Legal Update for June 2013 - The Blytheco Blog
Legal Update for June 2013

Legal Update for June 2013

It’s summertime, and here’s what’s heating up:

1. Safety Dance – OSHA issued an April 5, 2013 letter opining that employees of a workplace that has no collective bargaining agreement may designate a labor union or community organization to act on their behalf during the walk-around portion of an OSHA inspection AND one or more employees not represented by a labor union may designate person affiliated with a labor union or community organization to act as their personal rep during OSHA proceedings. Since OSHA complaints can be filed by labor unions as a means to further organizing of an unrepresented workplace, this letter is seen as troubling by many employers. Be sure to bone up on your rights, as an employer, before OSHA comes a callin’, with a union rep in tow.

2. Socially Acceptable Conduct – Add Washington as the 13th state (and the 5th one in 2013) to have enacted limits on employers’ desire to forcibly access the social media accounts of their applicants and employees. The bill was signed into law on May 21 and will take effect on July 28, 2013. The new law prohibits employers from requesting, requiring or coercing a current employee or job applicant into [1] divulging his or her log-in info for a private social media account; [2] “friending” a manager so that the employer can gain access to the private account; [3] requiring that privacy settings be changed to allow such access; or [4] logging onto the account in the employer’s presence to enable viewing of the account (aka shoulder surfing). Adverse action for refusing to do any of these things is expressly prohibited & the law provides for a civil cause of action, including payment of reasonable attorneys’ fees. There are narrow exceptions for certain workplace investigations, in-house intranets and when the account, service or device is employer-provided.

3. Another Face-Off at the NLRB – Another Facebook chat among co-workers turns nasty and the instigator is fired. She runs to the NLRB and claims her termination was an unfair labor practice but, this time, the ensuing Advice Memorandum favors the employer and upholds the termination. Tasker Healthcare Group d/b/a Skinsmart Dermatology. In this case, current and former employees are merrily chatting within a private Facebook group message, mostly about an upcoming social event. The Charging Party mentioned a former employee who was returning to work and who may become a supervisor. She later started a rant by saying “They [the Employer] are full of sh** . . . They seem to be staying away from me, you know I don’t bite my [tongue] anymore, FU** . . . FIRE ME . . . Make my day . . . .” Note: Edits were added by yours truly, to spare the sensitive. No one immediately chimed in and only one comment was added in relation to the rant, about two hours later. In the Advice Memorandum, the Associate Counsel concluded that this message was not protected activity because it did not involve shared employee concerns over terms and conditions of employment. Instead, these remarks were characterized as an “individual gripe” and “merely reflected her personal contempt for her returning coworker and for her supervisor . . . .” Keep in mind that if the subject had been terms and conditions of employment, such as pay, benefits, safety or scheduling, mere discussion of those subjects would’ve been enough to support the ULP. If faced with proof of social media nastiness, check with your HR or Legal resources who are experienced in determining whether the line has been crossed before showing your employee to the door.

4. The Post is (Mostly) Toast – One of the employer advocacy group lawsuits challenging the NLRB’s proposed mandatory workplace poster (explaining employee rights under the NLRA) won the day. The D.C. Circuit Court of Appeals struck down the NLRB rule that would’ve mandated the posting, characterized the failure to post as an unfair labor practice (ULP), allowed the Board to use the failure to past as evidence of unlawful motive, and toll the statute of limitations on ULPs filed where the poster was not on display. The Court determined that the proposed rule violated section 8(c) of the NLRA and that the tolling provision was beyond the NLRB’s authority. National Ass’n of Manufacturers v. NLRB (5-13). The proposed rule is definitely toast in the D.C. Circuit (unless there is a successful appeal) and other jurisdictions may take notice, soon. This decision does not affect Executive Order 13496 which requires federal contractors to post the employee-rights notice.

5. I-9 Oops – U.S. Customs & Immigration Enforcement (ICE) officials have stated in public forums that pre-population of the information required in Section 1 of the Form I-9 (a common feature of electronic I-9 software) is an unacceptable practice, a position which is contra to that stated by U.S. Citizenship and Immigration Services (USCIS) in the past. However, the updated Handbook for Employers: Guidance for Completing Form I-9 (M.274) states, on page 3 “Ensure that the employee completes Section 1 of Form I-9 at the time of hire.” ICE also clarified that the 3-day rule, which says that the employer should complete Section 2 of the Form I-9 within three business days of the hire. The three days mentioned are determined by the employer’s operations schedule. If the business is normally closed on weekends, those two days do not count when determining the deadline. If they business is open every day, even if HR and/or management are not available on the weekend, those days do count.

6. Immigration Overhaul – As employers watch while comprehensive immigration reform inches through Congress, some may not be aware certain requirements buried in pages of text. Included in S. 744 is a proposal to significantly increase the monetary penalties for a first offense of knowingly hiring or continuing to employ an undocumented worker and for record-keeping violations. The former would leap from the $375 -$3200 range to the $3500 – $7500 range. The latter would jump from the current range of $110 – $1100 per violation to $500 for a first violation and $8000 per offense thereafter. S. 744 preserves the Form I-9 requirement and adds on mandatory use of E-Verify for all U.S. employers, with the requirement phased in over four years depending upon the type of industry and number of employees in each business.

7. Oh Well – Three federal agencies (Health & Human Services, Labor, Treasury) have issued a final rule increasing the amount of reward (e.g., reduction in health insurance premiums) employers may give to employees who achieve fitness standards via workplace wellness programs while adding escape clauses (aka “reasonable alternatives”) so that certain individuals can avoid meeting the standard and still collect the reward. The prior limit on rewards was 20% of the total cost of health coverage. The new cap is 30%, with a 50% cap if the standard is related to tobacco use. The final rule allows employees to produce a doctor’s note stating that the standard is not medically appropriate for the employee, triggering the requirement that an alternative standard be offered which addresses the physician’s recommendations. Importantly, this final rule expressly states that compliance with this final rule does NOT mean compliance with the ADA, GINA and similar laws. The EEOC has yet to release its guidance, either endorsing or disagreeing with this approach to wellness programs. Stay tuned!

8. Buzz Kill(s) – The National Transportation Safety Board (NTSB) is a federal agency that studies and makes recommendations to improve transportation safety for railroads, aviation and on our highways. One way to do this is to recommend what level of blood alcohol content (BAC) should be deemed unsafe and result in penalties, including removal from commercial driving duties. Prior to 2000, the BAC that could trigger criminal penalties for DWI was 0.15. That number is currently .08, in all 50 states, and the NTSB has recommended another drop, to .05. Drivers of commercial vehicles are currently subject to a BAC of .04. Employers may want to revisit their drug and alcohol testing programs, in light of this recommendation.

9. Your App May be Crap – Most employers are aware that if they use a third party individual or entity to provide background information on their applicants and employees, the federal Fair Credit Reporting Act (FCRA) is triggered. The FCRA requires notice and authorization prior to running the check and a two-step notice prior to taking adverse employment action after a “bad” report. There are also promises to be made between the employer and consumer reporting agency about how the information will be used. One service provider tried, unsuccessfully, to evade these requirements by offering a mobile app through which records could be accessed and simply stating that the app was not FCRA compliant. The FTC was not impressed and brought the hammer down, citing multiple violations of the FCRA. In re Filiquarian Publishing LLC (1-13). So, if you are accessing background information via any sort of “middleman”, whether it be a website, app, person or organization, the FCRA applies to you . . . notwithstanding the vendor’s claims to the contrary.

10. Whistle While You Work – Check out the Corporate Whistle Blower Center (, an arm of America’s Watchdog, a self-styled consumer advocacy group. They are luring employees into ratting our their employers with visions of big dollar verdicts. Certainly announcements like the nearly $51 million settlement to be paid to the DOJ by a medical device company over alleged Medicare fraud, with a cool $10 million going to the former sales rep who blew the whistle, is bound to make many workers more alert on the job. Just not in a good way.

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

Alabama – Gov. Bentley signed the Guns in the Parking Lot Act, which takes effect on August 1, 2013 and prohibits employers from disallowing the presence of firearms and ammo which are kept in a locked, privately owned vehicle parked on the employer’s premises. The law applies to all lawfully-owned firearms and not just those for whom the owner has a concealed carry permit.
Colorado – Effective May 12, 2013, employers may not suggest, request or require that an applicant or employee disclose a user name or password or other means for accessing the individuals personal social media. The employer may not compel that individual to add anyone as contact to that account or require, request or suggest that the privacy settings of the account be changed.
Maryland – Effective October 1, 2013, employers of 15 or more employees will be subject to the Reasonable Accommodations for Disabilities Due to Pregnancy Act. The Act makes it unlawful for an employer to fail or refuse to make reasonable accommodation for the known disability of an otherwise qualified employee whose disability is caused or contributed to by pregnancy and does not impose an undue hardship on the employer. When faced with an accommodation request, the employer is to consider changing the job duties, changing the work hours, relocating the work area, providing mechanical or electrical aids, transfer to a less strenuous job, or leave of absence. Employers may require certification from the employee’s health care provider. There is also a requirement to post conspicuous notices and include in the employee handbook information concerning the employee’s rights under this new law. Those of you with operations in MD, time to update your handbook!
Massachusetts – Courier company is HQ’d in MA. It hires three NY resident couriers, as independent contractors, to perform pickup and delivery services in NY. Later, the couriers bring suit under the stringent MA independent contractor law, claiming they were misclassified and should’ve been treated as employees. The Superior Court dismisses the case, opining that the MA law did not apply to nonresidents who did not work or live in MA. On appeal, the MA Supreme Judicial Court takes note of and honors the MA choice of law and forum provisions in the written agreements between the parties, allowing the case to proceed in MA. Taylor v. Eastern Connection Operating, Inc. (Mass. 5-13).
Minnesota – Plaintiffs claimed they had been subjected to sexual harassment by the company owner and conceded that his conduct was directed at both men and women. Lower court decides there is no violation in a case involving an “equal opportunity harasser” but on appeal, the MN Supreme Court reversed and remanded, holding that while that defense may hold up under Title VII it is irrelevant when determining if the MN Human Rights Act had been violated. Rasmussen v. Two Harbors Fish Co. (Minn. 5-13).
Minnesota – On May 15, Gov. Dayton expanded “ban the box” limitations, which currently apply only to public sector employers, to apply to private sector employers beginning on January 1, 2014. Employers may not ask about or consider an applicant’s criminal history until after the applicant has been selected for interview or given a conditional offer of employment. The usual exceptions apply, such as when the employer is required by law to perform a criminal check. Also, employers are not prohibited from advising all applicants that a criminal check will come later in the process.
Nevada – On May 25, Gov. Sandoval signed a new law which will take effect on October 1, 2013 and will limit employers’ use of credit history when making hiring decisions. Specifically, the law provides that employers may not directly or indirectly, require, request, suggest or cause any employee or prospective employee to submit a consumer credit report or other credit information as a condition of employment; or use, accept, refer to, or inquire about a consumer credit report or other credit information.
New York – Gov. Cuomo signed off on legislation that will increase the state minimum wage in three steps: Increase to $8.00/hour (from $7.25/hour) on Dec. 31, 2013; increase to $8.75/hour on Dec. 31, 2014; and increase to $9.00/hour on Dec. 31, 2015. The minimum hourly wage for tipped employees will also be raised, via a pending wage order. If the wage order is not released by Dec. 31, 2013, service workers’ minimum hourly rate will jump to $6.25/hour (from current rate of $5.65/hour) plus tip credit of $1.75/hour (from current tip credit of $1.60/hour) and food service workers’ minimum hourly rate will jump to $5.50/hour (from current rate of $5.00/hour) plus tip credit of $2.50/hour (from current tip credit of $2.25/hour).
New York – In November 2012, NY enacted a law amending the stringent payday law by allowing employers to recoup, via wage deduction, for overpayments due to error and repayment of advances, but only as provided for in regulations which have not yet appeared. Proposed regulations were finally published on May 22 and there is a comment period through July 6. The proposed regulations are posted at
Ohio – Employers rejoice! The OH Bureau of Workers’ Compensation Board of Directors OK’d $1 billion in rebates for OH employers plus a 2.1% reduction in the base rate for private employers. Woo Hoo! The press release is posted at
Tennessee – The TN Attorney General issued a May 28, 2013 Opinion Letter in response to employers’ confusion over whether they could fire an employee for bringing a gun onto their premises, in violation of an employer policy, despite the new “guns in trunks” law that will take effect on July 1, 2013. The AG’s letter explains that the new law governs criminal offenses and “does not address and thus has no impact on the employment relationship between an employer and an employee.” It goes on to explain that employers often establish policies that restrict otherwise lawful activities. Commentators are not so sure, and point out that like many states, TN has a public policy exception to employment at-will which could be used to state a claim if an employee is fired for exercising a statutory right. So, who wants to be the test case on this one?
Texas – Effective September 1, the Texas Uniform Trade Secrets Act will become law. This statute broadens the definition of “trade secrets” and gives employers new legal recourse for protecting them. While restrictive covenants in an employment agreement relating to post-employment conduct remain key to your defense, the absence of such agreements will no longer pose the stumbling block it has in the past. Injunctive relief will be available for both actual and threatened misappropriation and the award of attorneys’ fees and double damages to plaintiffs who show their secrets were taken willfully or maliciously is both a boon to the pocketbook and, perhaps, a strong deterrent to prospective ne’er do wells. Attorneys’ fees may also be available to the defendant who is on the receiving end of a bad faith lawsuit, so do your homework before marching into court.

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