Welcome to Legal Briefs for HR! This update on issues that matter to employers is provided to HR professionals, in-house counsel, business owners and others who can benefit from receiving a monthly update on new laws, recent court cases, helpful websites and pending legislation. Anyone is welcome to join the group of over 3400 subscribers to this free newsletter. Just email me to be added to the group (or removed) and you can find previous editions posted on the Munck Carter, P.C. firm website at http://www.munckcarter.com/ under E-Newsletter.

A warm welcome to new subscribers I had the pleasure of speaking to during presentations to the Heart of Texas SHRM chapter (Waco), the Dallas HR Employment Law Conference at SMU and the Dallas Bar Association Computer Law section CLE.

Here's what's up:

1. It's Settled - FedEx is waiting for approval of a $55 million settlement of claims of race and national origin discrimination involving a class of approximately 20,000 current and former employees. If approved, the four-year consent decree includes [a] discontinued use of a "skills" test in certain entry-level jobs; [b] adverse impact analysis on any new test used for employee election purposes; [c] changes to selection and evaluation procedures to ensure greater consistency in disciplinary actions; [d] development of diversity training; and [e] annual written notice of the consent decree to all officers, managers and employees, in addition to the aforementioned monetary relief. Satchell v. Federal Express Corp. (N.D. Cal. 4-07). Each of these areas should be on HR's radar for periodic review and employee tests, in particular, must be carefully designed, implemented and monitored by employers (without misplaced reliance on the sales pitch that came with the system(s).

2. Heard on the Hill - The Fair Pay Act of 2007 (S. 1087), if passed, would amend the FLSA and prohibit wage discrimination based on gender, race or national origin. Current federal equal pay law focuses on gender only. Employer groups are working diligently, to strip out debarment provisions from pending appropriations and minimum wage bills. Both bills, as written, would debar employers who "knowingly" hire illegal workers from potentially lucrative government contracts for up to ten years.

3. Going, Going, Gone - Per Cindy Kang's warning in LB4HR #3, the H-1B cap for fiscal 2008 was reached quickly, on April 2, 2007. Petitions received on April 2 and 3 will be subject to a computer-generated random selection process. Petitions that were filed late or not selected will be returned, with filing fees. The next filing date will be April 1, 2008 for FY 2009 (for H-1B employment with a start date of October 1, 2008). For a press release with more details, go to www.uscis.gov/portal/site/uscis and click on "USCIS Reaches FY 2008 H-1B Cap" and subsequent announcements about the process.

4. E-Mail Oops - A federal circuit court agrees with the NLRB that an employer's selective enforcement of its e-mail use policy was an unfair labor practice under the NLRA. While the employer's policy said "no nonbusiness use of e-mail," employees used the system for personal, social and charitable purposes. The dispute began when employees who served as union officers were banned from using the system to discuss union business. Media General Operations Inc. v. NLRB (4^th Cir. 3-07). Before installing a "no personal use" e-mail policy, employers should consider whether that is a standard they can meet and apply consistently.

5. Talkin' Trash - The Texas Attorney General is very interested in what's in your dumpster. In less than one month, enforcement actions have been pursued against four Texas businesses that failed to properly dispose of documents containing employees' and customers' personal identifying information (e.g., names, SSNs, phone numbers, addresses, credit/debit card #s, medical information). Penalties are available under sec. 48.102 (up to $50,000 per violation) and sec. 35.48 (up to $500 for each record) of the Texas Business and Commerce Code. For more details, check out the press releases at http://www.oag.state.tx.us/, then check out your trash!

6. More Fun With FMLA - Are FMLA rights forfeited when an employee fails to follow either his union's CBA notice procedure or the FMLA notice procedure? Not necessarily. In this case, an employee with a seriously ill mother knew he needed to take extended leave to care for her. When he approached his boss, he was told he lacked sufficient leave time and the only option was to quit . . . which he did. Later, the employee read his handbook and realized he was likely eligible for job-protected leave under FMLA, but his request for reinstatement and leave was denied. The court decided that providing the employee with false information, whether intentionally or not, amounted to a preemptive denial of leave and interference with FMLA rights. Williams v. Illinois Department of Corrections (S.D. Ill. 3-07). While the employee did not ask for FMLA, he relayed enough information about his mom's condition to trigger the employer's further investigation of the facts. This case is a good example of why supervisors and managers must be educated on employment law basics, including FMLA.

7. Hot Tip - Voters in Missouri raised the state minimum wage from $5.15/hour to $6.50/hour effective January 1, 2007. Further, there is no exemption for tipped employees such as waiters and bartenders, who now must be paid a base rate of at least one-half that amount ($3.25/hour) plus tips. An original interpretation of the new law by the MO Dep't of Labor and Industrial Relations mistakenly stated that tipped employees' base rate would remain at one-half of $5.15/hour. Uh, never mind.

8. Watch Your Words - A federal circuit court agrees with the NLRB, in finding that merely publishing an overbroad confidentiality policy in an employee handbook violates sec. 8(a)(1) of the NLRA The offending policy statement said, in part, that "we recognize and protect the confidentiality of any information concerning the company, its business plans, its partners, new business efforts . . . ." In this company, "partners" means "employees." Under section 7 of the NLRA, employees have a protected right to discuss their terms and conditions of employment and sec. 8(a)(1) identifies interference with this right as an unfair labor practice. It did not matter that [a] the policy did not expressly prohibit protected activity (a reasonable interpretation is all that's required); [b] no employee actually construed the limitation in that way (it was sufficient that they could vs. did read it that way); and [c] the rule was never applied via disciplinary action (because the chilling effect was enough). Cintas Corp. v. NLRB (D.C. Cir. 3-07). Lesson? Your employee handbook should be reviewed and updated periodically, preferably by someone who stays on top of labor and employment developments in the law. Unlike what your mother told you, words can hurt you.

9. You've Been WARNed - The Worker Adjustment and Retraining Act (WARN) was violated where a plant was closed without the requisite advance written notice to employees and government officials, even though there was an assert purchase and job offers to most workers. Why? There was an eight-day gap between the last day worked and the close of the asset sale. The silver lining is that after job offers were accepted, less than the requisite 50 employees lost jobs, so the notice requirement was mooted. Phason v. Meridian Rail Corp. (7^th Cir. 3-07). When preparing your due diligence checklist and timelines prior to an acquisition, watch out for those WARN triggers. And check state and local law, for WARN "clones" with even shorter triggers than the federal law.

10. Hope To See YOU There - Yours truly will be presenting at these upcoming seminars:

1. April 26 - SHRM Texas State Council Legislative Impact Day in Austin; go to http://www.tsc-shrm.org/ for information; topic is pending legislation; for a summary of pending bills of interest to Texas employers, go to http://www.munckcarter.com/ and click on E-Newsletter

2. May 9 - 49^th County Auditors Institute at UT-Austin

3. May 15 - Texas Cooperative Extension - Leadership Extension Program in Austin

4. May 23 - Self Opportunity's "Meeting of the Minds" in Grapevine

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

http://www.munckcarter.com/

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