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Legal Briefs for HR

Posted on June 4, 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.” 

Welcome to new subscribers who attended my Handbook Helper speech at the UT School of Law 19th Annual Labor and Employment Law Conference in Austin, TX!

Here’s what’s heating up:


1.  Social Niceties – The NLRB posted its third guidance on employer’s attempts to regulate their employees’ use of social media without trampling on their Section 7 right to protected, concerted activity involving terms and conditions of employment. Like the two prior memorandums, this one summarizes various cases and specifically cites which statements within the subject policy are unlawful and why.  Unlike the two earlier postings, this one includes an entire policy which it has deemed lawful.  The NLRB’s message to employers is to forego the normal method of writing a policy in broad strokes (to encompass both foreseen and unforeseen types of misconduct) and tighten it up with specific examples that clearly demonstrate that prohibited conduct does not include protected activity.  As an example, banning the posting of confidential information is seen as too broad, unless “confidential information” is narrowly defined in a way to exclude discussion of terms and conditions of employment (e.g., wages, benefits, co-worker relations, management style).  The guidance also shows that an attempt to fix a vague and overbroad policy with savings clause language (i.e., this policy will be administered in compliance with applicable law, including Section 7 of the NLRA) will fail.  The Acting GC responsible for the memorandums, Lafe Solomon, has said in legal symposia “every social media policy that I have seen is way too broad” so you might want to check out the latest guidance (plus  the two earlier versions) at and see how your policy measures up.

2.  Form I-9 is Bulking Up – The comment period has closed and employers await yet another update to the Form I-9.  This version will expand the document to nine pages, by adding a lot more instruction and separating the portions completed by the employee and the employer onto two pages.  For a peek at the proposed new form, go to!documentDetail;D=USCIS-2006-0068-0013.

3.  It’s Baaaack – The Paycheck Fairness Act (S. 3220) is back and ready for its close-up, I mean, Senate vote on June 5.  If enacted, the bill will gut employers’ “factor other than sex” defenses,  substantially increase the amount of available compensatory and punitive damages, revive the OFCCP’s former EO Survey (to gather the data needed to support these claims), and direct the EEOC to collect pay info (perhaps via an expanded Standard Form 100 aka the EEO-1 report).  The last time the Senate took a vote, in November 2010, the measure failed by only two votes.   This may be a great time to bend the ear of your Congressional representatives and explain why this measure, as written, does more harm than good.  SHRM members will find prepared letters for use posted on the association’s website ( under the Advocacy tab and nonmembers can identify (via your zip code) and write to their Congressional reps via and  

4.  Arrested Development, Part 2 – Last month, LB4HR took note of the EEOC’s new “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”  On May 10, the House of Representatives pushed back on the guidance, by passing an appropriations bill that will prohibit the use of EEOC funds to implement, administer or enforce the guidance.  Stay tuned!

5.  Heads’ Up, Federal Contractors– Proposed regs are out, to implement EO 13495 which was signed by Pres. Obama way back in January 2009.  The EO is called Nondisplacement of Qualified Workers Under Service Contracts and will require that contractors who take over service-providing contracts from predecessor companies (who were clearly not given a follow-on contract) will be required to offer jobs to employees of the prior contractor.  There are some exclusions (e.g., contract under $150,000) and it does not require hiring the predecessor’s managers.  Is it a stretch to ask why the successor employer should be required to keep workers who may have been part of the reason why a follow-on contract was not awarded?  I’m just sayin’. The new rules are expected to take effect just prior to the November elections.

6.  All Together Now – The 2nd Circuit just joined the chorus comprised of the  5th, 6th, 7th, 9th and 11th Circuits, in holding that Title VII’s prohibition against retaliation based upon an individual’s participation in an investigation is not triggered when the investigation was internal to the employer.  Instead, the investigation must be one conducted by the EEOC.  The rationale was found in Title VII’s language, which says “participation” protection applies where the investigation is “under this subchapter” and the subchapter speaks at length about the EEOC’s procedures and enforcement power.  The remaining gray area is whether the protection would apply if the internal investigation was launched in response to the filing of an EEOC claim, which was not the case here.  Townsend v. Benjamin Enterprises (2nd Cir. 5-12).

7.  Taxing Situation – The recently filed Bring Jobs Home Act (H.R. 5542; S. 2884) proposes to amend the Internal Revenue Code with an eye toward rewarding businesses who bring jobs back to the U.S. from other countries and removing a current tax break (on the cost of relocating personnel and equipment) where work is being moved offshore.  The reward for “coming home” would be a 20% tax credit on eligible insourcing expenses and conditioned upon an uptick in the number of full-time employees working in the U.S., when compared to the prior year before the insourcing. You can find full text of pending bills and follow their progress via the Library of Congress at

8.  Smoke Out – The 9th Circuit held that the ADA provides no protection against discrimination to users of medical marijuana, even where such use is in accordance with a state medical marijuana law.  James v. City of Costa Mesa (9th Cir. 5-12).  The case revolved around subchapter II (public services) and not Title I (employment) but analyzed a provision in subchapter IV (Miscellaneous) which applies to all subchapters of the ADA. Section 12210(d) excludes a person from the ADA definition of an “individual with disability” if that person is currently engaging in the illegal use of drugs.  This is yet another judicial affirmation that employers will not be required host pot parties at work or make exceptions to their “no drugs” policies as a form of reasonable accommodation to a person using state-approved medical marijuana.

9.  Attendance as Essential Job Function – Certain jobs, more than others, lend themselves to the common-sense idea that regularly showing up for work is an essential function of the job, which is not subject to elimination as a type of reasonable accommodation.  This sad tale involves in a neo-natal nurse who worked in an intensive care unit at a hospital.  She suffered from fibromyalgia which caused her to repeatedly exceed the allotted number of unscheduled sick days provided by her employer.  The employer tried to help with a pair of accommodations – the ability to call in when she was ill and reschedule her shift to another day in the same work week and never being scheduled to work two days in a row.  Despite these accommodations, the attendance problems persisted and she was discharged from employment.  Her ADA “failure to accommodate” claim soon followed, but was dismissed by the district court and their decision was affirmed by 9th Circuit.  The court noted that the requested accommodation, of a waiver from the hospital’s limit of five unplanned absences in a rolling 12-month period, was not reasonable and “an employer need not provide accommodations that compromise performance quality.”  Samper v. Providence St. Vincent Medical Center (9th Cir.  4-12).

10.  Well Stated – Many of us peruse the EEOC’s annual report of charge and litigation statistics, to look for trends and which types of claims are “hot” or not.  Now, the EEOC helps you drill the data down to the state level via reports posted on their website at  Whether your employees are nestled in one state or spread out across the country, use the data to inform yourself of regional EEOC enforcement activity and perhaps ramp up your internal training efforts to literally avoid becoming a statistic.

11.  Sin of the Pin – While the Pinterest website says it “lets you organize and share all the beautiful things you find on the web” if users pin images that are not theirs, there may be both direct and indirect copyright infringement.  And for employers whose employees are pinning via the company’s computer systems, there may be indirect liability for their employees’ actions.  Many companies’ electronic communications policies prohibit conduct that amounts to violation of intellectual property (i.e., patent, trademark, copyright) laws, but employees may have little or no understanding what those laws say or how their conduct is crossing a line.  Pinterest’s surge in popularity provides  a timely reminder that a primer on IP basics may save both employee and employer from being stuck with a copyright infringement claim.  Ouch.

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

1.  Alabama – Employees suing for unpaid overtime were rebuffed, when their employer successfully defended the claim by using the FLSA’s “highly compensated” employee exemption.  The employees argued that their W-2 compensation was actually lower than the $100,000 threshold needed for the exemption (plus the performance of one or more primary duties under the “white collar” exemptions), but the court observed that all employer pre-tax contributions, including the 401(k) match and insurance premiums, can be included in the calculation.  Hicks v. Mercedes-Benz U.S. International Inc. (N.D. Ala. 5-12).

2.  Arizona – Effective September 29, new hires, supervisors, attorneys, IT workers and those above a set pay grade in state employment will be “at will” employees and most current employees will lose their ability to appeal corrective actions.  The governor stated “The cumbersome rules of our existing personnel system serve only to discourage our best employees and protect the weakest performers” and “ With this legislation, we will increase state productivity, eliminate red tape, and, ultimately, save our taxpayers money.”

3.  Maryland – Effective October 1, a person who leaves employment due to being a victim or having a spouse, minor child or parent who is a victim of domestic violence is deemed to have “good cause” for leaving work under the state unemployment compensation laws.

4.  Michigan – Governor Rick Snyder signed the “Taser Law” on May 8, amending the state law which governs firearm licenses and the penal code, to address individuals who carry electro-muscular disruption (EMD) devices.  The new law extends the rules covering the “right to carry” concealed firearms to EMDs.  Like many states, MI allows employers to prohibit employees from carrying firearms onto their premises, so their policy can address EMDs, too.  For a chart of state laws governing EMDs, check out  Disclaimer:  the chart is provided by a manufacture of EMDs.

5.  Minnesota – The MN Supreme Court held that a cause of action under the MN Human Rights Act for hostile environment based on sexual harassment does not require misconduct that is sexual in nature.  This case involved a female custodian’s male supervisor whose comments and conduct evidenced a negative attitude toward women.  His comments included “ a woman’s place is in the kitchen and bedroom” and conduct included separating male and female workers and requiring only the females to check in via radio during their breaks.  The district and appeals court sided with employer, saying that sexual harassment (vs. harassment based on one’s sex) is the only type of harassment prohibited by the MHRA, but the Supreme Court reversed by observing that certain treatment of women can be so extreme that it can affect a woman’s working conditions and amount to discrimination under the state law.  The Court went on to say that the conduct in this case not severe or pervasive enough to state a claim, but MN employers should be aware of this new broadening of the state cause of action to bring it in line with the federal view of the scope of sexual harassment claims.

6.  New Jersey – In a rare Immigration & Nationality Act (INA) anti-discrimination suit, the U.S. Dep’t of Justice (DOJ) sued a NJ information technology staffing company for retaliation against its receptionist/recruiter, based on her loss of employment shortly after opposing the company’s alleged practice of favoring noncitizens with temporary work visas for placement over American citizens and individuals with permanent resident status.  The suit was filed May 22 and settled May 30 for $21,780 in backpay/frontpay to the claimant, a $1000 civil penalty and three years of monitoring by the DOJ.

7.  Ohio – The Supreme Court of Ohio held that employees of a predecessor entity did not have enforceable noncompetes with the successor entity, following a series of mergers.  Although the state’s corporate law says that the successor takes over the previous company’s assets and property after the merger, including employee contracts, the contracts did not include clear language extending the post-employment restrictive covenants to any successor entities.  That meant that the successor entity acquired only the ability to prevent the employees from  competing for two years after their employment ended with the predecessor entity and since the mergers were strung out for more than two years, the covenants had expired.  Acordia of Ohio LLC v. Fishel (Ohio 5-12).

8.  Texas – The Texas Supreme Court approved employers’ use of jury waivers, as a condition of continuing employment.  A 28-year employee was asked to sign the waiver, where both parties agree that any disputes arising out of the employment relationship will be heard by a judge and not a jury.  The trial court and appeals court would not refuse the employee’s jury demand, but the Supreme Court looked past the plaintiff’s claim of coercion and noted that as an at-will employee, the plaintiff could be fired for any reason so the new condition of employment did not amount to coercion.  Valdez v. Frank Kent Motor Company (Tex. 3-12).  Before you begin adding these waivers to your employment agreements, discuss the pros and cons with your legal counsel.  Using such waivers may be of case of “careful what you wish for.”

13.  For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State), 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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