Legal Briefs for HR
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.com under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.” Welcome, to new subscribers who attended my session at the TAB/TX SHRM Texas Employment Relations Symposium in San Antonio!
Here’s what’s heating up:
1. Add to Your “To Do” List – Effective July 1, employers who are using E-Verify must enter the new employee’s email address, if it was provided on the Form I-9. The recently revised Form I-9 added a space for the new hire to voluntarily give his or her email address, and it will be used by the agency to provide that person with Tentative Nonconfirmation (TNC), if applicable . . . in addition to the TNC that the employer is still required to provide to the new hire. Use of E-Verify to confirm authorization to work in the U.S. is required of federal contractors, some state contractors and if required under state or local law. For the rest of you, it is voluntary.
2. Board Biz –With Senate confirmation of five nominees to the National Labor Relations Board, they are back at full bench strength and free to issue decisions without the worry that their opinions will be challenged due to lack of a quorum. The members are Chair Gaston Pearce, Kent Hirozawa, Nancy Schiffer, Harry Johnson III and Philip Miscimarra. The Supreme Court has yet to decide if the recess appointments of Sharon Block and Richard Griffin in early 2012 were constitutional. If they uphold the lower court’s finding in Noel Canning, the validity of more than 1000 decisions made since January 4, 2012 will be called into question since three valid members are needed for a quorum and there were only two. In the meantime, Richard Griffin has been nominated by President Obama as the new GC, replacing Lafe Solomon, the Acting General Counsel of the NLRB since June 2010. Also, on July 22 the NLRB petitioned the D.C. Court of Appeals, for rehearing and an en banc review of a three-judge panel’s decision that nixed their “employee rights” poster mandate. Stay tuned.
3.State AGs Flame the EEOC– Nine state Attorneys General (from AL, CO, GA, KS, MT, NE, SC, UT and WV) sent a letter to the EEOC, pointedly questioning and urging rescission of the agency’s guidance on employer use of criminal records. They accuse the EEOC of an unwarranted expansion of Title VII and of creation of a new protected class for former criminals, which can only be done by Congress. The letter is posted at www.workplaceclassaction.com/files/2013/07/eeoc-letter.pdf. In a related development, in June the U.S. Department of Labor awarded $28 million in Face Forward grants to 28 organizations that will help rehabilitate youthful criminal offenders (between ages 16 and 24) via a two-year program (e.g., literacy training, counseling, GED prep, mentoring, training) and by working with nonprofit legal services to have their criminal records expunged with the idea that both the program and expungement will improve their chances of finding jobs.
4. Have You Been Carded?– Sixteen Democratic Senators sent a letter to the Consumer Financial Protection Bureau (CFPB) and the U.S. Department of Labor, asking them to issue new rules in response to three perceived problems involving employer use of paycards – employers mandating employee use of paycards (in lieu of receiving a paycheck or pay via direct deposit), fees tied to card use (e.g., ATM, balance inquiries, use, overdraft, inactivity) and perceived heavy-handed tactics aimed at “encouraging” card usage (e.g., financial incentive from the card issuer upon enrollment). If you’d like to read the letter, go to www.blumenthal.senate.gov and go to Newsroom and scroll down to the press release on July 11. The four-page letter is embedded, as a pdf.
5. Breathing Easy?– Maybe not, if you have workers engaged in “fracking” to stimulate well production in the oil and gas industry. NIOSH and OSHA teamed up, took air samples at worksites in five states, and did not like what they saw. Impermissibly high levels of crystalline silica were found which, when small enough to be respirable, can cause silicosis and have been deemed to be carcinogenic. In response, OSHA issued a Hazard Alert . . . which is not a new standard or regulation, so it does not create any new employer obligations. However, OSHA is reminding employers in this line of work that they remain subject to the general duty to provide a safe workplace, and might benefit from reading and heeding recommendations to eliminate or minimize the risk, in the seven-page Hazard Alert. The Alert is posted at www.osha.gov/dts/hazardalerts/hydraulic_frac_hazard_alert.html.
6. Don’t Be a Snoop, Dog– Employee has company-issued Blackberry and is allowed, by her employer, to use it for both business and personal reasons. Employee leaves the company and returns the phone after deleting emails and attempting to disable her personal Gmail account, with the belief that the phone will be wiped and recycled for another employee’s use. Instead, supervisor uses the phone to access roughly 48,000 emails in former employee’s Gmail account over the ensuing 18 months. Former employee hears that he is reading her emails and divulging the contents to others, including facts about her family, career, financials, health and other personal matters. She changes her Gmail account password and sues under federal and state law, for invasion of privacy and intentional infliction of emotional distress. Co-defendant employer and supervisor respond with various defenses, including that  the supervisor was authorized to access her account because it was via a company-issued phone;  the Stored Communications Act did not apply because the supervisor was not a “hacker”; and  the former employee had authorized such access because she did not expressly tell him not to and because she failed to delete her Gmail account before turning the phone in. Round One goes to the former employee, with the court dismissing most of the defendants’ arguments as unpersuasive. Lazette v. Kulmatycki (N.D. Ohio 6-13). Many managers (and even IT folks) mistakenly believe that a policy statement advising employees they have “no expectation of privacy” in use of the company’s electronic communications equipment and systems means they have carte blanche to peruse away, but that is rarely true. Use this case as a teaching tool . . . you will find it www.gpo.gov/fdsys/pkg/USCOURTS-ohnd-3_12-cv-02416/pdf/USCOURTS-ohnd-3_12-cv-02416-0.pdf.
7. Tangled Web – The Office of Civil Rights of the U.S. Department of Health and Human Services has another large settlement, of $1.7 million, against a private health plan for failing to comply with the HIPAA Security Rule. The agency found that the company failed to properly secure electronic personal health information (ePHI) which was stored in a web-based application database and, as a result, the ePHI of more than 600,000 individuals was accessible via the Internet for nearly five months. Any entity that stores, maintains, transmits or otherwise handles ePHI must understand and apply HIPAA rules when managing information systems. Or write a very big check.
8. Due Date – Don’t forget that the Employer Information Report (aka EEO-1 Report) is to be filed by September 30, preferably via the EEOC’s website. This requirement applies to private employers who are subject to Title VII and have at least 100 employees, as well as many federal contractors and subcontractors.
9. Tripping? – If you are headed outside of the U.S., for business or pleasure, be sure to check in at www.travel.state.gov first. There is a worldwide travel caution in place right now. Consider enrolling in the Smart Traveler Enrollment Program (STEP) which will provide you with automatic updates when security announcements are made.
10. Training Day – I am pleased to have been invited to be one of the speakers for the Texas Workforce Commission’s Texas Business Conferences in Texarkana (August 16) and College Station (August 23). These are terrific one-day programs, reasonably priced at $85, which provide basic training and/or a refresher to seasoned human resource and legal practitioners on labor and employment issues. If you would like to attend, you can find agenda and registration information at www.texasworkforce.org/events.html. Hope to see you there!
11. Stated Differently– Here are some hot topics for you multi-state employers:
- Illinois– Effective July 9, IL became a “conceal carry” state for firearms. Employers who wish to prohibit licensed individuals from bringing a firearm into the workplace are required to post a 4” x 6” sign at the entrance of the building indicating that firearms are prohibited inside. A handbook policy statement is not sufficient for this purpose. Employers may not prohibit employees from carrying a concealed firearm into a parking lot or storing a firearm within a locked vehicle, on the employer’s premises.
- Indiana– The Indiana Court of Appeal upheld a five-year temporal scope on a post-employment noncompete agreement, where  the geographic scope (two counties) was seen as reasonable; and  the ex-employee had worked closely and directly with her former employers customers before setting up a competing shop less than a mile away. Mayne v. O’Bannon Publishing Company d/b/a/ Corydon Instant Press (IN Ct App 7-13).
- Iowa – The Iowa Supreme Court, for the second time, found that it was not unlawful for a dentist to fire his comely dental assistant because he felt she was attractive and a threat to his marriage. Not to mention that his wife discovered their after-hours texts and was none too thrilled. The Court slightly modified their earlier rationale, explaining that it’s not sex discrimination because she was fired due to his feelings and not because of her gender.
- Louisiana – Effective August 1, employers may not discharge, discipline or threaten to discharge or discipline a covered U.S. military veteran who takes time off to attend medical appointments that are necessary to receive veteran’s benefits. The employer may ask for proof of the medical appointment and such proof may consist of a bill, receipt or work excuse from the health care provider.
- Massachusetts– The MA Supreme Court reversed a dismissal by a trial court and recognized a claim for associational discrimination based on disability under state law, where a non-disabled employee alleged he suffered an adverse employment action due to his association with a disabled family member. Flagg v. AliMed (Mass. 7-13)
- Minnesota – Effective August 1, employers with at least 21 employees working at one site must allow employees to use their sick leave benefits, if any, for absences due to illness or injury to the employee’s child, adult child, spouse, sibling, parent, grandparent or stepparent under the same terms that apply for the employee’s use of the benefit for his or her own illness or injury. The prior version of the MN Parenting Leave Act permitted use of employee sick leave only for the employee or to care for the employee’s child(ren) under the age of 18, or under the age of 20 if attending secondary school.
- New Jersey –Effective October 1, employers of 25 or more must provide up to 20 days of unpaid, job-protected leave to employees who are victims of domestic violence (or a sexually violent offense) or who have a close family member (e.g., child, spouse, domestic partner, civil union partner) who is a victim of domestic violence or a sexually violent offense. The time off can be taken at any time in the 12 months that follow the incident. The leave may be taken continuously, or in intervals that are no shorter than a day. The time off is used concurrently with time available under the FMLA or the analogous NJ law, the NJ Family Leave Act, if applicable.
- Texas –The data breach notification law has been amended, to remove a provision that required notice to affected parties outside of Texas residing in states that did not have a breach notification statute. Now, notice can be provided under Texas law or the law of the state where the impacted party resides. See TEX BUS & COM CODE sec. 521.053.
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 . . . are you ready for some 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
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