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 monthly updates on new laws, court cases, helpful websites and more. Anyone is welcome to join . . . just email me to be added to (or removed from) the group. Past editions are posted at http://www.munckcarter.com/ under E-Newsletter.
A warm welcome to new subscribers who attended talks I gave to the Texas Association of Business (TAB) Fort Worth chapter, Dallas CEBS, on Court TV radio and the Wichita Falls HRMA. I'm looking forward to upcoming speeches for East Texas HRA (Oct. 3) and at HR Southwest in Fort Worth (Oct. 24).
2. Make Me! - The federal government is inching toward mandatory use of E-Verify (fka Basic Pilot) by employers with every hire and IL says "Make me!" A state law, due to take effect on Jan. 1, 2008, prohibits employers from using E-Verify unless the system can verify eligibility to work within three days, 99% of the time. DHS has countered by seeking an injunction to stop implementation and enforcement of the law, saying the IL law is pre-empted by federal law and the program will not work if IL does not participate. Further, DHS says they are adding a photo utility, so that employers can compare a photo on the E-Verify database with the one offered by a new hire, to nip identify fraud in the bud. Stay tuned!
3. Not-So-Independent Contractors - Add NY to the list of states that sense they are losing money over employees misclassified as contractors, and are doing something about it. Their former AG turned Governor, Eliot Spitzer, created a task force on Sept. 7 to coordinate investigation/enforcement among the state's offices of the Attorney General, Labor, Workers' Comp and Taxation/Finance and to work with local district attorneys to identify and prosecute significant cases of misclassification. In August, the State of IL enacted a new law to automatically deem construction workers as employees unless certain exceptions are met, joining MA, NM and OR which had done the same. In 2006, NJ tightened their definition of an employee and amped up enforcement efforts against employers (see LB4HR #4 - 2006 for details). A cleaning company with janitors in IL and TX just settled FLSA, RICO and ERISA claims for $1.2 million based, in part, on claims that they were misclassified as independent contractors, to avoid overtime. Vega v. Contract Cleaning Maintenance, Inc. (N.D. Ill. 9-17-07).
4. More Social Correctness - Last month, LB4HR listed states with current (i.e., CA, MI, PA, NE) or pending (NY) laws which limit employers' use of their employees' SSN as an identifier. These laws contain exceptions where federal law requires use of an SSN, such as on employees' paychecks, but CA says that employers may use only the last four digits of the SSN on employee paychecks, starting on January 1, 2008. See CAL LABOR CODE sec. 226(a)(private sector) and (h)(public sector).
5. Policy Matters (It Does!) - Every self-respecting HR practitioner knows that a well-written and uniformly enforced policy can go a long way in defending against discrimination and other types of claims. But did you realize that one, in particular, can be helpful in nixing the formation of a wage and hour class? A CA judge recently denied plaintiffs' motion for conditional certification of a collective action in FLSA litigation, for failing to establish a common policy or practice of wrongdoing (as evidenced by the wide variety in individual complaints among prospective class members). In contrast, the judge noted, the company was able to show it had corporate policies relating to payment of overtime and prohibiting employees from working off the clock. Smith v. T-Mobile USA Inc. (D.C. Cal. 8-15-07). If your policies lack a "no working off the clock" policy (including an instruction to report any such demand or request by a supervisor/manager to HR, pronto), it may be left to a jury to decide who's lying when an employee claims that's what he or she was told to do. But when you have such a policy, properly acknowledged in writing by the employee, it makes it much harder for the employee to explain his or her actions.
6. Policy Matters (Again) - In another case that turned on the pages of an employee handbook, plaintiffs prevailed on their motion for summary judgment, by showing that the company had a practice (as immortalized in the handbook) of docking exempt workers' pay for partial day absences and disciplinary reasons (that presumably did not satisfy the narrow exceptions explained in the FLSA "white collar" regulations). Further, the court said it wasn't necessary to show the plaintiffs actually experienced such improper deductions, only that there was a policy in place that likely resulted in improper deductions. Ergo v. International Merchants Services, Inc. (N.D. Ill. 9-13-07). As is often the case, your handbook can be your best buddy or your worst enemy . . . make sure yours is up to snuff and subject it to periodic review and update by someone who knows the ropes.
7. Slap at the Supremes - A number of bills have been filed in Congress lately to undercut U.S. Supreme Court decisions. There was the Ledbetter Fair Pay Act (HR 2831), designed to start a new Title VII/ADEA/ADA/Rehab Act statute of limitations period each time compensation is paid, contra to the Court's decision less than a month earlier. More recently, the ADA Restoration Act of 2007 (HR 3195/S 1881) proposes to roll back the effects of four U.S. Supreme Court decisions made between 1999 and 2002 that tended to narrow the definition of "disability." Now comes the Fair Home Health Care Act of 2007 (S 2061) which would extend the FLSA's minimum wage and overtime requirements to home health care workers, contra to the Court in Long Island Care at Home v. Coke (2007). If you are interested in reading full text of these bills, checking the status and seeing who's a sponsor, go to http://www.thomas.loc.gov/ and fill in the bill number.
8. Got Milk? - Add NY to the list of states mandating job-protected time off during the workday for new mothers to express breast milk. The law was signed August 22, 2007 and took effect immediately. It gives mothers the right to use unpaid break time or paid break/meal time each day, for up to three years following child birth. Further, employers are to make reasonable efforts to provide a room or other location, near the work area, to engage in this activity in privacy. You can read the press release at www.state.ny.us/governor/press/0822072.html and full text of the law is at http://assembly.state.ny.us/leg/?bn=A01060&sh=t. You can check out all states' laws on this issue at http://www.lalecheleague.org/ (but note that some info has not been updated since March 2007).
9. To Affinity and Beyond? - While addressing employers at the Industry Liaison Group national conference, the new Chair of the EEOC mused that racial or ethnic affinity groups, as part of company diversity programs, may have "outlived their usefulness" and even become counterproductive. She gave the example of visiting a banking firm, at the invitation of the black employees' group, and observing that racial groups were self-segregating themselves when dining in the company cafeteria. It's not news to you, but some well-meaning managers may need help in seeing that diversity is becoming "more complicated to understand" and more difficult to achieve.
10. Attention SHRM Shoppers - Have you heard about "dot jobs?" In order to make it easier for prospective employees to find your on-line job postings, companies can now purchase a URL with the company named followed by .jobs (Examples: http://www.att.jobs/ or http://www.hertz.jobs/) and SHRM members can take advantage of a special negotiated rate of $114.95 per year. For more info, check out http://www.shrmspecial.jobs/.
11. R U Texting? - The City of Phoenix has banned reading or sending text messages while driving, after an 18-year-old drifted across the center line while texting and crashed into an oncoming car. Both drivers were killed. The City Council is urging expansion of the ban to include all handheld cellphones and a similar statewide ban is being pushed. If your employees drive in the course of performing their duties and you know they are using phones and/or PDAs while behind the wheel you will want to [a] be aware of and take steps to comply with applicable law; and [b] consider whether your policy should be more restrictive than what's required. A website that will help you out with [a] can be found at www.cellular-news.com/car_bans/.
12. Need Ammo? - If you've been lacking the time and/or the budget to review your nonexempt/exempt classifications, time-keeping procedures and overtime pay calculation methods, you might want to read the cover story of the Oct. 1 issue of Business Week magazine, entitled "Does Your Boss Owe You Overtime? Wage Wars." If your pleas for the resources to address this issue have been rebuffed, print a copy of the article for the rebuffer and see if he or she has a change of heart. Disregard the incorrect overtime calculation definition on p. 54 ("90 minutes' pay for every hour worked beyond 40 in a week") . . . I've already had a chat with the reporter, to explain the difference between a week and a workweek and the difference between 1.5 times the straight time vs. the "regular rate."
Audrey E. Mross
Labor & Employment Attorney
Munck Carter, P.C.
900 Three Galleria Tower
13155 Noel Road
Dallas, TX 75240
972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (cell)
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