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Legal Briefs for HR

Posted on May 10, 2013

Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 individual HR professionals, in-house counsel and business owners plus HR and legal professional organizations (who have been given permission to republish content 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.comunder Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.”  

 No, it’s not April Fools’ Day yet . . . these items are for real:

1. That’s Sick– Here we go again.  Although federal bills mandating employer-provided paid sick leave have consistently failed, since they firsappeared in 2004, another bill is in the works.  The Healthy Families Act (S.631 and H.R. 1286) was filed on March 20.  Similar paid sick leave mandates are in place in Connecticut and in four cities – Portland, OR (eff. 1-8-14); Seattle, WA; San Francisco, CA and Washington DC.   Here are some of the particulars of the pending federal bill:

  1. Applies to employers of 15 or more employees (for 20 or more weeks in the current or preceding calendar year);

  2. Paid time off is available to “employees” as defined under the FLSA (so not available to independent contractors);

  3. Employers must provide one hour of “paid sick time” for every 30 hours worked, up to a capped amount of 56 hours per calendar year; exempts are presumed to be working 40 hours/week;

  4. “Paid sick time” is defined as “an increment of compensated leave” (but there is no mention of it being the same as the employee’s normal wage or salary);

  5. Paid sick time is earned when employment commences, but it cannot be used until the 60thcalendar day of employment; unused time carries over to the next calendar year;

  6. Unused paid sick time is not paid out upon termination of employment;

  7. Employers may not force the employee to find his or her replacement for the day(s) absent;

  8. Paid sick time can be used for the employee’s own illness/injury; seeking medical diagnosis/care/preventative care; caring for a child, parent, spouse, domestic partner “or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship” (which opens the door to time off for vet appointments, where the employee’s pet is like a family member J); or for an absence relating to domestic violence, sexual assault or stalking;

  9. Foreseeable absences should be requested seven days in advance or “as soon as practicable” if not foreseeable;

  10. Employer can require certification from the health care provider if the absence is for more than three consecutive workdays;

  11. There is a mandatory workplace poster;

  12. Interference and discrimination are prohibited, including counting paid sick time under any absence control policy;

  13. There is an individual cause of action and the Secretary of the U.S. Dep’t of Labor can investigate/litigate;

  14. Two year statute of limitations; three years, for willful violations;

  15. If you would like to see full text of the bill (49 pages) and monitor its progress, go to http://thomas.loc.govand type in the name or the bill number.  At this point, the Senate bill has 17 co-sponsors and the House bill has 94.


2. Waging War– The Fair Minimum Wage Act, filed on March 5, proposes to increase the federal minimum wage to $10.10 per hour, over three years.  It would start by upping the current $7.25/hour rate to $8.20/hour, with an increase to $9.15/hour one year later and to $10.10/hour a year after that.  The bill would index the rate to inflation and would also raise the base minimum wage for tipped employees to $3.00/hour with subsequent changes to 70% of the federal minimum wage.  Some states mandate a minimum wage rate which exceeds the federal standard. For a chart of state minimum wage rates, go to The Fair Wages for Workers With Disabilities Act (H.R. 831), if passed, would prohibit employers from paying workers with disabilities less than the current minimum wage (under the DOL’s special wage certificate program) and would phase out existing certificates over a three-year period.  Use the Thomas link, above, if you would like to see full text of these bills and monitor their progress through legislative committees.

3.Poker Face– Have you ever received what seemed to be an outrageous settlement demand from the EEOC and chose to ignore it?  You may want to rethink that approach.  While the agency does have a statutory duty to conciliate before resorting to litigation, that duty was deemed satisfied when it made an offer that was met with stony silence.  EEOC v. Wedco (D. Nev. 3-13).  The court said the EEOC is more akin to a prosecutor than a mediator and it was free to start “with a high-ball demand.”  The high demand was not seen by the court as a failure to conciliate in good faith, given that the employer could’ve counter-offered with a token sum, but did not.

4. That’s Just Ugly – No one likes being sued.  Expressing that frustration, in person and via social media, may garner you a second lawsuit, for retaliation.  A bar chain, Coyote Ugly, was sued for wage and hour violations under the FLSA.  The founder of the chain vented in her blog (Lil Spill), which posts to the company website, without specifically naming any of the plaintiffs.  The Director of Operations, similarly miffed, both voiced aloud and posted his screed in Facebook (“Dear God, please don’t let me kill the girl that is suing me”) while sitting in the bar with one of the plaintiffs in plain sight and about two feet away. The unfortunate post was removed within 24 hours but not before the plaintiff, a Facebook friend, saw it. [Note:  That’s a whole ‘nother conversation, about “friending” your employees.]  Fast forward to the hearing on the employer’s motion for summary judgment.  Motion denied and the court held that the blog post, Facebook post and comments made in the bar could support an additional claim for retaliation under the FLSA.  Misty Blu Stewart v. CUS Nashville LLC (M.D. Tenn. 2-13).  Hush!

5. That’s Just Stupid – Seasonal employee, who is Black, is laid off at the end of each season and regularly rehired at the start of the next.  At the end of one season, two of his White seasonal co-workers are given full-time jobs.  He questions the decision and is told they were better qualified.  He is rehired for the next season, laid off at the end, and another White seasonal co-worker is given a full-time job.  He files a charge of race discrimination and mentions that racial epithets are used by a VP and a supervisor.  Here’s the stupid part . . . the supervisor tells Charging Party that he will likely not be hired at the start of the next season because he filed the charge.  Johnson v. Hershey Creamery Corp. (M.D. Pa. 3-13).  It is human nature to be upset when named in a charge, but find a better way to vent that frustration.  The entire management team, from front-line supervisors to the ones in the C-Suite,  must be trained and then reminded that their words can and will be used against them. Seriously, hush!

6. Recess Appointment Update– NLRB announced it will bypass an en banc appeal to the D.C. Circuit Court and head straight to the Supreme Court, in seeking review and reversal of the D.C. Circuit Court’s decision in Noel Canning v. NLRB, where several members’ so-called recess appointments to the Board were declared invalid since they did not occur during an actual recess of the Senate.  The Board’s attorneys have until April 25 to file their petition.  A House bill (H.R. 1120), if passed, will require the NLRB to stop all activities which require  a three-member quorum and prohibit enforcement of any rulings handed down by past, invalid panels.

7.More Fun With FMLA – Many employers use a third party administrator (TPA) to manage their employees’ FMLA leaves.  Most realize that any mistakes can result in liability for the employer and not the TPA.  Until now.  Picture an employee who provides complete and sufficient certification for an eight-week absence, but the TPA demands additional certification from the employee’s health care provder at four weeks.  The employee does not comply and is fired by the employer, based on the report from the TPA.  Employee cannot sue the TPA under the FMLA, but employee can claim tortious interference with employment  And does.  The court took particular notice of language in the agreement between the employer and the TPA, where the TPA represents that it will ensure FMLA compliance and that it will reduce the number and amount of leaves taken (in part, by granting FMLA leave in four to six week increments and demanding additional proof).  The case survived a motion for summary judgment, so a jury will have to weigh in on this.  Arango v. Work & Well (N.D. Ill. 3-13).

8. Tidbits

  1. Wednesday, April 24 is Administrative Professionals Day, or go with the International Association of Administrative Professionals suggestion of an entire week (April 21 to 27) of recognition.  For a discussion of the genesis of this day/week and recognition ideas, go to

  2. Thursday, April 25 is Take Our Daughters and Sons to Work day.  If you’d like ideas on how to recognize this day in your workplace, go to

  3. Both the new Form I-9 and a revised Handbook for Employers: Guidance for Completing Form I-9(Form M-274) are available on the CIS website, at Click on I-9 Central or Form I-9 under “Most Searched Forms.”

  4. EEOC has new-ish and newsy Twitter feeds in English (@EEOCNews) and Spanish (@EEOCespanol).

  5. A little shout-out for my hometown Wichita State Shockers, who are in the Elite Eight of the NCAA tourney.  Woo Shock!

  6. I have resumes of several college students who are looking for entry-level HR work, both as summer interns and regular employment for soon-to-be grads, in the DFW area.  If you have any opportunities, please let me know and I will direct these sharp folks to your door!

9. Save the Date – If you like to immerse yourself in two days of labor and employment presentations, please join me in Austin on May 16 & 17 for the 20thAnnual University of Texas School of Law Labor and Employment Law Conference.  The program and registration info is now posted at Click on the link for “Labor and Employment Law.”  I will speak on May 16 and my topic is Hire Power: Developments in Hiring Practices.  Hope to see you there!  Stay tuned for details on a second conference I will speak at, the Texas SHRM State Council/Texas Association of Business Employment Relations Symposium, to be held in San Antonio in mid-July.

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

  1. California– Senate Bill 607, if passed, will enable employers and employees to agree to workweeks of four 10-hour days, without triggering overtime payment for work in excess of eight hours a day which is required under current state law.

  2. Illinois– HB 2782, if passed, would tie the length of a post-employment noncompete to the departing employees’ final compensation.  The restrictive period is capped at six months for an employee who earned less than $50,000 per year; nine months if pay was between $50,000 and $99,999; one year if pay was between $100,000 and $149,999; and 18 months if pay was $150,000 or more.   The bill would also require that the prevailing party’s  damages, costs, expenses and attorney’s fees be paid by the other party, whether that party is the employer or the employee.

  3. New York (New York City)– Effective June 11, NYC prohibits employment discrimination based on unemployed status and provides for a private cause of action for violations.  The New York City Council overrode Mayor Bloomberg’s veto, to enact the measure.

  4. Ohio– The prosecutor in Butler county issued an “indictment” of groundhog, Punxsutawney Phil, charging it with misrepresentation of spring, which constitutes a felony “against the peace and dignity of the state of Ohio.”

  5.  Tennessee – Effective July 1, holders of valid conceal carry permits may bring their handgun and/or ammo onto their employer’s parking lot, subject to certain restrictions.  The vehicle must be parked where the employer designates, the weapon must be kept from “ordinary observation” if the permit holder is in the vehicle.  The weapon must be  locked in the trunk, glove box or other container within the vehicle when the permit holder is not in the vehicle. Employers may still prohibit the weapon from being brought into its building(s) and may ban weapons from the parking area, if the employee/visitor does not have a valid handgun permit.  Employers may require that the employee/visitor notify the employer that there is a weapon in the vehicle and may also require that they provide proof of the valid conceal carry permit.

  6. Utah– The legislature passed the Internet Employment Privacy Act, which prohibits employers from asking an employee or job applicant to disclose a username or password, or a password that allows access to the employee’s or applicant’s personal Internet account, or to take adverse action, fail to hire or otherwise penalize an employee or applicant for failure to disclose such information.  The Governor is expected to sign off on it, shortly.

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)


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