Legal Briefs for HR

Welcome to Legal Briefs for HR, an update on employment issues sent to over 3800 HR professionals, in-house counsel and business owners.  Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in!  Back issues are posted on my firm’s website at www.munckcarter.com under E-Newsletter.  Welcome to new subscribers who attended my half-day seminar on news laws and changes to the ADA/FMLA, hosted by Lubbock SHRM!

1. Slam on the Brakes– USCIS announced earlier this week that employers should continue using the current Form I-9 and wait until at least April 3 before starting use of the new form, which was to have begun on Feb 2.  Copies of both are posted at www.uscis.gov/i-9.  What happened?  The new administration exercised its right to put all pending regulations on ice, delaying effective dates until after they get a review and blessing by the new guys and gals in town. 
2. Lily Arrives in May– With a stroke of his presidential pen, Barack Obama signed the Lily Ledbetter Fair Pay Act into law on January 29.  Even though it takes effect on May 28, cases filed after May 28, 2007 will be subject to the changed law.  As you’ve surely heard by now, Ms. Ledbetter’s claim for equal pay went all the way to the U.S. Supreme Court, where she was told that her failure to file a charge of gender discrimination against her employer within the applicable statute of limitations (180 days in AL; 300 days for most other states) was fatal to the claim.  The high court explained that each new paycheck was not a new act of discrimination, but only an effect of past discrimination.  In her dissent, Justice Ginsburg chided the Court for its “parsimonious” reading of Title VII and challenged Congress to fix it.  It took two years, but they did just that. 
3. Next Up?  - Many thought passage of the Employee Free Choice Act (EFCA) would be the new administration’s first bill-signing photo op, but that honor went to the Lily Ledbetter Fair Pay Act.  With “Lily” in the rear view mirror, all eyes turn to the EFCA which is co-sponsored by the designated Secretary of Labor, Hilda Solis (D.-Calif.) and strongly supported by Pres. Obama and VP Biden.  The three main effects would be [1] no need to have a NLRB-monitored secret ballot election if over 50% of the employees in a proposed collective bargaining unit have signed authorization cards; [2] terms of the first collective bargaining agreement would be imposed by a federal arbitrator, if there is no agreement between the employer and the union within 120 days (90 days of negotiation followed by optional 30 days of mediation); and [3] stiffer penalties, including triple back pay and injunctive relief, for employer violations during union organizing.  SHRM is rallying its members to speak out against passage of EFCA and a group called Save Our Secret Ballot (www.sosballot.org) is trying to get State constitutions amended to guarantee the right to secret ballot elections.  Part of the impetus for EFCA is Labor’s argument that unions have been unfairly hamstrung during organizing by employers’ edge in spreading an anti-union message via captive audience meetings on company time, bulletin board postings and internal emails.  That argument lacks force, however, when you see that Bureau of Labor Statistics numbers show that unions have added to their ranks for the last two years, and currently comprise 12.4% of the U.S. workforce.
   1. Now Boarding –President Obama has elevated Wilma Liebman (D) as chair of the NLRB and the current chair, Peter Schaumber (R), will step down but remain as board member.  There are 3 openings on the 5-member board, giving the President an opportunity to create a Democratic majority.
4. Heads Up, Federal Contractors– Your world is changing in several ways:
   1. The mandate to begin using E-Verify (if you have a $100,000 contract or a $3000 subcontract with the federal government that will last for 120+ days) was set to take effect on Jan. 15, but was pushed off until Feb. 20 and is now further delayed until at least May 21.  SHRM and like-minded employer organizations have a lawsuit pending, challenging  the legality of the Bush-era rule since E-Verify was created as a purely voluntary system employers could choose to use (or not).  The delay gives time for the lawsuit to proceed and (perhaps) negate the reg.  Stay tuned.
   2. Employer costs incurred via activities undertaken to persuade employees to exercise or not to exercise the right to organize and bargain collectively through a rep of the employees’ choosing will be disallowed for payment by the federal government.  The executive order OKs “costs of labor-management committees, employee publications (other than those undertaken to persuade employees to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively) and other related activities.”
   3. With some exceptions, when a service contract expires and a follow-on contract is awarded for the same service, at the same location, the successor contractor must offer the current employees (other than managers and supervisors) a right of first refusal, to keep their jobs.
   4. The E.O. mandating posting of “Beck notices” has been revoked.  Take your poster down.  A new poster is being designed which will describe employees’ rights under the federal labor laws.
   5. If you’d like to read full text of the Executive Orders explained at 2 through 4, above, go to www.whitehouse.gov, click on The Briefing Room (in the blue tool bar) and then on Presidential Actions.  These three E.O.’s were signed on January 30.
5. How About Some Good News?– Once again, Texas is being recognized by Fortune magazine as the home of a whole herd of really good employers.  Only CA had more, with 15 winners. The “100 Best Companies to Work For” list is out and we tip our ten gallon hats to our peers:
   1. #8 is Methodist Hospital System in Houston
   2. #18 is Shared Technologies in Coppell
   3. #22 is Whole Foods Market in Austin
   4. #32 is Container Store in Coppell
   5. #37 is TDIndustries in Dallas
   6. #40 is EOG Resources in Houston
   7. #41 is Camden Property Trust in Houston
   8. #43 is Rackspace Hosting in San Antonio
   9. #44 is NuStar Energy in San Antonio
   10. #65 is Texas Instruments in Dallas
   11. #69 is National Instruments in Austin
   12. #71 is Men’s Wearhouse in Houston
   13. #74 is Alcon Laboratories in Fort Worth
   14. #93 is Valero Energy in San Antonio
6. Retaliation Scope Widened by the Supremes– An employee who did not report being harassed but who revealed her supervisor’s inappropriate conduct during an internal investigation  (and was fired a few months later) can proceed with her Title VII retaliation claim, per the U.S. Supreme Court.  In order to make a claim, retaliation must still be based on either the complainant’s “participation” (in an EEOC proceeding) or “opposition” (to conduct unlawful under the statute) but the scope of the latter has been expanded by this case.  The Court examined the word “oppose” and decided that a person can oppose by responding to someone else’s question, as surely as by provoking the discussion in the first place by making a complaint.  Employers can take some comfort in the concurrence filed by Justice Alito and joined by Justice Thomas, which cautions that this decision does not go beyond individuals who testify during internal investigations and similar “purposive behavior.”  The shield will not extend to those who engage in “silent opposition” or to water-cooler conversations that are indirectly relayed back to the employer.  Crawford v. Metropolitan Gov’t of Nashville & Davidson County (U.S. 1-09).  The upshot?  Don’t go willy-nilly into internal investigations and question any and all persons who may (or may not) have a piece of the puzzle.  And make sure your internal investigators and your management team are up to speed on basic employment law fundamentals, like the ever-widening standard for retaliation claims. 
7. Keepin’ ID Private – Effective January 19, federal construction contractors and subcontractors are no longer required to include employees’ home address and SSN on payroll statements sent to federal agencies in order to comply with the Davis-Bacon and Copeland Anti-Kickback Acts.  The reports must still include an employee identifying number which, in virtually all cases, will be the last four digits of the employee’s SSN.  This is the latest salvo in the war on ID theft.  Take the hint and lessen the likelihood that personal info in your files is compromised by curtailing the amount that you collect in the first place. 
8. TARP Talk– Included in the October 2008 multi-billion dollar financial sector bail-out was language OK’g  reimbursement of up to $20 per month by employers to employees who ride bikes to work, as a qualified transportation fringe benefit.  That’s the pedal power kind, not Harleys.  You can read more about it in IRS Publication 15-B, Employer’s Tax Guide to Fringe Benefits, at www.irs.gov/pub/irs-pdf/p15b.pdf.
9. Let Your People Go . . . to Jury Duty!– The Judicial Administration and Technical Amendments Act of 2008 amends the Jury Selection and Service Act by beefing up penalties assessed on individuals who ignore federal juror summons and on employers who retaliate against employees who are absent due to jury duty.  The individual fine has jumped from $100 to $1000 and the employer fine went from $1000 to $5000.  Plus, the court may tack on community service as an additional penalty against individuals and employers alike.  There are hefty penalties against employers who interfere with State court summons, too, so let your people go (and make sure that your supervisors and managers know about this).
10. What’s Up in Austin?– In addition to those listed in the last two editions of LB4HR, here are bills recently filed in the Texas Legislature which may be worth your attention.  As always, you can go to www.capitol.state.tx.us to see full text of these bills and check their status.
    1. HB 5 – Prohibits smoking in public places and places of employment
    2. HB 164 – Allow medically prescribed use of marijuana
    3. HB 282 – Election days would become State holidays
    4. HB 356 – Doubled traffic fines if driver using wireless communication device at time of the offense
    5. HB 538 – Prohibit employment discrimination based upon sexual orientation, or gender identity or expression
    6. HB 615 – Would provide up to 10 hours on unpaid leave in each 12-month period for parent(s) of children in special education to meet with the child’s teacher, school counselor or principal, at the request of those individuals
    7. SB 222 – Limits on employers’ use of arbitration agreements to resolve disputes
11. FMLA Flummoxed?– Do changes to the ADA and FMLA have you questioning your career choice?  Then join me on Thursday, Feb. 19 at the Crowne Plaza (14315 Midway Road) for lunch and a talk.  Attorney Jim Cuaderes of Littler Mendelson will kick off with the ADA at noon and yours truly will end the one-hour program with the FMLA.  And if you can stick around, I will lead an additional workshop on the new FMLA regulations from 1:15 to 2:15, where we will drill down into the details and answer your questions.  The program, including lunch is $30, with no extra charge for the FMLA workshop.  If interested, contact Monna Miller at mmiller@txbiz.org and reserve your spot today!

Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX  75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckcarter.com
www.munckcarter.com

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