfume did not "substantially limit" the employee’s respiratory system, but the ADAAA comes to the plaintiff’s (employee’s) defense here too. The ADAAA shifts the burden in lawsuits onto employers, who now must prove that they offered a "reasonable accommodation" rather than challenge or disprove the disability.

In this light, it made perfect sense for the City of Detroit to settle (and then to ban all employees from wearing anything scented). Absent proof that the city had offered the employee a reasonable accommodation that the employee then refused, the defendant municipality had no legal defense.

Be prepared for your own reasonable accommodation requests. Get your copy of Personnel Concepts’ ADA Amendments Act Compliance Kit today.

The Occupational Safety and Health Administration (OSHA) has dispatched about 15,000 letters to companies to notify them that their rates of illness and injury are higher than average. These so-called DART (Days Away, Restricted and Transfer) reports generally are followed up by OSHA inspections, if the past be any guide.

OSHA has made no official announcement about the computer-generated letters, but it is expected that they will be used in the agency’s ongoing Site Specific Targeting (SST) Program, under which 4,500 companies are to be inspected this year.

If you’ve received such a letter, it’s a good time to review not only your record-keeping (which will be examined if you’re inspected) but also your companywide safety policies and procedures.

A good resource for catching up on all your OSHA regulatory requirements is Personnel Concepts’ OSHA Answer Book. Get yours today.

Though HITECH (the Health Information Technology for Economic and Clinical Health act) took full effect this past Feb. 17, provisions regarding business associates were still vague, as we noted at the time.

Now, the Office of Civil Rights (OCR) in the Department of Health and Human Services (HHS), the law’s oversight agency, is promising to issue proposed rules soon, which typically would be followed by a public commentary period.

Most of the vagueness stems from language in the HITECH act that elevates business associates to the same status as covered entities. Previously, covered entities (generally, health care providers and insurers) had primary responsibility for insuring the security of private health information (PHI) in their possession, but HITECH extended such primary responsibility to those business associates that work with and for covered entities.

Though most customers of Personnel Concepts are probably neither covered entities nor business associates, any company that offers health insurance or retains medical information on its employees is still subject to the rules of HITECH and HIPAA (Health Insurance Portability and Accountability Act of 1996) to protect the confidentiality of employee PHI.

A sure way to announce your intention of respecting HIPAA and HITECH and of informing your employees of their rights and obligations under the two laws is by obtaining and posting a copy of our All-On-One HIPAA Information Poster.

To make a long story short, the Federal Trade Commission (FTC) has been trying–with delayed implementation–to get the nation’s businesses that grant credit to protect their clients’ and consumers’ identities by requiring them to adhere to a Red Flags Rule.

The Red Flags refer to steps in the credit process that might indicate an identity-theft threat.

The nation’s financial institutions are already covered by the FTC rule, but for the rest of the nation’s businesses, implementation has been delayed until June 2010–for the third such delay.

The nation’s attorneys, however, launched an initial volley in getting a judge to rule that lawyers, even though they bill clients through the mail for services performed, do not per se grant credit.

This was followed quickly by the nation’s health care providers suing to obtain the same exemption.

Time for the Empire to Strike Back, and it did. This past week the FTC filed an appeal with the D.C. Circuit Court to overturn the decision by the U.S. District Court for the District of Columbia that initially granted the attorneys’ exemption.

Don’t bate your breath waiting for a similar exemption for your business. Get a copy of Personnel Concepts’ Workplace Identity Theft Prevention Kit and set up your Red Flags compliance program today. Be prepared for the June 1 start date of the Red Flags Rule.

Good question, and the answer is probably that complying with the regulations of the Occupational Safety and Health Administration (OSHA) probably requires constant vigilance.

An Office of Compliance inspection recently showed that 70 percent of all Congressional offices exhibit employee workplace safety violations. The good news is that most of the infractions are minor compared to the inspection in 2007, which found serious fire hazards such as "blocked sprinkler heads." This year, the inspection uncovered 1.75 hazards per office average, whereas in 2007 the comparable figure was 8.15!

There are 541 offices in Congress, and just 154 of them were found to be fully compliant with OSHA standards. As recently as 2006, only seven offices were in compliance.

Best way to master OSHA? It’s not easy, but Personnel Concepts offers a good reference and starting point with its OSHA Answer Book. Get yours today and get in compliance.

As required by law, the Department of Health and Human Services (HHS) has begun publicly listing breaches of private health information (PHI), generally in medical records, when the breach totals 500 or more individuals.

Though breach notification rules under HITECH (Health Information Technology for Economic and Clinical Health Act) went into effect in September 2009, a grace period provided HHS (and the FTC in cases involving vendors) with a window of discretion. Consequently, when the grace period expired on Feb. 22, HHS began posting breaches involving 500 or more individuals.

According to HITECH regulations, breaches involving 500 or more people must be reported immediately, but breaches involving fewer than 500 persons need only be reported annually.

The breach notifications are available here on the HHS Web site.

What I found a bit curious about the list is a series of five thefts/unauthorized accesses occurring on Sept. 27 at a "private practice" in Torrance, Calif. The list of breaches involves, in succession, 6,145, 5,166, 5,257, 857, and 952 individuals, but the question lingers about why they were listed separately. My conclusion is that the theft/unauthorized access occurred at roughly the same time, but involved five different sets of records. It would be hard to imagine five separate occasions of theft involving the same private practice on the same day. However, anything is possible.

For your convenience and compliance, Personnel Concepts has compiled all HITECH breach regulations into one compact but comprehensive HITECH Act Security Rule Poster. Get yours today so your employees know their rights and responsibilities under HITECH.

As reported here this past November when the Internal Revenue Service (IRS) announced its plans, the federal tax agency has commenced the first phase of its audit of 6,000 firms of all sizes and industries to root out abuses of executive pay, fringe benefits, record-keeping, and misclassification of employees as independent contractors.

The Employment Tax National Research Project (NRP) will start by auditing 2,000 firms this year, and at the end of three years will have completed what appears to be a line-by-line audit of 2007 and 2008 tax returns for the 6,000 companies under its microscope.

The five areas to get the most attention are classification of workers (employees or independent contractors); fringe benefit arrangements; executive compensation arrangements; back-up withholding; and Form 1099 compliance.

Though not directly related to IRS requirements, Personnel Concepts’ Manual of Record-Keeping Requirements will help you stay in compliance with all other federal employment regulations.

The federal version of the WARN (Worker Adjustment and Retraining Notification) Act affects businesses with 100 or more employees and requires 60 days’ advance notice of layoffs (if they reach a certain level) and of company closings. In lieu of advance notice, the firm can pay 60 days’ wages and benefits on the day of discharge or cessation of operations.

Ohio legislators evidently don’t think this is stringent enough. They’re now eyeing a measure, House Bill 434, that requires 90 days’ advance warning–and 120 days if 250 or more employees are affected.

The state WARN measure also would limit a firm’s ability to pay up front and get rid of the employees or shut the place down immediately.

New York has a similar law on the books, but where Ohio goes even further is in assessing penalties, which is the real killer aspect of House Bill 434.

For violating the advance-warning requirement, a firm would be on the hook for liquidated (double) back pay for each calendar day of the violation, remuneration for all benefits plus reimbursement for any out-of-pocket medical expenses during the period, $500 a day times the number of affected employees as a civil penalty, and (natch) "reasonable attorneys’ fees and costs."

If this puppy passes, it’s hard to imagine many entrepreneurs or established companies opening shop in Ohio. In fact, many of the current businesses may opt to cross the border to friendlier climes.

The Equal Employment Opportunity Commission (EEOC) has been ordered to pay $4.56 million in attorneys’ fees and "reasonable" expenses after shoddily pursuing a sexual harassment lawsuit against a trucking firm and losing.

In ordering the reparations, Chief Judge Linda Reade of the Northern Division Court of Iowa said the EEOC had "wholly abandoned its statutory duties" in not even bothering to investigate the claims by the female employees of CRST Van Expedited and furthermore had failed to show "a pattern or practice of tolerating sexual harassment in its workplace."

The sexual harassment lawsuit was filed on behalf of 270 female truck drivers employed by CRST in 2007. Then things went terribly wrong for the EEOC.

The EEOC’s argument, said Reade, "boils down to little more than bald assertions." The EEOC’s litigation strategy, she added, "was untenable: CRST faced a continuously moving target of allegedly aggrieved persons, the risk of never-ending discovery and indefinite continuance of trial."

The EEOC has appealed the decision and fine to the U.S. Court of Appeals for the 8th Circuit.

Employers, you don’t want to risk any legal action by the EEOC, which usually doesn’t lose and has a variety of weapons in its arsenal in addition to lawsuits. Get yourself a copy of Personnel Concepts’ EEO Compliance Program today.

On Thursday, Feb. 18, the Labor Committee of the Maine legislature will hold hearings on a proposed law to tie the state’s minimum wage into the cost-of-living index. The Maine minimum wage currently rests at $7.50 an hour, 25 cents higher than the federal rate.

The indexing law was introduced in 2009 by Representative John Tuttle, D.-Sanford, who is also chair of the House Labor Committee.

Several states have similar laws on the books, but few foresaw a deflationary environment, so when consumer prices dropped in 2009, most states just left their minimum wages intact rather than decreasing them. Colorado, however, actually lowered its state minimum wage by four cents to $7.24 an hour, below the federal rate of $7.25.

Minimum wage rates must be posted in a conspicuous location in every place of work. A convenient way to maintain your minimum wage posters–and all other necessary labor posters–up to date is by taking a one-year update subscription when acquiring your Personnel Concepts Space Saver-1 All-On-One State and Federal Labor Law Poster. As changes happen, Personnel Concepts will then automatically mail you the updates.