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Legal Briefs for HR

Posted on December 17, 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 via 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 hope each of you has a wonderful holiday season with your loved ones and much health and happiness in 2013!  In the meantime, here’s what’s naughty and nice:

1.  Blue Christmas – A consent decree with a $4.85 million settlement provides a stark reminder of how NOT to handle injured employees on leaves of absence.  A trucking company will pay this amount and undertake other obligations, based on allegations that it [a] automatically discharged injured or ill workers once they exhausted the maximum leave amount (e.g., 12 weeks under FMLA); and [b] refused to reinstate workers who did not have a “full duty release.”   EEOC v. Interstate Distributing Co. (D. Colo. Nov. 2012).  EEOC has made clear over the past year or so that provision of additional leave, beyond what the employer’s policy and/or law requires, is a form a reasonable accommodation that must be considered, where the reason for the absence is an ADA-qualifying disability.  This means blanket firing of employees the day after FMLA expires is not a good idea.  And most employers are savvy to the notion that a person who can perform the essential functions of the job, with or without an accommodation, should be allowed to return from leave rather than conditioning such return on a full release with no restrictions.  The other gem hidden in this case is that the offending conduct occurred under previous ownership, but the new owners are dealing with the aftermath.  If your company is in acquisition mode, do not ignore employment law compliance during your due diligence phase and arrange for indemnification where the sins of the past may be visited on the present.

2.  This Applies to You Too, Santa – Just in case common sense is lacking, the U.S. Dep’t of Transportation issued a Dec. 3 notice to make it perfectly clear that the recent state initiatives in CO and WA will have no bearing on the DOT’s regulated drug testing program, which does not authorize the use of Schedule 1 drugs, including marijuana, for any reason.  An applicant or employee for a safety-sensitive transportation job who tests positive and shows the Medical Review Officer a prescription for medical marijuana or a copy of a state law which OKs recreational use will be cut no slack.  Yer out!

3.  Glad Tidings (and jingle in your pocket) – IRS posted a friendly reminder in Tax Tips that employers may qualify for an expanded tax credit for hiring qualified U.S. military veterans, but only if work began on or after November 22, 2011 and before January 1, 2013.  The max credit is $9600 (for profits) or $6240 (tax exempts), per veteran.  The actual amount is tied to the length of unemployment prior to hire, number of hours worked and first-year wages.    For more info, go to www.irs.gov/uac/Tax-Tips-for-2012-1 and click on Employers Hiring Veterans by Year’s End May Get Expanded Tax Credit.

4.  Even Scrooge Would Like This Deal – As it did after Hurricane Katrina and the 9-11 terrorist attack, the IRS is offering tax relief to encourage donation of employee leave (e.g., vacation, sick, personal time) to victims of Not-So-Super Storm Sandy.  The gist is that employee donations of accrued paid time off will not be treated as taxable wages and the employers will be able to donate to certain relief organizations and deduct for the cash payments made.  Details are in Notice 2012-69 which will can be seen at www.irs.gov/pub/irs-drop/n-12-69.pdf.  The payments must be made to the charitable organization(s) before Jan. 1, 2014.

5.  Making a List (of hours worked) and Checking it Twice – There is some good news for employers struggling with bogus “off the clock” claims for backpay under the FLSA.  In prior cases, employers were often unable to prove the employee did not work from home and was stuck paying for amounts of time the employee claimed to have worked.  In this case, there was no argument that the employee had done work from home but the amount of work done was in dispute.  The court granted the employer’s motion for summary judgment and the employer was not liable because it had an automated time-keeping system that was fully accessible, even from employees’ homes, which the plaintiff had failed to use to account for time worked away from the usual workplace.  The court observed that the employer had not failed to keep accurate records of time worked . . .the employee had failed to comply with and use the available time-keeping system.  Frank Brown v. ScriptPro LLC (10th Cir. Nov. 2012).  If “off the clock” claims are in your past or are looming in your future, you may want to examine and possibly upgrade your time-keeping system to provide a strong defense to these claims.

6.  You Better Behave – Even in the absence of an actual breach of a noncompete, suspicious behavior as one departs his former employer can be enough to convince a court to impose serious restrictions and monitoring on the former employee. A business unit director subject to a noncompete left Employer A for a job with Employer B.  His business unit at Employer B did not compete with Employer A, but he had forwarded 2000+ emails from Employer A to B and had taken files.  During an injunction hearing, the court agreed that Employer A had established indicia of a risk of unfair competition by the unit manager, at Employer B.  The court ordered Employer B to [a] send a memo to all Employer B managers directing that the unit manager was to be excluded from involvement with any products that compete with Employer A; [b] search Employer B’s computer systems to ensure no Employer A files had been uploaded; [c] place a filter on the unit manager’s email to ensure he was blocked from messages involving competitive activities; [d] limited the unit manager’s scope of work at Employer B; and [e] ordered the unit manager not to use or disclose Employer A’s confidential information. The unit manager was also banned from contacting former co-workers at Employer A. Amphenol v. Paul (D. Conn. Nov. 2012).

7.  All I Want for Christmas (is a trip to Vegas) – Employee’s mom has end-stage congestive heart failure.  Mom is gifted with a six-day trip to Vegas by a nonprofit organization similar to Make-A-Wish.  Employee asks for a week off to join mom in Vegas.  Employer says no.  Employee goes anyway and is fired.  Employee sues under the FMLA and wins on a motion for summary judgment.  Ballard v. Chicago Park District (N.D. Ill. Nov. 2012).  This case is in sharp contrast with prior decisions where courts found FMLA inapplicable if the trip in question did not involve medical treatment (See LB4HR #2-2011), however this court emphasized that mom lived in employee’s home and employee was mom’s primary care-giver.  In that role, employee tended to mom’s basic medical, hygienic and nutritional needs on a daily basis, both at home and during the trip to Vegas.  A slight change in the facts can support a very different outcome when FMLA is in play, so consider carefully.

8.  Hire Power – If you’re hiring, add to your resource list the Workforce Recruitment Program, the brainchild of the U.S. Dep’t of Labor (DOL) Office of Disability Employment Policy (ODEP) and the U.S. Dep’t of Defense (DOD) Office of Diversity Management & Equal Opportunity (ODMEO).  The website (www.wrp.gov) offers a searchable database of pre-screened candidates with disabilities who were gleaned from college campuses and military veterans.  If you are a federal contractor with AAP obligations, this recruitment resource will do double-duty for both your E.O. 11246 and Rehab Act/VEVRAA plan documents.

9.  Stocking Stuffers – A few gentle reminders for this time of year:

1.  Holiday Parties – Make it known in advance, by policy and example, that harassment and substance abuse are not OK at work or work-related events, such as the holiday party.  Limit the amount of alcohol served and/or the timeframe for serving.  Stop serving well before the party ends.  Provide nonalcoholic drinks, as well as food.  Plan ahead for alternative transportation (e.g., taxi, designated driver), if needed for someone who’s had too much.  If you’ve had trouble in the past, plan a different type of event that does not revolve around an open bar.  Skip the mistletoe.   And the drinking games.

2.  For a Good Cause – The season brings out a desire to help others, via volunteer activities for various nonprofit groups.  “Voluntary” is the key word here, since mandating employee involvement (even for a really good cause) will make the activity compensable under the FLSA for your non-exempt workers.  And employers generally are not allowed to volunteer their employees for unpaid services which are the same or similar to the employees’ normal duties.

3.  Focus – Encourage safe driving habits to avoid problems with drunk drivers, wintry weather and folks who are distracted behind the wheel.

4.  Don’t Drive if You’re Tipsy, Buzzed or Blitzen – The Texas Department of Transportation has a new program called Holiday PASS (Person Appointed to Stay Sober) which encourages individuals to give the gift of a safe ride home.  The Texas Hospitality Ass’n is helping by offering customizable “gift certificates” and other materials in stores where alcohol is sold.  And an award-winning mixologist, Rob Pate, posted recipes for three signature nonalcoholic holiday drinks, which can be found at www.pinterest.com/holidaypass. Enjoy!

5.  Money Matters – If you are a multi-state employer, check for increases to certain states’ minimum wage rate that take effect January 1, 2013.  Several are mentioned below.

 

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

1.  Arizona – Minimum wage is rising from $7.65/hour to $7.80/hour effective January 1, 2013.  The minimum wage for tipped employees is rising from $4.65/hour to $4.80/hour, plus tips.

2.  California/San Francisco – Minimum wage is rising from $10.24/hour to the highest rate in the U.S., $10.55/hour, effective January 1, 2013.

3.  Colorado – Minimum wage is rising from $7.64/hour to $7.78/hour effective January 1, 2013.  The minimum wage for tipped employees is rising from $4.62/hour to $4.76/hour while the employer’s maximum tip credit remains at $3.02/hour.

4.  Florida – Minimum wage is rising from $7.67/hour to $7.79/hour effective January 1, 2013.  The minimum wage for tipped employees is rising from $4.65/hour to $4.77/hour, plus tips.

5.  Michigan – First, MI voters rejected a proposal to add collective bargaining rights to the State Constitution and prevent the legislature from interfering with those rights, such as via Right to Work legislation.  Next, the Senate and then the House OK’d Right to Work bills, which cover both private and public sector employees with some exceptions for police and fire fighters.  Finally, the Governor of MI signed the bills into law on Tuesday, Dec. 11, making MI the 24th right to work state.  For more info about right to work, check out www.nrtw.org.

6.  Missouri – Minimum wage is rising from $7.25/hour to $7.35/hour effective January 1, 2013.  The minimum wage for tipped employees is rising from $3.63/hour to $3.68/hour and the employer’s maximum tip credit is rising from $3.62/hour to $3.67/hour.

7.  Montana – Minimum wage is rising from $7.65/hour to $7.80/hour effective January 1, 2013.

8.  New Hampshire – The NH DOL issued a new mandatory poster which explains the new-ish (June 2012) statutory definition of an independent contractor.  This replaces the 2007 version and is to be displayed “in a place accessible to employees.”  The poster itself says to post “in a conspicuous place.”  Free copy available at www.nh.gov/labor/documents/employee-contractor-poster.pdf.

9.  Ohio – Minimum wage is rising from $7.70/hour to $7.85/hour effective January 1, 2013.  The minimum wage for tipped employees is rising from $3.85/hour to $3.93/hour, plus tips.

10.  Oregon – Minimum wage is rising from $8.80/hour to $8.95/hour.

11.  Pennsylvania – Effective January 1, 2013, contractors and subcontractors doing public works projects for the state worth at least $25,000 must use E-Verify for all newly hired employees.

12.  Rhode Island – Minimum wage is rising from $7.40/hour to $7.75/hour effective January 1, 2013.  The minimum wage for tipped employees remains the same, at $2/89/hour, but the employer’s maximum tip credit is rising from $4.51/hour to $4.86/hour.

13.  Tennessee – Effective January 1, 2013, employers of 6 to 199 employees must use E-Verify (or otherwise verify work authorization) for all newly hired employees. Go to www.tn.gov/labor-wfd/eVerify/faq_everify.pdf for FAQ and itemization of the means, other than E-Verify, which can be used to comply.

14.  Vermont – Minimum wage is rising from $8.46/hour to $8.60/hour effective January 1, 2013.  The minimum wage for tipped employees is rising from $4.10/hour to $4.17/hour and the employer’s maximum tip credit is rising from $4.36/hour to $4.43/hour.

15.  Washington – Minimum wage is rising from $9.04/hour to $9.19/hour effective January 1, 2013.

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 . . . Go Cats!), 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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