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Legal Briefs for HR

Posted on July 5, 2012

Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 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 under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.” 

Declare your independence from some of these employer boo-boos:

1.  Supremes Find DOL’s View Lacking – If you’re not in the pharma biz, you may have not paid much attention to the Supreme Court’s decision in Christopher v. SmithKline Beecham Corp dba GlaxoSmithKline.  The Court determined that detailers, who provide doctors with info relating to the Company’s products but don’t actually ink the sale, are exempt under the FLSA’s outside sales exemption.  Even though four Justices dissented by opining that an actual sale was needed to qualify for the exemption, all Justices agreed that the DOL’s interpretation of their own regulation was not entitled to deference in this case because it “lacks the hallmarks of thorough consideration.”  Ouch.  Plaintiffs’ counsel sees this as judicial activism, but the unanimous view that deference to the enforcement agency is not a given in every case should lighten the hearts of employers who often feel that FLSA exemption analysis requires a crystal ball.  The Court chastised the DOL for its long silence on the classification of detailers which created an acute potential for unfair surprise when it changed its view and declared them nonexempt in amicus briefs.  It explained “It is one thing to expect regulated parties to conform their conduct to an agency’s interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency’s interpretations in advance or else be held liable when the agency announces its interpretations for the first time in an enforcement proceeding and demands deference.”  Well said!

2.  Going Up? – Ready for a $10/hour federal minimum wage?  That is being proposed via H.R. 5901, filed by Jesse Jackson Jr. (D-IL) on June 6.  If passed, the bill would increase tipped employees base pay to $7.00/hour and index future increases in the federal minimum wage rate to increases in the consumer price index, as is already done in many states.  If you want to monitor the progress of this bill, go to

3.  No Peeking – An employee who is also the union local president can proceed with her invasion of privacy claim, where a supervisor allegedly coerced one of her co-worker/Facebook friends to provide access to her employee’s Facebook page.  Ehling v. Monmouth Ocean Hospital Service Corp. (D.N.J. 5-12).  In denying the employer’s motion for summary judgment, the Court  had to determine if she had stated a claim for intrusion upon seclusion by alleging sufficient facts showing her private affairs were intentionally intruded upon and such intrusion would be highly offensive to a reasonable person.  This is to be judged in light of social norms where, the Court observed, privacy in social networking is an emerging but underdeveloped area of the law. At one end of the spectrum, there is no expectation of privacy in items posted on the public Internet.  At the other end, email via a personal, password-protected account. even when accessed via a workplace computer, does command a reasonable expectation of privacy.  The cases between these two extremes are lacking in consistency and fact-specific.

4.  Paycheck Fairness Act Benched – Proposed amendment of the FLSA’s Equal Pay Act (S. 3220) was sidelined in the Senate on June 5, when a motion to begin debate of the bill failed, 52-47.The day before the vote, a similar bill with the enhanced penalties against employers removed (S. 3256), was introduced by Sen. Dean Heller (R-NV).

5.  Sez Who? – You may recall being prompted to amend your communications policies in December 2009, with an admonition to employees that they should not promote their employers’ products or services in the blogosphere without clearly disclosing the employment relationship.  Well, the FTC just inked an $800,000 settlement over this issue.  The employer, Spokeo, allegedly directed employees to pen favorable comments which were reviewed and edited by Spokeo managers before being posted on news and IT websites.

6.  No Poster?  Use a Website – While the NLRB waits for the courts to bless its mandatory poster explaining employee rights under Section 7, it has found another way to get the message out.  Check out, a website which explains protected concerted activity to non-union workers and highlights several cases where they were victorious in  “restor[ing] what was unlawfully taken away.”

7.  You’ve Been Forewarned – It’s baaack!  The Forewarn Act (S. 3297) was filed June 14 by Sen. Sherrod Brown (D-OH), to expand the scope of the WARN Act.  Changes include dropping the threshold from 100 employees to 75, lower the plant closing trigger from 50 employees to 25 and expand the advance notice period from 60 days to 90.

8.  School of Sharks – As a former HR pro turned employment lawyer, I’m often approached by HR personnel who are considering law school as a means to advance their careers.  For those of you in the DFW area, new public school options are making that goal more attainable.  Texas A&M is bidding to buy Texas Wesleyan Law School in Fort Worth and UNT is building a law school in downtown Dallas.  If all goes as planned, both will open in 2013.  With my own alma mater, SMU’s Dedman School of Law, that makes three law schools in the DFW area for you to choose from.

9.  Data Breach is no Day at the Beach – As employers grapple with internal and external threats to the integrity of the electronic personal information in their care, several events are forcing this issue to the top of their collective “To Do” lists:

1.  Sen. Jay Rockefeller (D-WVa) is amending cybersecurity legislation to direct the SEC to clearly inform corporations when they must disclose data breaches and detail remedial measures in their annual reports.

2.  The FTC filed a lawsuit against Wyndham Worldwide Corporation and three subsidiaries, alleging unfair and deceptive practices and violations of the Act by failing to adequately protect its computer systems from data breaches.  The events prompting the lawsuit were three distinct breaches of the Company’s data center by hackers which gave them access to the personal information of more than 600,000 hotel customers.

3.  Effective May 8, Vermont’s data breach law has been amended to add 45-day notice to affected individuals, 14-day notice to the VT Attorney General, exceptions to notification for businesses with a written information security program (WISP) and expanded definition of a triggering “security breach.”

4.  Effective October 1, Connecticut has added notification of the AG to its data breach statute.

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

1.  California – Watch the wording on your employment agreements and/or commission plans, especially when it comes to recouping monies already paid to an employee.  In this case, the employee was paid commission on an account to which she was not assigned, due to a clerical error.  When her employer clawed back the overpayment, she sued.  The court sided with the employee, saying “Absent an express provision to this effect, Pacific Bell was not entitled to unilaterally declare that the commission was not earned and use self-help measures to deduct funds from Sciborski’s wages that had already been paid to her.”  Sciborski v. Pacific Bell Directory (Cal Ct. App. 2012)

2.  Connecticut – Medical marijuana dispensation and use has been OK’d for eleven qualifying medical conditions, effective October 1, 2012.  The law provides no protection to individuals who ingest marijuana at work and allows employers to ban use of intoxicants at work or being under the influence of intoxicants during work hours.  It does ban refusal to hire, disciplinary action or discharge based on the individual’s status as a patient or primary care-giver under the law.  For full text of the law, go to

3.  Illinois – H.B. 3782, if passed, will amend the state’s Right to Privacy in the Workplace Act (820 ILCS 55/10) to prohibit employers from requesting or requiring that employees and job applicants provide their passwords to social networking websites.  Information that is already in the public domain remains fair game.  MD already has such a law and other states are considering jumping on the bandwagon.

4.  Indiana – Effective July 1, employers may not ask an employee, contract employee or applicant about sealed and restricted criminal records and individuals with such records can lawfully state they have not been adjudicated, arrested or convicted of the offense in the restricted record.  Consumer reporting agencies that employers use for obtaining background reports, including criminal information, will also be limited in what they can provide to employers. For full text, see HB  1033.

5.  Michigan – Plaintiff had her employment discrimination lawsuit tossed by the court because she failed to disclose her potential claim during a bankruptcy proceeding.  Spohn v. Van Dyke Public Schools (MI Ct. App. 5-12).  The Court held she was judicially estopped from proceeding with the employment lawsuit because she was taking a position contrary to what she had sworn to in her bankruptcy petition.  The lawsuit is considered an asset that should’ve been declared by Spohn during the bankruptcy proceeding.

6.  Minnesota – Can a single incident of an employee poking another employee in the ribcage disqualify the fired “poker” from UI benefits?  Yes.  Potter v. Northern Empire Pizza Inc. (Minn. Ct. App. 9-11).

7.  New York – Labor Law sec. 193 is amended to allow employers to deduct from an employee’s pay to recoup overpayments based on clerical errors.

8.  Oklahoma – Employers must allow employees with open carry permits to store ammunition, as well as handguns, in their locked vehicles on the employer’s premises.  The ability to store guns in locked vehicles has been around since 2004 and the amendment allowing ammo storage takes effect November 1, 2012.

9.  Philadelphia,PA – Effective July 1, the City and some City contractors will be required to provide employees with paid sick leave. 

10.  South Carolina – Effective June 18, employees discharged for misconduct will find their period of ineligibility for unemployment comp benefits extended by 20 weeks and the subsequent amount of benefits provided reduced by 20 weeks.  Under the UI statute, misconduct is defined as “willful and wanton disregard of an employer’s interests as is found in deliberate violations of disregard of standards of behavior which the employer has a right to expect of his employee, or in the carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer.”

11.  For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State; welcome to the Big 12, TCU, which officially joined us on July 1), follow me on Twitter.  I’m at @amross.

Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Wilson Mandala LLP
600 Banner Place
12770 Coit Road
Dallas, TX  75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)

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