Friday, June 27, 2008

Week In Review (June 27, 2008)

Most Popular Federal Law Article

Supreme Court Rules That Plaintiffs May Use Section 1981 to Sue for Retaliation.
On May 27, 2008, the U.S. Supreme Court held in CBOCS West, Inc. v. Humphries, (No. 06-1431), that employees may bring claims based on or arising from retaliation under 42 U.S.C. § 1981. Section 1981, one of a number of federal laws addressing discrimination, provides that “[a]ll persons . . . have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Although the text of the statute does not specifically mention retaliation, the Court held that Section 1981 nevertheless encompasses retaliation claims.
Located On: Hogan & Hartson LLP

Most Popular State Law Article

D.C. Passes the Accrued Sick and Safe Leave Act of 2008.
Washington, D.C. has become the second city, after San Francisco, to pass a law that requires employers to provide paid sick leave to all employees. After significant amendment including input from the employer community, the Accrued Sick and Safe Leave Act of 2008 was passed by the D.C. Council in March. Following approval by Mayor Adrian Fenty and a 30-day review process by Congress, the Act was approved on May 13, 2008. Effective November 13, 2008, mandatory sick leave provisions will apply to even the smallest employers.
Located On: Littler Mendelson, P.C.

Most Popular Headlines

8 Big Mistakes You Could Be Making At Work

Wednesday, June 25, 2008

IRS Increases Mileage Rates Due To Gas Prices

On June 23rd the Internal Revenue Service announced an increase in the standard mileage rates for the final six months of 2008.

The rate will increase to 58.5 cents a mile for all business miles driven from July 1, 2008, through Dec. 31, 2008. This is an increase of eight (8) cents from the 50.5 cent rate in effect for the first six months of 2008.

The IRS announced the unusual mid-year increase in recognition of recent gasoline price increases. The IRS normally updates the mileage rates once a year in the fall for the next calendar year.

“Rising gas prices are having a major impact on individual Americans. Given the increase in prices, the IRS is adjusting the standard mileage rates to better reflect the real cost of operating an automobile,” said IRS Commissioner Doug Shulman. “We want the reimbursement rate to be fair to taxpayers.”

While gasoline is a significant factor in the mileage figure, other items enter into the calculation of mileage rates, such as depreciation and insurance and other fixed and variable costs.

The optional business standard mileage rate is used to compute the deductible costs of operating an automobile for business use in lieu of tracking actual costs. This rate is also used as a benchmark by the federal government and many businesses to reimburse their employees for mileage.

To view the IRS announcement, click here: IRS News Release

Employers should consider increasing the reimbursement rates to match the new IRS rate. Generally, employers must reimburse employees for travel expenses incurred in the course of work. For example, in California, Labor Code section 2802, subdivision (a), requires an employer to indemnify its employees for expenses they necessarily incur in the discharge of their duties. Note that in California, paying the IRS rate does not guarantee that the employer has fully reimbursed the employee for actual travel expenses. The California Supreme Court recently addressed employee travel expense reimbursement in a case titled Gattuso v. Harte-Hanks Shopper, Inc.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC
San Diego Employment Law Attorneys

Friday, June 20, 2008

Week In Review (June 20, 2008)

Most Popular Federal Law Article

Supreme Court Rules That Plaintiffs May Use Section 1981 to Sue for Retaliation.
On May 27, 2008, the U.S. Supreme Court held in CBOCS West, Inc. v. Humphries, (No. 06-1431), that employees may bring claims based on or arising from retaliation under 42 U.S.C. § 1981. Section 1981, one of a number of federal laws addressing discrimination, provides that “[a]ll persons . . . have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Although the text of the statute does not specifically mention retaliation, the Court held that Section 1981 nevertheless encompasses retaliation claims.
Located On: Hogan & Hartson LLP

Most Popular State Law Article

D.C. Passes the Accrued Sick and Safe Leave Act of 2008.
Washington, D.C. has become the second city, after San Francisco, to pass a law that requires employers to provide paid sick leave to all employees. After significant amendment including input from the employer community, the Accrued Sick and Safe Leave Act of 2008 was passed by the D.C. Council in March. Following approval by Mayor Adrian Fenty and a 30-day review process by Congress, the Act was approved on May 13, 2008. Effective November 13, 2008, mandatory sick leave provisions will apply to even the smallest employers.
Located On: Littler Mendelson, P.C.

Most Popular Headlines

Your boss shouldn’t read your text or e-mail messages without an OK, court says
LA Times (Registration Required) - June 19, 2008

Review of Employee Text Messages Deemed Invasion of Privacy

Workplace privacy rights can be tricky. Consider the following scenario: A company provides two-way alpha-numeric pagers to employees. The pager service plan allows for transmission of 25,000 characters per month, beyond which an overage fee is assessed. Employees are told to use the pagers for business purposes, and that they will have to reimburse the company for overage fees on account of personal use. A company policy warns employees that it may monitor electronic communications.

There are overages, but the employees do pay for them. But the company decides to conduct an audit because (1) it wants to make sure that employees are not asked to pay overage fees for business transmissions; (2) it wants to assess whether 25,000 characters per month is an efficient limit. To conduct the audit, the company prints and reviews transcripts of the text messages. Does the company act within its rights?

No, according to a Ninth Circuit Court of Appeals, in a case titled Quon v. Arch Wireless. The case involved the Ontario Police Department’s review of text messages sent and received by police Sgt. Jeff Quon. The audited text messages included personal communications, including sexually explicit comments. Quon and others he texted sued the Department for violations of constitutional privacy rights. The trial court ruled against the employees, but the Ninth Circuit reinstated the case.

The court reasoned as follows:

(1) Employees may have constitutionally-based reasonable expectations of privacy in the workplace. This includes the expectation that employers will not monitor private communications. 

(2) Employers may dispel the expectation of privacy by warning employees that communications may be monitored. Like many employers, the Department had a “Computer Usage, Internet and E-mail Policy.” The policy limited use of electronic devices to Department business, and advised employees that the Department may monitor employee use of the systems, and that users should have no expectation of privacy.

(3) However, the “operational reality” was different. In practice, the manager responsible for the pagers told employees that he would not audit pager messages as long as employees paid for overage fees. They paid the fees, and therefore it was reasonable for them to expect that the Department would not monitor their communications. So the practice defeated the policy. The court suggested that the policy would have been sufficient to dispel the expectation of privacy, but for the manager’s assurances and practices to the contrary.

(4) Because the employees had a reasonable expectation of privacy in connection with the text messages, intrusion by the employer must be reasonable--but here it was not reasonable. Employers are permitted, during the course of workplace misconduct investigations, or for other business purposes, to review or monitor employee communications--but the employer must demonstrate that the intrusion is reasonable. “"Reasonable" means there was a reasonable basis for conducting the search, and that the scope of the search (or the degree of intrusiveness) was reasonable. The court determined that the Department could have used less intrusive means. It could have, for example, looked at the number dialed without reading the text. Or it could have asked the employees to black out personal messages before reviewing the transcript. 

Note that the decision was made in the context of a public employer, but employee rights in private industry may be affected by this decision. The court examined the federal Fourth Amendment as well as California’s constitutional privacy rights. The Fourth Amendment applies to government action—here the police department was the government entity.  But the California constitution applies to public and private employers alike.

Constitutional privacy rights in the private sector have not been well defined by the courts. You can expect further developments in area of workplace privacy rights, particularly given technological advances that make employee monitoring increasingly easy. 

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Friday, June 13, 2008

Week In Review (June 13, 2008)

Most Popular Federal Law Article

Supreme Court Rules That Plaintiffs May Use Section 1981 to Sue for Retaliation.
On May 27, 2008, the U.S. Supreme Court held in CBOCS West, Inc. v. Humphries, (No. 06-1431), that employees may bring claims based on or arising from retaliation under 42 U.S.C. Section 1981. Section 1981, one of a number of federal laws addressing discrimination, provides that “[a]ll persons . . . have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Although the text of the statute does not specifically mention retaliation, the Court held that Section 1981 nevertheless encompasses retaliation claims.
Located On: Hogan & Hartson LLP

Most Popular State Law Article

D.C. Passes the Accrued Sick and Safe Leave Act of 2008.
Washington, D.C. has become the second city, after San Francisco, to pass a law that requires employers to provide paid sick leave to all employees. After significant amendment including input from the employer community, the Accrued Sick and Safe Leave Act of 2008 was passed by the D.C. Council in March. Following approval by Mayor Adrian Fenty and a 30-day review process by Congress, the Act was approved on May 13, 2008. Effective November 13, 2008, mandatory sick leave provisions will apply to even the smallest employers.
Located On: Littler Mendelson, P.C.

Most Popular Headlines

A Career Killer for HR Pros—The Employee Free Choice Act
Workforce Management - June 09, 2008

Thursday, June 12, 2008

Company Liability For Errant Employee Errands

Businesses routinely send employees on company errands in their personal vehicles. In many companies, it would be hard to find a day when one employee or another does not jump in the car before or after work, or during lunch, to make a bank deposit, swing by the post office, pick up lunch for the staff, or run some other simple errand. What kind of legal risks does a company face if someone gets hurt in an accident caused by such an employee?

General Rule: Employers Liable for Acts of Employees

It is a general principle of law in California that employers are liable for injury caused by employees who are acting “within the course and scope of their employment.” Attorneys refer to this principle of liability with the Latin phrase “respondeat superior.”

For example, a pizzeria is liable when its delivery driver causes an accident while delivering pizza. A home improvement store will be liable when its stocker topples merchandise off a high shelf onto a customer.

“Going and Coming Rule”

Employers are not ordinarily liable for injury caused by an employee during his or her normal commute to or from work because commuting is not part of the course and scope of employment.

Special Errand Exception

Not all personal driving activities fall outside the course and scope of employment. An employee running a special business errand is deemed to be within the course and scope of employment. The errand can be done either as a part of regular duties or at the specific request or order of the employer. Importantly, the entire trip counts as part of the course and scope of employment, from the start of the errand until the employee returns to the work place or departs from the errand for personal reasons.

Courts have been fairly strict about when the errand becomes personal, requiring a “substantial departure” for personal business before respondeat superior liability ends. In many cases, running a business errand on the way to work or on the way home will cause the entire trip to fall within the course and scope of employment.

For example, an employer may be liable for injuries caused an employee who is asked to make a bank deposit on the way home from work, and who after making the deposit causes an accident on the way home.

Minimizing the Risk

The right kind of insurance coverage is a must. Every business ought to purchase “nonowned” automobile insurance coverage. This insurance covers accidents caused by employees driving their own cars (i.e., cars not owned by the company).

Even with suitable insurance, litigation will be an unwelcome distraction, and quite possibly harm business in broader ways. Consider the possibility of respondeat superior liability any time that an employee is asked to run an errand or drive on company business. Implement company policies regarding the use of personal vehicles for company business. Limit the number of company errands and the employees who run them. Restrict errands to business matters when feasible. A company-wide awareness of the potential for respondeat superior liability, along with appropriate risk management measures, will go a long way keeping the company out of legal tangles.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC
San Diego Employment Law Attorneys

Friday, June 06, 2008

Week In Review (June 6, 2008)

Most Popular Federal Law Article

Supreme Court Extends Retaliation Claims to More Employees (pdf).
In its 2006 Burlington Northern decision, the U.S. Supreme Court adopted a relatively easy standard for stating a retaliation claim under Title VII. On May 27, 2008, it issued two decisions which, in effect, enable more employees to bring retaliation claims. Although the decisions come as no surprise, they highlight the increasing risk that employers face for retaliation claims.
Located On: Vedder Price

Most Popular State Law Article

D.C. Passes the Accrued Sick and Safe Leave Act of 2008.
Washington, D.C. has become the second city, after San Francisco, to pass a law that requires employers to provide paid sick leave to all employees. After significant amendment including input from the employer community, the Accrued Sick and Safe Leave Act of 2008 was passed by the D.C. Council in March. Following approval by Mayor Adrian Fenty and a 30-day review process by Congress, the Act was approved on May 13, 2008. Effective November 13, 2008, mandatory sick leave provisions will apply to even the smallest employers.
Located On: Littler Mendelson, P.C.

Most Popular Headlines

Bosses: Interview etiquette eroding
Courier Post Online - July 02, 2008