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I'm pleased to share the following very well written analysis of employment issues in the new administration. Allen Roberts a partner with Epstein Becker and Green has shared this with our colleagues and graciously allowed us to reproduce it here. It's good reading and well worth thinking about. Please feel free to contact Allen directly regarding this information....His contact information is at the end of the article.

Employment Issues on the Table for a New Year and a New Administration

Allen B. Roberts

During EpsteinBeckerGreen's recent Annual Labor and Employment Briefing in New York, I participated in a panel discussion with attorneys in our Business Law Practice Group to address some things employers should anticipate moving into a new year with a new administration. There is little room for doubt that "change" is coming, irrespective of the election outcome.

Several who attended the Briefing have asked me to memorialize and amplify comments I made concerning one newly enacted law and three legislative initiatives that may be forthcoming. I am sharing my response with EpsteinBeckerGreen clients and friends.

A. Establishing Baselines for Legislation

Congressional action frequently follows some dramatic occurrence or seeks to redress some popularly perceived wrong, as with the National Labor Relations Act of 1935, Title VII of the Civil Rights Act of 1964 or the Sarbanes-Oxley Act of 2002. In other instances, legislation may be corrective or restorative, designed to capture or recreate the intentions of legislative sponsors or proponents after court or administrative interpretations do not fulfill initial expectations, as with the recently enacted ADA Amendments Act ("ADAAA") and other proposed legislation.

In a period when change is a hallmark of the campaigns of both presidential candidates and pervades the pronouncements of other candidates and incumbents, we can anticipate the introduction of certain widely discussed and promoted legislative offerings - followed by administrative and judicial interpretation and enforcement.

B. One New Law and Three of Those in the Pipeline

1. ADA Amendments Act of 2008

Following some eighteen years of judicial construction and administrative interpretation, the Americans with Disabilities Act ("ADA") was amended this year, mostly by provisions touted as restoring intent that was not fulfilled, particularly as a result of notable Supreme Court decisions. With the enactment of the ADA Amendments Act ("ADAAA"), having a January 1, 2009, effective date, employers should act affirmatively to ensure that their policies, practices, job descriptions, orientation and training take account of important changes:

The definition of "major life activity" has been expanded to expressly include (i) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working, as well as (ii) the operation of a "major bodily function," such as functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

An impairment that is episodic or in remission qualifies as a disability if it would substantially limit a major life activity must be conducted without regard to ameliorative effects of life activity when active. The analysis to determine whether an impairment substantially limits ch mitigating measures as medication, medical supplies, equipment, prosthetics, devices or supplies (except for ordinary eyeglasses or contact lenses that are intended to fully correct a person's vision), assistive technology, auxiliary aids or services, and learned behavioral or adaptive neurological modifications.
The term "auxiliary aids and services" expressly includes qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; qualified readers, taped texts or other effective methods of making visually delivered materials available to individuals with visual impairments; and acquisition or modification of equipment or devices.

Protection against discrimination of individuals "regarded" as having an impairment applies to an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. A "minor" impairment or one that is "transitory," with an actual or expected duration of six months or less, does not qualify for the protection.

The ADAAA promises new compliance challenges and the prospect of claims as new statutory definitions, rights and obligations are tested. Some of the challenges inhere in the new definitions, while others are a product of the difference between employer obligations under the ADA and those under equal employment opportunity laws proscribing discrimination on the basis of some protected status. From a compliance perspective, I believe it is helpful to not regard the ADA as just another equal employment opportunity law. The thrust of equal employment opportunity laws is ensuring equality of treatment to all workers - affording equality of opportunity and treating all people alike irrespective of a characteristic that is granted protected status. In contrast, the ADA admonishes that those within its protective reach must be treated not equally but differently from others, by way of distinguishing, reasonable accommodation. The ADAAA underscores this distinction by clarifying and, in some instances, redefining aspects of employer responsibility to reasonably accommodate.

The ADAAA draws new baselines with newly defined major life activities and protections for conditions controlled by medication and other mitigating measures. The result will be attendant requests for reasonable accommodation. Because certain items are incorporated into the ADAAA definition as "auxiliary aids and services," those items and others that are analogous may set new norms and guidelines for measuring the availability and reasonableness of requested accommodations.

Anticipating the predictable requests from employees and applicants occasioned by the ADAAA, employers should be addressing whether job descriptions specifying essential job functions are current and complete and whether policies and practices and programs for orientation and training have been updated to take account of the ADAAA and its impact.

An ADAAA Client Alert by Frank Morris and Minh Vu, Co-Directors of EpsteinBeckerGreen's Disability Practice Group, is available here: http://www.ebglaw.com/showclientalert.aspx?Show=9056.

2. Proposed Employee Free Choice Act

The proposed Employee Free Choice Act ("EFCA") does not spring from the same type of disappointment with judicial construction and enforcement that prompted amendment of the ADA. After all, private sector unionization grew considerably following the 1935 enactment of the National Labor Relations Act ("NLRA"), reaching approximately 33% in the 1940s. With private sector unionization today standing not much above 7%, there is considerable congressional support for fundamental change of cornerstone principles of the NLRA - from primacy of secret ballot elections and employer freedom of expression to the elemental right to collectively bargain by agreeing or disagreeing to proposals without compulsion to make any concession.

If enacted in a form resembling its current version - and upheld and enforced when challenged in available administrative and judicial proceedings - the EFCA would:

Bypass and displace conventional National Labor Relations Board secret ballot elections by allowing unions to gain representation rights once they have acquired signed authorization cards from a majority of the employees in any unit appropriate for collective bargaining;

Fast-track negotiation of a first collective bargaining agreement;
Specify mediation of a first collective bargaining agreement if the parties do not reach agreement within ninety days;

Set the economic and noneconomic terms and conditions of an initial two-year collective bargaining agreement through an arbitration award if mediation has not produced a first contract;

Introduce liquidated damages of two times the amount of back pay to remedy unlawful discharges during a union's organizing drive or during negotiation of a first contract; and
Introduce penalties of up to $20,000 for each separate willful or repeated violation.

The primary impact of a law like the current version of the EFCA may be expected to be felt in industries traditionally targeted by mainstream unions. But it is not out of the question that reality will outgrow those bounds and spill over to industry sectors never before affected by unionization, including clusters of white-collar employees in office environments. If this occurs, it may be because of two elements currently residing within the NLRA. First, there is no requirement that a labor organization win majority support in the most appropriate bargaining unit; all that is required is that the unit be an appropriate unit for bargaining. Second, there is no statutory formality to the entity that can be considered a labor organization entitled to obtain employee representation rights; all that is required is an organization of any kind or an employee committee in which employees participate and that exists, at least in part, for the purpose of dealing with employers concerning any of an array of matters, including grievances, rates of pay or conditions of work. The consequence could be fractionated, distinct employee groups joining together and turning outside to established labor organizations or internally creating their own.

If a card check displaces conventional elections and campaigns, an employer may not have sufficient advance notice to launch a fact-based campaign to dissuade employees from signifying their support for union representation. In any event, the powerful and lawful employer messages that union representation does not ensure better wages, hours, or terms and conditions of employment; that some benefits could be lost; and that employees might fare worse with a union contract than without one - and that there is no assurance that a first agreement could be concluded - will be substantially weakened and may be undermined altogether if mandatory arbitration of a first contract remains a feature of EFCA as enacted. As a practical matter, the EFCA provision for an arbitrated agreement could go a long way toward erasing employee doubt about whether employees would have the power through union representation to obtain a contract with improved terms and conditions. The message that strikes entail risks of lost pay and permanent replacement also evaporates if an arbitrator is legislatively empowered to dictate initial terms of a contract - possibly within six months of the time an employer first learned of the card signing.

Arbitrators potentially could have authority to make determinations on such obvious direct economic costs as pay, health and pension coverage, and fringe benefits, without giving paramount consideration to employer ability to absorb additional costs and liabilities or to employer or employee priorities. Separate from direct economics there is a full array of costly items that are not directly calculable. These include the important rights to manage and exercise control over the workplace, scheduling, subcontracting, promotion and transfer, seniority, and dispute resolution by way of grievances and arbitration. Employers will be met with the additional risks, potential costs and uncertainty of not knowing the weight an arbitrator will attach to union demands, the employer's business and its competitive circumstances, and actual or perceived economic and noneconomic patterns and industry norms.

3. Independent Contractors Under the Proposed Taxpayer Responsibility, Accountability and Consistency Act and the Proposed Employee Misclassification Prevention Act
The Government Accountability Office has estimated that some 10.3 million workers, or approximately 7.4% of the total workforce, were classified in 2005 as independent contractors, a percentage comparable to the private sector workforce that is unionized. To address the possible misclassification of employees as independent contractors, the House Taxpayer Responsibility, Accountability and Consistency Act and the Senate Employee Misclassification Prevention Act have the potential to:

create a definition of "independent contractor" intended to have universal applicability;
require employers to maintain records of independent contractor classifications;
mandate notice to individuals of their classification and grant a right to challenge that classification;

provide economic relief to those misclassified, with liquidated damages;
impose civil penalties for misclassifications;

require audits by state unemployment insurance agencies and by the U.S. Department of Labor ("DOL"); and

allow information sharing by the Internal Revenue Service and the DOL.
For employers whose independent contractors are reclassified as employees, the consequences include employee eligibility for such items as overtime pay, pension and welfare benefits, and workers' compensation and unemployment insurance benefits, as well as employer liability for statutory payroll contributions and withholdings and deductions from employee pay. Once a reclassification occurs, there is the further prospect of individual or class claims to restore the value of lost compensation and benefits dating back to the applicable statute of limitations.

4. Proposed Whistleblower Protections

Current discontent voiced by whistleblower advocates and legislators regarding administrative and judicial construction of whistleblower protection laws, notably the Sarbanes-Oxley Act, can be expected to lead to legislative initiatives. There is a relative abundance of limited-purpose whistleblower protective legislation aimed at particular subjects or industry or employer characteristics. But no broad federal legislation mirrors that of certain states, protecting whistleblower activity in the nature of disclosure, participation in proceedings or objection concerning violation of "any law, rule or regulation."

The most recent federal whistleblower law is the Consumer Product Safety Improvement Act ("CPSIA"), signed by President Bush on August 14, 2008. The CPSIA protects employees for their properly reported disclosures and participation in proceedings by way of testimony or otherwise, just as it protects their objection or refusal to participate in conduct violative of the full panoply of federal consumer product safety laws and orders, rules, regulations, standards and bans, relating to consumer products anywhere in a manufacturing, private labeling, distribution or retail sales channel. The CPSIA shows its pedigree in Sarbanes-Oxley and other whistleblower laws, but it also introduces new legislative clarity to issues where administrative or judicial determinations have disappointed whistleblower advocates or legislators, codifying substantive and procedural terms that met varying administrative and judicial constructions. While it retains the controversial and unsettled Sarbanes-Oxley provision for preliminary reinstatement of discharged whistleblowers once they have established a prima facie case, it advances from Sarbanes-Oxley to affirmatively announce protection for employees acting within the scope of their duties and to specify that trial by jury is available.

CPSIA could be a harbinger of legislative reform of existing law, and it may supply elements to a more comprehensive general law having an expanded reach and accomplishing protections not available in the current mosaic of federal whistleblower legislation.

A CPSIA Client Alert by Douglas Weiner and me is available here: http://www.ebglaw.com/showclientalert.aspx?Show=8910.

C. What It All Means

It is difficult to know the business climate of 2009 and beyond. Nevertheless, there are clear indicators of more activism, accompanied - or manifested - by new legislation and regulatory enforcement of those and existing laws. Employers are likely to encounter an environment marked by legislative initiatives that introduce new employee rights and reverse familiar mainstream constructions. In that climate, it is only reasonable to expect that claims by employees or on their behalf will have elevated prominence.

Notwithstanding the immediacy of other pressures that so many employers currently grapple with, there is merit to investing now in programs, policies and procedures that anticipate and avert expensive involvements that may be the product of changes promised as we head in to a new year with a new president and a new congressional term.

* * *
This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.

If you have any questions regarding topics discussed in this memorandum, please contact Allen B. Roberts. Mr. Roberts is based in EpsteinBeckerGreen's New York office and co-chairs EpsteinBeckerGreen's Whistleblowing and SOX Subpractice Group. He may be reached at (212) 351-3780 or aroberts@ebglaw.com.

Here is another great white paper from Allen Roberts. This is "must reading" for business executives!! J

The Global Economic Crisis - Preparing for a
Tsunami Landfall in the Employment Arena

Allen B. Roberts

In ordinary times, employment contracts and relationships capture the parties' intentions and expectations, moderated by the overlay of construction by courts, arbitrators or administrative agencies engaged by one side or the other when disputes incapable of direct resolution arise. For many, these are not ordinary times.

Whatever the industry, wherever it is located, and irrespective of the parties' sophistication and thoughtfulness, too many employers have been thrust into the vortex of a worldwide economic crisis certain to destabilize employment relations and upset the order of normal intentions and expectations. Before rushing to batten down the hatches, some panic control should accompany, if not precede, damage control; employment risks need to be assessed rationally, just as other business and economic risks. This article assesses some of the challenges, analyses and approaches available to employers as a complement to EpsteinBeckerGreen's White Paper, entitled "Contract Modification or Cancellation and Breach of Contract Defenses in Times of Economic Crisis," click here to view White Paper.

We are seeing that "right-sizing" of workforces is underway across industry lines and geographic bounds, as well as vertically - top to bottom. For many, the process cuts deep with unprecedented rupture of loyalties and relationships; there may be institutional trauma and personal hardship. In such a climate, objectivity and rational decision-making are necessary, even while they may be criticized and devalued as cold, calculating and unsympathetic. More than in any recent time, businesses are focused on concerns for their own immediate wellbeing and for longer term institutional survival and success, while trying to avoid shortsighted reactions that could compromise the value of corporate mission, culture and reputation.

A. Taking Stock of Human Capital and Legal Obligations

For businesses facing economic crisis, accurate assessment of human capital is essential to realizing intended objectives and efficiencies without incurring unwanted, undesirable risks and costs. This entails comprehensive, reliable appraisal of individual employee contributions to the business.

Even while businesses strategize concerning workforce size, talents and cost, their employees who hold publicly traded securities in investment or pension accounts may be reconsidering planned retirement dates and assessing their recourse in the face of depleted portfolios that are no longer synchronized to personal and actuarial assumptions because of current corporate fortunes and prospects. On a positive note, companies that had anticipated announced or unannounced departures for retirement may now find that they enjoy the continuing resource of talented individuals who will remain in the workforce. Conversely, employees who failed to measure up but whose presence was tolerated because business was robust and retirement was drawing near may not be so welcome for an indeterminate extended period. In any event, if normal attrition is disrupted by elections not to retire, the employee complement may exceed a desired level, even as budgeted for normal times, and paring may become more critical.

Outside of the arena of employees with employment agreements and those represented in collective bargaining by labor organizations, the prevailing American view tends to be that individuals are employed "at will," meaning that changes in employment status - up to termination - may occur for a good reason, a bad reason or no reason at all, provided there has been no impermissible discrimination or retaliation by the employer. Taking inventory of the employment relationship entails identifying the commitments by the employer that may modify employment at will with respect to continuing employment, total compensation, eligibility under benefit plans and programs and separation entitlements.

In the realm of employment agreements, most are structured to identify core items of job title and duties, compensation and benefits entitlements and incentives, bases for voluntary and involuntary employment termination and separation entitlements and conditions for receipt of separation payments and benefits. Some of these items have become subject to contingency, restraint, deferral, elimination or claw-back by such legislation as the Sarbanes-Oxley Act, the Internal Revenue Code, the Bankruptcy Code and the recently enacted Emergency Economic Stabilization Act of 2008. Relying on those statutes or other bases, administrative agency regulators, state attorneys general and shareholders have elevated their scrutiny of executive compensation and severance arrangements.

B. Management of Downsizing Risks

A starting point for any downsizing is taking account of the talents and compensation packages appropriate to retain the most valuable employees who will contribute positively to an economically viable enterprise in a period marked by wrenching workforce reductions and contraction. Absolute reductions in cost or "headcount" may be the unavoidable mandate, but they must be accomplished with appropriate regard for legal obligations and business pragmatics. Vital needs, properly assessed, must trump convenient or mechanistic formulaic guides.

Ideally, documented performance evaluations would provide a reliable, objective measure of employee strengths, shortcomings, productivity, goal attainment and accomplishments. Experience - and litigation results - caution that such consistent and dependable documentation may be more aspirational than actual; adequate documentation may be lacking. In a time of involuntary workforce reductions, and with recent guidance from a relatively conservative Supreme Court, employers are likely to be put through their paces when personnel records do not support individual decisions or analysis shows disparate impact on certain individuals or protected employee groups.

When cuts in staffing or compensation are on the table, assessment of external legal obligations by way of equal employment opportunity and other employee-protective laws proscribing discrimination and retaliation as factors in decision-making and directing advance notice of workforce reductions that meet certain numeric thresholds have to be considered. Commitments unique to the business or to certain key individuals come into play, as well. For example, there may be written or oral agreements or assurances given during employment or at the inception of the recruitment or hiring process.

Where employment agreements exist, it is customary to see undertakings and covenants by the employee, variously articulated but generally calling for the individual to devote full work time and effort faithfully to the business, to follow appropriate directives and to not engage in activities harmful to the business or inconsistent with its codes of ethics, codes of conduct or compliance codes. For companies with publicly traded securities that are subject to Sarbanes-Oxley and for some other organizations having or creating an obligation or protocol modeled on Sarbanes-Oxley, there may be employee certifications (or sub-certifications) to such items as the truth of material facts reported, the fair representation in material respects of the financial condition and results of operations, the establishment, maintenance and effectiveness of internal controls, the disclosure of significant control deficiencies and the existence of any fraud - even if immaterial - that involves management or other employees having a significant role in the organization's internal controls.

1 Particularly in certain industries, businesses should be confirming that employees charged with such corporate responsibilities and legal obligations have performed their duties as required. Depending upon the severity, those who have not lived up to their responsibilities may be subject to employment termination or lesser adjustments in employment status or compensation or disqualification from receipt of incentive awards or bonuses.

Because employment relations are not typically commoditized and treated like other contractual obligations, concepts ingrained in contract law do not typically transport to employment law. The familiar commercial law concepts of force majeure, unforeseeable economic hardship, impossibility of performance, impracticability and commercial frustration of purpose - excusing performance of acknowledged contractual obligations when certain extraordinary crises strike, have not been widely invoked or accepted in the construction of employment agreements or arrangements. Nevertheless, unexpected chronic circumstances of the current environment that may threaten the viability of a business may invite analysis of those concepts as companies survey the agreements, policies, programs, codes and procedures that govern employment relationships and the bases of continuing employment, along with existing levels of compensation, incentives and benefits, and entitlement to severance pay and benefits after employment has terminated.

C. Statutory Redefinition of Compensation Arrangements

Legislative directives can alter executive compensation or severance arrangements in several meaningful respects.

Some businesses have policies resembling the Sarbanes-Oxley mandate for publicly traded companies that the chief executive and chief financial officers must reimburse the company for any bonus or other incentive-based or equity-based compensation received, as well as any profits realized from the sale of company securities, during a period of 12 months from the issuance or filing of an accounting report that must be restated because of the company's material noncompliance with reporting requirements as a result of misconduct.

2 Section 409A of the Internal Revenue Code, enacted in 2004 and occasioned by abuses at companies such as Enron and WorldCom, is a complex law having a legislative purpose of averting withdrawal by executives of large amounts of nonqualified deferred compensation owed to them by companies that may be distressed. It provides an expansive and complex set of rules governing nonqualified deferred compensation, which is broadly defined to mean compensation that is payable in a taxable year after the year in which a legal right to the payment arises, but excluding deferrals under an employer's tax-qualified retirement plan (e.g., a Section 401(k) plan). In general terms, nonqualified deferred compensation includes all types of payments and benefits under employment agreements and arrangements, including equity-based compensation, severance payments and welfare and fringe benefits provided after termination, as well as more traditional forms of deferred compensation such as supplemental executive retirement plans. For certain key employees of publicly traded companies (generally the 50 highest paid employees on a controlled group basis), payments of nonqualified deferred compensation payable upon termination must be delayed six months following the executive's termination, thus putting the executive at risk as a general unsecured creditor in the event of the company's bankruptcy or insolvency. If the Section 409A rules are not strictly followed, the executive entitled to the compensation is subject to a 20% excise tax, plus interest at the IRS underpayment rate plus 1%, on the non-compliant payments.

3 For companies in bankruptcy proceedings, employment contracts where performance remains due on both sides are considered executory. Subject to court approval and certain limitations, debtor employers may be allowed to either assume or reject them.

4 Section 502(b)(7) of the Bankruptcy Code places a cap on the amount an employee may recover on a claim arising from an employer's rejection of an employment agreement.

5 Since it was amended in 2005, the Bankruptcy Code has reduced historic discretion and introduced new restrictions on bonus compensation and severance payments under key employee retention programs designed to encourage key employees to stay with the business.

6 Section 503(c)(1) 7 restricts commitments and inducements to such insider employees as officers and directors by requiring proof acceptable to a bankruptcy court that the insider has a bona fide job offer from another business for the same or greater compensation, the insider's services are essential to the business, and the transfer or obligation does not exceed 10 times any similar benefits given to non-management employees in the same year or, if there are no such similar transfers or obligations in respect of non-management employees, the transfer or obligation is not more than 25% of similar transfers or obligations for the benefit of the insider in the prior year.

Additionally, Section 503(c)(2) 8 limits the amount of severance payments to insiders, disallowing them unless (1) the payment is part of a program applicable to all full-time employees; and (2) the amount of the payment is not greater than 10 times the mean severance pay given to non-management employees in the same year.

Finally, Section 503(c)(3) 9 exposes to challenge and bankruptcy court review any transfers or obligations for the benefit of officers, managers or consultants hired post-petition that are outside the ordinary course of business and are not justified by the facts and circumstances.

More recently, and expressly responsive to concern over a financial services meltdown, the Emergency Economic Stabilization Act of 2008 ("EESA") has several limiting or superseding provisions. Financial institutions participating in the Troubled Asset Relief Program ("TARP") and its Capital Purchase Program instituted under the EESA, authorizing Treasury purchases of preferred securities in certain financial institutions in need of immediate capital, are subject to restrictions that (a) limit incentives for senior executive officers who take "unnecessary and excessive risks that threaten the value of the financial institution;" (b) provide for the recovery by the financial institution of any bonus or incentive compensation paid to a senior executive officer (generally, one of the top 5 highly paid executives) based on statements of earnings, gains or other criteria that are later proven to be materially inaccurate; (c) require agreement not to deduct compensation in excess of $500,000 for each senior executive officer in accordance with new Section 162(m)(5) of the Internal Revenue Code; and (d) prohibit golden parachute payments by the financial institution payable upon the involuntary termination of a senior executive officer if the amount exceeds three times that individual's base compensation.

10 As a condition to participating in the TARP Capital Purchase Program, the financial institution and each of its senior executive officers must contractually waive all claims against the Treasury as a result of any changes or modifications made to existing employment contracts, employee benefit plans or arrangements for the purpose of complying with these new executive compensation requirements.

11 Financial institutions participating in the TARP Capital Purchase Program also have received requests from the New York State Attorney General and Congress for information relating to bonuses and bonus-related payments based on the concern that the additional capital received is being used to provide cash to pay executive compensation in the form of year-end bonuses. The New York State Attorney General is requesting information on expected bonus pools and payouts to financial institution employers as a possible violation of New York State fraudulent conveyances laws.

12 The House Committee on Oversight and Government Reform has requested similar information on compensation and bonuses.

13

* * *

Once employers step outside the comfort of employment at will, there is a potentially complex and complicated set of arrangements likely to be subjected to stress and testing in trying times, with an overlay of legislation and a prospect of litigation where the stakes are large, passions elevated and alternative options of comparable employment reduced. This article, as a companion to EpsteinBeckerGreen's White Paper on the subject, is intended to supply an early orientation and suggest options if forecasted difficulties of a deep and long recession eventuate.

ENDNOTES

1See Sarbanes-Oxley Act of 2002, 15 U.S.C. § 7241(a).
2See Sarbanes-Oxley Act of 2002, 15 U.S.C. § 7243(a).
3Internal Revenue Code, 26 U.S.C. § 409A.
4Bankruptcy Code, 11 U.S.C. § 365.
5In general terms, the cap applies to the extent the claim exceeds (A) the compensation provided by the contract, without acceleration, for one year following the earlier of (i) the date of filing of the petition or (ii) the date on which performance under the contract was terminated, plus (B) any unpaid compensation under the contract, without acceleration, on the earlier of such dates.
6Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, P.L. No. 109-8.
711 U.S.C. §503(c)(1).
811 U.S.C. §503(c)(2).
911 U.S.C. §503(c)(3).
10Department of the Treasury, Interim Final Rule, TARP Capital Purchase Program, October 14, 2008. For sales of "troubled assets" to the federal government under the EESA, certain executive compensation requirements apply for as long as the equity or debt position is held. Emergency Economic Stabilization Act of 2008, Division A of Public Law 110-343, § 111 and § 302. See also IRS Notice 2008-94.
11TARP Capital Purchase Program, Public Term Sheet, October 14, 2008.
12Letter to Members of the Boards (Financial Institutions) from Andrew M. Cuomo, New York State Office of Attorney General, dated October 29, 2008 regarding Bonus Pools and Board of Directors Oversight Oversight and Government Reform, dated October 28, 2008.
13Letter to Vikram S. Pandit of Citigroup from Henry A. Waxman, Chairman, House Committee on Oversight and Government Reform, dated October 28, 2008.

My good friend Patty Smitherman, who teaches us Spanish at the Georgian Club, and is president of Communicata Language Services, has provided the following terrific article on working with Latinos. She has graciously provided us with a copy for your information. Thanks, Patty!

Working with Latinos: Top 5 Tips for Success

15.5% of the U.S. population will be Hispanic/Latino by 2010, according to The Census Bureau. Businesses in many areas of the U.S. need to know how to manage Latino workers in a bilingual and bi-cultural environment. Check out these tips to better understand how to navigate this new kind of workplace. You will find that creating an inclusive and supportive workplace will enhance productivity and employee success. (Understand that cultural information is always general and may not relate to every person in that social, ethnic or racial group.)

(1) Respect for authority. Questioning a superior would be seen as disrespectful by most Latinos as would challenging or criticizing a manager or supervisor because that person by his or her position earns respect. This implies that Hispanics will respond better to training by an expert rather than a peer. Also, Spanish-speaking workers want to be treated with respect. If you treat them in a respectful and culturally
sensitive way, you will win their loyalty.

(2) Importance of the family. Hispanics really live family values! Family takes precedence over job and career. Employees may turn down a promotion that will change where they live or their work hours because of family considerations. They may also go back to the home country for extended periods if there are health issues for family members there. This pattern is probably slowing because of border security and the difficulty of retuning to job and family in the U.S. If so, the affected
employee may be under great stress but cannot (because of the lack of English skills)let you know.

If you have built a strong rapport with your Latino employees, they may confide their worries about family, including being victims of crime. To
successfully manage the Latino workforce you will want to connect with your employees by asking about and getting to know about your employees' families.

(3) Communicating on the job. Asking yes/no questions on the job can be very misleading because Hispanics often smile and respond with an affirmative head nod just to be polite. Also, be careful of gestures as a means of communication. A male executive of large American corporation was sued for sexual harassment on the job by female executive from Latin America. He used a common and acceptable gesture in the US to indicate "come here" which is offensive to many Spanish-speakers. Just turn the hand, fingers down, and sort of waggle them!

(4) Fatalism. ¡Qué será, será! Many Spanish-speakers believe that there is not much control over a person's destiny. Therefore it is important to do safety training and insurance explanations in a way that connects on an emotional and personal level. Find an interpreter for insurance open enrollment meetings, preferably not another employee. The employees' supervisor should watch this process to see if the
Latino employees are responding positively to the interpreter or not.

(5) Importance of the group. Latinos feel that the best interest of the group is more important than that of the individual. Because of this cultural tendency, loyalty and team goals are very important to Hispanics, making them great team members. This may make it difficult to get a valuable employee to agree to be promoted and thus be more powerful than others in their group or team. It is also unwise to try to promote competition on an individual basis because of the importance of the group.

There are many resources on culturally appropriate management practices and on language issues in the workplace. To avoid misunderstandings in the workplace and to make sure that instructions and explanations are understood, find a language and culture consultant who understands and has experience in the broad Spanish-speaking culture to work with your company and employees.

These tips come from award-winning writer, Patricia W. Smitherman, President of Communicata Language Services, LLC (CLS). CLS provides functional and culturally appropriate language training services as well as cultural consulting and translation services. CLS is a nationally certified woman-owned business.

If you travel a lot, you find yourself spending time searching the internet for the best deals and destinations. A search engine that saves time and energy by comparing multiple air fares from brokers such as Travelocity, Priceline and Airfare.com, is Kayak.com. It allows you to enter a flight search and see comparative information all at one time. I just searched for a flight from Atlanta to Vancouver, BC and found multiple pricing with a range of $200+ for the trip. Not bad considering that difference would cover your hotel cost for the weekend!

I'm going to add Kayak to our Blogroll in case you want to give it a try. Let me know what you think.

Have a great day!

We have begun receiving feedback from our workplace bullying poll and frankly, I'm astonished!

Over 75% of you report you have been bullied at work....over half of those responding said they planned on leaving the company where the bullying was taking place. So far, no one has reported that their course of action was to talk to HR or a senior management official.

Stay with us as we continue to review this workplace issue.

Those of you that travel for business should be aware of these two greate news sites: RSS News Feeds and World Newspapers. Both sort news by region and country as well as by topic heading. World Newspapers also has a section on Magazines.

If you work abroad, I've always found it helpful to read the local papers for both professional as well as personal reasons. If you are free at night or want to offer your colleagues entertainment, it helps to know whats on and playing. From the business perspective the tone and substance of the news is quite different when read in the local language and can reveal much about the local perspective on politics, foreign investment, social issues, and the local economy.

So, the next time, before you travel, check out these sites;

http://www.world-newspapers.com/
http://feed.com/

Happy Travels!

If you're looking for two good sites that give you easy to read data on worldwide time zones and currency conversion, check out these two sites,

http://www.timeanddate.com/worldclock/
This site provides an easy to read, world time clock which shows the time in numerous cities around the globe. It is a quick reference when you can't remember the impact of daylight savings time or double summertime!

http://www.xe.com/
If you're looking to evaluate currency, this is a good site to use. It saves time, comes up quickly and is simple to use.

Happy Blogging, Janet

I've been spending more time getting our website in top shape, thanks to Jens Beatty and crew for help and support! Look for more chat and information on a variety of topics of interest on global business, human capital financial management and the Human Capital Show on the Profitability Network.

On the Human Capital Show we are working to schedule David Maister the phenomenal global business consultant to talk about his new book, "Strategy and the Fat Smoker". If you haven't had a chance to see the reviews, check out his website,www.davidmaister.com, and look at the book summary. It helps make sense of why businesses don't do what they know is in their best interests...!

We have been talking with Tom Peters and his colleague, Abbey Bishop trying to get on Tom's calendar for an interview to discuss his books and ideas. In the meantime, check out Tom's (very, very, very long) list of great websites and blogs on his website,www.tompeters.com. I spent over an hour yesterday looking through the information.

I interviewed Joyce Gioia yesterday, for the "Human Capital Show". author and editor of "The Herman Trend Alert" and president and CEO of the Herman Group. She describes herself as a strategic business futurist. This means she aggregates hard data and anectdotal information and identifies future business trends. For example we were talking about her book, "Impeding Crisis" published in 2003, which describes the upcoming shortage of skilled labor.

All three of these people, Joyce, Tom and David, encourage business owners and executives to think outside the box, focus on being nimble, integrating market trends and developing human capital programs that add value to the bottom line.

Have a great weekend!

I've been doing a lot of research lately on the best websites for global business executives to review key issues around the globe. Here are a few that I've discovered that you might find interesting! Happy Blogging!

Janet

http://www.asiabizblog.com/

Updates and information on business and law for China and Asia

http://annansi.com/blog

African business and outlook, international perspectives, etc.

http://globalbusinessperspectives.c...
Interviews and thoughts on global business..

http://www.allroadsleadtochina.com
News, analysis and insights on manufacturing in China

http://www.pluggd.in
PluGGd.in profiles and reviews Indian startups/products and is at the centerstage of India's digital revolution.

The Global Small Business Blog
The definitive blog for entrepreneurs and small businesses interested in going global.
http://borderbuster.blogspot.com

Maximum CEO
Global focus for the modern executive.
http://www.maximumceo.com

Rising Sun of Nihon
Covering the economic and industrial might of Japan.
http://www.risingsunofnihon.com

China Business and Management Solutions
Tips for western managers on how to work in a Chinese business environment.
http://www.chinasolved.com/blog

Vietnam Stock Market News
All about Vietnam stock market, Vietnam shares, Vietnam securities, OTC news, Initial public offering and more.
http://vietstocknews.blogspot.com

EirePreneur
Doing micro business in Ireland.
http://eirepreneur.blogs.com/eirepreneur

Ecommerce Marketing and Content Optimization
Mobius offers articles, tips, free consultation and advice on CSE best practices, retail SEO/SEM tips and other eCommerce internet marketing and content optimization strategies for online retailers.
http://www.retail-ecommerce.com

Israel Innovation 2.0
Overview and commentary on the leading factors and people who are making Israel known as a high-tech innovation hub.
http://www.itgumbo.com/IsraelInnovation20

Cambridge Forecast Group Blog
Analyzing globalization, the Middle East, & the world-system.
http://cambridgeforecast.wordpress.com

BPO (Business Process Outsourcing) Blog -Discuss BPO, Share BPO, Outsourcing Blog
Discuss BPO, share BPO, talk BPO, and get latest updates on BPO, BPO in India, and BPO in USA.
http://bpodiscuss.blogspot.com

Business Process Outsourcing Projects
Find information about Business Process Outsourcing (BPO) and where to outsource your online BPO needs from telemarketing outsourcing to call center outsourcing, medical transcription outsourcing, and SEO/SEM Outsourcing here at Business Process Outsourci
http://businessprocessoutsourcingprojects.blogspot.com

Blog Herald
A premium source of blog and blogging related news for bloggers. Providing a regular stream of news and other updates at every view all about what is happening in the blogosphere.
http://www.blogherald.com

Seth Godin's Blog
Seth Godin writes the most popular marketing blog in the world! He riffs on marketing, respect and the way ideas spread.
http://sethgodin.typepad.com

Small Biz Trends
Exploring the trends driving the small business market. You stay informed about the small business market.
http://www.smallbiztrends.com

The Big Picture
Macro perspectives on the capital markets, economy, geopolitics, technology, and digital media.
http://bigpicture.typepad.com