Happy New Year!  And welcome back to Legal Briefs for HR!  This update on issues that matter to employers is provided to HR professionals, in-house counsel, business owners and anyone else who can benefit from a monthly update on new laws, recent court cases, helpful websites and pending legislation.  All are welcome to join the group to receive this FREE newsletter which is sent to over 3200 subscribers all over the U.S. (and even a few overseas)!  Just email me to be added to the group and you can find previous issues for 2006 posted on the Munck Carter, P.C. law firm website at www.munckcarter.com under E-Newsletter.

Let’s get this year started:

Double Dose of Legislation – With the new Democrat-led U.S. Congress vowing to make changes and the Texas Legislature also back in session, there will be many bills worth keeping an eye on. 

a.  Federal – The House passed a bill to increase the minimum wage from $5.15/hour to $7.25/hour over two years, by a vote of 315-116.  The action moves to the Senate, to see if a bill with no strings is passed, or if tax breaks for small business will be the quid pro quo for bipartisan support.

b.  State -   Your state legislators have much to mull over between Jan. 9 and May 28, including but not limited to an increase in the state minimum wage, limits on cell phone use while driving, discrimination based on sexual orientation and negating employers’ right to ban guns from their workplace parking lots.  A brief chart of bills that are of particular interest to employers has been posted at www.munckcarter.com under E-Newsletter.  If you would like to read full text of the bills and check their status and level of support, go to www.capitol.state.tx.us.  That site will also identify your legislators and provide their contact info, if you would like to communicate your views on these bills.

Boxing Match, Round 2 – Chicago Mayor Daley vetoed a “big box” ordinance in 9-06, but similar measures are poised to be launched elsewhere.  The Chicago ordinance required retailers within city limits with 90,000+ square feet and $1 billion+ in annual sales to pay employees at least $13/hour in wages and benefits by 2010.  Detractors of these measures say they will challenge the ordinances in court, using constitutional (e.g., equal protection, commerce) and statutory (e.g., ERISA) arguments.  Defenders of the ordinances point to local living wage ordinances that have been upheld in court.  Stay tuned!

Hup, Sue, Three, Four – The 1^st Circuit has joined others in finding that claims of discrimination under USERRA, the military leave and nondiscrimination law, should be judged by applying the two-prong NLRA standard instead of the three-prong Title VII standard.  Under the former, the employee need only show that prohibited discrimination was a “motivating” factor before the burden shifts to the employer.  Under the latter, the ultimate burden of proving discrimination rests on the employee.  It’s also worth noting that comments (“G.I. Joe” and “Girl Scout”) were not dismissed as mere “stray remarks” since they occurred in tandem with other alleged misconduct and the plaintiff’s failure to complain to his supervisors did not torpedo his case. Make sure that your supervisors and managers have been trained to [a] understand basic protected employment rights; and [b] recognize and respond to conduct that could support a claim.  Velasquez-Garcia v. Horizon Lines of P.R. Inc. (1^st Cir. 1-4-07).

EEO Q&A – Go to www.eeoc.gov for a new FAQ on the revised race and ethnic categories to be used on the EEO-1 Report which is due on Sept. 30, 2007.  A few nuggets – [a] you don’t have to resurvey existing employees on their race/ethnicity for the 2007 report; [b] you can if you want to; and [c] you must accept the employee’s self-designation of race/ethnicity even if you believe the answer is incorrect.  Also note that there is a new category called “two or more races” for those who self-identify as being of mixed race.  Double-check applicable state law, too, for additional guidance.  For example, in GA, any inquiry into race cannot have an option labeled “other” and must include an option labeled “multiracial.”  Also note that OFCCP has yet to decide if/when it will require recognition and use of the new categories for purposes of preparing your affirmative action plans.

More Fun With FMLA

a.  It’s Enough – An employee’s litany of physical complaints over a four-month period were sufficient to put the employer on notice of a possible serious health condition that merited FMLA protection.  While a report of “feeling sick” is usually not enough, when it is coupled with reported urination problems and time off for a biopsy, “his incapacity due to undiagnosed prostate cancer and the diagnostic procedures . . . entitled him to FMLA leave.”  Burnett v. LFW, Inc. (7^th Cir. 12-26-06)

b.  Back to the Future – When does a person who worked more than 1250 hours in the first seven months on the job qualify for FMLA leave?  When he’s a rehire, even if there is a five-year gap between stints with the same employer.  The statute is silent on how to measure the “12 months of employment” requirement but the regs make clear any prior employment counts.  Rucker v. Lee Holding Co. (1^st Cir. 12-18-06).

c.  On Call Conundrum – A pilot’s paid time spent on-call does not count toward the “1250 hours worked” requirement of FMLA leave.  Knapp v. American West Airlines (10^th Cir. 11-24-06)

Bad Timing Means Big Bucks – A woman who claimed she was groped and fired by her supervisor for refusing his sexual advances has netted $1.2 million.  It’s believed that the $1.1 million in punitive damages awarded by the jury stems from testimony that her supervisor was promoted to be the company’s Chief Operating Officer after she made her complaint. Aoki v. Tactical Affairs Corp. (HI Cir. Ct. 12-6-06).

Your Employees Aren’t So Bad – If you’ve been in HR for awhile, you’ve probably dealt with the person who claims he or she is exempt from federal income tax withholding, citing various constitutional, religious or other arguments.  One such employee was not satisfied with the explanation of her employer’s statutory duty to withhold and began sending invoices, demanding repayment of withholding taxes.  When the employee claimed fraud, the employer sued her for defamation.  The process server had the papers thrown in his face by the feisty employee, so the judge handed down a partial default judgment and some jail time for the woman (and her hubby, who had jumped into the fray, too).  Their demands eventually mounted to $5.9 million and they claimed a security interest of nearly $237 million in the lawyers representing the company, as well as the judge.  On appeal, the tax dodger asked for an appraisal on the lead attorney’s home and threatened to dissolve the law firm, to collect “unpaid debts.”  Motion denied!  American Axle & Mfg., Inc. v. Murdock (Mich. Ct. App. 12-19-06).

Immigration Update – A free half-day seminar, moderated by Cindy Kang and presented by Haynes and Boone on March 1, will discuss business immigration and the changes employers are facing.  To register, go to www.haynesbooone.com and click on Seminars.

Data Security Update – Yours truly will present a lunch-time talk on data security in the workplace at the Thursday, February 15 meeting of the Texas Association of Business.  Businesses must come to grips with expansive and occasionally inconsistent rules on collection, storage, use and disposal of the personal identifying information of their employees and customers.  Go to www.munckcarter.com and click on E-Newsletter for the registration form and send to jcalderon@txbiz.org to sign up for the meeting, which will be held at the Omni Hotel at Luna & I-635, starting at 11:30 a.m.

Until next time,

Audrey E. Mross

Labor & Employment Attorney

Munck Carter, P.C.

600 Banner Place Tower

12770 Coit Road

Dallas, TX 75251

972.628.3661 (direct)

972.628.3616 (fax)

214.868.3033 (cell)

amross@munckcarter.com

www.munckcarter.com