Employment Law Legal Brief: Feb. '11 in Review - The Blytheco Blog
Employment Law Legal Brief: Feb. ’11 in Review

Employment Law Legal Brief: Feb. ’11 in Review

1. About Face – The “overbroad social networking policy as potential unfair labor practice” case (see LB4HR #1 -2010) is over. To refresh, an ambulance driver was fired for posting, um, unkind comments about her supervisor (e.g., “scumbag”) and other managers on her Facebook page while off duty, via her home computer. Co-workers chorused their agreement on her Facebook page, and she was fired. The NLRB responded with a complaint that the driver’s section 7 rights were violated as her comments were protected concerted activity relating to her terms and conditions of employment. The terms of the settlement included a statement that the employer has “agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others . . . . “ and promised not to discipline or fire employees for similar conduct. Although settlement of this case did not provide the Board with a “win” that might open a fresh round of enforcement activity, it’s pretty clear where they stand on the issue. It may be time to add a new policy or modify an existing one, to make sure your social networking policy does not end up being a hot item in the blogosphere.

2. Pssst . . . Here’s a Tip – Employers using a tip credit to satisfy minimum wage requirements on your tipped employees, heads’ up! A bill was introduced in Congress to amend the FLSA and incrementally raise the tipped minimum wage rate from $2.13/hour to $3.75/hour (within 90 days of bill’s enactment), then to $5.00/hour a year later and finally to a percentage of the federal minimum wage, not to exceed $5.50/hour, a year after that. You can read full text of Working for Adequate Gains for Employment in Services (WAGES)(H.R. 631) and follow its progress at http://thomas.loc.gov. While you might think this means more pay for tipped employees, all it really does is reduce the amount of the tip credit employers may take. The federal minimum wage under the FLSA remains the same. For now.

3. Check on Credit? – Several states (HI, IL, LA, OR, WA) have laws the limit employers’ use of credit checks when making employment decisions and lots of states are thinking about it. And now Congress is getting into the act via H.R. 321, the Equal Employment for All Act. The bill, if passed, will put limits on employers’ use of credit reports when used to make employment decisions involving applicants or employees. Similar to the states’ laws, there are exceptions which apply to [1] employment that requires national security or FDIC clearance; [2] employment with a State or local government agency which requires such a report; [3] supervisory, managerial, professional or executive jobs at financial institutions; or [4] when otherwise required by law. You can read full text and check status athttp://thomas.loc.gov.

4. Check it Out – Until now, only employers could use E-Verify. Beginning on March 18, you can check out yourself. The idea is for individuals to submit their info and pre-confirm that the system will spit out an “all clear” if and when their next prospective employer uses E-Verify to confirm identity and work authorization. Although tempting, employers who use E-Verify should not require applicants to prescreen themselves via the Self Check feature, as this violates their MOU with USCIS.

5. Come All Ye Faithful – But don’t plan on your trip being treated as job-protected leave under FMLA, if it’s more tropical vacation than medical treatment. Employee’s spouse has numerous medical conditions and she’s taken FMLA intermittent leave for years, to care for him. This time, she asks her employer for 7 weeks off for a faith-healing trip to the Philippines. The spouse’s heart doc says he’s not incapacitated, so the FMLA leave request is denied. She goes anyway, and gets mad when she returns to a pink slip. In evaluating her FMLA interference and retaliation claims, the Court notes that while the “needed to care for a family member” reason for FMLA leave (at 29 CFR sec. 825.124) is mighty broad, it does not encompass visiting with friends and family, praying and attending Mass, where there was no concurrent medical treatment of the family member. Tayag v. Lahey Clinical Hospital Inc. (1st Cir. 1-11). Can I get an “Amen!?”

6. More Fun With FMLA – Legal secretary was denied her sliver of year-end profit sharing because she was on disability leave (following surgery for carpal tunnel) at the year’s end. Surgery was in September and she went on disability in January, granted retroactively to December. Small print on the profit sharing plan says participant must be employed on the last day of the calendar year to be eligible for profit sharing. Small problem under ERISA. Employer says she was not employed, but court says because she was on FMLA at the time, she was an employee of the firm and eligible. And her employer’s attempts to get her to resign in February did not help their argument that she was not an employee on December 31. Dorsey v. Jacobson Holman (D.D.C. 1-11).

7. Oh, Well – A class action was filed in Florida, alleging that an employer’s wellness plan violates the Americans With Disabilities Act (ADA). At issue is a $20 bi-weekly charge for employees who refused to take biometric testing (i.e., finger prick tests for glucose and cholesterol) and also refused to complete the on-line health risk assessment. Seff v. Broward County (S.D. Fla. 8-10). As mentioned in previous posts and speeches, several federal agencies have “blessed” wellness programs that comply with certain limits but the EEOC has taken the position that they may violate the ADA if they are not truly voluntary, and that certain incentives or penalties tied to participation may undercut “voluntariness.”

8. A Taxing Situation – With 34 states’ unemployment comp trust funds in the red (and being supplemented with federal funds to keep UI benefits flowing), the Obama administration proposes to replenish them by more than doubling the limit on employers’ FUTA contribution. The 6.2% surtax is now capped at the 1st $7000 earned by each employee. The proposed change would up the cap to the 1st $15,000 earned per worker, starting in 2014.

9. March Badness – It is hoops fans’ favorite time of year, and watching the game no longer requires calling in sick or taking a long lunch at the nearest sports bar. Live feeds can be found everywhere (e.g., ncaa.com, cbssports.com, conference websites) and who doesn’t have easy access to a desktop computer, laptop or smartphone? If you’ve got concerns about lack of individual productivity and a drain on your organization’s computer bandwidth, you might want to just say “no.” Gambling can be a concern, too. Increasingly, though, employers are looking for ways to use the excitement about the games as a team-building opportunity and to have some fun. Ideas range from casual days (sporting of one’s team colors/logo encouraged), converting a TV-equipped conference room into a watch party with snacks, brackets/pools with prizes (or the donated cash going to a favorite charity), games (match the mascot or logo to the school) and talent contests (e.g., sing your alma mater, free throw prowess, best celebration dance).

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

1. California – A CA court interpreted state law governing employer penalties for failing to provide mandated daily meal breaks and rest periods. The statute reads “If an employer fails to provide an employee a meal period or rest period . . . the employer shall pay the employee an additional hour of pay . . . for each work day that the meal period or rest period is not provided.” CAL LABOR CODE sec. 226.7. The question was whether affected employees were entitled to two hours of pay per day (one for meal and one for rest period) or only one hour of backpay. The court concluded the legislators intended the proper remedy to be two hours per day. UPS v. Superior Court (Cal. Ct. App. 2-11).

2. Michigan – Worker who was fired for testing positive for marijuana after workplace accident had no claim against his employer under the state’s medical marijuana law. The law is silent on employment rights and the court declined to imply a right to sue arising out of employment decisions. Casias v. Wal-Mart Stores Inc. (W.D. Mich. 2-11). Put that in your pipe and smoke it.

3. New York – Bill (S. 1490) has been filed which, if passed, will require employers to provide paid sick leave to employees. Leave would accrue at one hour for each 20 hours worked, capped at 80 hours (40 hours for small businesses). Leave may be used for the employee’s own illness or injury or to care for the employee’s child, parent, legal guardian, sibling, grandparent, grandchild, spouse or other designated person. Unused amounts would not have to be paid out upon separation from employment.

4. Pennsylvania – Law requires health care workers to wear a photo ID tag when working, which includes the worker’s name and title, name of their employer and a recent photo of the employee. The tag does not have to be worn where not clinically feasible and the last name may be obscured if the employee is caring for a person who exhibits symptoms of irrationality or violence.

Used with permission by:

Audrey E. Mross

Labor & Employment Attorney

Munck Carter LLP, Dallas, TX 75251



February Employment Law Legal Brief 2011 is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters. For answers to your specific questions, please consult with counsel.

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