1.Hire Power – Hot on the heels of the EEOC’s open forum on employer discrimination against the unemployed, Congress has introduced a bill to make it unlawful for employers to (a) refuse to consider for employment or refuse to offer employment to an individual based on his or her status as unemployed; (b) publish a job ad in any medium that says or implies that unemployment is a disqualifier from job consideration; or (c) direct an employment agency to screen out unemployed applicants. The Fair Employment Opportunity Act (H.R. 2501) was filed on July 12 and has 35 co-sponsors. If you’d like to read full text of the bill and track its movement, go to http://thomas.loc.gov and type in the bill number.
1.Whistlin’ While You Work, the Sequel – As reported in LB4HR last month, the final regs for the Dodd-Frank whistle-blower rules addressed employers’ concerns that employees were being incentivized via cash bonuses to report problems directly to the SEC, with no prior attempt at internal resolution. In the regs, the SEC said it would consider the whistle-blowers participation in internal compliance systems as a factor to increase the amount of bonus and interference with internal compliance systems as a reason to reduce the award. Four members of Congress must think this does not go far enough, as they have filed the Whistleblower Improvement Act (H.R. 2483) which would, among other things, condition bonus eligibility on internal reporting to one’s employer prior to going to the SEC and disqualify from bonus eligibility anyone who was culpable in the wrongdoing. Use the Thomas link provided above, to check out full text and progress.
1.FMLA for Mourners – A lone Senator has filed the Parental Bereavement Act (S. 1358) which, if passed, would expand the qualifying reasons for taking FMLA leave to include death of an eligible employee’s son or daughter. The leave would be taken continuously, meaning that leave on a reduced schedule or intermittent basis would not be allowed unless the employer chose to do more than the law requires. Use the Thomas link provided above, to check out full text and progress.
1.No Peeking – The Regents of the University of CA have agreed to pay $865,500, create new policies/procedures, engage in significant employee training, foot the bill for an independent monitor and be subject to three years of monitoring and reporting due to a HIPAA violation arising from nosy health care workers who improperly accessed patients’ medical records. The investigation findings are a roadmap of what you should be doing if you maintain medical records. The health care system was admonished for wrongful access of patient records by employees, lack of employee training regarding privacy of medical records, lack of employee sanctions when occasions of wrongful access became known to the employer and lack of meaningful security measures to reduce the risk or eliminate wrongful access of patient records.
1.Six Steps to ADA Salvation? – A July 6 Consent Decree between the EEOC and Verizon gives and receives. If the court agrees, the EEOC will receive a $20 million settlement arising from the company’s failure to reasonably accommodate disabilities via making exceptions to a “no fault” attendance policy where “chargeable” absences were caused by a qualifying disability. And the EEOC gave a 6-step analysis to apply when considering whether an employee’s absence should be chargeable and eventually result in corrective action. If any of the following are NOT satisfied, the absence may be chargeable. If all are satisfied, corrective action is a really bad idea. The factors are: (a) current associate has a mental or physical impairment that substantially limits one or more major life activities; (b) the associate’s absence was caused by a disability; (c) the associate or associate’s rep used the designated company process to ask for a period of time off due to the associate’s disability; (d) the associate’s absences have not been unreasonably unpredictable, repeated, frequent or chronic; (e) the associate’s absences are not expected to be unreasonably unpredictable, repeated, frequent or chronic; and (f) the associate’s need for time off as a reasonable accommodation does not pose a significant difficulty or expense for the employer. EEOC v. Verizon Del. LLC (D. Md. 7-11). Since the ADAAA became reality, the focus has shifted from proving/disproving the existence of a qualifying disability to the interactive process between employee/employer and reasonable accommodation, and “no fault” or “automatic termination” policies are a lightning rod for the EEOC’s ire.
1.Sound Familiar? – Denny’s Restaurants settled an ADA class action with the EEOC, offering $1.3 million to 34 claimants. The beef was over a blanket attendance policy which effected an automatic discharge after either 12 or 26 weeks of medical leave, with no additional leave offered as reasonable accommodation for disabled employees. Starting to see a pattern here?
1.Do You Know Your Credit Limit? – On October 1, Connecticut and Maryland will join Illinois, Oregon, Washington and Hawaii in limiting employers’ ability to use an applicant’s or employee’s credit score, history or related information as a factor in the individual’s terms and conditions of employment. And other states have/are considering similar measures, so keep your eye on your legislators and this issue.
1.California (Pay)Roll – Something fishy just came out the CA Supreme Court and employers are not going to like the smell of it. California-based employers must apply CA wage and hour law (including the potential for daily overtime for nonexempts) to non-resident workers for the time they spend working in CA. Sullivan v. Oracle (Cal. 6-11). The case involved overtime claims by employees of CA-based Oracle, who lived in AZ and CO but occasionally performed services for their employer in CA. For starters, the instructors were mistakenly classified as exempt, which opened the door to daily overtime in CA as well as overtime for work which exceeded 40 hours in a workweek performed in other states. The case is a good read, at www.courtinfo.ca.gov/opinions/documents/S170577.PDF. Before sending employees to work in CA, you might want to re-analyze their exempt vs nonexempt status under CA law and bone up on their unusual overtime requirements.
1.Keep Summer Fun – You might direct your employees who drive in the course and scope of their duties to a 30-second PDA created by the DOT and Disney’s Pixar, for a humorous reminder that only bad guys drive distracted. You can find it at http://distraction.gov/cars2/.
1.Stated Differently – Here are some hot topics for you multi-state employers: 1.Connecticut – Effective October 1, public and private sector employers may not discriminate in employment, public accommodation, housing, credit and other areas based on an individual’s gender identity or expression. Effective January 1, 2012, employers of 50+ service workers (hourly worker in one of 68 professions identified by the Bureau of Labor Statistics Standard Occupational Classification System) must provide up to 40 hours of paid sick leave, at a rate of one hour earned for every 40 hours worked. Up to 40 hours of unused sick time can be carried into the next calendar year, but use of sick time is limited to 40 hours per year.
2.Maine – Effective September 28, employers may not prohibit employees who have valid conceal carry licenses from having firearms in their vehicles while parked on the employer’s property, so long as the firearm remains in the locked vehicle and is stored out of sight.
3.New Jersey – Parents or affiliates of a company, including a private equity investor, which failed to provide proper notice to employees and government entities under the state’s WARN law may be liable for severance pay owed to employees under the statute. DeRosa v. Accredited Home Lenders, Inc. (NJ App. Div. 6-11).
4.New York – A series of NY DOL Opinion Letters interpreting the state’s Wage Payment Law make clear that an employer may not deduct from an employee’s pay for overpayments or advances (e.g., cash, unearned PTO), even when OK’d by the employee in writing. This stems from a narrowly written statute which enumerates the scenarios where deductions from wages would be allowed and which does not include an overpayment or an advance. The DOL has opined that an employer may ask the employee to voluntarily repay the overage/debt, but such request must make clear that the employee’s refusal will not result in any type of adverse employment action. What is the employer’s recourse if the employee says “no” to such request? Per the DOL, file a lawsuit against the employee.
5.Virginia – Effective December 1, 2013, employers of 50+ employees which have a contract with the Commonwealth valued at $50,000 or more must use E-Verify on new hires to determine if they are authorized to perform work or provide services under the contract.
Legal brief provided by:
Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
Legal Briefs are 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.