Welcome to Legal Briefs for HR, an update on employment issues sent to over 4800 HR professionals, in-house counsel and business ownersall over the U.S. to help them stay in the know about employment issues. Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in! Back issues are posted at www.munckcarter.com under Media Center/Legal Briefs.
Here’s what’s naughty and nice:
1. Face Off with the NLRB – The National Labor Relations Board (NLRB) filed a lawsuit against American Medical Response of Connecticut, Inc. based on its social networking policy and its firing of an employee who posted unflattering remarks about her supervisor on her Facebook page. The policy prohibits employees from posting pics which depict the company, without permission from the VP of Corporate Communications, and further prohibits making “disparaging, discriminatory, or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” NLRB alleges that the policy interferes, restrains and coerces employees in the exercise of their right to engage in protected, concerted activities and that the discharge of the posting employee was discrimination. A hearing before an ALJ will take place on January 25, 2011.
2. Here’s GINA – EEOC issued final regulations on November 9, to implement Title II of the Genetic Information Nondiscrimination Act (GINA). The rules take effect January 10, 2011 and will require some tweaking of employers’ policies, procedures and forms. For example, there is a (not absolute) safe harbor for inadvertent acquisition of protected information as part of handling a request for leave under the FMLA and/or accommodation under the ADA, BUT specific language must be included in the medical form(s) employees take to their health care provider. Also, voluntary wellness programs and health risk assessments (HRAs) do come within GINA’s ambit and care must be taken when wording medical questions and offering financial incentives conditioned on completion of the HRA. For a complete copy of the final regulation, go to www.eeoc.gov/laws/types/genetic.cfm and click on “Regulations (Final Rule)” in the right-hand column.
3. One Less Thing to Worry About – OFCCP announced that it will no longer inspect employers’ Form I-9s as part of on-site compliance reviews. A forthcoming directive will negate the 1998 Memorandum of Understanding between DOL ESA and CIS (fka INS) which authorized OFCCP investigators to inspect the forms while conducting reviews of federal contractors and subcontractors.
4. Strike That, Worry Some More – Hoover, Inc. has settled allegations that it engaged in employment discrimination by imposing unnecessary I-9 requirements on its permanent resident employees. The problem arose when those holding a “green card” were asked to produce new documents after theirs expired, but U.S. citizens who used passports to satisfy I-9 documentation requirements were not asked to do the same when their passports expired. Department of Justice is looking for employers who engage in such “document abuse” so audit your internal procedures and make sure the staff who sign off on I-9s on behalf of the employer are familiar with the INA’s requirements. A great resource for FAQs is the Handbook for Employers: Instructions for Completing Form I-9 which can be found at www.uscis.gov/files/form/m-274.pdf.
5. Jingle Bills – There will be no Paycheck Fairness Act, for now, as the bill fell two votes shy in the Senate. S.3772 (fka S.182) was meant to amend the Equal Pay Act by beefing up remedies and enforcement. Employers can breathe a little sigh of relief as the prospects for this potentially costly bill and others are dimmed by the shift to a Republican-controlled House.
6. E-Verify Enhanced – The Dep’t of Homeland Security is enhancing the E-Verify system by adding passport photo reviews to the mix. While a name, SSN and birth date may all match, DHS and employers have not been able to confirm that they belong to the person who is offering facially adequate documents. Once state DMVs can tie in drivers’ license photos, E-Verify accuracy will take another forward leap.
7. Whaaaaaat? – OSHA wants to amp up employers’ workplace noise protection by reinterpreting its own standard. Up to now, employers often relied on personal protective equipment (PPE) like ear plugs, to get employees’ noise exposure below the accepted level. If that worked, it was not necessary to use “feasible administrative and engineering controls” which may cost more. Now, OSHA believes that the controls should be used first and PPE would be relied upon only if the controls don’t reduce noise to the accepted level. Administrative controls are measures which reduce employee’s exposure to the noise, such as rotating workers between noisy and quieter areas. Engineering controls are changes to the equipment, facility and/or processes which reduce the noise. OSHA prefers controls over PPE since the latter requires that your employees actually remember to wear PPE while exposed to excessive noise. The million dollar question will be what does “feasible” mean . . . in stating its intent to issue more citations, OSHA says it means “capable of being done.”
8. Fat Chance – After working 12 years at a McDonalds restaurant and ballooning from 155 to 231 pounds, a store manager was awarded $17,500 by a Brazilian judge to compensate for the weight gain. The manager laid the blame on daily free lunches plus the need to sample the food regularly due to the presence of “mystery clients” who could appear at any time to test food quality and customer service.
9. Kudos! – A round of virtual applause for long-time LB4HR subscriber, Tonya Holt, who was honored by the Dallas Business Journal on Nov. 10 during its Best Corporate Counsel awards. Tonya is Senior Corporate Counsel for Sky Chefs, Inc. and she was recognized as a “Champion of Diversity.” Woo Hoo!
10. Stated Differently – Here are some morsels for you multi-state employers:
1. Arizona – Under the recently passed medical marijuana law, employers may not discriminate against Cardholders (e.g., qualifying patient, designated caregiver, medical marijuana dispensary agent) in hiring, termination or imposing any term or condition of employment. Employers may still ban possession or use of, or being under the influence of marijuana while on the employers premises during working hours.
2. California – An employee will be allowed to sue her employer under both the Industrial Welfare Commission Wage Order and Labor Code sec. 1198 (via the Private Attorney General Act of 2004) for failure to provide “suitable seating.” The IWC Wage Order requires that all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. And the Labor Code declares failure to provide what the Wage Order requires “unlawful.” Bright v. 99¢ Only Stores (Cal. Ct. App. 10-10).
3. District of Columbia – The DC Accrued Sick and Safe Leave Act provides job-protected and paid time off to employees for certain qualifying absences. There is a brand new Official Notice which covered employers must post, to explain employees’ rights under the leave law. You can find the notice by clicking on Documents, then Forms/Posters at www.does.dc.gov/does.
4. Massachusetts – If you’re confused by the new limitations on asking about criminal record history (which took effect Nov. 4), there is a new Fact Sheet posted by the Massachusetts Commission Against Discrimination that may help. You can find it posted at www.mass.gov/mcad/documents/Criminal%20Records%20Fact%20Sheet.pdf.
5. Nebraska – Effective January 1, 2011 the City of Omaha will charge an annual $50 “commuter wheel fee” to each worker who lives outside of Douglas County, or within the county but three or more miles outside of the city limits, and commutes to Omaha to work. The fee kicks in for full-time workers who come to Omaha more than 30 days of the year and for part-time workers when they’ve worked 240 hours. The burden is placed on workers’ employers to collect and remit the fee to the City, but employers may not deduct the fee from employees’ pay without their written OK.
6. Texas – The Texas Workforce Commission amended the Payday Act regulations, effective Sept. 20. Some of the changes include acceptance of electronic posting of paydays and changes in definitions and rules relating to fringe benefits, commissions, bonuses and employee loans. Sale of an employer’s business is a termination of employment which triggers payment of vacation and other forms of paid time off, if owed pursuant to a written agreement or written policy. You can find the new regs at www.texasworkforce.org by clicking on Business & Employer, then Texas Laws and Requirements, then Texas Administrative Code.
11. Don’t Drive if You’re Tipsy, Buzzed or Blitzen – That’s just one of the catchy slogans available on posters, decals and web banners for FREE, thanks to the Texas Dep’t of Transportation and the National Safety Council, to remind your employees to drive safely during the holiday season. Just go to www.txdotholiday.com and enter the code TXEMP to access these items in English or Spanish, as electronic downloads and/or receive hard copies by mail.
12. Thanksgiving – This is the time of year that reminds me to be thankful and to do some thanking! As HR pros, counsel, business owners and managers, you make your workplaces functional, safe, productive, fun and a source of pride (not just income) for so many people. You’ve been tasked with the complex job of shepherding the most important resource any organization has . . . it’s people. And you do it so well. In case you’ve not been told lately, THANK YOU for what you do!
13. For the Birds – If you like being tweeted and want breaking news on employment law changes, follow me on Twitter. I’m at @amross.
Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251
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