httpv://www.youtube.com/watch?v=b5zU1y_0Geo

There’s been a lot of commotion recently over the upheld health care mandate – some say it will destroy the economy, while others say it’s a dawn of a new era of equal access for American healthcare.  Neither is probably correct.  Though whether you agree with it or not, one thing is certain – the Affordable Healthcare Act will indeed affect individuals and businesses alike.  Often when new policies are introduced, regulation becomes more confusing and so can the rule of law.  To this day, many Americans, including myself, still don’t fully understand the breadth and intricacies of the 2600 page policy recently upheld by the Supreme Court.  We just know that it’s going to affect us somehow.  As tedious as the bill is, it might actually help to add some clarity and ground rules for businesses to follow.

Supreme Court Decision

What the ruling says. It’s a decision that stunned some pundits and will undoubtedly send ripples throughout the business community. The Supreme Court ruled 5 to 4 that Congress acted within its rights to require most Americans to carry health insurance. The law also carries requirements for businesses regarding healthcare for employees.

What it means. What the decision means to you depends greatly upon the size of the business you operate. For example, if you own and operate a one person business, the impact will be much the same as it is for an individual. If you have more than 50 employees on the other hand, the impact on your business could be quite different, depending upon whether or not you currently provide healthcare coverage for workers.

Clarity and the Economy

“There is a perspective on the economy which is argued that laws of regulation have imposed a lot of uncertainty on businesses,” said Gerry Wedig, an economist with the University of Rochester’s Simon School of Business. “Now, there is a lot more certainty about what the rules are going to be.  That might allow firms to move forward with their plans.”

That includes hiring healthcare personnel to meet the increase in demand sure to come with increased preventive care, said Dan Seiver, an economist at San Diego State University. And jobs are the one thing Obama needs right now, given the economy’s lackluster performance — something that was underscored by Thursday morning’s report that the nation’s first-quarter GDP growth was slow, as expected.  The decision will also increase demand for schools providing healthcare worker training, he said.

Many, including several House Republicans have declared the SCOTUS decision as a large detriment to businesses everywhere. The Small Business Majority, on the other hand, applauded the court’s 5-4 decision, calling it a “victory for small business owners who have struggled with the excessively high cost of health insurance for decades.” The group says the Act tackles small business owners’ top priorities—cost and accessibility—and predicts that the law will “significantly rein in costs while providing more health coverage options for entrepreneurs.”

How do you feel about the Supreme Court decision?  Leave a comment below.

The post What the SCOTUS Healthcare Ruling Means For Your Business appeared first on Think, The Blytheco Blog.

Yesterday I attended a session at SHRM entitled “Social NOTworking,” hosted by Jody Katz Pritikin, attorney with Proactive Lawsuit Prevention. It was an eye-opening look at recent case law on the topic of workplace social media use.

Jody gave the audience some astounding examples of abuses of social media at work and privacy violations, but she left us with some good advice on creating your own social media policy.

A few tips:

For a complete list of tips and suggestions for better developing your social media policy, click here.

Set the ground rules early and clearly. What do you want your employees to know about how or why social media can be used in your workplace? Create a values statement about your company’s approach to social media, and establish employee ownership of responsibility for their actions. Define what’s expected and appropriate for your specific situation.

Define who owns what. Significant legal questions revolve around the ownership of social media accounts and passwords, including legal ownership of ‘followers’ or ‘friends’, and use of servers, equipment, devices, and systems used to manage social media. Define all of this carefully and specifically in the policy.

Get your employees involved in creating the policy. This accomplishes two things: it helps staffers feel ownership over the policy AND provides the diversity of perspective needed to round out your policy.

Update your policy every 6 months. Yes, it’s a lot to do, but with case law changing so quickly, it’s a must.

Not sure how your company can benefit from a social media marketing strategy? We’re not lawyers, but we know marketing. For starters, join our Twitter for Business Webinar today with Apryl Hanson. Or sign up for the rest of our Summer Marketing Webinar series.

The post #blyDEA No. 34 – Develop a Social Media Workplace Policy or Else appeared first on Think, The Blytheco Blog.

Here’s the latest:

1.            Fun with FMLA – How does an employee who is not eligible for FMLA make a viable claim for FMLA interference and retaliation?  By showing that while the request for time off (for impending motherhood) was made before she had 12 months with the employer, the anticipated start of leave would occur after her one-year anniversary.  Pereda v. Brookdale Senior Living Communities (11^th Cir. Jan. 2012).  In denying the employer’s motion for summary judgment, the court observed that FMLA requires employees to give advance notice of foreseeable leave and if they accepted the employer’s argument, it would create a loophole that would allow employer retaliation with no recourse for the fired employee.  The regulation is quite clear  . . . “The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.”  29 CFR sec. 825.110(d).

2.            Flush With Cash – A 36-year employee of American Standard is in the money, now that an appeals court upheld an award of more than $200,000 for FMLA interference and reversed the lower court’s denial of liquidated damages (effectively doubling the money) by finding that the employer had not acted in good faith.  The administrative process that tripped up this employer was a change from a calendar-year to a rolling-year basis, when calculating individual FMLA eligibility, without adequately communicating the change to the affected employee.   Under the prior method, his absence due to shoulder surgery in the spring was entirely protected under the FMLA. Under the new method, his 12 weeks of job-protected leave ran out a few days before his return to work (since a FMLA leave in autumn of the prior calendar year was within the rolling 12-month period).  It did not help the employers cause that the employee received written approval of both the FMLA leave and the return-to-work date from HR and he had no “actual notice” of the changed policy.  Thom v. American Standard Inc. (6^th Cir. Jan. 2012).

3.            How Low Can They Go? – Employers have been observing, in dazed wonder, as the NLRB has treated employees’ disparaging remarks about the company, customer, bosses and co-workers via social media as protected activity under Section 7 of the NLRA.  On January 25, the NLRB issued a second report on this topic, explaining its views on employer policies and terminations of employment relating to employees’ use of social media.  The Operations Management Memo was prepared by the Board’s Acting General Counsel and covers 14 cases, showcasing outcomes where the employer was found in violation of the NLRA as well as instances where no violation was found.  Check it out at www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report. The cover letter contains a link to the first report, in case you missed reading it last August. Read together, they provide a decent roadmap toward avoiding overreactions to employee grumblings and overbroad policy statements that might get you an unwelcome invitation to chat with the Board.

4.            Mama Mia! – Texas Dep’t of State Health Services amended its “Register of Mother-Friendly Businesses” regulation, to offer new silver or gold designations to businesses that take extra steps to meet the needs of breast-feeding moms while they are at work.  Explanation of the standard is at 25 TAC 31.1 and the application form is available at www.dshs.state.tx.us/wichd/lactate/mother.shtm.  For you government contractors who are working on your written affirmative action plans, this is a “good thing” you can list as part of your Action Oriented Programs that support women at work.

5.            Don’t Forget GINA – Employers may continue to use FMLA Certification of Health Care Provider forms (i.e., WH-380-E for employees, WH-380-F for family members) that expire Jan. 31, 2012 but if you do, add the GINA safe harbor language which informs employees and their health care providers that they should not provide genetic information when completing the form.  Here’s the blurb:  “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.  To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.”  While you do not need to explain what “genetic information” includes as part of this form, employers should understand that the GINA definition is very broad, to include genetic test results, disease/disorders of family members, request/receipt of genetic services, participation in clinical research and even genetic info of a fetus carried by a family member.

6.            Private Eyes –A recent Supreme Court decision that the 4^th Amendment’s ban on search and seizure was violated by monitoring an individual’s movements via GPS attached to the underside of her car (where the observer was the government and the observed was a criminal defendant’s wife) may not catch the eye of private sector employers, but it should.  United States v. Jones (S. Ct Jan. 2012). While it’s true that private sector employers don’t take “state action” and are generally not subject to the 4^th Amendment prohibition, the varying way the Justices explained their holding opens the door for a similar ruling on the private side of fence, using trespass or invasion of privacy arguments in lieu of the Constitutional argument.  So, before you use cell phones, laptops and/or GPS on company cars (and especially if such monitoring will encompass employees’ nonwork movements after the workday ends), talk to your counsel.  Consider announcing the monitoring (vs. doing it on the sly) and disclaiming, via policy, employees’ expectation of privacy. But if you’re in CA, forget about it!  They have a statute which prohibits installation of a tracking device on a vehicle without the vehicle owner’s/lessor’s consent.

7.            Hiring Policy Fizzes Out – Pepsi Beverages (fka Pepsi Bottling Group) agreed to pay $3.13 million and provide job offers and training to settle a claim that its background checking procedure, specifically the criminal inquiry, had a disparate impact on Black applicants for jobs. As part of the settlement with the EEOC, the employer revised the policy which had denied consideration of those who had been arrested pending prosecution and those who had been arrested or convicted of certain minor offenses. The EEOC reiterated its long-standing advice of avoiding blanket refusals to hire based on arrest/conviction history and instead consider the nature/seriousness of the offense, the time that has elapsed between the offense and the application for employment and the relation of the type of offense to the nature of the job being sought. States and cities are jumping on this “don’t ask” bandwagon, too (see 11.2 below), so your policy/procedure may be due for an overhaul.

8.            Ax the AAP? – Some healthcare service providers may no longer be subject to affirmative action plan (AAP) requirements, thanks to the National Defense Authorization Act (NDAA) which took effect Dec. 31, 2011.  OFCCP had taken the position that hospitals, pharmacies and other healthcare service providers who contracted with TRICARE (a DOD insurance program for active duty and retired military personnel and their dependents) were subcontractors as defined under E.O. 11246, the Rehab Act and VEVRAA.  Flash forward to passage of the NDAA, which expressly carves out those same healthcare service providers from the OFCCP’s jurisdiction.  Those same requirements may apply to you via other means (e.g., receipt of Medicare funds) so check your contracts carefully before axing your AAPs.

9.            Simply the Best – My hat’s off to the many LB4HR subscribers honored in Fortune magazine as “The 100 Best Companies to Work For!”

http://money.cnn.com/magazines/fortune/bestcompanies/2011/full_list/

10.         Gentle Reminders –

• January 1 – New E-Verify mandates took effect for certain employers in AL, GA, LA, SC and TN
• January 1 – State minimum wage rates increases in AZ ($7.65), CO ($7.64), FL ($7.67), MT ($7.65), OH ($7.70), OR ($8.80), VT ($8.46), WA ($9.04); municipal minimum wage rate increase in San Francisco, CA (to $10.24/hour, the highest rate in the U.S.)  You can find a complete chart of state minimum wage rates at www.dol.gov/whd/minwage/america.htm
• February 1 - If your company is subject to OSHA recordkeeping requirements, your 2011 summary of workplace injuries and illnesses should be posted, using Form 300A, on February 1 and remain up until at least April 30.  The Injury and Illness Report (Form 301), the Log of Work-Related Injuries and Illnesses (Form 300) and the Summary of Work-Related Injuries and Illnesses (Form 300A) should be kept on file for five years, so don’t toss last year’s info.  For more info, go to www.osha.gov.

11.         Stated Differently – Here are some hot topics for you multi-state employers:

•  Indiana – The House and Senate have approved legislation which would make IN the 23^rd “right to work” state, and the first one to do so since OK went “right to work” 12 years ago.  To read more about the right to work movement and see which states are and aren’t, go to www.nrtw.org.
• Pennsylvania (Philly) – Eff. Jan. 13, it is unlawful for an employer of 10+ employees to inquire about or require an applicant to disclose any criminal convictions during the application process and first interview.  It is also unlawful for the employer to knowingly and intentionally inquire about, require a person to disclose, or take any adverse action against any person on the basis of an arrest or criminal accusation not pending against the person and that did not result in a conviction.

Audrey E. Mross

Labor & Employment Attorney

Munck Wilson Mandala LLP

amross@munckwilson.com

www.munckwilson.com

#BlythecoLove 

Used by permission – Legal Briefs for HR (“LB4HR”) is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters.  For answers to your specific questions, please consult with counsel.

The post What You Need to Know for Feb. in Human Resources and Employment Law appeared first on Think, The Blytheco Blog.

WELCOME to the MONTHLY EMPLOYMENT LAW LEGAL BRIEF FOR HR.  HERE ARE SOME “TRICKS and TREATS” in STORE for EMPLOYERS:

• No Need to Post . . .  Yet – The National Labor Relations Board (NLRB) has delayed the deadline for posting a new employee rights poster, from November 14 to January 31, 2012.  The Board’s announcement says the reason is to provide more time for employer education about the requirement. Others say it has more to do with several pending lawsuits that question the legality of the posting requirement.  Stay tuned.

• All Together Now – The U.S. Dep’t of Labor (DOL), the Internal Revenue Service (IRS) and eleven state agencies in CT, MD, MA, MN, MO, UT and WA entered into a Memorandum of Understanding (MOU) to pool their resources in order to ferret out employers who misclassify workers as independent contractors rather than employees.  The announcement was light on details as to how they will achieve the desired result of ensuring that workers get minimum wage, overtime, unemployment comp and workers comp benefits while the government gets a more reliable income stream from taxes.

• Wolf in Sheep’s Clothing? – On September 21, IRS announced its Voluntary Classification Settlement Program (VCSP) which allows eligible employers who misclassified workers as independent contractors to enjoy a sort of amnesty for their prior mistake, by simply reclassifying the affected class of workers, treating them as employees going forward and paying 10% of the taxes owed for the most recent tax year.  Sounds simple, but consider [1] how will you define the affected “class” of employees; [2] the amnesty applies to IRS liability but provides no shield against related claims from other federal and state agencies; [3] you just admitted to an error that will be of interest to those other agencies; and [4] per the MOU mentioned above, a lot of these agencies are now working closely together and sharing information, upping the likelihood that one or more of them will come a callin’.   For details, see Announcement 2011-64 and/or IR-2011-95 at www.irs.gov.

• More Misclassification Misery – California Governor Brown is expected to sign Senate Bill 459 any day, triggering a costly penalty to any person who willfully misclassifies a worker as an independent contractor.  The underlined language is troubling since it appears that not just the employer but individuals, such as managers or HR staff with responsibility for classifications, could be found personally liable for the civil penalty of between $5000 and $15,000 per misclassification (sweetened to the $10,000 to $25,000 range, per violation, if a pattern or practice of violations is found). Also troubling is the broad definition of a “willful misclassification” as “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”

• Cell-abration – The IRS provided many employers with a sigh of relief via September 14 guidance on the tax treatment of employer-provided cell phones.  The nagging question has been whether employees needed to keep detailed records of business vs personal use of their Company-issued phones, in order to satisfy the record keeping requirements for nontaxable fringe benefits.  The new guidance explains that the phones are excludable from the employee’s income as a working condition fringe benefit when provided primarily for non-compensatory business reasons, such as when the phone is provided  [1] because of the employer’s need to contact the employee at all times for work-related emergencies; [2] the employer requires that the employee be available to speak to clients at times when the employee is away from the office; and [3] the employee needs to speak with clients located in other time zones at times outside the employee’s normal work day.  Reasons that won’t fly are if the phone is a “perk” of the job, such as to attract and retain employees, to promote morale or good will or as a type of added compensation. See IRS Notice 2011-72 for full text of the guidance, at www.irs.gov.

• The Greta Garbo Accommodation – “I want to be alone.”  That was the requested accommodation of an employee with post-heart surgery severe depression, under the Americans With Disabilities Act (ADA).  Specifically, he asked that he be allowed to work from home for two months and have “no direct person to person contact and definitely none with [my] previous co-workers” in particular his two supervisors.  The court held the request was not reasonable.  No bossectomy for you!  Thelig v. United Tech Corporation, Pratt & Whitney Division (2nd Cir. 3-11).

• Protect Your Good Name – A new domain (.xxx) is coming to Internet for use by the adult entertainment industry and if you don’t want your organization’s name to be tied to that genre, you need to step quickly to block use of your registered marks.  Opt-out applications are being accepted from non-members of the Adult Sponsored Community from Sept. 7 to Oct. 28 and the new .xxx marks will be available on a first-come, first-served basis on December 6.  If you don’t mind your company’s name being followed by an “XXX” and taking the user to an, ahem, adult site then never mind.

• Spam Blocker – Here is an interesting use of the Computer Fraud and Abuse Act (CFAA) which has been mentioned in prioreditions of LB4HR.  In this case, a peeved labor union, LIUNA, encouraged its members to inundate an employer’s email and voicemail with thousands of messages relating to recently discharged employees.  The employer sued under the CFAA, which prohibits knowing transmission of a program, information, code or command which as a result of such conduct intentionally causes damage, without authorization, to a protected computer.  The lower court said “no violation” but the appeals court said both damages and intent were established.  The company was damaged because the tsunami of messages gridlocked their communications capacity resulting in “diminished ability” and the intent to damage the company was clear in the union’s call to arms, even if it was unaware of the consequences of its act. Pulte Homes v. Laborers Int’l Union of North America (6^th Cir. Aug. 2011).

Stated Differently – Here are some hot topics for you multi-state employers

1. 1. Delaware – The Delaware Workplace Fraud Act already imposes penalties on employers who misclassify workers as contractors in the construction services industry.  Two bills are pending to [1] expand the scope to all employers in the state and make individual business owners jointly and severally liable for violations (HB 221); and [2] to allow the Delaware DOL to publish a list of violators (HB 222).
   2. Illinois – Effective August 26, 2011, IL amended its Human Rights Act to add pregnancy, childbirth or related medical conditions as protected categories under this nondiscrimination in employment law.
   3. Seattle, Washington – The City Council mandated paid sick leave for employers of five or more employees, beginning Sept. 1, 2012.  There are three tiers of accrual rates, tied to the size of the business, with provisions for carry-over of unused days and caps.  Employees are eligible to accrue upon hire but may not use accrued days until after 180 days on the job.  There is no cash-out upon termination of employment.  Sick leave can be used for personal illness, illness of a family member or time off related to domestic violence.  Other cities with paid sick leave mandates are San Francisco, Washington DC and Milwaukee, WI.  Denver voters will decide on a similar initiative, this November.
   4. California – Employers may force use of employees’ PTO for end-of-year shutdowns, such as for retooling manufacturing facilities, but only if affected employees were given the greater of 90 days or a fiscal quarter of advance notice.  If the requisite notice is not given timely, employers can allow the use of PTO during shutdowns but cannot force it
   5. Colorado – An appeals court sided with an employer who fired an employee and protested the employee’s eligibility for unemployment comp benefits, where the reason for discharge was a positive drug test for marijuana during working hours.  The employee countered that he was approved for “medical marijuana” and that such use was protected by state law.  The lower court agreed with the former employee, but the appeals court sided with the employer noting that the state law protects individuals from criminal prosecution for marijuana possession and use but does not preclude them from being denied unemployment benefits based on a separation from employment for testing positive for marijuana in violation of the employer’s drug policy.  Beinor v. Industrial Claim Appeals Office ( Colo. Ct. App. Aug. 2011).

Legal Update for HR is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters.  For answers to your specific questions, please consult with counsel.

The post New Employment Law Info: NLRB Delays, The IRS in Sheep’s Clothing, and Medical Marijuana appeared first on Think, The Blytheco Blog.

1. New NLRB Notice – Unless challenges are successful, most of you have yet another mandatory poster in your very near future.  The NLRB issued a final rule on August 25, requiring subject employers to post a notice effective November 14, 2011 to make employees aware of their rights under the NLRA and the avenues of recourse for perceived or actual violation of those rights.  In the final rule, the failure to post is deemed an unfair labor practice, can toll the statute of limitations for filing a charge against the employer and in the case of a “willful” failure, can be evidence of unlawful motive in related ULP case(s).  You will not have to post if you [1] are the U.S. Post Office; [2] are a state or political subdivision; [3] are a labor organization; or [4] are a federal contractor who’s already posting a similar notice under E.O. 13496 (see 29 CFR Part 471), since that poster will serve as the model for this new one.  You will have to post where such notices are normally displayed and on your Intranet, if that is your normal method of communicating with employees.  Do not make the common mistake of assuming that this does not apply to your organization if you have no labor unions.  The press release, with links to full text of the final rule and the E.O. 13496 poster, can be found at www.nlrb.gov/news/board-issues-final-rule-require-posting-nlra-rights.
2. Social Networking – Do your employees’ scurrilous Facebook and YouTube postings about the organization, their managers and/or their co-workers have you all a-Twitter? Your immediate reaction might be to make such discussion, videos or pictures cause for immediate termination of employment, but take a deep breath and read this first.  As mentioned in prior a prior update, the NLRB has been more than hinting its position that much of this venting is protected concerted activity under the NLRA, where terms and conditions of employment are at issue, and overbroad employer policies and/or practices will run afoul of that protection.   And their position is becoming clearer, with the issuance of a  memorandum from the NLRB’s Acting General Counsel and a case which went to a full hearing.  The August 18 memorandum summarizes the Board’s view in 14 cases involving employer attempts to corral social networking and contact with the media inside (and outside) of their workplaces and can be found at www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases. The September 2 case is the first decided by an ALJ on this subject, awarding reinstatement and backpay to five employees who were discharged over their Facebook postings which were critical of each other and their employment conditions.  It can be found at www.nlrb.gov/news/administrative-law-judge-finds-new-york-nonprofit-unlawfully-discharged-employees-following-fac.  Stay tuned, as the boundaries of these communications develop and inform what should (and should not) be in your social networking policy.
3. I-9 Documentation – The U.S. Department of Justice Office of Special Counsel has delivered a (surely unwelcome) $290,400 civil penalty reminder that failures to properly handle the I-9 process are not mere paperwork violations.  In this case, a Missouri employer was found to have required specific and excessive documentation from non-U.S. citizens and foreign-born U.S. citizens.  In order to satisfy the I-9 process, prospective employees only to have produce one document from List A (since it has a picture of the individual which proves identity and also proves authorization to work in the U.S.) or a document from List B (proves identity) coupled with a document from List C (proves authorization to work in the U.S.).  Employers should not specify which documents they will accept as proof and should not demand additional documents when the I-9 requirement has already been met.
4. OSHA App – Not to be outdone by the DOL’s wage and hour app, OSHA has rolled out one which combines heat index data from NOAA with the individual’s location to determine a heat risk index and suggest protective measures to be taken, to prevent heat-related illness.  For now, the app is only available to Android users, with iPhone and Blackberry versions to follow.  Check it out at www.osha.gov/SLTC/heatillness/heat_index/heat_app.html.  Here’s hoping our heat wave is over and this app is not needed until next year!
5. WARN – A U.S. Bankruptcy Court ruled that an affiliate with an indirect ownership interest in a shuttered business was part of the “single employer” under the federal WARN plant closing law and could be liable for severance payments owed to employees under WARN.  The five-factor test for being a “single employer” was not fully satisfied but the court found that the “de facto exercise of control” prong was decisive in this case.  D’Amico v. Tweeter Opco, LLC (U.S. Bankruptcy Court (DE) 7-11).
6. FLSA – One employer dodged an FLSA retaliation claim bullet, but the outcome may prompt an amendment to the statute to prevent a recurrence.  Plaintiff had sued her former employer for wage and hour violations under the FLSA.  Plaintiff then accepted a job with Employer B, but the offer was contingent on a security clearance.  When Employer B learned of the pending claim, job offer evaporated.  Plaintiff sues Employer B for FLSA retaliation but the court says FLSA protects employees, not applicants (unlike most discrimination statutes, which expressly refer to both employees and applicants for employment).  The Fourth Circuit affirmed the dismissal but found the outcome “problematic” if other employers do the same, perhaps tacitly inviting Congress to foreclose that possibility by amending the retaliation provision of the FLSA.  Dellinger v. Science Applications International Corporation (4^th Cir. 8-11).
7. E-Verify – The E-Verify self check service that launched in AZ, ID, CO, MS, VA and DC on March 28, 2011 has been expanded to 16 additional states, effective August 15.  The additions are CA, LA, ME, MD, MA, MN, MO, NE, NV, NJ, NY, OH, SC, TX, UT and WA.  The option to check yourself in Spanish has also been added to the system.  The press release announces USCIS’ intention to go nationwide by the spring of 2012.  The idea is that employees can check the info DHS USCIS and SSA have on file for them, identify and correct any mismatched data and avoid delays in a subsequent hiring process with an employer who uses E-Verify.
8. Harassment – As often happens, what occurs after a claim of harassment can be more damaging to an employer than the harassment itself.  In response to a retaliation claim, jurors awarded  more than $5.4 million ($4 million was punitive damages) to a manager who was fired after he confronted the male CEO of the company who had allegedly groped, kissed and verbally harassed the manager’s 29-year old female secretary.  The manager went to the CEO, to ask that he apologize for his actions.  Instead, an investigation ensued (good!) and ended with the conclusion that the manager should be fired for going to the CEO instead of reporting the incident to HR (bad!).  The company’s harassment policy said, as most do, that complaints can be made to others in addition to the HR department.  Tran v. U.S. Mineral Products Corp (C.D. Cal. 6-11).
9. Multi-State Items – Here are some hot topics for you multi-state employers:
   1. Kansas – The Sunflower State beefed up penalties on employers who misclassify employees as contractors, to add misdemeanor charges being filed on top of already available civil penalties.
   2. Louisiana – Effective August 15, employers will be protected from penalties for referring for employment, recruiting, hiring or employing unauthorized aliens so long as the employer used the federal E-Verify system.
   3. New York City – Mayor Bloomberg signed the Workplace Religious Freedom Act into law on August 31.  The law, which took effect immediately, encourages employer accommodation of employees’ religious observances or practices by making it more difficult for an employer to prove that such request is an “undue hardship.”  The prior version of the law allowed employers to deny observances or practices that were “inconvenient” but now they must show that the requested accommodation requires “significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).”
   4. North Carolina – NC will take a staggered approach to requiring that employers of more than 25 employees use the federal E-Verify system on all new hires.  The first phase takes effect October 1, 2011 and applies to county and municipal government entities.  The second phase takes effect on October 1, 2012 and applies to private sector employers of 500+ employees.  The third phase takes effect January 1, 2013 for private employers of 100 to 249 employees and the final phase takes effect July 1, 2013 for those with 25 to 99 employees.
   5. South Carolina – Two company owners were found personally liable for an employee’s unpaid wages and a third minority owner was released only because he “lacked the authority to make any decisions regarding the payment of wages.”  A neurologist claimed $780,000 in unpaid salary, under a state law that allows for treble damages plus court courts and attorneys’ fees.  The two found liable were a 40% owner, who acted as executive manager, and a 20% owner.  Liability was based on their handling of finances and payroll for the company.  Allen v. Pinnacle Healthcare Systems LLC.
   6. Wisconsin – Effective Nov. 1, 2011, WI has its first “conceal carry” law which will create a licensing system for individuals to carry guns.  The new law  allows businesses to ban guns from their premises via a prominent posting at the entrance, but also allows employees to have weapons in their personal vehicles, on their employer’s parking lot.  If you’d  like more details, there’s a helpful FAQ posted by the State DOJ at www.doj.state.wi.us/dles/cib/ConcealedCarry/ccw_frequently_asked_questions.pdf.

HR Legal brief updates are provided by:

Audrey E. Mross

Labor & Employment Attorney

Munck Carter LLP

amross@munckcarter.com

www.munckcarter.com

HR Legal Briefs are provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters.  For answers to your specific questions, please consult with counsel.

The post The Month’s Hottest Employment Law Stories in Review appeared first on Think, The Blytheco Blog.

Here’s what is “hot” all around the U.S.:

1. Hire Power – Hot on the heels of the EEOC’s open forum on employer discrimination against the unemployed, Congress has introduced a bill to make it unlawful for employers to (a) refuse to consider for employment or refuse to offer employment to an individual based on his or her status as unemployed; (b) publish a job ad in any medium that says or implies that unemployment is a disqualifier from job consideration; or (c) direct an employment agency to screen out unemployed applicants.  The Fair Employment Opportunity Act (H.R. 2501) was filed on July 12 and has 35 co-sponsors.  If you’d like to read full text of the bill and track its movement, go to http://thomas.loc.gov and type in the bill number.

1. Whistlin’ While You Work, the Sequel – As reported in LB4HR last month, the final regs for the Dodd-Frank whistle-blower rules addressed employers’ concerns that employees were being incentivized via cash bonuses to report problems directly to the SEC, with no prior attempt at internal resolution.  In the regs, the SEC said it would consider the whistle-blowers participation in internal compliance systems as a factor to increase the amount of bonus and interference with internal compliance systems as a reason to reduce the award.  Four members of Congress must think this does not go far enough, as they have filed the Whistleblower Improvement Act (H.R. 2483) which would, among other things, condition bonus eligibility on internal reporting to one’s employer prior to going to the SEC and disqualify from bonus  eligibility anyone who was culpable in the wrongdoing.  Use the Thomas link provided above, to check out full text and progress.

1. FMLA for Mourners – A lone Senator has filed the Parental Bereavement Act (S. 1358) which, if passed, would expand the qualifying reasons for taking FMLA leave to include death of an eligible employee’s son or daughter.  The leave would be taken continuously, meaning that leave on a reduced schedule or intermittent basis would not be allowed unless the employer chose to do more than the law requires.  Use the Thomas link provided above, to check out full text and progress.

1. No Peeking – The Regents of the University of CA have agreed to pay $865,500, create new policies/procedures, engage in significant employee training, foot the bill for an independent monitor and be subject to three years of monitoring and reporting due to a HIPAA violation arising from nosy health care workers who improperly accessed patients’ medical records.  The investigation findings are a roadmap of what you should be doing if you maintain medical records.  The health care system was admonished for wrongful access of patient records by employees, lack of employee training regarding privacy of medical records, lack of employee sanctions when occasions of wrongful access became known to the employer and lack of meaningful security measures to reduce the risk or eliminate wrongful access of patient records.

1. Six Steps to ADA Salvation? – A July 6 Consent Decree between the EEOC and Verizon gives and receives.  If the court agrees, the EEOC will receive a $20 million settlement arising from the company’s failure to reasonably accommodate disabilities via making exceptions to a “no fault” attendance policy where “chargeable” absences were caused by a qualifying disability.  And the EEOC gave a 6-step analysis to apply when considering whether an employee’s absence should be chargeable and eventually result in corrective action.  If any of the following are NOT satisfied, the absence may be chargeable.  If all are satisfied, corrective action is a really bad idea.  The factors are:  (a) current associate has a mental or physical impairment that substantially limits one or more major life activities; (b) the associate’s absence was caused by a disability; (c) the associate or associate’s rep used the designated company process to ask for a period of time off due to the associate’s disability; (d) the associate’s absences have not been unreasonably unpredictable, repeated, frequent or chronic; (e) the associate’s absences are not expected to be unreasonably unpredictable, repeated, frequent or chronic; and (f) the associate’s need for time off as a reasonable accommodation does not pose a significant difficulty or expense for the employer.  EEOC v. Verizon Del. LLC (D. Md. 7-11).  Since the ADAAA became reality, the focus has shifted from proving/disproving the existence of a qualifying disability to the interactive process between employee/employer and reasonable accommodation, and “no fault” or “automatic termination” policies are a lightning rod for the EEOC’s ire.

1. Sound Familiar? – Denny’s Restaurants settled an ADA class action with the EEOC, offering $1.3 million to 34 claimants.  The beef was over a blanket attendance policy which effected an automatic discharge after either 12 or 26 weeks of medical leave, with no additional leave offered as reasonable accommodation for disabled employees.  Starting to see a pattern here?

1. Do You Know Your Credit Limit? – On October 1, Connecticut and Maryland will join Illinois, Oregon, Washington and Hawaii in limiting employers’ ability to use an applicant’s or employee’s credit score, history or related information as a factor in the individual’s terms and conditions of employment.  And other states have/are considering similar measures, so keep your eye on your legislators and this issue.

1. California (Pay)Roll -  Something fishy just came out the CA Supreme Court and employers are not going to like the smell of it. California-based employers must apply CA wage and hour law (including the potential for daily overtime for nonexempts) to non-resident workers for the time they spend working in CA.  Sullivan v. Oracle (Cal. 6-11). The case involved overtime claims by employees of CA-based Oracle, who lived in AZ and CO but occasionally performed services for their employer in CA.  For starters, the instructors were mistakenly classified as exempt, which opened the door to daily overtime in CA as well as overtime for work which exceeded 40 hours in a workweek performed in other states.  The case is a good read, at www.courtinfo.ca.gov/opinions/documents/S170577.PDF.   Before sending employees to work in CA, you might want to re-analyze their exempt vs nonexempt status under CA law and bone up on their unusual overtime requirements.

1. Keep Summer Fun – You might direct your employees who drive in the course and scope of their duties to a 30-second PDA created by the DOT and Disney’s Pixar, for a humorous reminder that only bad guys drive distracted.  You can find it at http://distraction.gov/cars2/.

1. Stated Differently – Here are some hot topics for you multi-state employers:
   1. Connecticut – Effective October 1, public and private sector employers may not discriminate in employment, public accommodation, housing, credit and other areas based on an individual’s gender identity or expression.  Effective January 1, 2012, employers of 50+ service workers (hourly worker in one of 68 professions identified by the Bureau of Labor Statistics Standard Occupational Classification System) must provide up to 40 hours of paid sick leave, at a rate of one hour earned for every 40 hours worked.  Up to 40 hours of unused sick time can be carried into the next calendar year, but use of sick time is limited to 40 hours per year.
   2. Maine – Effective September 28, employers may not prohibit employees who have valid conceal carry licenses from having firearms in their vehicles while parked on the employer’s property, so long as the firearm remains in the locked vehicle and is stored out of sight.
   3. New Jersey – Parents or affiliates of a company, including a private equity investor, which failed to provide proper notice to employees and government entities under the state’s WARN law may be liable for severance pay owed to employees under the statute.  DeRosa v. Accredited Home Lenders, Inc. (NJ App. Div. 6-11).
   4. New York – A series of NY DOL Opinion Letters interpreting the state’s Wage Payment Law make clear that an employer may not deduct from an employee’s pay for overpayments or advances (e.g., cash, unearned PTO), even when OK’d by the employee in writing.  This stems from a narrowly written statute which enumerates the scenarios where deductions from wages would be allowed and which does not include an overpayment or an advance.  The DOL has opined that an employer may ask the employee to voluntarily repay the overage/debt, but such request must make clear that the employee’s refusal will not result in any type of adverse employment action.  What is the employer’s recourse if the employee says “no” to such request?  Per the DOL, file a lawsuit against the employee.
   5. Virginia – Effective December 1, 2013, employers of 50+ employees which have a contract with the Commonwealth valued at $50,000 or more must use E-Verify on new hires to determine if they are authorized to perform work or provide services under the contract.

Legal brief provided by:

Audrey E. Mross

Labor & Employment Attorney

Munck Carter LLP

amross@munckcarter.com

www.munckcarter.com

Legal Briefs are provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters.  For answers to your specific questions, please consult with counsel.

The post July Employment Law Legal Brief: The Month’s Hottest Stories in Review appeared first on Think, The Blytheco Blog.

• Contractor Conundrum Continues – The federal Employee Misclassification Prevention Act (EMPA) of last year has been replaced with a more ominous-sounding Payroll Fraud Prevention Act (S 770).  One of the EMPA record-keeping headaches has been removed, but this bill again proposes to amend the FLSA and retains requirements to [1] notify workers upon hire whether they are an employee or a “non-employee” and provide them with the U.S. Department of Labor website, to get more info and to file a complaint if the worker thinks his or her classification is incorrect; [2] beef up civil penalties to a range of $1000 to $5000 per misclassified worker; [3] impose treble (3x) actual damages (e.g., minimum wage, overtime) arising from misclassification and more.  The most recent budget includes $21.3 million for the Secretary of Labor to identify and pursue cases of worker misclassification.   With government coffers low, this measure is seen as a way to ensure that “contractors” who are really employees receive all protections of the FLSA and employers withhold and properly remit taxes to state and/or federal agencies
• Take a Tip – New FLSA regs have been released and will take effect 5-5-11, impacting tip credits, tip pooling,  salaried nonexempts paid via the fluctuating workweek method and more.  Employers who use the tip credit (i.e., pay certain tipped nonexempt workers only $2.13 per hour, with the difference between that amount and the applicable minimum wage being satisfied via customers’ tips) must inform workers of the intent to use the tip credit, along with additional details such as the direct pay amount, the tip credit amount, that the amount claimed as a tip credit cannot exceed the tips actually received and more.  There is no requirement that this notice be made in writing, but that is the best way to prove compliance, if asked.  Tip pooling arrangements are no longer subject to a 15% cap on contributions to the pool.  The fluctuating workweek is a method used to pay nonexempts a fixed salary where hours worked vary from one week to the next.  When those hours exceed 40 in a workweek, overtime is calculated by dividing the salary by the hours worked and using half of the resulting amount as the multiplier when paying overtime.  The revised reg addresses the question of paying these employees bonuses or other premium pay and states that such payments are incompatible with the fluctuating workweek method and payment would negate the employer’s ability to use that method.
• Sibling Rivalry? – Not to be outdone by the SEC, which recently awarded its biggest ever whistleblower bounty ($1 million), the IRS  awarded $4.5 million to a whistleblower under its enhanced program, which was designed to encourage employees to rat out their noncompliant employers.  The award was 22% of the $20 million recovered in back taxes and interest from a large financial firm. April Showers.
• On April 6, the Social Security Administration (SSA) announced it would resume sending single employee “no match” letters to employers and would permanently discontinue use of the letter which lists multiple employees.  Employers remain between a rock and hard place, with the SSA cautioning that a mismatch letter is not evidence that the individual lacks U.S. work authorization and ICE holding firm that an employer’s receipt of the letter and failure to address it is possible evidence of “knowing” employment of an unauthorized worker which would violate the INA.  The proposed “safe harbor” rule from 2007 was never finalized and was eventually rescinded, removing a set of steps for employers to follow in these situations that would provide protection from liability for an INA violation.  For now, check your records for a possible data entry error that would explain the mismatch in your employee’s SSN.  If that’s not the answer, direct the employee to go to the SSA to get a correct SSN card and allow a “reasonable” amount of time for this to happen.
• On April 12, the Paycheck Fairness Act was re-introduced in the Senate (S. 797) and the House (H.R. 1519).  The bill, which is intended to beef up the Equal Pay Act, fell two votes short of cloture in the Senate last November.
• On April 14, CIS announced that a final rule had been adopted, making changes to the Form I-9.  Chances are you’ve been operating under the interim rule (since 4-3-09) and the final rule has no changes to report.  You can see the form at www.uscis.gov/files/form/i-9.pdf.  Some documents are no longer acceptable to provide identity and/or authorization to work and some new docs have been added.  Also, you can no longer accept expired documents as proof.
• On April 14, the Employment Non-Discrimination Act (ENDA) was re-introduced in the Senate (S. 811). The companion bill is H.R. 1397.  ENDA proposes to make unlawful employment discrimination based on sexual orientation and gender identity.  You can always see full text and check out the status of pending federal bills at http://thomas.loc.gov.
• April 28 was Take Our Daughters and Sons to Work Day . . . and June 24 will be Bring Your Dog to Work Day.  Uh oh, the cat’s going to feel left out,
• Handbook Helper – Not so long ago, drafting an employee handbook was largely an exercise in creative writing.  Today, an intricate web of federal, state and local regulation touch nearly every employer policy, limiting what you can and cannot say. The latest poke comes from the NLRB, where the Board disregarded a hearing officer’s findings and held that three handbook policies were so objectionable, the results of a successful union decertification had to be set aside.  Jurys Boston Hotel, 356 NLRB No. 114 (2011).  Even though the employer had revised two statements and removed the third in response to an unfair labor practice filing, the Board opined that the statements relating to solicitation, loitering and grooming (especially wearing of buttons) tended to interfere with employee choice.  Of interest, the union raised no objection to these policies during the two years leading up to the decert election.
• The Bear Necessities

-  A wildlife park worker who was sat upon and bitten while feeding a grizzly bear in its pen can collect workers’ comp benefits even though the worker admitted he smoked pot on the way to work that day.  While most states have statutory exclusions for unemployment comp and workers’ comp eligibility when the employee tests positive for illegal drugs, it’s not always a slam dunk.  In MT, the Supreme Court decided that the worker was in the course and scope of his duties when injured and while his pre-work pot use was “ill-advised” and “mind-boggingly stupid,”  it was not the leading cause of the injury.  Hopkins v. Kilpatrick (Mont. 3-11).  Other states have strict procedural requirements on the drug testing process which can trip up what looked like an easy win for the employer, so bear in mind the requirements that apply in your locale.  J

• Bright Spots
  • President Obama is expected to sign a bill which will repeal the much maligned PPACA requirement that employers provide a Form 1099 for all corporate service providers that received more than $600 annually in goods and/or services.
  • EEOC  will pay $751,942.48 to an employer, as court-ordered sanctions for pursuing a meritless claim.  EEOC filed a class action lawsuit, claiming the employer had a blanket policy of refusing to hire individuals with a criminal record and such action had a disparate impact on Blacks and Hispanics.  The court determined the case had no foundation from the start and it was unreasonable to pursue the claim, driving up the defendant’s attorney fees, expert fees and court costs to more than $1 million.  EEOC v. Peoplemark, Inc. (W.D. Mich. 3-11).
• Stated Differently – Here are some morsels for you multi-state employers:
  • Arizona

  – The 9^th Circuit upheld a U.S. District Court injunction, blocking parts of the AZ immigration law including provisions making it unlawful for an unauthorized worker to solicit, apply for or perform work in the U.S.  The U.S. Department of Justice sought the injunction, claiming that federal law preempts state action on immigration.

  • Georgia – The House sent a bill (HB 87) to Governor Nathan Deal for signature, which will require private sector employers with 500+ employees to use E-Verify on all new hires, beginning no later than 1-1-12.  Employers with less than 500 but more than 99 employees will have until 7-1-12 to comply and those with 11 or more employees have until 7-1-13.  Employers with ten or less employees are excluded.  Also, only employees who work 35+ hours per week are subject to the requirement.
  • Hawaii – Effective 1-1-12, same sex couples can enter into civil unions which entitle them to the same rights, responsibilities and obligations as married couples.
  • New Jersey – Effective 3-29-11, it is unlawful for employers to knowingly or purposefully publish, in print or on-line, an ad for any job vacancy in the state that contains [1] any provision stating or suggesting that the qualifications for a job include current employment; [2] any provision stating or suggesting that the employer will not consider or review an application for employment submitted by any job applicant currently unemployed; or [3] any provision stating or suggesting that the employer will only consider or review applications for employment submitted by job applicants who are currently employed.  Penalties start at $1000 and there is no private cause of action for individuals, against the prospective employer.
  • Philly, PA – If the employment application you use in this city has a box to check relating to arrests and/or convictions, you will need to revise your form.  90 days after 4-13-11, an ordinance will take effect which makes it unlawful for an employer of 10+ employees to [1] knowingly and intentionally inquire about, require a person to disclose, or take any adverse action against any person on the basis of an arrest or criminal accusation not pending against the person and that did not result in a conviction; or [2] inquire about or require an applicant to disclose any criminal convictions during the application process and during the first interview.  There is an exception for situations where such inquiry is allowed or required (e.g., child care workers).  It’s still OK to run a criminal background check later in the pre-employment process, or on current employees.
• Provided by:
• Audrey E. Mross
• Labor & Employment Attorney
• Munck Carter LLP
• amross@munckcarter.com
• www.munckcarter.com
• Employment Law Legal Update is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters.  For answers to your specific questions, please consult with counsel.

The post May ’11 Employment Law Legal Brief appeared first on Think, The Blytheco Blog.

Here is what’s new in employment law across the nation…

1.  New Meaning of “File” – Savvy employers know that retaliation claims are on the rise in part because a motivated plaintiff may find that claim easier to establish than the underlying alleged statutory violation.  And if the employee’s complaint stems from the Fair Labor Standards Act (FLSA), the U.S. Supreme Court has made it even easier by holding that an oral complaint can support an FLSA retaliation claim.  The case involved a manufacturing and production worker in WI who claims he made multiple verbal complaints to his supervisor and to HR about the location of the time clock.  In his opinion, its position prevented employees from being “on the clock” while donning/doffing protective gear.

The employee received several warnings about failing to properly use the time clock prior to his suspension and then termination from employment.  He claimed the termination violated the FLSA’s anti-retaliation provision which states, in part, that employers are prohibited from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].”  The district court (W.D. Wisc.) and appeals court (7^th Cir.) sided with the employer in their argument that “filed any complaint” means a written complaint, which the employee did not do.

The U.S. Supreme Court, however, looked to the dictionary, Congressional intent and the U.S. Dep’t of Labor’s interpretation in finding that the complaint need not be in writing to support a retaliation claim.   Kasten v. Saint-Gobain Performance Plastics Corp. (U.S. 3-11).  What they didn’t decide (because the issue was raised too late by the employer) is whether FLSA retaliation protection applies only when the employee complained to a government agency, or if it also applies when the complaint is made internally, to the employer.   This case provides another example of why it’s so important to train your managers and supervisors in the basics of employment law, and to revisit your HR procedures to provide a safety net against claims resting upon undocumented complaints.  I provide Supervisor’s Toolkit training that can be done in blocks over time or as a “get ‘er done” seminar, so let me know if I can help you.

2. Self-ish? – As a follow-up to last months’ LB4HR announcement that USCIS would launch an E-Verify self check service, the service was launched a few days later than planned (March 21 vs. March 18) and will initially be limited to individuals in AZ, ID, CO, MS, VA and DC.  The agency hopes to roll out the service, in blocks, and go nationwide in one year.

3.  Finally! – Final regulations implementing the ADA Amendments Act (“ADAAA”) of 2008 have arrived.  The law took effect January 1, 2009 and the new regs will take effect 60 days after publication in the Federal Register on March 25.  Commentators are generally relieved that the list of per se disabilities is gone but it’s been replaced with a list of conditions that should be “easily concluded to be disabilities” while emphasizing that individual assessment is still needed.

4.  Doggin’ it and Horsin’ Around – The portion of the ADA which deals with places of public accommodation has been amended to address concerns about what type of “service animals” must be allowed in, as an accommodation to a disabled individual.  For starters, animals which are intended only to provide emotional support are no longer considered service animals.  Further, the definition of a service animal is now limited to dogs that have been individually trained to do work that benefits the individual with a disability. Other animals no longer qualify except for miniature horses, in certain limited circumstances.  This change does not apply to the portion of the ADA which deals with employment, so check with legal counsel if you have concerns over an employee’s request to bring a small horse or other service animal to work.

5.  Take That! – In response to NLRB decisions that have generally displeased employers, the National Right to Work Act (S. 504) was filed in Congress on March 8.  If passed, the NRWA would prohibit union security agreements in collective bargain agreements, thereby making union membership and paying of dues a condition of employment for employees covered under the CBA.  The current hedge against union security agreements exists in 22 states which have passed “right to work” laws. If you’re not sure whether the states your business has employees in are right to work or not, go to www.nrtw.org. to find out.

H.R. 1047 was filed to protect those states which enacted amendments designed to ensure that union representation voting is done via secret ballot and not via a card check procedure.  This bill is the latest salvo in the battle between the states that have already passed such laws (i.e., AZ, SC, SD, UT) and the General Counsel of the NLRB, who has vowed to sue those states.  [Note:  There is a similar bill pending in the Texas legislature, H.B. 471].  And H.R. 972, if passed, would require use of secret ballots in all union representation elections.  To read full text and follow the progress of these bills, go to http://thomas.loc.gov.

6.  It’s No Joke – Think you can’t be held responsible when your employee is harassed by your customers’ employees? One employer thought so and disregarded a route driver/vending machine stocker’s complaints that yahoos at a hospital on his route assumed he was gay, made daily unwanted sexual comments, groped themselves and propositioned him.  He told several supervisors and a manager but his employer’s response was to the effect of “they’re not our employees” and “it’s a joke . . . don’t take it seriously.”

After the EEOC got involved, a settlement attempt (shift change) failed because it would interfere with the driver’s child care duties and cut his pay.  He quit and the EEOC sued.  The trial court felt the employer had insufficient notice and should not be liable, but the circuit court said they knew enough to be deemed to have actual or constructive notice of the harassment and failed to take any remedial action.  EEOC v. Cromer Food Services (4^th Cir. 3-11).

7.  Tax Tips – The IRS states that breast pumps and lactation supplies qualify as “medical care” under IRC sec. 213(d).  Amounts reimbursed for these expenses under an FSA, Archer MSA, HRA or HSA are not income  to the taxpayer.  The announcement is posted at www.irs.gov/irb/2011-09_IRB/ar11.html

8. It’s Not Fair – A recent $5.9 million settlement is a stark reminder that failure to follow the federal Fair Credit Report Act’s technical requirements can be a pain in the pocketbook.  Hunter et al v. First Transit, Inc. (N. D. Ill. 3-11).  For starters, do not be lulled into thinking that the law applies only to credit checks.  The FCRA comes into play whenever you use a third party to provide info you’ll use to determine an individual’s fitness for hire, advancement or other employment purposes. Then, make sure you are getting the info for an allowed purpose (e.g., employment) and that you’ve signed off on the necessary certifications with your info provider(s).

Next, be sure you provide your applicant or employee with a compliant notice form and get written authorization BEFORE you request that background check.  And if the ensuing report is used, in whole or in part, to deny the hire, advancement, etc., there is a two-step written notice process to follow before you rescind the offer or take other adverse employment action. The settlement in the aforementioned case arose out of failures to provide pre-check disclosure and post-check notices.

9.  Marriage Penalty – Under the FMLA, new parents who are married and work for the same employer are limited to taking 12 weeks of job-protected leave between them.  If, however, the new parents are not married, each can take 12 weeks of FMLA leave for the event.  Some states recognize and address this unintended consequence in their state FMLA clone laws.  For example, the CA Family Rights Act provides 12 weeks of leave (not 24) for new parents  employed by the same employer to bond with the baby, whether they are married or not.

10.  Stated Differently – Here are some morsels for you multi-state employers:

• California – Prospective plaintiffs who want to sue their employer under the CA Fair Employment and Housing Act have one year from the date the Right to Sue notice is issued by the CA Dep’t of Fair Employment and Housing, not one year from the date the notice is received.  The statute says the limitations period is “one year from the date of that notice” and the CA Court of Appeals decided that means the date the notice was mailed.  The date the aggrieved employee claims to have received the notice is not relevant.  Hall v. Goodwill Industries of Southern California (Cal. App. 4^th 3-11).
• Nebraska – Add the Cornhusker state to the list of those that have a law protecting the right of women to breastfeed in public and private locations. For a complete list of states with similar (and additional) protections, go to the La Leche League website atwww.llli.org/law/lawus.html.
• Pennsylvania (Philadelphia) – The Philadelphia Fair Practices Ordinance has been amended to add three new protected categories, mandate a workplace poster and beef up enforcement.  The new protected categories (i.e., genetic info, domestic or sexual abuse victim status and familial status) add on to the current list which includes race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability and marital status.  The familial status category is extraordinarily broad, to include  the individual’s spouse, life partner, parents, grandparents, siblings, in-laws, children, grandchildren, nieces and nephews, including those obtained via adoption or other dependent or custodial relationships.  The expanded ordinance takes effect June 22, 2011 and a copy can be obtained at www.phila.gov/humanrelations/.

Legal Briefs for HR is provided to alert our readers to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters.  For answers to your specific questions, please consult with counsel.  This legal HR brief has been provided by:

Audrey E. Mross

Labor & Employment Attorney

Munck Carter LLP

amross@munckcarter.com

www.munckcarter.com

Twitter: @amross

The post Employment Law Legal Brief: March ’11 in Review appeared first on Think, The Blytheco Blog.

Even felines access social media

Earlier this week, we discussed the current prevalence of social media in commerce and its current importance to business prosperity and functionality.  We also discussed the legalities of designing a social media workplace policy.  Now, we’re going to delve into the Do’s and Don’ts of designing an appropriate social media workplace policy for your office or business.  It is critical for many leaders to understand that social media isn’t going anywhere, and it is best to adapt to the evolution instead of resisting.  Here are a few suggestions:

Do’s

• Create a policy that encourages the appropriate use of social media.  Your employees are usually your biggest evangelists and if allowed to speak organically, will often increase positive recognition of your brand by others
• Decide the overall purpose of your social media policy and how it relates to other company policies.  A social media policy can often be used to strengthen other policies such as external/internal company communication and various human resource policies
• Be sure to be clear about social media use in the work place.  Many companies’ policies refer broadly to using social media and often fail to differentiate between work and personal use.
• Make sure to refer to your company’s confidentiality agreement, which often supersedes company communication policy.  While it may be ok to post things on Facebook or Twitter outside of work, it is never ok to post trade or company secrets in any form of communication.
• When wording your social media policy, be sure to use non-restrictive terms that allow for the constant changes in social media.  You don’t want to be stuck with a policy that becomes frequently outdated.

Don’ts

• Do not develop a social media policy without first reviewing all federal and state laws as they relate to your company’s location.
• Do not discipline an employee for violating your company’s social media policy until first consulting with an attorney.  As  social media is consistently changing, so are the laws involving it.
• Do not view private social media content without permission.  Viewing someone’s private profile [by method of hacking, coercion, password theft, etc.] without their expressed permission is not only a violation of privacy, it can also open the door to a myriad of discrimination lawsuits as profiles usually contain a massive amount of personal information
• Do not develop policies that in any way prohibit an individual’s freedom of speech outside of the workplace
• Do not develop a social media policy that deters employees from or frightens employees into not using its resources.  Social media has quickly become an everyday part of many lives and reports indicate that companies with restrictive social media policies are often struck with low employee morale.

In the realm of social media, it is important to be proactive and adaptive as opposed to reactive.  It is also important to create a comprehensive policy of social media or an individualized plan for each department as employees and departments have different functions.  I.E. It may be appropriate for the Marketing team to log on to Facebook at work, but not the Finance team.  It is also crucial to not exclude any employee from the policy, but to design logical inclusions that are not overly restrictive.

The post Social Media Workplace Policy Part II: Do’s and Don’ts appeared first on Think, The Blytheco Blog.

Facebook CEO Mark Zuckerberg poses for photo.

Last month, we informed you about the complaint issued by the National Labor Relations Board (“NLRB”) against an employer that allegedly terminated an employee for making derogatory remarks about her supervisor on the employee’s Facebook page.

The complaint alleged, inter alia, that this termination was in violation of federal labor law, that the company’s social media policy was “overly broad” because it prohibited employees from posting disparaging remarks about the company, and that enforcement of this policy interfered with employees’ rights to engage in concerted activity.

This case received significant media attention because it applied a well established legal theory to a new context. Although it is long settled that employees have the right to engage in discussions about their wages, hours, and working conditions, this case signals to both union and non-union employers that this right extends past the physical workplace and onto its employees’ Facebook pages. Further, this case warns employers of the NLRB’s intent to protect employees’ use of the Internet as a forum to engage in concerted activity, even where the protected content is less than respectful.

On February 7, 2011, the NLRB announced that it entered into a settlement agreement with the employer. Although the agreement was not released, public reports indicate that, as part of the settlement, the employer agreed to change its “overly broad” social media policy to ensure that it does not interfere with employees’ right to engage in concerted activity such as discussing wages, hours, and working conditions. The employer also agreed not to discipline employees for engaging in such activity and not to deny employees’ requests for union representation or discipline them for making such requests. The employer also settled with the terminated employee, but the terms of that agreement remain private.

Employers should be aware of employees’ right to communicate with one another regarding their wages, hours, and working conditions and their ability to do so over the Internet and still remain under the protection of federal labor laws. It is important for employers to keep this lesson in mind when drafting social media policies to ensure that they will not be construed as interfering with protected employee rights.

Morrison & Foerster Employment Law Commentary, February 2011

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