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April 13, 2012


Headline News
California Supreme Court Gives Employers a Major Break
Labor-Market Worries Rise With Jobless Claims

ASA for You
Last Chance to Register Online for the 2012 ASA Staffing Law Conference

Legal Watch
USCIS Seeks Comments on Proposed Revisions to Form I-9
Oregon; Washington, DC, Ban Discrimination Against the Unemployed
Top Ten Compensable Time Issues for Non-Exempt Employees

Trends and Research
Failed Drug Tests Limit Employers' Options
Rock Bottom Unemployment for Some Jobs
Manufacturers Report Difficulty Hiring


Headline News


California Supreme Court Gives Employers a Major Break
Seyfarth Shaw (04/12/12) Brandon R. McKelvey; Dana Peterson; Jeffrey A. Berman

The California Supreme Court has ruled in Brinker Restaurant Corp. v. Superior Court that companies are not obligated to ensure their employees take legally mandated lunch breaks. Companies must give their nonexempt workers 30-minute meal breaks, but do not need to ensure their workers actually stop working during the breaks. Companies must give a meal break no later than the end of the fifth hour of work and a second break no later than the end of the 10th hour of work.

Labor-Market Worries Rise With Jobless Claims
Wall Street Journal (04/13/12) Conor Dougherty

Last week's rise in new claims for unemployment benefits—in combination with other weak reports on hiring, automobile sales, and small-business sentiment—has observers concerned that the labor market may be softening. The various reports suggest that strong job growth data reported earlier in the year were partially due to an unusually warm winter, which can boost employment for construction and other seasonal work. More troubling is that the data indicating strong early-year job growth followed by weaker spring growth is similar to a pattern seen in 2011.


ASA for You


Last Chance to Register Online for the 2012 ASA Staffing Law Conference

Today is the last day to register online for the ASA Staffing Law Conference April 17–18 in Washington, DC. After today, you can only register on-site at the Westin Washington, DC, City Center Hotel.

You can't afford to miss this opportunity to learn how to protect yourself and your business.

The conference features Charlie Cook, the pre-eminent authority on U.S. elections and political trends; senior-level representatives from the U.S. Department of Labor, U.S. Equal Employment Opportunity Commission, and U.S. Department of Justice; a special session to discuss the effects of federal health care reform; and more.

To register, visit americanstaffing.net.
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Legal Watch


USCIS Seeks Comments on Proposed Revisions to Form I-9
American Staffing Association (04/13/12) Anne Duffy

U.S. Citizenship and Immigration Services is seeking public comments on proposed revisions to its Form I-9, which employers must use to verify an employee's identity and to establish that the employee is eligible to work in the U.S.

According to USCIS, the intent behind the changes is to include "expanded Form I-9 instructions and a revised layout; new, optional data fields to collect the employee's e-mail address and telephone number; and new data fields to collect the foreign passport number and country of issuance."

Because of ambiguity with respect to several proposed language changes, ASA will submit comments to confirm that staffing firms can continue to complete the Form I-9 at the time a candidate consents to be included in the staffing firm's roster of temporary employees, irrespective of the time the individual actually begins work.

Public comments are due May 29. To review the USCIS request for comments regarding the proposed revisions to the Form I-9, see the March 27 issue of the Federal Register.

Oregon; Washington, DC, Ban Discrimination Against the Unemployed
American Staffing Association (04/13/12) Anne Duffy

The city of Washington, DC, and the state of Oregon recently enacted laws that prohibit employers and employment agencies from discriminating against job applicants based on their status as unemployed. New Jersey had previously enacted such a law, and similar legislation is pending in Arizona, Illinois, Nebraska, New York, and Michigan.

The DC Unemployed Discrimination Act of 2012, set to take effect next week, will prohibit employers and employment agencies from discriminating against job applicants based on their status as unemployed and will be the first law to ban the consideration of an applicant's unemployment status in adverse hiring decisions.

The Oregon law took effect March 27. It prohibits employers and employment agencies from publishing job advertisements that include language indicating that unemployed individuals should not apply for the job or that they will not be considered for the position.

Top Ten Compensable Time Issues for Non-Exempt Employees
JDSupra (04/12/2012)

Employers must ensure that nonexempt employees under the Fair Labor Standards Act are properly compensated for all hours worked, including overtime. They also must be compensated for time they spend waiting for an assignment, because they are not free to leave. Time spent at seminars, lectures, and training programs is compensable if their attendance is required, whether during or after normal work hours. Nonexempt employees also must be compensated for off-the-clock time if they begin working before the regular workday commences, even if the time is not recorded on the time sheet, and work brought home and e-mails answered before or after the regular workday are compensable as well. To avoid violations of overtime requirements, employers should ensure that nonexempt employees do not perform work outside their regular work schedule without prior approval.


Trends and Research


Failed Drug Tests Limit Employers' Options
Fond du Lac Reporter (04/13/12)

Wisconsin companies are eager to hire skilled employees, but too many candidates are failing drug tests. The drug test failure rate at some companies is as high as 50%.

Mark Immekus, chief sales officer of QPS Employment Group, says manufacturers are seeking applicants who are less likely to pose safety risks on the job due to substance-related impairments. "We don't see (testing) going away because manufacturers are under pressure, from a safety standpoint," he says. He also notes that, from QPS' point of view, a dearth of applicants with technical skills poses a greater challenge for companies than failed drug tests.

Rock Bottom Unemployment for Some Jobs
Worcester Business Journal (04/12/12) Livia Gershon

Although the national unemployment rate remains higher than 8%, Robert Half International says unemployment rates are much lower for some professional jobs, which is indicative of a "specialist economy." The staffing firm says the unemployment rate was 1.9% for lawyers, 2.8% for human resource managers, and less than 4% for software developers and financial analysts during the first quarter.

Manufacturers Report Difficulty Hiring
Today's Energy Solutions (04/12)

The Society for Human Resource Management reports that more than two-thirds of the manufacturers that were hiring late in 2011 reported difficulty finding skilled workers for specific openings. SHRM's Ongoing Impact of the Recession Poll, which surveyed 360 randomly selected human resource professionals from the manufacturing industry in late August and early September 2011, found that 75% of respondents from the manufacturing industry were hiring last fall, an increase from 51% in 2010.

However, 68% of those hiring reported difficulty recruiting for specific job openings. The positions most difficult to fill in the manufacturing industry were positions such as technicians and programmers (89%); engineers (88%); skilled trades (electricians and carpenters) (83%); and managers and executives (80%). When recruiting for jobs that required new and different skills, more organizations were having difficulty finding qualified individuals in 2011 (72%) compared with 2010 (43%).