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Employment Law Blog

Category: Human Resources

Thursday, August 14, 2008

Cal Supreme Court Lets Stand Key Disability Ruling

The California Supreme Court denied a petition for review in a case titled Arteage v. Brink’s Incorporated, letting stand an appellate court ruling that circumscribed the definition of “disability” under California law.

Defining the term “disability” under California law is a very important issue, and California employers ought to pay careful attention to the definition. Unlike the federal ADA, California’s FEHA has a very broad definition of disability. Until the Arteaga appellate opinion, now left untouched by the California Supreme Court, courts have not focused much on whether particular physical conditions do or do not qualify as disabilities.

FEHA is explicitly and unabashedly liberal—it says so right in the text of the statute. As stated in the FEHA: “The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” “The provisions of [the FEHA] shall be construed liberally for the accomplishment of [its] purposes . . . .”

FEHA fulfills its liberal aspirations in the definition of “disability.” Under the FEHA, “physical disability” includes having a physiological disease, disorder, or condition that, by affecting the neurological or musculoskeletal body systems, special sense organs or skin, “limits” a “major life activity.” The key word is “limits.” It is very broad, and is contrasted with the federal ADA, which requires a “substantial” limitation. “Limits” is synonymous with making the achievement of a major life activity “difficult.”

Management attorneys and HR experts have long lamented this broad definition. They are heard to complain that just about any condition can make life difficult. They say that it is too easy to allege disability discrimination.

The appellate court in this case tackled the definition head on. The court began by considering what the “baseline” for “difficult” should be. “In deciding whether [the employees’] limitations . . . make them ‘disabled’ under FEHA, the proper comparative baseline is either the individual without the impairment in question or the average unimpaired person.”

For example, one could look at an employee with a 25 percent reduction of former capacity to lift, or an employee who lost approximately 50% of her pre-injury capacity for manual tasks. Additionally, one could look to the normal or average population. For example, in considering whether a disability caused difficulty with tasks such as dressing and sleeping, one can look to whether most people can perform those tasks without difficulty.

Turning to Arteaga, the appellate court examined his claim of pain symptoms. Arteaga did not have an actual disability while employed by Brink’s because his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline.

By denying the petition for review, the California Supreme Court has given implicit approval of the appellate court’s disability definition. It is also notable that the Court denied a motion to “depublish” the lower court’s opinion. If the opinion had been depublished, it could not be cited as a precedent in future cases. The Supreme Court’s decision to preserve the precedential authority of the lower court opinion adds weight to the assumption that the Supreme Court approves of the opinion. 

For a more complete analysis of the appellate court decision, click here.

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

Thursday, July 31, 2008

Department of Labor Opinion Examines Whether Restaurant Must Pay For Shoes

The Department of Labor has released a new opinion letter in which it examines a restaurateur’s policy specifying employee shoes.  The questions posed are: (1) Are the shoes part of a uniform, such that the employer must pay for them? (2) May the employer arrange for the purchase of the shoes and deduct the cost from the employee’s pay?

The DOL considered the following facts:

The Employer operates restaurants and requires employees to wear “dark-colored” shoes without prescribing any particular quality, brand, style, model, or type. Aside from color, the only other requirements are that they not be open-toed and that, for safety reasons, they not have a slippery sole. Employees may wear shoes they already own when hired or may purchase shoes from any vendor they may choose. Employees are free to wear the shoes outside of work.

The Employer has arranged a program through which employees may, solely at their option, purchase shoes from a shoe manufacturer. The manufacturer offers over 60 different slip-resistant shoes in a broad spectrum of styles and in numerous dark colors. If an employee chooses to purchase shoes from this vendor, the employee may either pay the vendor directly or the Employer will pay the vendor and deduct the amount of the payment from the employee’s paycheck over a number of weeks. In some instances, the deductions may cause the remaining amount of the employee’s paycheck to fall below the minimum wage for each hour worked during that pay period. If the employee requests that the Employer pay for the shoes through a deduction, the employee must do so by submitting a request in writing describing the shoes to be purchased, requesting the Employer pay for the shoes, and authorizing the Employer to withhold future wages in an amount sufficient to reimburse the purchase costs. Neither the Employer, nor any person acting in its interests, realizes any profit or other benefit from the purchase program,

The DOL opined that the footwear was not a uniform. Quoting its Field Operations Handbook the opinion letter states: “If an employer merely prescribes a general type of ordinary basic street clothing to be worn while working and permits variations in details of dress, the garments chosen by the employees would not be considered to be uniforms.” More restrictive policies may lead to the opposite conclusion. “[W]here the employer does prescribe a specific type and style of clothing to be worn at work, e.g. where a restaurant or hotel requires a tuxedo or a skirt and blouse or jacket of a specific or distinctive style, color, or quality, such clothing would be considered uniforms.”

The DOL also examined whether the Employer may offer to advance the money necessary for employees to voluntarily purchase shoes from the shoe manufacturer and recoup the advance through payroll deductions where those deductions may cause the employee’s paycheck to fall below the minimum wage for each hour worked in the pay period.

The DOL determined that such a practice was acceptable under the FLSA. The FLSA includes as part of “wages” the “reasonable cost” to the employer for furnishing any employee with board, lodging or other facilities. The DOL opined that the shoes qualified as “other facilities.” “[A] deduction for the actual cost of the shoes is allowed under [the FLSA], even if it reduces the amount of the employee’s cash wages below the minimum wage, so long as the employer does not profit or include any administrative costs.”

The DOL letter notes that the rule would be no different for tipped employees.

To review the DOL opinion letter, click here.

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

Thursday, July 24, 2008

EEOC Issues New Compliance Manual On Religious Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) issued a new Compliance Manual Section regarding workplace discrimination on the basis of religion on July 22, 2008.

The new section defines “religion,” religious discrimination and harassment under Title VII of the Civil Rights Act of 1964. It identifies discriminatory practices in the recruiting and hiring process, the terms and conditions of employment, and with respect to discipline and termination. The EEOC also describes its policies regarding the employer’s requirement to accommodate religious beliefs and practices.

The section explains how to apply the law to the workplace with numerous factual illustrations. For example, in explaining that accommodation does not necessarily mean acceding to the employee’s preference, the section states: “Tina, a newly hired part-time store cashier whose sincerely held religious belief is that she should refrain from work on Sunday as part of her Sabbath observance, asked her supervisor never to schedule her to work on Sundays.  Tina specifically asked to be scheduled to work Saturdays instead.  In response, her employer offered to allow her to work on Thursday, which she found inconvenient because she takes a college class on that day.  Even if Tina preferred a different schedule, the employer is not required to grant Tina’s preferred accommodation.”

To further assist employers, the EEOC also issued a companion question-and-answer fact sheet and best practices booklet.

The question-and-answer sheet includes answers to common questions, such as: “Does an employer have to grant every request for accommodation of a religious belief or practice?” “What if co-workers complain about an employee being granted an accommodation?” “What are common methods of religious accommodation in the workplace?”

The best practices booklet includes a number of compliance suggestions. Some of the suggestions are generic and obvious. For example: “Employers can reduce the risk of discriminatory employment decisions by establishing written objective criteria for evaluating candidates for hire or promotion and applying those criteria consistently to all candidates.” Other suggestions are more practical and helpful. For example: “Employers should consider adopting flexible leave and scheduling policies and procedures that will often allow employees to meet their religious and other personal needs. Such policies can reduce individual requests for exceptions. For example, some employers have policies allowing alternative work schedules and/or a certain number of ‘floating’ holidays for each employee. While such policies may not cover every eventuality and some individual accommodations may still be needed, the number of such individual accommodations may be substantially reduced.”

According to the EEOC’s press release, “the EEOC issued this section in response to an increase in charges of religious discrimination, increased religious diversity in the United States, and requests for guidance from stakeholders and agency personnel investigating and litigating claims of religious discrimination.”

The EEOC reports that religious discrimination charge filings with the EEOC nationwide have risen substantially over the past 15 years, doubling from 1,388 in Fiscal Year 1992 to a record level of 2,880 in FY 2007.

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

Thursday, July 17, 2008

Wage and Hour Division Criticized

The U.S. Department of Labor’s Wage and Hour Division has failed to effectively enforce federal wage laws, according to a Government Accountability Office report issued on July 15th, 2008.

From fiscal years 1997 to 2007, the number of WHD’s enforcement actions decreased by more than a third, from approximately 47,000 in 1997 to just under 30,000 in 2007. The WHD defended the trend. It stated that it decided to enforce fewer, but more time-consuming comprehensive claims. It also states that the decrease resulted from more careful screening out of unmerited claims at the intake stage. WHD admits that part of the decrease is attributed to a 20% reduction in investigative staff.

The GAO found that the WHD rarely imposed statutory penalties on employers. WHD assessed penalties for 6 percent of the enforcement actions conducted between 2000 and 2007.

The GAO cited several examples where the WHD found violations of federal labor law, but failed to follow through with enforcement.

In one case, a homeless woman receiving free room and board while working as a night attendant at a nursing home alleged her employer had failed to pay her wages for an entire year. According to the WHD, the employer admitted it had failed to pay any wages to the night attendant and considered the room and board to be pay, but stated it did not have any money to pay the back wages. The WHD dropped the case and advised the night attendant of her right to file a private lawsuit. The employer was still in business as of June 2008.

An another case, the an employee alleged he was not paid for overtime. The WHD investigator did not perform any actions for 15 months citing a backlog of cases. Investigation was dropped after 15 months when the investigator saw a news article showing that the business in question had closed

The GAO further criticized the WHD for focusing on too narrow a range of industries. “WHD focused on the same industries from 1997 to 2007. The agency primarily targeted four industry groups: agriculture, accommodation and food services, manufacturing, and health care and social services.” The WHD did not react to information from its commissioned studies on low wage industries in which FLSA violations are likely to occur. The GAO concludes “WHD may not be addressing the needs of workers most vulnerable to FLSA violations.”

WHD’s data tracking hides its inefficiencies. “The extent to which WHD’s activities have improved FLSA compliance is unknown because WHD frequently changes both how it measures and how it reports on its performance,” reports the GAO.  “When agencies provide trend data in their performance reports, decision makers can compare current and past progress in meeting long-term goals.” WHD did just the opposite. “While WHD’s long-term goals and strategies generally remained the same from 1997 to 2007, WHD often changed how it measured its progress, keeping about 90 percent of its measures for 2 years or less.”

As quoted in the New York Times, a Labor Department press release highlighted the pay it has recovered for employees. Recovery of wages “more than doubled to $220,613,703 in 2007 from $96,719,108 in 1997.” The DOL said that 341,624 employees received back wages in 2007, up from 189,244 10 years earlier.”  The DOL added: “The “Wage and Hour Division is delivering pay for workers, not a payday for trial lawyers.”

To view the GAO reports, click here and here.

To view the New York Times article, click here.

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

Posted by Christopher W. Olmsted on 07/17 at 01:42 AM
Employment LawFLSAHuman ResourcesLabor Law
Thursday, July 10, 2008

CA Labor Commissioner Cites Company For Not Providing Lactation Accommodation To Employee

In 2002, the California legislature amended the Labor Code to mandate that employers provide “lactation accommodation.” Yes, we cover it all here in the Golden State. In the six years following enactment of the law, no known enforcement actions had been initiated. Hopefully the reason is because employers have been complying with the law. 

Apparently at least one employer did not take note of the law. The California Labor Commissioner, Angela Bradstreet, has announced the issuance of a citation to a Santa Clara-based International Security Services, Inc. for failing to provide private accommodations for an employee to express breast milk for her newborn.  The citation is the first of its kind since the law took effect in 2002. A fine of $4,000 has been assessed.

“Under the law, employers are obligated to accommodate employees who wish to provide breast milk for their infant children,” Bradstreet said. “This employer failed to provide a reasonable amount of break time and a private room for an employee to express milk for her baby as required.”

The labor commissioner received a complaint—the first lodged as a result of the 2002 legislation—from the employee on March 4, which prompted an investigation. The investigation revealed that the employee was not provided an appropriate, designated room. Initially the room that was provided was computer server room with security cameras. This offered an inadequate level of privacy needed to perform the milk expressing process.

Labor Code sections 1030-1033 became law in 2001 and mandates every employer, regardless of size, to provide a reasonable amount of time to accommodate expressing of breast milk and to make reasonable efforts to provide the employee with the use of a room or other location, other than a bathroom, in close proximity to the employees work area to express milk in private.

Bradstreet urged women who are not being provided appropriate accommodations for milk expressing to contact her office and file a complaint.

“This is not the type of law that we can address with enforcement sweeps and filing a complaint is important so that we can correct the violation and educate the employer,” added Bradstreet.

Find the press release here.

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

Posted by Christopher W. Olmsted on 07/10 at 01:18 AM
Employment LawHuman ResourcesLabor Law
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

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

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, May 30, 2008

Tortilla Maker Accused Of Religious Intolerance Against Muslim Workers

As reported in the Minneapolis Star Tribune on May 28th here, a group of Muslim workers allege they were fired by a Mission Foods tortilla factory for refusing to wear uniforms that they say were immodest by Islamic standards.

“Six Somali women claim they were ordered by a manager to wear pants and shirts to work instead of their traditional Islamic clothing of loose-fitting skirts and scarves.” The women have filed a religious discrimination complaint with the federal Equal Employment Opportunity Commission.

A Mission Foods spokesperson stated that the women were not fired, but rather suspended, because they refused to comply with a company uniform policy.

Presumably the claim is based on Title VII of the Civil Rights Act of l964. The law prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Employers must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer.

The case will likely focus on whether (1) the clothing in question related to a religious practice or belief; (2) whether the employer could have reasonably accommodated traditional Islamic clothing in the factory; or whether (3) accommodating the clothing would have imposed an undue hardship on the employer. Perhaps the company had health, safety, or other reasons for the uniform policy. In the context of industrial machinery, loose clothing may be dangerous. In the context of food processing, it may not be sanitary. The news report did not provide the employer’s justification. 

Noting an increase in discrimination after September 11, 2001, the EEOC has published guidelines for the religious accommodation of Muslims and ethnic groups from Middle Eastern and Far Eastern countries here and here.

The guidelines include the following FAQ:

Q: “I am a Sikh man and the turban that I wear is a religiously-mandated article of clothing. My supervisor tells me that my turban makes my coworkers ‘uncomfortable,’ and has asked me to remove it. What should I do?””

“If a turban is religiously-mandated, you should ask your employer for a religious accommodation to wear it at work. Your employer has a legal obligation to grant your request if it does not impose a burden, or an ‘undue hardship,’ under Title VII. Claiming that your coworkers might be ‘upset’ or ‘uncomfortable’ when they see your turban is not an undue hardship.”

The EEOC reports that in Fiscal Year 2007, the agency received 2,880 charges of religious discrimination. EEOC resolved 2,525 religious discrimination charges and recovered $6.4 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).

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

Thursday, May 22, 2008

President Signs Genetic Information Nondiscrimination Act

On May 21st, President Bush signed The Genetic Information Nondiscrimination Act of 2008 (“GINA”) into law. According to the National Institutes of Health’s National Human Genome Research Institute, “GINA protects Americans from being treated unfairly because of differences in their DNA that may affect their health. The new law prevents discrimination from health insurers and employers.” (Click here for more NIH comments.)

The new law is the culmination of a decade-long debate and a series of legislative efforts to deal with the specter of genetic discrimination. Supporters of the law cited a few instances of genetic discrimination, but not widespread abuse.

GINA prohibits employers from discriminating against employees on the basis of genetic information.

The term “genetic information” means information about (i) an employee’s genetic tests, (ii) the genetic tests of family members of an employee, and (iii) the manifestation of a disease or disorder in family members of an employee.

Employers are prohibited from acquiring genetic information, with certain exceptions. Some exceptions include: (1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee; (2) indirectly, as part of a wellness program; (3) as part of an FMLA medical certification; (4) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace; and in a few limited other circumstances.

In the event that an employer does acquire genetic information, the new law requires strict confidentiality, in the manner dictated by the ADA.

Employees who violate GINA will be vulnerable to employee lawsuits and government agency enforcement actions.

Employer advocates complain about the litigation provisions. They have also voiced concerns that GINA further complicates the confusing maze of state and federal medical privacy laws, as well as the numerous state genetic nondiscrimination laws.

Employers and legal counsel have ample time to evaluate the impact. The parts of the law relating to health insurers will take effect by May 2009, and those relating to employers will take effect by November 2009.

According to the NIH, “the law was needed to help ease concerns about discrimination that might keep some people from getting genetic tests that could benefit their health. The law also enables people to take part in research studies without fear that their DNA information might be used against them in health insurance or the workplace.”

Although there are no reports of widespread genetic discrimination, employee medical exams are common. As reported by the AP here, “a 2001 study by the American Management Association showed that nearly two-thirds of major U.S. companies require medical examinations of new hires. Fourteen percent conduct tests for susceptibility to workplace hazards, 3 percent for breast and colon cancer, and 1 percent for sickle cell anemia, while 20 percent collect information about family medical history.”

During the next 18 months, undoubtedly employment law attorneys and HR experts will distill the new law and offer compliance advice. To get a head start, read the text of GINA here.

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

Thursday, May 15, 2008

Litigators Predict Lawsuits Regarding Employee Compensation For After-Hours PDA Emails

Should employees be paid for time spent after hours reviewing business-related emails on their PDAs? The question has probably not occurred to most employers. But wage and hour class actions have been built upon lesser issues.

The general rule is that non-exempt employees must be paid for all hours worked. If an employee is “suffered or permitted” to work, even though the employer has not instructed or requested that he do so, the time is compensable working time. The rule does not depend on whether the work is performed before or after regular work hours.

Plaintiff attorneys might argue that it doesn’t matter whether the employer expected the non-exempt employees to monitor after-hours emails or whether the employees did so on their own initiative. Time was spent on work-related emails and the employees should be compensated, they would argue.

Social norms play a role. Late phone calls and meetings may be seen as an intrusion, but few see sending an after-hours email as a violation of etiquette. Add to that the seemingly irresistible impulse driving some people to constantly check emails on their PDAs. The use of some devices have been jokingly compared to crack cocaine addictions.

Attorneys in various legal forums have been discussing the topic lately. The Wall Street Journal’s Law Blog recently addressed the topic here. The topic has been discussed on other internet forms, including here and here.

So far there have been no reports of wage and hour litigation involving PDAs, but it would be prudent for employers to take precautionary measures. Some commentators recommend that employers require employees to obtain permission prior to using the PDAs after hours. Others recommend giving PDAs to exempt employees only. All would agree that employers should not ignore the issue and they ought to devise an employee policy regarding the use of PDAs.

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

San Diego Employment Law Attorneys

Tuesday, May 06, 2008

U.S. Department of Labor Releases New elaws Tool To Help Employers Comply With Federal Law

On May 6, 2008, the Department of Labor issued the press release below concerning a new online tool that may be useful to determine which federal laws apply to the employer. The online tool takes the user through a series of questions regarding industry, size, geographic location, and other issues. Then the guide lists particular laws which may apply to the employer, complete with links describing posting requirements and other information regarding the applicable laws.

The U.S. Department of Labor today unveiled an elaws advisor that helps employers determine which of the department’s recordkeeping, reporting and notice requirements apply to them.

The new FirstStep Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a FirstStep suite of advisors that also includes the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

“These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them,” said Secretary of Labor Elaine L. Chao.

The elaws advisors are free, Web-based tools designed to help employers and workers understand the department’s major employment laws. By asking a series of questions, the advisors simulate a conversation with a Department of Labor expert and guide users to customized information explaining the requirements of each law.

By asking questions such as size of business, location and type of industry through multiple choice or yes and no questions, the FirstStep Employment Law Overview Advisor determines which federal employment laws apply to each user. The advisor then provides information from the Labor Department’s Employment Law Guide on the basic provisions of these laws.

The new FirstStep Recordkeeping, Reporting and Notices Advisor summarizes the paperwork requirements for each law. The FirstStep Poster Advisor, which can be used to download and print off Labor Department posters for free, was revised to include information on where the posters must be displayed in the workplace, and what size and language requirements apply to each.

This suite of FirstStep elaws advisors is available at

The department offers more than 25 other elaws advisors covering a wide range of employment law topics, such as minimum wage and overtime, child labor, veterans’ workplace rights, health and retirement benefits, and workplace safety and health. For more information, visit

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

Posted by Christopher W. Olmsted on 05/06 at 01:08 PM
Employment LawFLSAHuman ResourcesLabor Law
Tuesday, April 22, 2008

25% Higher Civil Fines Against Employers for Immigration Violations

The hot political debate over immigration reform may have cooled some since last year, but employers need to remain vigilant. U.S. Attorney General Michael Mukasey recently announced higher civil fines against employers who violate federal immigration laws.

The announcement in late February was made in a joint briefing with Secretary of Homeland Security Michael Chertoff about newly enacted border security reforms put in place by the Departments of Justice and Homeland Security. Under the new rule, which was approved by Attorney General Mukasey and Secretary Chertoff, civil fines will increase 25%, or by as much as $5,000. According to a DOJ press release, the new rule takes effect on March 27, 2008, and will be published in the Federal Register in the near future.

Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud.

Of more concern to employers is the fact that Immigration and Customs Enforcement (ICE) has dramatically increased the amounts of criminal fines and forfeiture over previous years of administrative fines alone. ICE reports that during the three quarters of FY 2007 alone, ICE has obtained criminal fines, restitutions, and civil judgments in excess of $30 million.

San Diego Employment Law Attorneys

Posted by Christopher W. Olmsted on 04/22 at 01:39 PM
Employment LawHuman ResourcesImmigration
Tuesday, April 15, 2008

Compliance Review: Employee Computer Use Policies

Employers often encounter instances of employee misuse of computers and other technology. A common response is to monitor employee computer use. However, issues of employee privacy rights and fairness are in play. When developing a policy, here are some considerations:

Give advance notice to employee about employer’s policy. To avoid invasion of privacy claims, warn employees in advance that the company reserves the right to monitor usage. Consider using an employee handbook disclosure or other signed acknowledgment

Specific terms to consider include:

<li>Business use only, or a more flexible variation allowing some personal use.

<li>No pornographic or other inappropriate websites.

<li>Company not liable for disclosure/misuse of personal information transmitted by employee over company technology.

<li>Employer may access and monitor email and internet use at any time without notice.

<li>Employer will keep copies of internet or email passwords, and that the existence of such passwords is not an assurance of the confidentiality of the communications.

An effective computer use policy will communicate the employer’s expectations, limit privacy rights, and give employees advance warning of the consequences of violations. As with any other employee policy, review with counsel for legal compliance is prudent.

San Diego Employment Law Attorneys

Posted by Christopher W. Olmsted on 04/15 at 07:55 AM
Human Resources
Thursday, August 02, 2007

What’s Your Job Sign

Check out this fun, interactive “link bait” from What’s Your Job Sign (“link bait” is something that attracts links to your site”).  You’ll need a broadband connection.

Posted by Patrick Della Valle on 08/02 at 07:51 AM
Human Resources
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