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Nebraska ®

www.HRhero.com

What’s Inside

Part of your Nebraska Employment Law Service

Mark M. Schorr, Editor

Vol. 15, No. 12 October 2010

Erickson & Sederstrom, P.C.

Ask Mark

Can company request personal cell phone numbers from salaried employees? . ... 3

Workplace Trends

Survey says worker morale and productivity top employer concerns ............... 4

Contractors

Financial reform law has hidden diversity requirements for contractors . ...................... 4

Drug Use

What you need to know about growing number of medical marijuana laws ...................... 5

Workplace Safety

What does the bedbug epidemic have to do with your workplace? Lots .................... 7

On HRhero.com Discrimination The American workforce is becoming more diverse, with people from all walks of life. It’s important to know the discrimination laws that protect your workers. At www.HRhero.com, you can find the following tools to ensure your policies are on the right path: • HR Sample Policy  Harassment and/or Discrimination, www. HRhero.com/lc/ policies/204.html • HR Sample Policy  Respectful Workplace, www.HRhero.com/lc/ policies/220.html © M. Lee Smith Publishers LLC

overtime

BORROWED from MNEMP, Sept. 2010, Vol 20, No 7 103719

Off-the-clock work requirement is cause for alarm Class-action claims under the Fair Labor Standards Act (FLSA) continue to vex employers in a number of diverse industries. The verdicts can mean sizable awards since even an hour or two of unpaid overtime per week can lead to astronomical amounts when accrued by hundreds (or even thousands) of workers over the course of two or three years. The latest example is a claim against Qwest Communications, the large telecommunications enterprise that was recently charged with requiring its technicians to underreport their work in order to avoid discipline. As a result, the workers claim they are owed overtime pay.

Ticked-off employees Qwest is currently defending a collective lawsuit filed in federal court by current and former network technicians who drive Qwest trucks to customers’ premises to install, maintain, repair, and test parts of the telecommunications network. The employees claim Qwest is violating the FLSA by requiring them to either work off the clock to complete their jobs or be considered unsatisfactory performers for failing to complete their assigned duties on time. A significant part of the workers’ claim centers on the “quality jobs per day” (QJD) system, which evaluates employee performance by measuring productivity in four distinct areas.

Employees receive one of five ratings: outstanding, satisfactory, less than satisfactory, needs improvement, or unacceptable. If a worker receives a “needs improvement” rating, progressive discipline, up to and including termination, may result. The other component of the overtime claim is the out-of-garage rule. Technicians are required to report for work at a specified time and depart for their first customer call within 15 minutes after completing the following tasks: •

reviewing all assigned work and commitment times;

making sure the vehicle is clean;

making sure the truck is stocked with necessary tools and equipment;

calling the first customer and Qwest dispatch; and

performing “pretests.”

After returning at the end of the day, technicians must complete time entries relating to their service calls. The technicians claim that despite the fact that Qwest knew­­ (or should have known) that they must work more than eight hours a day to complete their work, it failed to pay them overtime for the extra hours. Qwest countered that the QJDs were developed to be objectively reasonable and that the technicians are responsible for accurately

Erickson & Sederstrom, P.C., is a member of the Employers Counsel Network


Nebraska Employment Law Letter reporting their time. If they report that they work extra hours, they are compensated appropriately. After asserting its argument, the company asked a federal district court judge to dismiss the claim.

in the lawsuit said they worked off the clock to improve their QJD results. Regardless of what the other 800-plus technicians did, that was sufficient to overcome Qwest’s argument.

No ringing endorsement

Time’s up

In ruling on Qwest’s request for dismissal, the court noted at the outset that the FLSA requires an employer to compensate workers for all overtime that it requires as well as all overtime “suffered or The court explained permitted.” That that the company essentially encomshould have known passes all work that the employer knew why employees (or s houl d h a ve were motivated known) was being to underreport performed. If the their hours. employer doesn’t wish to incur overtime liability, it must ensure that “work is not performed if it does not want it to be performed,” which requires more than enacting a policy and remaining passive afterward.

The court then turned its attention to Qwest’s assertion that it neither knew nor should have known of the off-the-clock work, noting that the evidence previously revealed that the company estimated the actual workload to be 10 or 11 hours. Still, Qwest claimed that an employer can’t be held responsible for unpaid overtime when employees underreport their work hours. However, the court explained that the company easily knew (or should have known) why employees were motivated to underreport their hours. Thus, it can’t argue that it was surprised to learn that they did so.

The court first addressed the allegation that Qwest ordered the technicians to work off the clock. A violation can be found only if the requirements of the job were so unreasonable that they objectively compelled off-theclock work. Qwest said that obviously wasn’t the case because: • QJDs are based on historic performance data of actual technicians. • The “satisfactory” rating in each category is based on the 50th percentile of a historic record of performance. • The majority of technicians regularly achieve satisfactory levels. • Of the few technicians who fall below the satisfactory level, even fewer have ever been disciplined. Since most technicians meet the standards and few are disciplined for falling below them, Qwest argued that the standards must be objectively reasonable. However, the court observed that Qwest’s own evidence demonstrated that in three of the four years preceding the lawsuit, the percentage of technicians achieving the satisfactory rating fell below 70 percent, bottoming out at 54 percent. In addition, there was evidence that at one time, Qwest estimated that the typical daily workload of a technician required between 10 and 11 hours to complete. That was enough to defeat the company’s argument. The court also rejected Qwest’s assertion that the QJD expectations do not “uniformly” force “all technicians” to work off the clock. The court pointed to questionnaires showing that 90 percent of the 164 technicians 2

Turning to the out-of-the-garage rule, the court cited a particularly compelling bit of testimony from one of the technicians: If you . . . started at 8:00 [a.m.], you would never get out of there before 8:30 [a.m.], because it took that long. You had to . . . boot up your computer and . . . get online and then get your jobs and write them down, and . . . then you had to go out and supply your truck. So you just came in [10], 15 minutes early and started. . . . And then . . . at night, when you come in, it’s the same thing. . . . You work and you finish the job and then try [to] make it back to the garage, and instead of getting off at 4:30 [p.m.], you’re getting off at [4:50 p.m.] . . . . And in order to get overtime approved, you had to find somebody that would approve it. Based on that and similar evidence, the court rejected Qwest’s arguments defending its out-of-the-garage rule. Qwest continued to push that it shouldn’t be faulted for failing to pay for hours that employees didn’t submit — but the court pushed back, citing previous rulings declaring that if an employer creates a situation that discourages or doesn’t require employees to record all of their overtime, it cannot “hide behind a policy of having employees keep their own time,” nor can it “stand idly by” and allow employees to underreport their time. Thus, the court denied Qwest’s request for dismissal and sent the case forward for a full trial. Lyle Brennan, Christopher Richard, et al. v. Qwest Communications International, Inc., et al., Case No. 07-2024 (MN Dist. Ct., July 20, 2010).

Wake-up call for employers This case is still in the early stages, so we don’t know what ultimately will be decided. We do know, however, that the courts are likely to take a very dim view October 2010


Nebraska Employment Law Letter of employers that try to discourage employees from reporting overtime hours when they know the hours are being worked. Remember — it’s not enough to tell employees not to work overtime. You must take active steps to prevent it.

You can research overtime under the FLSA or any other employment law topic in the subscribers’ area of www.HRhero. com, the website for Nebraska Employment Law Letter. Access to this online library is included in your newsletter subscription at no additional charge. ✤

Ask Mark What’s the 411 on private cell phone numbers? by Mark Schorr

Q Our company president wants the managers to collect all salaried employees’ personal cell phone numbers. Is that legal?

A Yes. There’s nothing under federal or Nebraska

law that prohibits an employer from requesting that all management-level employees’ cell phone numbers and basic contact information be made available in case they need to be contacted. In fact, it’s a very common practice, and I presume that the president intends to add the cell phone numbers to the published contact information for employees regularly maintained by most employers. In your situation, it appears that cell phone numbers will be collected only for salaried employees, who are typically the employees who may have to be contacted in an emergency concerning company business. You have a legitimate business purpose for asking the employees to make their personal cell phone numbers available, and unless one of them can provide some valid reason why his cell phone number ought to remain private, you shouldn’t have a problem in assembling this information.

Q We have an employee who is complaining that travel

arrangements made for him by the company resulted in him having to go to the airport outside normal work hours (but during the workweek) to catch his flight. The flight returned during the workweek, but again, it was outside normal work hours. He was traveling to attend a training program that took place during the workweek and lasted several days. He is requesting compensation for the time he spent traveling outside normal work hours. Are we required to pay him?

A No. When an employee is required to travel away

from home overnight or for an extended period, only the time spent traveling during the hours corresponding to his normal working hours must be counted as compensable hours of work under the Fair Labor Standards Act (FLSA). Time the employee spends traveling away from home outside regular working October 2010

hours isn’t compensable. However, travel time on Saturdays, Sundays, and holidays that corresponds to the employee’s normal working hours on other days of the week must be counted as compensable working time. In your situation, since all of the travel was outside normal work hours, you aren’t required under the FLSA to compensate him for his travel time.

Q One of our employees has requested copies of his

past performance evaluations. The request came after he apparently had a disagreement with his supervisor. I can’t find anything specifically stating that we have the right to deny the request. However, I’ve read about employee evaluations being used against employers by the Equal Employment Opportunity Commission (EEOC) and courts of law. What is the best way to proceed?

A Presumably, the employee has previously reviewed or been given a copy of his performance evaluations, and most employers do permit employees to review their personnel files. Many employers also go over performance evaluations with employees and request that employees sign the evaluations. While the performance evaluation remains employer property at all times, I see no reason not to permit an existing employee to review copies of his past performance evaluations. In your situation, allowing the employee to review the past evaluations may even smooth over a problem and prevent any potential administrative charges or litigation. In any event, if your employee does at some point file an EEOC charge or a lawsuit, you will in all likelihood be required to produce his entire personnel file, including all past performance evaluations. Given the information you’ve provided, I see no reason not to allow the employee to at least review his past performance evaluations. “Ask Mark” is a monthly feature of Nebraska Employment Law Letter. Please submit any questions you have about situations involving labor and employment law issues to schorr@eslaw.com. ✤ 3


Nebraska Employment Law Letter

WORKPLACE Trends Morale named biggest workforce challenge. A survey of HR managers shows morale and employee productivity are top concerns for the rest of this year. Thirty-one percent of the HR managers surveyed by ComPsych Corporation, a provider of employee assistance programs, named maintaining employee productivity and morale as their top concerns. Twenty-six percent said dealing with health care costs and new legislation, 16 percent said finding qualified candidates, 14 percent said handling organizational change, and 13 percent said retaining top performers. Moonlighting rate drops. The multiple jobholding rate — the proportion of total employment made up of workers who held more than one job — was 5.2 percent in 2009, according to figures from the U.S. Department of Labor. That’s below the levels recorded during the mid-1990s. Among most of the major demographic groups, “moonlighting” has become less common in recent years compared with the mid- to late 1990s. The multiple jobholding rate reached its most recent peak (6.2%) between 1995 and 1996. The rate began to recede and declined to 5.2 percent by 2002. Since the start of the most recent recession in December 2007, the multiple jobholding rate has hovered around five percent. Among the major racial ethnic groups in 2009, the multiple jobholding rate for whites was 5.4 percent, while the rates for blacks and Hispanics were 4.8 percent and 3.3 percent, respectively. The rate for Asians was 3.2 percent. Survey finds millions of older workers in physically demanding jobs. A study from the Center for Economic and Policy Research shows that 37 percent of male workers age 58 and older have physically demanding jobs. The center conducted the study to assess the impact of raising the retirement age. The report also said that among those age 58 and older, difficult jobs were held by 62.4 percent of Latino workers, 53.2 percent of black workers, 50.5 percent of Asian/Pacific American workers, and 42.6 percent of white workers. Older workers with less than a high-school diploma had the highest share of workers (77.2%) in difficult jobs. Preliminary figures show drop in fatal occupational injuries. A preliminary total of 4,340 fatal work injuries was recorded in the United States in 2009, down from a final count of 5,214 fatal work injuries in 2008. The 2009 total represents the smallest annual preliminary total since the Census of Fatal Occupational Injuries was first conducted in 1992. Based on this preliminary count, the rate of fatal work injuries for U.S. workers in 2009 was 3.3 per 100,000 full-time equivalent workers, down from a final rate of 3.7 in 2008. D

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government contractors October 2010 federal article. leg, gc, ds, drace, term

Financial reform’s hidden surprise: diversity requirements The Dodd-Frank Wall Street Reform and Consumer Protection Act (also known as “financial reform” or “the Wall Street bill”) made headlines when President Barack Obama signed it into law on July 21. However, many employers probably don’t realize the legislation contains diversity provisions that could affect them if they are contractors, subcontractors, or service providers for certain federal government agencies. More specifically, the diversity requirements found in the bill will affect financial industry organizations and those connected to them.

Office of Minority and Women Inclusion The federal financial regulatory agencies affected by the legislation will have to establish an Office of Minority and Women Inclusion. According to the legislation, each office is “responsible for all matters of the agency relating to diversity in management, employment, and business activities.” Each agency must establish an office no later than six months after the date of the bill’s enactment, and each agency administrator (head of the agency) will appoint an office director. The agencies subject to these requirements include: • the departmental offices of the U.S. Department of the Treasury; • the Federal Deposit Insurance Corporation; • the Federal Housing Finance Agency; • all of the Federal Reserve banks; • the Board of Governors of the Federal Reserve System; • the National Credit Union Administration; • the Office of the Comptroller of the Currency; • the Securities and Exchange Commission; and • the Bureau of Consumer Financial Protection established by the legislation.

Office functions Standards. Office directors must develop standards for: (1) equal employment opportunity and the gender, racial, and ethnic diversity of the agency’s workforce and senior management; (2) the increased participation of businesses owned by minorities and women in the agency’s programs and contracts; and (3) evaluation of the diversity policies and practices of entities that are regulated by the agency. Directors must also advise the agency administrator regarding the impact of the agency’s policies and regulations on businesses owned by minorities and women. October 2010


Nebraska Employment Law Letter Additionally, office directors must develop and implement standards and procedures to make sure the agency fairly includes and uses minorities, women, and businesses owned by minorities and women in all of its activities and business. That includes procurement, insurance, and all kinds of contracts. Contracts. The agency’s procedures for reviewing and evaluating contract proposals and for hiring service providers must include “a component that gives consideration to the diversity of the applicant.” Additionally, contractors doing business with the agencies must submit a written statement that they will make sure (to the maximum extent possible) that they (and their subcontractors, if applicable) fairly Exactly what these include women and regulations will minorities in their entail isn’t clear yet. workforce. Termination. If a director determines that an agency contractor (or subcontractor) didn’t make “a good-faith effort” to include women and minorities in its workforce, the director will recommend contract termination to the agency administrator. After the administrator receives such a recommendation, she can: (1) terminate the contract; (2) refer the issue to the Office of Federal Contract Compliance Programs (OFCCP); or (3) take other appropriate action.

Affected employers Employers that deal with the above agencies may be affected by these new diversity requirements. According to the legislation, these requirements apply to the following service providers: • financial institutions; • investment banking firms; • mortgage banking firms; • asset management firms; • brokers; • dealers; • financial services entities; • underwriters; • accountants; • investment consultants; and • providers of legal services. Additionally, the term “contracts” includes “all contracts for all business and activities of an agency, at all levels, including contracts for the issuance or guarantee of any debt, equity, or security, the sale of assets, the management of the assets of the agency, the making of equity investments by the agency, and the implementation by the agency of programs to address economic recovery.” October 2010

What you need to know If you’re a federal contractor, subcontractor, or serv­ ice provider for one of the federal agencies listed above or you expect to become involved with one of those agencies, you may be facing more regulatory review of your organization’s employment practices. However, exactly what these regulations will entail isn’t clear yet since each agency’s office will develop its own standards. Even though the agencies haven’t yet developed the new standards, if you think you may be subject to this legislation, it’s a good idea to start planning ahead. More specifically, you should: •

Determine whether your current contracts, subcontracts, or service agreements would cause you to fall under the legislation.

Review your current diversity programs and practices.

Review the OFCCP’s standards and determine how your organization’s practices and programs compare (since many speculate the new standards will be similar to OFCCP standards).

Decide whether you think you will need to implement new diversity programs and practices to comply with the new standards. D

drug use

October 2010 article du, dt, leg, el,federal ada, hcra, os, jri, jrd

Baked but not fired? Medical marijuana laws create uncertainty for your policies The debate over the legalization of marijuana for medical purposes is far from a new one, yet it has seen a recent surge of interest, raising policy and liability questions for employers across the country. Ever since California legalized the use of marijuana for medicinal purposes in 1996, a steady stream of states has followed suit. Fourteen states and the District of Columbia have now legalized the use of marijuana for medicinal purposes.

How do the laws work? Though there have been efforts to pass national medical marijuana legislation, the possession, sale, and recreational use of marijuana remain illegal under the federal Controlled Substances Act. So how do state medical marijuana laws reconcile the illegality of the substance? Medical marijuana legislation generally removes state criminal penalties for the use, possession, and cultivation of marijuana for patients with a recommendation or referral from their physician. Typically, the physician must indicate that the patient will benefit in some way from the use of marijuana for the treatment of specified 5


Nebraska Employment Law Letter conditions, which may include illnesses such as cancer, HIV/AIDS, epilepsy, multiple sclerosis, and glaucoma. Additionally, the federal government recently changed its long-standing policy of prosecuting users of marijuana. In October 2009, the Obama administration announced that it would no longer pursue medical marijuana users and distributors in states where it is legal, so long as they comply with applicable state laws. Medical marijuana laws vary in specifying how the marijuana can be dispensed to a qualified patient or caregiver. In some states, certified and licensed dispensing centers are the only legally authorized providers of marijuana, while other states allow patients to grow, cultivate, and consume their own marijuana. Many of those states have now created state-run registries that require qualified patients to register and receive special identification cards denoting their medical need. Other states require only that patients possess written documentation from their physicians. All states limit the amount of marijuana that can be grown or possessed during a given time.

States’ laws and their impact Earlier this year, New Jersey and the District of Columbia signed medical marijuana legislation into law, joining Maine, Rhode Island, and Vermont on the East Coast. Alaska, California, Colorado, Hawaii, Michigan, Montana, Nevada, New Mexico, Oregon, and Washington round out the other states where medical marijuana is legal. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors to prescribe marijuana (though federal law prohibits doctors from doing so). Last year, about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana. In the meantime, existing laws continue to be interpreted and modified through legislative action or court decisions.

The laws of the states in which you operate should be carefully examined for guidance. Some states, such as Colorado, have specifically stated that nothing in the medical marijuana law requires an employer to accommodate the use of medical marijuana in the workplace. In such states, it may be clear that employers can prevent employees from using marijuana at work, but it may not be clear whether employees are protected when they come to work with marijuana in their systems or when they test positive in a drug test. Other states have taken the opposite approach, specifically prohibiting employers from disciplining or terminating employees based on their medical marijuana use. Again, it isn’t always clear whether these laws apply to both on- and off-duty use.

Further legal issues, from ADA accommodation to safety Legal questions also arise regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions. At least one state supreme court has ruled that employers don’t need to make such accommodations. Because the ADA doesn’t require accommodations that would create a threat to employee safety or unreasonable risk of harm, some employers could argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment. Speaking of dangerous environments, an added concern for employers of medical marijuana patients is workplace safety. Employers must still meet Occupational Safety and Health Administration and other federal regulations for safety, especially when employees perform potentially dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties. Therefore, several state medical marijuana laws specifically prohibit the operation, navigation, or actual physical control of a motor vehicle, aircraft, or motorboat while under the influence of medical marijuana.

Bottom line The good news is that in general, court decisions tend to rule in favor of employers that enforce drugfree workplace policies. Further, it doesn’t appear that state medical marijuana laws give employees a special legal claim to sue for wrongful termination. However, it’s hard to say, in light of recent developments on the state and local levels, whether this trend will continue. You should carefully review your drug policies and make sure they include provisions addressing the issue of medical marijuana use. D 6

October 2010


Nebraska Employment Law Letter

OCCUPATIONAL SAFETY October 2010 federal article os, wc, wi

How to put some bite into your antibedbug efforts

bites, just as they have for tick-transmitted Lyme disease and brown recluse spider bites.

Take bedbugs seriously

Not so long ago, people could file away any bedbug worries in their mental “faraway travel, odd hotel” file — meaning, “It won’t happen to me.” These days, bedbugs seem to be everywhere, from top-tier hotels to office buildings, movie theaters, and popular retail stores. People work in all of these places. Employers may be scratching their heads (sorry, couldn’t resist) wondering what to do if the critters show up at work. Here are some ideas to get you started.

Awareness and prevention are key to antibedbug efforts. New York City topped Terminix’s recent list of the nation’s 15 hot spots for bedbugs, and when the city’s Bed Bug Advisory Board this year presented recommendations, it first called for public education and awareness. Make sure employees understand that bedbugs go where humans go and aren’t a sign of slovenly habits or somehow the carrier’s fault. This message should help reduce any stigma attached to an infestation.

Bedbugs 101

In the workplace

Bedbugs are dark-colored wingless insects that usually come out only at night for their food of choice: human blood. They’re remarkably hardy and can live for months — some websites say a year — without a blood meal. What’s more, they reproduce readily and have become resistant to some pesticides.

Perhaps the best thing you can do as a manager is to be open to the possibility that your workplace may harbor bedbugs. Listen to employees if they suspect bedbugs, and check out their complaints promptly. Educate employees to gather evidence (dead bug on sticky tape, for example) and keep track of where it was found so a pest control expert can identify it. It’s better to tackle bedbugs early than to deny they exist and put off trying to get rid of them.

They do bite, injecting the sleeping victim’s skin with an anesthetic substance and sucking out blood. Some people don’t react to bedbug bites, but most will develop bumps or welts that can itch mightily. Fortunately, bedbugs aren’t known to transmit disease. Scratching at welts could lead to an infection, however, and some people have developed anxiety and insomnia after bedbug bites. A recent New York Times article explored the social stigma that people can experience if bedbugs infest their homes, and shunned people can suffer psychological ills like depression. It’s possible that an employee could file a workers’ compensation claim for workplace bedbug

As the New York Bed Bug Advisory Board pointed out in its report, there are no “best practices” for pest management professionals. Pest control personnel use a variety of approaches, it’s hard for customers to evaluate them, and “scams and fraudulent services are becoming increasingly common,” the board’s report states. The board includes initial pest industry guidelines as an appendix to its report. The Harvard School of Public Health’s webpage on bedbugs, www.hsph.harvard.edu/bedbugs, recommends contacting a licensed pest control operator who is

Don’t miss this important virtual conference

CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS VIRTUAL SUMMIT December 15 Presented by attorneys Mark I. Schickman and Kara E. Shea

®

October 2010

When an employee comes to you with a complaint of discrimination, sexual harassment, retaliation, theft, inadequate security, or another serious issue, do you know what to do? If you don’t have an effective plan in place for investigating these complaints, you could be leaving your company open to litigation. In this all-new one-day conference, knowledgeable attorneys will provide step-bystep guidance on how to conduct legally compliant workplace investigations that will uncover the facts behind employee complaints.

For more information or to register, visit www.HRhero.com or call toll-free (800) 274-6774. Please mention CONFERENCE CODE P373 when calling.

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Nebraska employment law letter Training Calendar Call customer service at (800) 274-6774 or visit us at the websites listed below. FULL-DAY WEB SEMINARS 10-21 “Unionized Employers Virtual Summit: Negotiating CBAs and Mastering Other Labor Challenges,” presented by attorneys James F. Kilcur, Christoper J. Murphy, and Robert C. Nagle. http://store.hrhero.com/unionized 12-15 “Conducting Effective Workplace Investigations Virtual Summit,” presented by attorneys Mark I. Schickman and Kara E. Shea. Watch for details at www.HRhero. com. AUDIO SEMINARS — http://store.hrhero.com/ events/audio-conferences-webinars Also available on CD and audio stream after the broadcast. 10-18 “Monitoring Employee E-Mail, Texting, and Facebook: What’s Off Limits?” presented by attorney Margaret (Molly) DiBianca. 10-19 “Doing Business in China: What HR Needs to Know,” presented by attorney Robert L. Brown.

knowledgeable and experienced in managing bedbug infestations. Ask for references, and ask at least a few of the operator’s customers about their experiences before agreeing to any contract. One term that comes up repeatedly in bedbug-­control discussions is integrated pest management (IPM), which employs “all possible methods in a logical combination that minimizes risk of pesticide exposure, safeguards the environment, and maximizes effectiveness,” according to the state of New York’s IPM website. Facilities should have a pest management plan in place to deal with pests, including bedbugs, before they’re a problem. IPM methods include: • inspecting infested areas and surrounding living spaces; • correctly identifying pests; • keeping records of times and places where pests are found; • reducing clutter; • following cleanup procedures; • using pesticides as appropriate; • following up with additional inspections and treatments; and • educating people on preventing bedbugs.

Final thoughts These ideas on preventing and addressing bedbug problems in the workplace aren’t meant to be exhaustive. They can, however, offer a starting point in developing an approach to keeping bedbugs and other pests out of your workplace so they can’t cause problems for you and your employees. D

10-21 “How to Conduct Internal Investigations Without Risking Serious Legal Trouble,” presented by attorney Francine Esposito. 10-26 “2011 Recruiting: Find the Best Talent Cost Effectively Using Facebook, Linkedin, Twitter, Skype, and More,” presented by Dan Ryan, Human Capital Group. 10-27 “Essential Function: Writing ADA-Compliant Job Descriptions,” presented by attorneys Audra K. Hamilton and Jonathan R. Mook. 10-28 “Control FMLA Abuse: Documentation Tactics to Deter Employees Who ‘Work the System,’” presented by attorneys James F. Kilcur and Christine Kenny. 11-1 “HR’s Response to New Union Organizing: Countering Social Media, Employee Handbooks and EFCA-lite,” presented by attorney Bonnie Glatzer. D Nebraska EMPLOYMENT LAW LETTER (ISSN 1085-3332) is published monthly for $447 per year by M. Lee Smith Publishers LLC, 5201 Virginia Way, P.O. Box 5094, Brentwood, TN 37024-5094. Copyright 2010 M. Lee Smith Publishers LLC. Photocopying or reproducing in any form in whole or in part is a violation of federal copyright law and is strictly prohibited without the publisher’s consent.

Editorial inquiries should be directed to Mark Schorr, 301 S. 13th St., Suite 400 Cornhusker Plaza, Lincoln, NE 68508, (402) 476-1000.

an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.

Nebraska EMPLOYMENT LAW LETTER should not be construed as legal advice or legal opinion as to any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult

For questions concerning your subscrip­ tion, www.HRhero.com, or Corporate Multi-User Accounts, contact your customer service rep­r e­ sentative at (800) 274-6774 or custserv@mleesmith.com. ®

NEEMP-15-12  

Workplace Safety Discrimination Contractors Mark M. Schorr, Editor Part of your Nebraska Employment Law Service Erickson & Sederstrom, P...