Welcome to Legal Briefs for HR! You know the drill . . . this update on issues that matter to employers is sent to over 3600 HR professionals, in-house counsel, business owners and others who like to be educated (and entertained) when catching up on employment issues. Anyone is welcome to join . . . just email me to be added (or removed) from the list. Missed one? Past issues are posted on my firm's website at http://www.munckcarter.com/ under E-Newsletter.

So let's spring into what's new:

1. Cost of Misunderstanding - A Minnesota food processor and its staffing agency took a $1.3 million hit arising from claims that Hispanic individuals were denied employment for not meeting English proficiency standards that were not necessary for the job. In addition to the monetary settlement, the consent decree requires the employer to set up a diversity committee, review all jobs to determine whether or not English proficiency is a legitimate job requirement for each, and repay employees for the cost of English classes. The staffing agency must review its tests and no longer disclose test results to clients that are apt to use them to deny employment based on race or national origin. EEOC v. Faribault Foods Inc. and EEOC v. The Work Connection (D. Minn. 3-08).

2. Peekaboo - The federal Electronic Communications Privacy Act (ECPA) places limits on what info an employer can access without violating an employee's privacy, even when the system is Company property and the employer has a legitimate business reason (e.g., protect trade secrets) to snoop. One employer learned that it did not violate the ECPA when it examined the hard-drive of a former employee's Company-issued laptop, because it only accessed saved e-mails and not new ones that were awaiting delivery. Hilderman v. Enea Teksci Inc. (S.D. Cal. 3-08). This case is a good reminder that, even though your brilliant IT folks can access your employees' unopened emails, that does not mean they should do so. IT staff are often unaware of the limitations of the ECPA, so be sure that HR and Legal staff are involved before it's time to go snooping.

3. Association Matters - Most HR practitioners know that a plaintiff can state a claim under the Americans with Disabilities Act, where employment discrimination is suffered due to the person's own disability, as well as his or her "association" with a disabled individual. What is less well known is that three (now, four) federal Circuit Courts of Appeal recognize "association discrimination" as a viable claim under Title VII, too. The latest case involves an Iona College basketball coach who claimed he was discharged, in part, due to his marriage to a woman of a different race. Although the Second Circuit had never ruled on the issue, it now held that "an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race" and noted that the Fifth, Sixth and Eleventh Circuits already hold that same view. Holcomb v. Iona College (2^nd Cir. 4-08). The Court rejected a narrow reading of Title VII and explained that where an employee suffers an adverse action because his or her employer disapproves of interracial association, the employee has suffered discrimination because of the employee's own race. Not sure which Circuit your operations/employees are in? Go to www.uscourts.gov/images/CircuitMap.pdf for a color-coded map.

4. "Me Too" says Massachusetts - Last month, LB4HR noted a number of states that were cracking down on employer misclassification of employees as independent contractors. The latest to jump on the bandwagon is MA, where the governor has established a multi-agency task force to propose legal changes to improve enforcement.

5. E-Verify/No Match Update - Here's the latest in the States vs. Feds tug-o-war over dealing with immigration:

a. The Dep't of Homeland Security issued a new rule relating to SSA "no match" letters, to try to address the concerns of the court which issued an injunction, preventing implementation and enforcement of the earlier rule, which issued in August 2007; the new proposal is posted at www.dhs.gov/xlibrary/assets/press_nomatch-snprm.pdf.

b. H.R. 4088, if passed, would require employers to use E-Verify with all hires within four years

c. Two Congressmen are asking their colleagues to nix H.R. 4088 because the SSA "simply cannot handle the massive new workload"

d. The governor of Rhode Island issued an executive order that requires executive branch employers and contractors with the state to use E-Verify with all hires

e. The governor of Utah signed a new law that requires public employers and contractors to use E-Verify or another status verification system on all hires, eff. 7-1-09

f. The governor of Mississippi signed a new law that requires employers to use E-Verify using a staggered approach. Public employers and contractors and private employers with 250+ employees must begin verification by 7-1-08. Employers with 100 or more have until 7-1-09; those with 30 or more can wait until 7-1-10; and all employers must be verifying, eff. 7-1-11. In light of E-Verify's database errors, the Guv urged the legislature to come up with "other reliable verification systems."

5. Don't Be Faked Out - The Texas AG brought the hammer down on a Houston-based company that sold "international driver's licenses" for $225@ and claimed the documents are "authorized under the 1^st amendment of the U.S. Constitution" and would enable purchasers to legally buy, insure and drive motor vehicles. True international driver's licenses are sold in the U.S. for $15@ by only two authorized entities (American Automobile Association and American Automobile Touring Alliance) and are only good when used by U.S. citizens who want to drive in foreign countries that, like the U.S., are parties to the 1949 International Convention on Road Traffic (ICRT) treaty. ICRT licenses issued to U.S. citizens are not valid in this country, and non-citizens must acquire ICRT licenses in their home countries. For more info, go to http://www.oag.state.tx.us/.

6. Trash Talk - As mentioned in earlier editions of LB4HR, the AG went after Texas businesses who disclosed their employees' and/or customers' personal information (e.g., name, address, SSN, phone #, credit card info, medications, prescribing physician) by tossing documents containing such info into trash bins that were accessible to passersby who cared to dumpster-dive. In reaching a settlement, one of the defendants will pay a $315,000.00 fine AND must overhaul its information security programs AND implement a new employee training program that includes a review of the new security program, applicable state law and an explanation of the cost of identify theft to businesses and individuals AND designate a compliance officer AND set up a system to take employee's anonymous complaints AND post workplace signs explaining proper record storage and disposal procedures AND conduct random checks of at least 3% of its stores every 6 months AND submit sworn compliance statements to the AG for 5 years. As is often the case, the dollar amount of the settlement is a pittance compared to the cost of required compliance measures. Lesson learned? Check out your trash and make sure it does not contain legible personal info. Burn it. Shred it. Get it?

7. They Punted - The EEOC announced on March 25 that it will no longer try to modify the Uniform Guidelines on Employee Selection Procedures (UGESP) definition of an "electronic applicant." The first shoe dropped, back in October 2005, when the OFCCP published its definition of an Internet applicant (which applies only to certain federal contractors). Employers waited and wondered if the EEOC would adopt the same definition, or come up with a different version . . . which would cause compliance woes for employers subject to investigation and enforcement actions by both agencies. After a long series of 3-month extensions, awaiting the EEOC's definition, employers now learn there won't be one. If you're interested, the EEOC is welcoming your comments, by 5-27-08, via the eRulemaking Portal at http://www.regulations.gov/.

8. They Paid - An employer paid a military reservist almost $34,000 in double damages under USERRA plus another $50,000 in punitive damages under State law, for refusing to pay money that was owed under company policy (but not USERRA). Why? The federal military leave law, USERRA, requires reinstatement (with certain exceptions) to prior employment when an employee returns to work after U.S. military service. It does not require any pay continuation or supplementation during the absence, but does not prevent employers from offering extra pay. In this case, an employee enlisted in the Army Reserves and was absent from work for six months, due to active duty training. Upon returning to work, he was charged with attendance "points" for the absence. In a meeting of the parties, the "points" were removed and the HR manager conceded that he should've received "pay coordination" (i.e., the difference between his civilian and military pay) under company policy. More than $16,000 was direct deposited to his account, but four days later it was withdrawn by the employer, allegedly based on counsel's advice that there was no duty to offer "pay coordination." True, but the Company's written policy and the HR manager's verbal promise said otherwise. Fast forward to trial, where the Court found [1] the employer violated USERRA; [2] the employee was owed twice the amount of "pay coordination" due to an award of liquidated damages; and [3] there was also a state law breach of contract, plus unlawful conversion (when the money was withdrawn) which supported $50,000 in punitive damages. The damage awards were upheld on appeal, on a finding that the employer "knew of or showed reckless disregard for its obligation to pay the differential." Strongest evidence the employer knew it was on the hook for the money? The fact that the employer agreed to pay and actually deposited the funds. Koehler v. PepsiAmericas Inc. (6^th Cir. 3-08).

9. They Present - Yours truly will present four webinars on behalf of the Bureau of National Affairs (BNA). Mark your calendar for April 24 (Achieving Diversity Without Buying a Lawsuit), May 1 (Don't Mess with Texas [Employers]: A Legal and Legislative Update), June 19 (Website Wonderland: HR Resources on the Internet) and July 24 (Babes in Tech-Toy Land). All webinars are from 1 to 2:30 CT and there is a fee (payable to BNA, not me, in case you were curious). For more info and/or to register, go to http://www.bna.com/ and click on "All BNA Events" and then the date of the desired webinar(s).

10. They Rock! - Big thanks to those who made a donation to help send kids with muscular dystrophy to Camp John Marc this summer! I'm still short of my $1000 pledge, so if you'd like to help out please go to www.geocities.com/legalleaders/index.htm, click on the Hot Hundred button, and then on my name. This will take you to a secure page where you can make a donation by credit card or provide instructions to send a check, if you prefer that method. Any amount would be greatly appreciated by me and the kids!

Until next time,

Audrey E. Mross

Labor & Employment Attorney

Munck Carter P.C.

600 Banner Place

12770 Coit Road

Dallas, TX 75251

972.628.3661 (direct)