Welcome to Legal Briefs for HR, an update on employment issues sent to over 4800 HR professionals, in-house counsel and business owners all 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. Welcome, to new subscribers I met while speaking at the University of Texas School of Law 2011 Labor and Employment Law Conference. I’ll be providing a legal/legislative update to the Dallas chapter of the Worldwide Employee Benefits Network on May 31 and a wage & hour refresher for the North Texas Compensation Association on June 16. Hope to see you there!
Here’s what’s heating up, as we coast into summertime:
1. Tool Time – Go to www.uscis.gov/portal/site/uscis and click on “I-9 Central” in the top right corner of the homepage, to find one-stop shopping for all your I-9 related questions and forms. And employees may enjoy the U.S. Department of Labor’s free smartphone app for keeping personal copies of time records. The iPhone or iPod Touch app, in English or Spanish, was announced on May 9 and the press release states that these records “could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” Employees without an iPhone/iPod can get the timesheet off of the DOL website and track their hours worked the old-fashioned way. The timesheet app handles straight time and overtime but does not track tips, commissions, bonuses, deductions, shift differentials, holiday pay, pay for weekends or pay for regular days of rest. Also, since overtime is based on 1.5 times the “regular rate” (assuming there is no more generous State overtime rule that applies) and the regular rate is based on those additional forms of pay, seems like the overtime calculator is not very robust.
2. Socially Responsible? – Employers, take note that the NLRB is very interested in how you react to employees using social networking media to flame each other, your organization and third parties. Two cases with different outcomes provide some insight on where to draw the line. In Lee Enterprises d/b/a Arizona Daily Star, a crime reporter was warned by his employer to cease his inappropriate and pro-violence Tweets (e.g., “What!?!?!? No overnight homicide? WTF? You’re slacking Tucson”). Termination of employment ensued, when he did not stop after being warned. The Board hinted that some of the employer’s comments may have impinged on Section 7 rights but concluded that the termination was based on violation of policy and disregard of warnings and said “it would not effectuate the purposes and policies of the [statute] to issue a complaint where the [employers] statements were directed at a single employee who was lawfully discharged.” In contrast, the Board issued a unfair labor practice complaint to a NY nonprofit agency (Hispanics United of Buffalo), alleging it had violated Section 7 by discharging five employees who complained about their working conditions (e.g., workload, staffing) via Facebook posts to one another. If not settled, the hearing will be held on June 22. While both cases involved employee rants, the former involved verbal bombs thrown at nonemployees while the latter was mostly internal. Section 7 of the NLRA protects employees who engage in concerted activity about their terms and conditions of employment, for mutual aid and protection. If you’re not sure which side of the fence your brat is on, get some guidance before sending him or her to the ultimate time-out of unemployment.
3. Data Breach is no Day at the Beach – The May 12 release of a proposed federal approach to cybersecurity includes a standard for businesses who maintain individuals’ personal information (“PI”), requiring notice to affected individuals when their PI has been compromised due to a data breach. Right now, there are about 47 states with data breach notice laws which present a crazy-quilt of notice thresholds, procedures and exceptions for businesses with customers, employees (and others whose PI they keep) in multiple states. If adopted, the federal standard will harmonize many of these requirements, but will set a higher bar than many state laws by requiring a risk assessment in order to avoid the notice requirement. In addition to affected individuals, an alphabet soup of federal agencies must be notified of the goof and that’s usually not a good thing.
4. Feeling Secure? – The FTC has entered into consent decrees with a payroll service (Ceridian) and I-9 service (Lookout) after finding that their representations of providing reasonable measures to secure their customers’ personal information, including employees’ SSNs, were false and amounted to unfair and deceptive acts. In addition to being required to bring their systems and policies up to snuff, they must have independent annual audits of their systems for the next 20 years. The proposed consent orders are posted and provide insight into what the FTC considers to be minimum requirements when it comes to data security. See www.ftc.gov/os/caselist/1023160/index.shtm and www.ftc.gov/os/caselist/1023076/110503lookoutservicesanal.pdf.
5. That’s Sick – It’s baaack! The federal Healthy Families Act, mandating that employers provide paid employee sick days, has been refiled as H.R. 1876 and S. 984. Bill backers say it’s designed to encourage sick folks to stay at home and not infect their co-workers. If passed, it will apply to employers with 15+ employees, require provision of 7 days (56 hours) of paid time off per calendar year and the time can be used for the employee’s own illness, to care for an ill family member, to obtain preventive care and/or diagnostic treatment and for victims of domestic violence or sexual assault. The employer can require documentation to prove the need for leave. If you want to track the progress of this bill, check it out at http://thomas.loc.gov.
6. That’s Scary – An appeals court found no Title VII retaliation when a guidance counselor who had filed two EEOC charges was not re-hired after a lay-off. This analysis always turns on the employers “legitimate business reason” and they had a good one. The employee had been “threatening in her behavior and was making questionable statements about the school system and its employees.” Statements like she “felt like blowing up the school,” as told to her therapist and then relayed to local authorities. Lyons v. Metropolitan Government of Nashville and Davidson County (6th Cir. 5-11). In a related affirmation of common sense, a CA court held that an employer need not tolerate or accommodate an employee’s outbursts and threats of violence toward co-workers, even if caused by a bipolar disorder. Wills v. Superior Court of Orange County (Cal Ct.App. 5-11).
7. Credit Limit – As of October 1, add Maryland to the list of states that prohibit the use of an applicant’s or employee’s credit history as a factor in employment decisions, with some narrow exceptions. Restrictions are in place in HI, IL, OR and WA and dozens of states have considered similar bills during their 2011 legislative sessions.
8. Gotcha! – Worried about current/former employees stealing your secrets and customer relationships and using them to line their own pockets? Then take a tip from U.S. v. Nosal (9th Cir. 4-11) and beef up your computer use policy so that the federal Computer Fraud and Abuse Act (“CFAA”) may apply. The statute provides a remedy where anyone “knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.” Some employers reliance on CFAA has failed in the past where the employer admittedly provided unfettered access to its computers and internal databases. This case worked for the employer, Korn/Ferry, because there was a specific policy statement with clear and conspicuous restrictions on employees’ access to the company’s system and to a particular database at issue in the case. The case is a good read, at www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-10038.pdf.
9. Summertime Reminders –
1. Unpaid Workers – Summertime means an uptick in students, recent grads and others looking for work. In this tight economy, some will even offer to work for free if you’ll just give them a chance to show what they’ve got. Tempting, but don’t forget unpaid volunteers and interns are often a no-no under the federal Fair Labor Standards Act. If you’ve forgotten the six-point test to qualify as an unpaid intern, check out the WHD Fact Sheet on this subject at www.dol.gov/whd/regs/compliance/whdfs71.pdf.
2. Hot Workers – Although not every state has a statute like CA which requires employers to provide breaks with shade and cool water for those who work outside in the heat, you can prevent heat-related illness and earn a boatload of goodwill by providing these things.
3. The Other Kind of Hot Workers – Summer brings out skimpy clothes that may be more suited to the beach than your workplace, so you may need to revisit your dress code and remind workers that short, sheer and shameless displays of flesh will result in a directive to go home to change and not return to work until suitably clothed.
4. Weather – Recent devastation in Joplin, MO and other locations are a reminder to have an emergency evacuation plan in place and to practice that plan before the tornado is on your doorstep.
5. Dog Days of Summer – Bring Your Dog to Work Day is June 24. I’m not woofing!
10. Stated Differently – Here are some morsels for you multi-state employers:
1. Arizona – In a 5-3 vote, the U.S. Supreme Court upheld the AZ law which allows the state to revoke or suspend the licenses of businesses that employ illegal aliens.
2. Florida – The state minimum wage will increase to $7.31/hour effective June 1, 2011. Also, tipped employees of employers who use the tip credit must be paid at least $4.29/hour by the employer ($7.31 minus the $3.02 tip credit).
3. Indiana – Prospective employers may not inquire into whether an applicant or employee owns, possesses, uses or transports firearms or ammo, unless such possession, use or transportation will be part of the employees job duties. This law complements an existing statute which allows employees to bring guns and ammo on an employer’s property, so long as the firearms and ammo are left outside in the employee’s locked car. The law takes effect on July 1, 2011.
4. Maryland – Retail businesses with 50+ employees in MD must provide breaks under the new Healthy Retail Employee Act. Breaks are tied to hours worked – 15 minutes for between 4 to 6 consecutive hours worked, 30 minutes for 6 or more hours and another 15 minutes per each four hours worked after eight hours worked. The law took effect March 1, 2011.
5. Washington – With certain exceptions, consumer reporting agencies may not provide juvenile records when the “consumer” who is the subject of the report is age 21 or older at the time the report is requested. The goal is rehabilitate and reintegrate juvenile offenders into society. The law takes effect on July 22, 2011.
11. 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
972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckcarter.com
www.munckcarter.com
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