Workplace Issues: Latest Need- to-Know Employment Law News

What’s new in the world of employment law? Quite a bit, actually: employee privacy, ADA and ADAAA issues, theft of trade secrets, vacation policies, ERISA-related matters, social media in the workplace, FMLA leaveright-to-work laws, NLRB and EEOC activity, E-verify laws, wage-hour issues, background check approvals, and much more.

Here’s a roundup of recent labor and employment law updates for your holiday HR reading:

Employment Law Blog: Keep These Resolutions…or Else! (Davis, Brown, Koehn, Shors & Roberts, P.C.):

“So, it’s January 6 and you have paid up your new gym membership online but you haven’t yet printed out the directions to the gym. The new elliptical is in the corner stacked high with the work-out clothes you bought. Your resolution to be a model of patience and grace to your children went the same time the new puppy went…on the carpet. In the spirit of this the season of new beginnings we have a few HR resolutions to offer up.” Read on>>

Employers Won’t Do Jail Time for Snooping Around on Employees’ Cell Phones, But They May End Up Paying for It (Foley & Lardner LLP):

Do you ever have that feeling that the cell phone conspicuously pointed in your direction is actually taking your picture? Or, do you worry that a gossipy employee is spreading nasty rumors about you via text messages? Do you ever just feel like snooping around on your employees’ cell phones to see what they are really up to? If so, you are not alone, and according to the Fifth Circuit Court of Appeals, you will not be going to jail for it.” Read on>>

A New Year Brings New Compliance Obligations for Employers (Littler):

“As 2012 winds to a close, a look back at legal developments demonstrates that state legislatures were busy all year long. Every year, employers are inundated with new employment laws and regulations that impose new compliance obligations on employers. This year is no exception. This summary provides an overview of new laws – and a chart of state laws that become effective in 2013 – and is the result of Littler’s 50-state tracking of federal and state employment legislation and regulations.” Read on>>

The Expanded Definition of Disability Under the ADAAA (Bean, Kinney & Korman, PC):

“January 2013 will mark the two-year anniversary the final regulations to the Americans with Disabilities Act Amendments Act or the ADAAA took effect. As we move into the third year of these new “employee friendly” regulations, it would serve to take a moment to review the prior and current state of the law.” Read on>>

BaZynga! (Greenberg Glusker Fields Claman & Machtinger LLP):

“About a month after Patmore left Zynga for Kixeye, Zynga sued him, claiming that Patmore misappropriated company trade secrets and breached his company confidentiality agreement by transferring over 700 documents from his work computer and backing them up online. Zynga then obtained a protective order preventing Patmore from accessing or using the files in any way, and subsequently amended its complaint to include Kixeye as a defendant in the lawsuit.” Read on>>

NLRB: Discharging Non-Union Employee’s for Facebook Posts Violated NLRA (Miller Canfield):

“In September 2011, we alerted you to the decision in Hispanics United of Buffalo, a decision by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) examining an employer’s termination of employees because of posts about their employment on Facebook under the National Labor Relations Act. The ALJ’s decision was subsequently appealed and on December 14, 2012, the NLRB issued its decision, affirming the ALJ’s rulings.” Read on>>

See also on this topic: XpertHRMintz Levin

Be Careful How You Word Your Claims Procedure (Leonard, Street and Deinard):

“In a recent decision of the United States District Court for the Eastern District of Oklahoma, a retiree who had begun work as a union employee and who during his employment was promoted to a salaried position, sued his employer for failing to take into account his service both as a union employee and as a salaried employee in determining his benefit under the salaried employees’ pension plan.” Read on>>

Tis The Season To Review Company Vacation Policies – Is Your Company’s Vacation Policy In Tip-Top Shape? (Akerman Senterfitt):

“Being that we are in the midst of the holiday season, it seems quite appropriate to address employer vacation leave and pay policies. It may be a surprise that The Fair Labor Standards Act (FLSA) does not require payment for time not worked, such as vacations or holidays. Likewise, Florida, like most states, does not require employers to provide employees with either paid or unpaid holiday leave or to pay out accrued vacation time at the end of the year or upon termination of employment.” Read on>>

Useful Tips for Calculating FMLA Leave During the Holidays (Foley & Lardner LLP):

“This year, both Christmas and New Year’s Day fall on Tuesdays. Many businesses will be closed during these mid-week holidays. Many other manufacturers often shut down for extended periods for retooling or for a more extended holiday break. These circumstances complicate how employers should calculate FMLA usage by their employees, so it is helpful to understand how to properly calculate FMLA leave during the holidays.” Read on>>

Proposed Affordable Care Act Regulations are Designed (Poyner Spruill LLP):

“With the conclusion of the 2012 elections, federal agencies now are releasing proposed regulations crucial to the implementation of the Patient Protection and Affordable Care Act. On Tuesday, November 20, 2012, the Department of Labor, the Department of Health and Human Services, and the Treasury Department issued proposed regulations that deal with incentives for nondiscriminatory wellness programs in group health plans.” Read on>>

Michigan’s New Right To Work Legislation (Dickinson Wright):

“On Tuesday, December 11, 2012 Governor Snyder signed two bills consisting of ‘Right to Work’ legislation for Michigan. These two bills cover public sector and private sector employers in Michigan. The Public Sector Law specifically exempts state troopers and all other public police and fire employees from its provisions. With this legislation, Michigan becomes the 24th state in the country to enact Right to Work legislation. Michigan is only the 2nd state in the Midwest to do so, following Indiana’s lead from earlier this year.” Read on>>

See also on this subject: BakerHostetler, Constangy, Brooks & SmithFisher & PhillipsFranczek Radelet, Miller Canfield, VarnumWarner Norcross & Judd, XpertHR

The Fiscal Cliff and the WARN Act (Miller & Martin PLLC):

“Federal spending cuts as a result of the looming fiscal cliff may have an additional impact on federal contractors anticipating layoffs or plant closures. Employers with 100 or more employees are required to provide their employees with a 60 day notice prior to a mass layoff or plant closing under the Worker Adjustment and Retraining Notification (WARN) Act.” Read on>>

Proposed Rules Implementing Affordable Care Act Rules Prohibit Discrimination by Health Insurers and Set Standards for Essential Health Benefits (Poyner Spruill LLP):

“On November 20, 2012, the Department of Health and Human Services (HHS) issued proposed rules under the Patient Protection and Affordable Care Act of 2010, as amended (the Affordable Care Act or the Act), which beginning in 2014 will prohibit health insurance companies from discriminating against individuals because of a pre-existing or chronic condition.” Read on>>

Employment Law Commentary — Volume 24, No. 12 — December 2012 (Morrison & Foerster LLP):
“In addition to providing background on the Department of Labor’s regulatory initiatives, including ‘Plan/Prevent/Protect’ and ‘Right to Know,’ this Commentary will highlight additional proposed regulations and enforcement priorities in the Wage and Hour Division, the Occupational Safety and Health Administration, the Office of Federal Contract Compliance Programs, and the Equal Employment Opportunity Commission, as well as developments related to the National Labor Relations Board.” Read on>>

The ERISA Litigation Newsletter – December 2012 (Proskauer Rose LLP):
“In this month’s edition we explore the arguments asserted by the parties in US Airways v. McCutchen as to whether, and under what circumstances, plans may enforce provisions entitling them to reimbursement of previously paid medical benefits where the participant obtains a recovery from another source.” Read on>>

Court of Appeals Rules Employee Efforts To Take Over Editorial Control At Newspaper Unprotected By NLRA (Proskauer):
“An issue we have discussed previously is whether all employee action that is ‘concerted’ is also protected by the NLRA. We have seen that maliciously false statements made to third parties are unprotected. But what about when employees disagree with managerial control of the operations? How far can they press their claims? When it comes to the content being published in a newspaper, the answer is: they can ask for it but cannot take action to enforce their demands.” Read on>>

NLRB Focuses On Employers’ Internal Investigations (Pepper Hamilton LLP):

“The National Labor Relations Board (NLRB), the federal agency charged with enforcement of the National Labor Relations Act (NLRA), has increased its focus on social media and employer/employee communications, regardless of whether the employee is represented by a union. Section 7 of the NLRA protects the rights of both union and non-union employees to engage in ‘concerted activities,’ which includes discussions about wages, hours, or terms and conditions of employment by and between employees.” Read on>>

Employment Agreements Under Fire: NLRB Continues To Act In The Name Of Protected Activity (XpertHR):

“In an advice memorandum, the Office of the General Counsel of the National Labor Relations Board (NLRB) demonstrated that it continues to consider the issue of protected concerted activity to be at the forefront and that it is willing to strike down provisions of an employment agreement that can be reasonably interpreted to chill employees’ right to engage in collective action. In Thermal Tech, Inc., the Associate General Counsel considered whether the moonlighting and noncompete provisions of an employer’s mandatory employment agreement violated employees’ Section 7 rights.” Read on>>

Is Your Company E-Verify Compliant? (Poyner Spruill LLP):

“In June 2011, North Carolina joined the ranks of an increasing number of states requiring the use of E-Verify. E-Verify is a free Internet-based system that allows employers to determine employment authorization by checking an employee’s documentation against Department of Homeland Security (DHS) and Social Security Administration (SSA) databases. It applies to certain federal contractors but is also being adopted and required by states, regardless of whether federal contracts are involved.” Read on>>

Trio Of New E-Verify Laws To Ring In The New Year (XpertHR):
“Three more mandatory E-Verify measures will take effect on January 1, 2013 in North Carolina, Tennessee and Pennsylvania respectively. E-Verify is a web-based system employers can use to determine the employment eligibility of newly-hired workers. While Congress made E-Verify voluntary, states are not prohibited from requiring participation.” Read on>>

Social Media and Beyond: California Ushers in New Employment Laws for 2013 (K&L Gates LLP):
“The California legislature was particularly busy this past session in enacting new laws that directly affect employers in 2013. The new laws address a wide variety of topics, including social media protections for employees; new rights for employees to obtain copies of their personnel file; added requirements regarding itemized wage statements; new protections regarding religious dress and grooming practices; expansion of the definition of ‘sex’ for discrimination purposes to include breastfeeding and related medical conditions; limitations on paying non-exempt employees a fixed salary; provisions relating to written commission agreements; expanded whistleblower coverage and protection relating to government contractors; and workers’ compensation system reform.” Read on>>

See also: New Year Brings New California Employment Laws (Small Business Support)

Dillard’s to Pay $2 Million to Settle Class Action Disability Discrimination Lawsuit by EEOC (U.S. Equal Employment Opportunity Commission):

“Dillard’s Inc., a national retail chain, will pay $2 million and commit to extensive, company-wide injunctive relief to settle a class action disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. At issue was Dillard’s longstanding national policy and practice of requiring all employees to disclose personal and confidential medical information in order to be approved for sick leave.” Read on>>

See also on this topic: Bernstein Shur, Miller & Martin, XpertHR

Is Work From Home Counted in Determining FMLA Eligibility? (Dinsmore & Shohl LLP):

“A recent ruling from the Second Circuit Court of Appeals has generated a lot of buzz – and potential problems for employers – regarding what hours must be counted in determining whether an employee is eligible for leave under the Family and Medical Leave Act (‘FMLA’). To be eligible for FMLA leave, an employee must have worked at least 1,250 hours during the previous 12 month period. The rule sounds simple enough, but the Second Circuit’s ruling makes this a much more onerous and complicated issue for employers, especially regarding work from home or away from the workplace.” Read on>>

EEOC Approves Strategic Enforcement Plan (U.S. Equal Employment Opportunity Commission):
“The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a Strategic Enforcement Plan (SEP) to establish national enforcement priorities and better integrate enforcement responsibilities. The SEP passed 3-1 with bipartisan support.” Read on>>

See also on this subject: XpertHR

Santa and the FLSA (Duane Morris LLP):
“Delivering presents to the well-behaved children all over the world in a single night is hard work. Sure, Santa Claus makes it look easy with his jolly disposition, magical sleigh and team of nine flying reindeer. But does that mean he is any less entitled to compensation? Of course not! Let’s just assume that Santa’s employer—the North Pole, obviously—is covered by the Fair Labor Standards Act (FLSA). To comply with the law, the North Pole, like any other employer, has to ask itself certain questions.” Read on>>

What’s The Big Idea? Protecting Employer-Owned Intellectual Property (Pepper Hamilton LLP):

“With the year-end holidays fast approaching, many businesses are in the midst of assessing their 2012 performance and planning for 2013. If those plans do not include a review of employment agreements and policies that seek to protect the intellectual property assets of the business, perhaps they should. This year provided two examples of the problems caused by employees whose employment agreements seemingly provided the employer contractual ownership of its copyrights.” Read on>>

Is Your Company Using the Right Form for Background Checks? (Foley & Lardner LLP):

“The Consumer Financial Protection Bureau has taken over rulemaking and enforcement responsibilities for the Fair Credit Reporting Act (‘FCRA’) and has updated an important FCRA form that employers must use when utilizing consumer reports in conducting background investigations of prospective and current employees. Employers must use the new form beginning in January.” Read on>>

See also: Employers Must Update Background Check FCRA Forms by January 1, 2013 (Small Business Support)

Public University Lawfully Terminated HR Vice President Who Published Op-Ed Insensitive To Homosexuals (FordHarrison):

“The University of Toledo terminated an Associate Vice President for Human Resources after she wrote an op-ed column arguing that homosexuals could choose their sexual orientation and thus were not entitled to the same protections as persons of color. This view ran contrary to the University’s diversity and equal opportunity policies. The Sixth Circuit upheld the employee’s termination. The court held that the employee’s speech was not protected by the First Amendment because she held a policymaking position and was speaking to a policy issue.” Read on>>

Employers – Be Prepared For ACA, GINA And Wellness Plan Compliance Audits! (XpertHR):

“Updated audit protocols from the Department of Labor’s Employee Benefits Security Administration (EBSA) include a review for compliance with the Affordable Care Act (ACA), the Genetic Information Nondiscrimination Act (GINA) and wellness plans. Based on the change in audit protocols, it seems that the EBSA is increasing its review efforts, with a particular focus on compliance with the ACA.” Read on>>

Integrating Employees’ Smart Devices Into the Workplace (Mintz Levin):

“Companies are increasingly permitting employees to BYOD, or bring (and use) their own smart devices. Being able to use the latest, fastest, sleekest, coolest device promotes a level of employee satisfaction, and it cuts the company’s overhead for devices, data, and sometimes IT support as well. But it’s not entirely a win-win, because BYOD also creates practical and legal problems that every employer needs to be aware of and guard against. This article provides some practical tips on how employers can limit risk and mitigate potential losses from BYOD.” Read on>>

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