Employment Law Roundup: You Should Know (These Updates)

For your reference, here’s a Friday reading list of commentary, guidance, and updates published this week by Employment lawyers and law firms on JD Supra:

Will Employers Soon Use GPS to Catch FMLA Abuse? (Franczek Radelet P.C.):

“Earlier this week, the folks at the Texas Employment Law Update highlighted a case before the U.S. Supreme Court in which the high court will consider whether law enforcement’s placement of a GPS devise on a suspect’s vehicle without a warrant constitutes an unlawful search in violation of the Fourth Amendment. This case led the authors to wonder aloud whether an employer might surrepticiously use GPS to track an employee who is suspected of abusing leave under the Family and Medical Leave Act.” Read more»

So You Want A Bigger Office? Showing Complaining Employee the Door Is Costly (Sands Anderson PC):

“The newest in what is expected to be a long line of new cases to be filed under the revised ADA is the “cubicle case.” A worker at the University Medical Center in Nevada was fired for being unable to perform her job after she complained that her confined workspace caused her psychological distress due to her claustrophobia. Rather than go to trial, the county settled with the worker for $150,000.” Read more»

Piling On! DOL Proposes Rule Changes That Will Impact Employers (Fisher & Phillips LLP):

“The Department of Labor has also joined the fight to try and keep unions healthy, with rule changes of its own. These proposals affect a law most employers are unfamiliar with but which could, directly or indirectly, alter how you communicate with your employees about unions. It’s known as the LMRDA.” Read more»

Davis & Gilbert Labor & Employment Newsletter (Davis & Gilbert LLP):

“In this newsletter, we report on recent developments in the area of paycheck deductions by employers, as well as the strict provisions of a law regarding independent contractor misclassification. We also discuss a new law that requires employers to provide paid leaves of absence for organ and bone marrow donation, and a new law that requires same-sex rights for bereavement leave.” Read more»

Non-Competes: Do They Favor or Hinder Fair Competition? — You Decide (Fisher & Phillips LLP):

“Non-compete agreements tend to evoke strong reactions when brought up in conversation. Many people have strong opinions about whether they are favor or hinder fair competition. Opinions often vary depending upon whether you ask an employee or management. Recently, some have argued that non-competes hinder fair competition because they drive employees to relocate from states that enforce them to states that do not.” Read more»

Sixth Circuit Clarifies Employee’s Burden of Proof for ADA Association Discrimination Claim Under the Distraction Theory (Ford & Harrison LLP):

“The Sixth Circuit Court of Appeals recently affirmed the decision of a lower court holding that a plaintiff was not entitled to trial on his associational disability claim under the Americans with Disabilities Act (ADA) because he could not establish that he was terminated because of his association with his disabled wife. See Stansberry v. Air Wisconsin Airlines Corp. (July 6, 2011). The Court’s decision clarifies what a plaintiff must show to prove a “distraction” theory claim under the ADA.” Read more»

Think Your Employee’s Divorce is a Sham to Get at Retirement Benefits? Don’t Out-Think Yourself (Constangy, Brooks & Smith, LLP) :

“On Monday, the Fifth Circuit issued its opinion in Brown v. Continental Airlines, Inc., 2011 WL 2780505 (5th Cir.), a rather unusual case addressing what a plan administrator’s obligations are with respect to a Qualified Domestic Relations Order (QDRO) when the plan administrator thinks the underlying divorce that produced the order was a sham.” Read more»

Remember to calculate overtime pay based on your employees’ “regular rate of pay” (Hopkins & Carley): 

“Employers sometimes assume that an employee’s rate of pay for overtime work is simply 150% of his or her hourly wage for hours worked in excess of eight in a day or 40 in a week, or 200% of the hourly wage for hours worked in excess of 12 in a day or in excess of eight on the seventh consecutive day within a single work week.” Read more»

10 Social Media Must Haves For Your Corporate Compliance And Ethics Program (Sheppard Mullin Richter & Hampton LLP):

“Companies would be legally remiss not to add a social media component to their corporate compliance and ethics program. As we have seen and reported on, agencies such as FINRA, the FTC, and the NLRB are bringing complaints against companies arising from their social media activity or employee related activity, thus, highlighting the need for companies to demonstrate that they are exercising due diligence to promote ethical conduct and prevent criminal conduct in the context of social media activity [e.g. Federal Sentencing Guidelines, § 8B2.1].” Read more»

Neufeld Memo Revisitied and H-1B Updates and Enforcement (Nachman & Associates, P.C.):

“It is this author’s opinion that as a result of this Neufeld Memo, employers will see automatic requests for evidence in any case where the beneficiary may be performing offsite work and for any H-1B visa extension petition. It continues to be our strong recommendation that employers add a section to their H-1B petitions which cover the issues addressed by the Neufeld Memo. Even one and one half years after this Memo was promulgated.” Read more»

Extension of Applicability Dates for New ERISA Disclosure Rules (Morgan Lewis):

“On July 13, the Department of Labor (DOL) announced a final rule extending the compliance dates for the DOL’s new service provider (408(b)(2)) and participant-level (404a-5) disclosure regulations. The final rule, which is currently available on the DOL website,1 is expected to be published in the Federal Register on July 19.” Read more»

ADA Restoration Act: Will It Redefine “Disability?” (Ruskin Moscou Faltischek): 

“Recently, the U.S. House of Representatives overwhelming passed a bill that could dramatically alter the landscape for employees and employers under the Americans with Disabilities Act (“ADA”). The ADA Amendments Act of 2008 (H.R. 3195), also known as the “ADA Restoration Act,” is designed specifically to restore Congress’s original intent in passing the ADA by reversing a series of U.S. Supreme Court decisions that substantially limited the scope of coverage afforded to disabled employees.” Read more»

Fair Credit Reporting Act Requirements Triggered by Use of Internet and Social Media Screening Services (Poyner Spruill LLP):

“There has been considerable debate regarding whether employers are bound to comply with the Fair Credit Reporting Act (FCRA) when using reports compiled by third parties of public information available on social networking sites. A May 2011 letter issued by the Federal Trade Commission (FTC) regarding Social Intelligence Corporation (Social Intelligence), a social media background screening service, has confirmed that employers must comply with the requirements of FCRA when using public information furnished by Internet and social media background screening services like Social Intelligence.” Read more»

The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree (McNees Wallace & Nurick LLC):

“Every human resources staff member knows that, especially when interviewing a potential new employee, some topics are strictly off limits. Asking one of these “off limits” questions can put your company at serious risk of being sued for discrimination. The trouble is, by resorting to the use of social media, this kind of “off limits” information can be collected from a potential employee even before his or her interview.” Read more»

West Virginia Employers Beware: You May Be Liable For Multiple Punitive Damages Awards in Wrongful Discharge Cases (Dinsmore & Shohl LLP):

“If an employer engages in illegal discrimination when terminating an employee, that employer should pay compensatory damages related to that termination. Moreover, if the employer acted maliciously in conducting the termination, it could also face punitive damages. Should, however, an employer be subject to duplicative punitive damages? No, because that would be patently unfair.” Read more»

Ohio House Bill 286 follows Arizona’s lead as to employment of unauthorized aliens (International Lawyers Network):

“On May 26, 2011, the United States Supreme Court upheld an Arizona statute regarding the employment of unauthorized aliens. The Arizona law requires employers within the state to use the federal government’s E-Verify program to check the work authorization status of employees and imposes licensing sanctions against employers that “knowingly or intentionally” employ unauthorized aliens. In upholding the Arizona law, the Court determined that states were free to act in this area under the terms of the federal Immigration Reform and Control Act (IRCA).” Read more»


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