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Legal Briefs for HR

Posted on August 31, 2012

Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 individual HR professionals, in-house counsel and business owners and many HR and legal professional organizations (who have asked and been permitted to republish in their newsletters and websites) 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.munckwilson.com under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.”   I’m looking forward to speaking at the Physician Insurers Association of America’s Technology, Human Resources and Finance Workshop in Las Vegas on September 13.

The kids are back in school and your education never ends:

1.  Expired, But Still Good – Observant employers may have noticed that their Form I-9 says (in the top right-hand corner) that it will expire on August 31, 2012.  USCIS confirmed, via an August  13 press release, that the form is still good and can be used until the next Form I-9 is ready to roll.  Its predecessor, the version with an February 2, 2009 expiration date, is also still acceptable.  A proposed new form was unveiled in March, but it’s not ready for its close up.

2.  Almost Expired, But Renewed – The E-Verify program was due to expire on Sept. 30, but the Senate OK’d three more years.  The program’s new expiration date is September 30, 2015.

3.  Just Getting Started – The Ban the Box Act (H.R. 6220) was filed in Congress on July 26, with the goal of prohibiting employers from asking job applicants if they have been convicted of a criminal offense.  There are exceptions where the inquiry is made after a conditional offer of employment or where the hiring may pose an unreasonable risk to the safety of specific individuals or the general public.  For full text and to track progress, go to http://thomas.loc.gov and insert the bill name or number.

4.  EEOC Spanked – The Equal Employment Opportunity Commission (EEOC) has been aggressively pursuing ADA claims, even a few that lack merit, and several courts have said “enough.”  The latest court to push back is the 10th Circuit, where it affirmed summary judgment for the employer, upheld the district court’s award of $140,571.62 in attorney’s fees against the EEOC for continuing to push litigation “after it became clear there were no grounds upon which to proceed” and has remanded the case to the district court to determine if even more attorney’s fees will be demanded from the EEOC, based upon their frivolous appeal to the 10th Circuit.  EEOC v. TriCore Reference Laboratories (10th Cir.  8-12).  This is the latest in a string of similar cases involving the EEOC being forced to pay fees and costs to ADA defendants they had sued.  So if you feel you are being pushed the wrong way, you may want to push back . . . and you won’t be alone.

5.  If It’s Good for the Goose – An employer was sued by the EEOC, which alleged that employer’s use of criminal background checks and credit checks in its hiring process was a violation of Title VII because the process unfairly excluded  black, Hispanic and male job candidates.  The clever employer countered by moving to depose the EEOC to determine how and to what extent it used those same methods in its hiring practices.  EEOC moved for a protective order, but the judge denied their motion.  EEOC said “not me!” and tried to argue that the OPM is the agency responsible for developing government hiring procedures, but the court said EEOC’s final hire/fire authority demonstrates its direct involvement in the hiring process.  The EEOC said “irrelevant!” but the court observed that if the EEOC is using similar hiring checks, it would tend to support the employer’s position that such checks are job-related and consistent with business necessity.  The EEOC said “duplicative!” based on being deposed on the same subject in another case, but the court said the employer should not be required to depend on another party’s depo and the scope of questions in the instant case would be a bit different.  Strike three, you’re out!  EEOC v. Freeman (D. Md. 8-12).

6.  Not So Fast – Before you sign a settlement agreement over unfair labor practices with the NLRB (aka the Board), give that document a VERY close reading.  A few months back, the Board slipped in a clause which gives the Regional Director extremely broad rights where he/she thinks the employer has not complied with the settlement agreement.  The RD can reissue the complaint, provide a 14-day opportunity to cure, file a motion for default judgment (i.e., you lose) if not cured and includes the employer’s waiver of all rights to protest.  The employer’s waiver applies to supplying an answer to the reissued complaint, a hearing, the ALJ’s decisions, filing of exceptions & briefs, oral argument before the Board and all other proceedings the employer is normally entitled to under the Boards rules and regs.  Although the Board is loathe to modify the boilerplate in its settlement agreements, you really may want to insist on removal of this overreaching clause or simply forego settlement and duke it out.

7.  More Board Bounty – In its apparently never-ending quest to expand the interpretation of activities that encroach upon employee’s section 7 rights under the NLRA (i.e., the right to engage in protected, concerted activity in relation to terms and conditions of employment), the NLRB has declared that employer admonitions to employee witnesses involved in an internal investigation should not include a warning against discussing the matter with their co-workers.  The Board was not persuaded by the employer’s argument that the request was necessary to protect the integrity of the process.  But they did say asking for ongoing confidentiality may be OK if the employer can prove it was necessary to protect witnesses, if evidence is at risk of being destroyed, if there is a concern that subsequent testimony will be fabricated or if there is a need to prevent a cover-up.    The Board recognized that the lack of confidentiality may cause some witnesses to withhold their help, but offered no solution.  Banner Health System (7-12).

8.   Whistle While You Work – The Securities & Exchange Commission (SEC) has awarded its first whistle-blower jackpot, under the Dodd-Frank rules which took effect a year ago. While the affected company and the happy whistler are not named, it was reported that the individual provided documents and information which expedited the SEC’s investigation and led to a $1 million sanction.  The whistleblower will collect 30% of the amount collected, which is the maximum percentage allowed under the rules.  The SEC reports that they are receiving about eight tips per day.

9.  Bright Ideas – Check out the Aug. 27 to Sept. 2 issue of Business Week magazine for a sampling of solutions in an article entitled “What Works in the USA.”  Among the gems, a discussion of telecommuting in public sector agencies where employees work from home or from remote computing centers rather than schlepping to an office each day.  The Federal Railroad Administration reports that it saved $250,000 in office space.  The U.S. Patent and Trademark Office cut down from 18 offices to 6, estimates that employees saved 28 million miles and reduced vehicle emissions by 15,000 tons in 2011.  Not to mention that the DC area earthquake last year caused no hiccup in work flow, because USPTO employees were already equipped to work from home.  Food for thought, especially while (formerly) Hurricane Isaac floods streets and knocks out power in some parts of towns?

10.  We’ve Got Spirit, How ‘Bout You? – Friday, August 31 is “College Colors” day, an event created in 2005 by The Collegiate Licensing Company.  Yes, they would like to encourage sales of colorful tees and funny hats, but it does present a good opportunity to have a little fun and build teamwork and spirit in the workplace.  For more info (and to register your organization), go to www.collegecolorsday.com/Home.aspx.

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

1.  Illinois – Eff. Jan. 1, 2013, IL is the second state (after MD) to make it unlawful for employers to  request or require an employee or applicant to provide a password or other account information in order to access the individual’s account or profile on a social networking website or to demand access in any manner to such individual’s account or profile on a social networking website.  Notice that information not protected by privacy settings is still fair game.  Note:  More than a dozen other states have filed similar bills in their legislatures.

2.  Indiana – Eff. July 1, 2012, IN bans smoking in workplaces and other public areas.  The law requires signage at entrances which say “State law prohibits smoking within 8 feet of this entrance.”

3.  Massachusetts – Eff. Jan  1, 2013, the Health Care Cost Bill (S.B. 2400) will provide a tax credit to certain employers and insurers who offer eligible wellness programs.  The credit is for 25% of program costs, capped at $10,000 in any tax year.  Employers cannot use the tax credit program to pay zero taxes, but unused credits can be used for up to five years toward future taxes.

4.  Missouri – State law which bans employers from requiring employees to use their entire SSN as an employee number is amended to also ban required use of the last four digits of the SSN in the same manner.

5.  New York – Fired employee who was harangued about her height failed in her attempt to claim employment discrimination based on a “predisposing genetic characteristic” under NY state and NY City law. The city law does not mention “predisposing genetic characteristic” at all and the state law defines it as a genetic, or inherited proclivity to developing, or risk of developing, a disease or disability.  Plaintiff was a full grown adult who could no longer be “predisposed” to attaining any specific height AND height is not a disease or disability.

6.  New York – Eff. Dec. 12, 2012, employers and other entities are prohibited from requiring a person to disclose his or her SSN number, with some exceptions.  Exceptions include where the SSN is required by federal, state or local law, or during employment in the course of administering  claims, benefits or employment procedures such as retirement, workers’ comp and unemployment comp.  For more info, go to http://assembly.state.ny.us/leg/?bn=A8992.   The existing law already prohibits putting SSNs on ID cards, having individuals transmit their SSN over unencrypted Internet connections and putting the SSN on documents sent via mail, with some exceptions such as enrollment processes.

7.  Rhode Island – Eff. June 21, 2012, RI enacted the nation’s first “Homeless Bill of Rights” including a section that reads “A person experiencing homelessness: Has the right not to face discrimination while seeking or maintaining employment due to his or her lack of a permanent mailing address, or his or her mailing address being that of a shelter or social service provider.”  The law provides for a civil action that could result in injunctive and declaratory relief, actual damages and reasonable attorneys’ fees to a prevailing plaintiff.

8.  Seattle, Washington – Employers of more than four full-time equivalent employees will be subject to the new Seattle Paid Sick and Safe Time ordinance, effective Sept. 1, 2012. An interesting quirk is that it also applies to employees who may work elsewhere but occasionally work in Seattle.  Go to www.seattle.gov/civilrights/sickleave.htm for the press release and links to a summary of the ordinance, description of what employers need to know and FAQs.

12.  For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State . . . I am so ready for college football!), 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)
amross@munckwilson.com
www.munckwilson.com

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