Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 HR professionals, in-house counsel and business owners all over the U.S. to help them stay in the know about employment issues. 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 at www.munckcarter.com under Media Center/Legal Briefs.
Here’s some news for you to gobble up:
1. Help a Vet – U.S. Dep’t of Labor announced a partnership with Microsoft to provide U.S. military veterans with free training over the next two years in Seattle WA, San Diego CA, Houston TX, northern VA and Jacksonville FL. The program will supply 1000 vouchers per year, valued at $1000@, to each of the five areas, to help veterans obtain industry-recognized technical expertise which will (hopefully) help them find jobs. The geographic areas were picked based on large concentrations of military personnel. Salute!
2. Charge! – OSHA is sending its annual pre-Thanksgiving “Black Friday” reminder to retailers that they should take reasonable steps to control cash and credit-card wielding shoppers, to ensure the safety of anyone in their path. The unfortunate genesis of this annual exercise was the 2008 death of a retail worker due to trampling when the doors opened on a Black Friday sales event. OSHA’s advice is bundled into a fact sheet which you can find at http://www.osha.gov/OshDoc/data_General_Facts/Crowd_Control.html.
3. Arrested Development – Legal counsel for the EEOC issued an informal opinion to the Peace Corp, commenting on their employment application. The letter is not a binding opinion but it does provide a good refresher (with citations) on their views of using arrest and conviction information when making employment decisions. Check it out at www.eeoc.gov/eeoc/foia/letters/2011/title_vii_criminal_record_peace_corps_application.html.
4. Hot Dog! Split Decision Favors NLRB General Counsel – Social media policies and adverse employment actions arising from perceived violation of these policies have had the NLRB on a roll lately. As discussed in earlier editions of LB4HR, if employees are “dissing” their terms and conditions of employment, face to face or via Facebook, there’s a decent chance that activity will be seen as protected concerted activity. One such case was heard by a NLRB administrative law judge, with mixed results. The back story was a fired sales rep at a BMW dealership. He had posted pics and snarky comments on his Facebook page, which was frequented by his co-workers, skewering his employer over low brow chow (e.g., hot dogs, cookies, chips) served at a promotional event for a redesigned BMW 5 Series and an incident involving a Land Rover that ended up in a pond when a sales rep allowed the prospective buyer’s young son to sit behind the steering wheel. Oops. The ALJ opined that the food critique was protected under Section 7 (in part because the sales reps bemoaned that the stale hot dogs might negatively affect their commissions), but the employer did not violate the NLRA for firing the sales rep over the pond incident, and that appeared to be the primary reason for the discharge. The latter did not involve discussion with his co-workers and had no connection to his terms and conditions of employment. Karl Knauz Motors, Inc. (NLRB ALJ, No. 13-CA-46452 (9-11).
5. Whistleblower Windfall – A former Oracle employee blew the whistle on his former employer and will reap $40 million for his trouble. After the Department of Justice joined the claim, the False Claims Act case was settled for $199.5 million plus interest. This is the largest settlement obtained by the GSA under False Claims Act, which provides a “bounty” to whistleblowers of between 15 and 25 percent of recovered funds. United States v. Oracle Corp. (E.D. Va. 10-11)
6. Rethinking “English Only” Rules – The U.S. Commission on Civil Rights has issued a 129-page (not so) brief, opining that EEOC has overstepped its bounds in declaring its presumption that English Only rules that apply at all times in the workplace violate Title VII. The CCR took note of testimony supporting legitimate business reasons for such rules (e.g., safety, effective supervision, harmonious environment for employees and customers) and recommends that the offending guidance (Section 1606.7) be withdrawn and instead state that such rules “are prohibited only when it can be shown by a preponderance of the evidence that the policy was adopted for the purpose of harassing, embarrassing, or excluding employees or applicants for employment on account of their national origin.” For full text go to www.usccr.gov/pubs/English_Only_Policies_Report-July%202011.pdf.
7. UPDATE on More Misclassification Misery – California Governor Brown HAS SIGNED Senate Bill 459, triggering a costly penalty to any person who willfully misclassifies a worker as an independent contractor. The underlined language is troubling since it appears that not just the employer but individuals, such as managers or HR staff with responsibility for classifications, could be found personally liable for the civil penalty of between $5000 and $15,000 per misclassification (sweetened to the $10,000 to $25,000 range, per violation, if a pattern or practice of violations is found). Also troubling is the broad definition of a “willful misclassification” as “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”
8. Stated Differently – Here are some hot topics for you multi-state employers:
1. Arizona – With their state minimum wage tied to cost of living increases, the rate will jump to $7.65/hour eff. 1-1-12. The federal rate remains at $7.25/hour.
2. California – Most employers are barred from using pre-employment credit checks as part of their hiring process. Gov. Jerry Brown signed the bill, AB 22, on 10-9-11. CA is the 7th state to limit employers’ ability to use credit checks to make employment decisions. For full text, go to www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0001-0050/ab_22_bill_20110901_amended_sen_v96.pdf.
3. Colorado (Denver) – Unlike Philly (see below), Denver voters rejected mandatory sick leave for employees in a Nov. 1 election.
4. Montana – With their state minimum wage tied to cost of living increases, the rate will jump to $7.65/hour eff. 1-1-12. Sound familiar?
5. Pennsylvania (Philly) – Certain businesses who contract with the City of Philadelphia will be required to give their full-time employees paid sick leave eff. 7-1-12. The bill amended an existing ordinance which requires covered employers to pay their workers at least 150% of the federal minimum wage and to provide health benefits, in some cases. Affected businesses include those who provide services to the City, receive leases and concessions or who receive grants, tax incentives or other financial incentives. Sick leave accrues at 1 hour for every 40 hours worked and is capped at 4 days for employers of 6 to 10 workers and 7 days for larger employers.
6. Tennessee – The TN Attorney General has confirmed that the jury duty statute means exactly what it says. In addition to treating jury duty as an excused absence, “the employee shall be entitled to the employee’s usual compensation received” and “no employer shall be required to compensate an employee for more time than was actually spent serving and traveling to and from jury duty.” (emphasis added). Even if the employee is not normally paid for the time spent commuting to and from work, he or she must be paid for the commute to and from jury duty. Unless the small employer (less than 5 people) or temporary employee exclusion applies.
9. Thanksgiving – This is the time of year that reminds me to be thankful and to do some thanking! As HR pros, counsel, business owners and managers, you make your workplaces functional, safe, productive, fun and a source of personal pride (not to mention income) for many people. You’ve been tasked with the complex job of shepherding the most important resource any organization has . . . its people. And you do it so well. In case you’ve not been told lately, THANK YOU for all that you do!
10. For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State since it’s football season . . . welcome to the Big 12, TCU and West Virginia! J), follow me on Twitter. I’m at @amross.
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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