In the Workplace: Latest Need-to-Know Employment Law News

Latest I-9 forms, ADAAA rulings, NLRB developments, new state laws and federal regulations … keeping up with the myriad legal requirements of managing your employees can be challenging for the best of us. This roundup of recent employment law updates should help:

The “Employee Tricked Me Into Firing Her” Defense (Cozen O’Connor):

“The NLRB continues to issue decisions about whether an employer can lawfully terminate employees based on social media activity, and whether workplace policies violate the law protecting employees’ rights to engage in protected concerted activity. However, last week’s decision in In re Design Technology Group, LLC had an interesting twist.” Read on>>

Government Seeks Supreme Court Review of D.C. Circuit’s Noel Canning Decision (Ballard Spahr LLP):

“A petition for certiorari seeking review of the D.C. Circuit’s January 2013 decision in Noel Canning vs. NLRB has been filed in the U.S. Supreme Court. That decision, which we have blogged about before, held that President Obama’s January 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid under the Recess Appointments Clause of the Constitution.” Read on>>

Does Partial Deafness Constitute a Disability Under the ADAAA? The Question Remains Unanswered (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

“A federal court in Pennsylvania recently dismissed a lawsuit filed by a female newspaper page designer who claimed that she was laid off because of her gender and her deafness in one ear…The Americans with Disabilities Act Amendments Act (ADAAA or Act) was implemented to make it less difficult to establish a disability, and is more focused on whether an accommodation can be provided to allow an impaired individual to obtain or maintain employment. The regulations associated with the ADAAA, in fact, include a list of per se disabilities, for which no proof is required.” Read on>>

The New I-9 Employment Eligibility Verification Form Has Finally Been Published (Foley Hoag LLP):

“Every employer is required to verify the identity and employment eligibility of a new employee within three days of the date of hire. To comply with this obligation, an employer must review acceptable documents that establish both the identity and work authorization of the employee, and complete a Form I-9 Employment Eligibility Verification for the employee.” Read on>>

11th Circuit Grounds U.S. Air Force Reservist’s USERRA Claim (Dinsmore & Shohl LLP):

“On April 5, 2013 the U.S. Court of Appeals for the 11th Circuit issued its opinion in Landolfi v. Melbourne, holding that although an employee’s military service motivated the employer’s promotion decisions, his Uniformed Service Employment and Re-employment Rights Act (‘USERRA’) discrimination claims must fail because the employer also considered legitimate factors in making the decisions.” Read on>>

“Comp Time” Proposal: Be Careful What You Wish For (Fisher & Phillips LLP):

“The U.S. House of Representatives will consider amending the federal Fair Labor Standards Act to permit private-sector employers to offer compensatory time off in lieu of monetary overtime compensation. The fast-tracked ‘Working Families Flexibility Act of 2013’ was approved by a House committee only eight days after its introduction. Under the proposal, eligible non-union employees could agree to a comp-time arrangement ‘in writing or [in an] otherwise verifiable record.’” Read on>>

Senator Murphy: Prospects ‘Not Too Good’ for Federal Bill Prohibiting Sexual Orientation Discrimination (ENDA) (Pullman & Comley, LLC):

“As many wait for the Supreme Court’s decision later this term on same-sex marriages, one issue that seems to get lost in the shuffle is the fact that there is still no federal law prohibiting discrimination in employment on the basis of sexual orientation. For employers in Connecticut, this is basically a non-issue because Connecticut has long since prohibited it. But for employers who want consistency and for those who believe that discrimination on the basis of sexual orientation is just outdated, the lack of a federal bill rubs some the wrong way.” Read on>>

Proposed Class Action Lawsuit Underscores Legal Risks to Employers Using Background Checks (Saul Ewing LLP):

“A putative nationwide class action alleging violations of the Fair Credit Reporting Act (‘FCRA’) was recently filed against Toll Brothers Real Estate Inc. (‘Employer’) in the United States District Court for the Eastern District of Pennsylvania. The Complaint challenges Employer’s employment practices and procedures in rejecting job applicants based on a negative background check and report.” Read on>>

Proposed New York City Bill Would Ban Credit Checks from Hiring Process (Sheppard Mullin Richter & Hampton LLP):

“On April 11, 2013, the New York City Council’s Committee on Civil Rights debated a proposed bill that would ban employers from using credit checks to evaluate prospective employees. The proposed bill, called the Stop Credit Discrimination in Employment Act (the ‘SCDEA’), would create a blanket ban on using credit information for hiring purposes, with a narrow exception only where employers are required to use such information by state or federal law.” Read on>>

Colorado is the Latest and Ninth State to Enact Legislation Restricting the Use of Credit Reports for Employment Purposes (Littler):

“On April 19, 2013, Colorado Governor John W. Hickenlooper signed into law Senate Bill 13-018 (the ‘Employment Opportunity Act’), which will significantly restrict the ability of Colorado employers to use ‘consumer credit information’ for hiring and other employment purposes unless use of the information is limited to the narrow category of positions set forth in the statute. With this law, Colorado becomes the ninth state to regulate the use of credit-related information for employment purposes, following laws enacted in California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington. Colorado’s law goes into effect July 1, 2013.” Read on>>

Colorado Ninth State to Prohibit Credit Checks for Employment Purposes (Proskauer Rose LLP):

“The coverage of the new Colorado law is expansive. By amending Title 8 of the Colorado Revised Statutes, the new Colorado law defines ‘employer’ to mean every person, association of persons, firm, and private corporation (including any public service corporation, manager, personal representative, assignee, trustee, and receiver) who has four or more persons regularly engaged in the same business or employment in service under any contract of hire, expressed or implied. The term includes a prospective employer, but excludes any state or local law enforcement agency.” Read on>>

More Guidance Issued on Summaries of Benefits and Coverage (Ballard Spahr LLP):

“The U.S. Department of Labor has issued a set of frequently asked questions, together with a new template, for the Summary of Benefits and Coverage (SBC) that applies to group health plans and individual health insurance. The new rules and form modify the guidance that was in effect for the first SBCs that employers needed to provide to plan participants and will apply for coverage offered in 2014.” Read on>>

Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children (Orrick):

“The ADA Amendments Act expanded more than just employer liability for disability claims; it also broadened the scope of FMLA leave that employees may take to care for their adult children. On January 14, 2013, the Department of Labor clarified that the age of the onset of a disability is irrelevant to determining whether an individual is considered a ‘son or daughter’ under the FMLA.” Read on>>

Employers and Regulatory Compliance (Rowley Chapman & Barney, Ltd.):

“Making sure your business complies with federal and state acts can protect your company from legal problems. Even the most careful employer can fail to fulfill their legally required obligations to care for their employees simply because they do not understand the complex federal and state regulations.” Read on>>

EEOC Holds Both Staffing Firms and Staffing Clients Responsible Under EEO Laws (Mintz Levin):

“Recently, the EEOC filed a lawsuit against Hire Dynamics, a staffing firm. According to the complaint, after a Hire Dynamics employee filed a charge of discrimination against one of its clients, the staffing firm retaliated by failing to give the employee any further job assignments or opportunities. As this case highlights, it is important that staffing companies and their clients work together to comply with applicable fair employment practice laws.” Read on>>

Hire Dynamics Sued by EEOC for Retaliation (U.S. Equal Employment Opportunity Commission):

“According to the EEOC’s lawsuit, the employee was assigned to one of Hire Dynamics’ clients as a quality auditor. The employee was suspended for a week for missing one day of work, after which he filed a discrimination charge against the company. After that, the EEOC said, he was never given any further job assignments or opportunities as retaliation.” Read on>>

Utah Enacts Internet Employment Privacy Law (XpertHR):

“Utah has joined California, Illinois, Maryland and Michigan in enacting legislation to protect the online privacy of employees and/or job applicants. Effective May 14, 2013, Utah employers will be prohibited from requesting or requiring that employees or applicants disclose their usernames and passwords that would permit access to their personal internet accounts.” Read on>>

Arkansas Latest State to Restrict Employer Access to Applicant and Employee Personal Social Media Accounts (Proskauer Rose LLP):

“On April 22, 2013, Arkansas’ governor signed H.B. 1901, continuing the national momentum to prohibit employers from requesting or requiring prospective and current employees to disclose their username and password to their personal social media accounts. Maryland, Illinois, California, Michigan, Utah, and New Mexico have similar laws – although New Mexico’s ostensibly covers current employees only – with dozens more state legislatures considering similar legislation.” Read on>>

New Mexico Passes Social Media Privacy Act (XpertHR):

“New Mexico’s new law prohibits employers from requesting or requiring that prospective employees provide passwords or access to social networking accounts or profiles. Unlike the social media privacy laws passed in other states, New Mexico’s law only applies to prospective and not current employees. However, the Act does not define the term prospective employee.” Read on>>

Department Of Labor To Increase Frequency Of FMLA On-Site Investigations (Franczek Radelet P.C.):

“For employers who have been involved in an FMLA investigation conducted by the U.S. Department of Labor, the process can be a bit of a head-scratcher because no two investigations look the same. The FMLA investigation often starts with a somewhat mysterious phone call from a DOL investigator identifying him or herself as such. What follows, though, is far from certain.” Read on>>

Decisions Highlight Split In Application Of Computer Fraud And Abuse Act (Carlton Fields):

“Trade secret claims have historically derived from state common law causes of action and, subsequently, most states’ adoption of the Uniform Trade Secrets Act, which codifies that common law and generally proscribes the misappropriation of trade secrets. In recent years, the Computer Fraud and Abuse Act (CFAA), […] has been used to invoke federal jurisdiction and to raise the specter of criminal, as well as civil, liability for ‘unauthorized access’ to a ‘protected’ computer, even where the trade secret misappropriation elements could not be met.” Read on>>

General Counsel’s Division of Advice Issues Helpful Guidance on Confidentiality Rules in Workplace Investigations (Proskauer):
“As we reported here, in Banner Health System d/b/a Banner Estrella Medical Center, […] the NLRB reviewed an employer’s blanket policy of requiring witnesses to maintain confidentiality during workplace investigations. The Board found that such a policy chilled the right of employees to engage in the protected concerted activity of discussing such workplace concerns… Recently, the NLRB’s General Counsel’s Division of Advice released a memorandum which offered additional guidance in this area.” Read on>>

Fast Food And Retail Workers Strike In Chicago (Franczek Radelet P.C.):

“… While the strike may disrupt business operations, whether the workers’ specific actions are protected depends upon the facts and circumstances surrounding their walkout. For this reason, employers should refrain from hastily firing or disciplining workers for engaging in a strike before investigating the relevant facts and seeking the advice of experienced labor counsel. Failure to take these crucial steps could result in legal liability.” Read on>>

Baptist Health South Florida Sued by EEOC for Disability Discrimination (U.S. Equal Employment Opportunity Commission):

“According to the EEOC’s suit, a new hire, Dr. Lianette Campos-Sackley, applied for a position at Doctor’s Hospital’s Gamma Knife Center as a general medical practitioner under the direction of Dr. Aizik Wolf. During her initial interview with Dr. Wolf, Dr. Campos-Sackley notified him that she had epilepsy, which required her to not exceed an eight-hour work day. Dr. Wolf agreed to Dr. Campos-Sackley’s scheduling request and, after she interviewed with other members of the Doctor’s Hospital staff, she was ultimately hired.” Read on>>

OSHA Changes Course: Will Allow Outside Representatives, Including Union Agents, to Enter Non-Union Worksites During OSHA Inspections (Littler):

“In a letter of interpretation dated February 21, 2013 (but only publicly released on April 5), the federal Occupational Safety and Health Administration (OSHA) states that, during inspections of non-union workplaces, employees can be represented by anyone selected by the employees, including outside union agents.” Read on>>

Limits On Family Leave: Employees of the Same Employer (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

“Both federal and state law provide employees leave for the birth or placement of a child and for bonding with a child after birth or placement. Under certain circumstances, employers may limit their employees’ leave. One such circumstance arises when expectant parents work for the same employer. The issue is whether employers are required to give each parent-employee the same amount of leave to which they would be entitled if they worked for different employers.” Read on>>

Are Unpaid Interns Handy Helpers or a Source of Liability? (Foley & Lardner LLP):

“Summer is fast approaching and along with the dog days of pool time, family vacations, and outdoor activities, comes summer break for students. For many companies, this means an influx of potential interns anxious to learn the ins-and-outs of an industry and willing to do so without pay. As we have mentioned in past updates, the Department of Labor has been stepping up enforcement efforts and closely scrutinizing the use of non-employee workers, such as independent contractors. However, many employers are not aware that this uptick in audits of employee misclassification extends to unpaid interns.” Read on>>

Employment Law Compliance Is Just the Beginning (Foley & Lardner LLP):

“Complying with the law is only the starting point when making sound and legally defensible employment decisions, such as discipline, terminations, denying accommodations, and so forth. Have you ever heard of a company that made an employment decision that technically complied with the law, but were still sued by an employee or settled a lawsuit?” Read on>>

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