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Employment Law Blog

Friday, May 30, 2008

Week In Review (May 30, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=13635”>Employers and Insurers Meet GINA—The Newest Addition to the Federal Discrimination Law Family.</A>
On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act (GINA) (H.R. 493), which prohibits discrimination by employers and insurers based on genetic information.
Located On: Ford & Harrison LLP

Most Popular State Law Article

<a >New York Construction Contractors to Need 10-Hour OSHA Course for Public Works Projects.</A>
All public works contracts for New York state and municipal construction jobs of $250,000 or more will require certification that employees performing work under the contract will have completed successfully the U.S. Occupational Safety and Health Administration’s (OSHA) 10-hour construction course, according to a state law becoming effective July 18, 2008. The course includes topics such as excavations, electrical safety, ladders, fall protection, chemical hazard communication and other safety and health topics.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]Body language often tells truth in the workplace[/url]
Sun Sentinel - May 27, 2008

Posted by Patrick Della Valle on 05/30 at 04:39 PM
Week in Review

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

Friday, May 23, 2008

Week In Review (May 23, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=13582”>What Employers Should Know About Insurance For Employment Claims (pdf).</A>
Traditional business insurance policies generally exclude employment claims from coverage.
Located On: Nexsen Pruet

Most Popular State Law Article

<a >New Jersey Governor Corzine Signs Paid Family Leave Act.</A>
Despite intense opposition from the business community, on May 2, 2008, Governor Corzine signed the highly contested paid family leave bill that provides employees up to six weeks of partial wage replacement to care for a newborn or newly adopted child or to care for a sick child, parent or spouse. New Jersey is now the third state, in addition to California and Washington, to offer paid family leave benefits to employees.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]Weight discrimination could be as common as racial bias[/url]
USA Today - May 21, 2008

Posted by Patrick Della Valle on 05/23 at 09:03 AM
Week in Review
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

Friday, May 16, 2008

Week In Review (May 16, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=13512”>International Business Travelers May Face Warrantless Laptop Searches by U.S. Border Agents.</A>
Federal border agents did not violate the U.S. Constitution’s Fourth Amendment prohibition against unreasonable searches in examining the contents of a traveler’s laptop without any basis for believing the device contains contraband, a federal appeals court in San Francisco has ruled. United States v. Arnold, No. 06-50581 (9th Cir. Apr. 21, 2008). The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Located On: Jackson Lewis LLP

Most Popular State Law Article

<a >California’s Anti-SLAPP Law Protects Letter to Employer’s Customers About Contemplated Trade Secrets Litigation.</A>
The California Court of Appeal has ruled that an employer’s attorney’s letter to the employer’s customers concerning potential trade secrets litigation was protected speech under California’s anti-SLAPP (“strategic lawsuit against public participation”) law, Cal. Civ. Code Section 425.16. Neville v. Chudacoff, No. B198253 (Cal. Ct. App. Mar. 12, 2008). The court held that the letter directly related to the employer’s claims and that, when it was written, the employer seriously and in good faith was contemplating litigation against the employee. Thus, the court affirmed the trial court’s order dismissing the employee’s claim against the employer’s attorney.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]How to handle those wacky interview questions[/url]
Orlando Sentinel - May 14, 2008

Posted by Patrick Della Valle on 05/16 at 07:07 AM
Week in Review
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

Friday, May 09, 2008

Week In Review (May 9, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=13436”>Auto Dealership Update: The Lawsuit Du Jour.</A>
This might have already happened at your dealership: your payroll clerk is exasperated because the sales people are not punching their time cards. She knows that under federal law, the dealership is obligated to pay sales people their commissions or minimum wage for all hours worked, whichever is higher. But if they have low commissions and they don’t punch in and out each day, she has no way to accurately calculate their hours or their pay. 
Located On: Fisher & Phillips, LLP

Most Popular State Law Article

<a >New Jersey Supreme Court Expands Individual’s Right to Privacy.</A>
In a case of first impression, the New Jersey Supreme Court has ruled that Internet users have a constitutional right to privacy with respect to subscriber information they provide to Internet service providers (“ISP”). The Court in New Jersey v. Shirley Reid held that law enforcement officials may obtain such information only by serving a grand jury subpoena on the ISP. This April 21, 2008, decision likely will make it more difficult to prosecute, in certain circumstances, an employee that tampers with employer information systems. The case highlights the need for employers to reexamine their policies and procedures for employee use of company information systems and the expectation of privacy of employees in the workplace.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]Breach of office etiquette can have serious consequences[/url]
Baltimore Sun - May 06, 2008

Posted by Patrick Della Valle on 05/09 at 06:52 AM
Week in Review
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 www.dol.gov/elaws/firststep.

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 www.dol.gov/elaws.

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

www.barkerolmsted.com

Posted by Christopher W. Olmsted on 05/06 at 01:08 PM
Employment LawFLSAHuman ResourcesLabor Law
Friday, May 02, 2008

Week In Review (May 2, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=13359”>Second Circuit Permits Title VII Claim Based on Association to Proceed.</A>
The Second Circuit recently reversed a trial court’s decision granting summary judgment in favor of an employer, holding that an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race. See Holcomb v. Iona College (April 1, 2007). In this case, Holcomb, who is white, claimed the college discharged him from his job as an assistant basketball coach because he was married to a black woman. The college claimed he was discharged as part of an overhaul of its staff in an effort to improve a poorly performing basketball team.
Located On: Ford & Harrison LLP

Most Popular State Law Article

<a >New Leave Law in Washington Benefits Military Families.</A>
Washington’s new leave law allows an employee whose spouse is a member of the United States Armed Forces, National Guard, or Reserves to take up to 15 days of unpaid leave while his or her spouse is on leave from deployment, or before and up to deployment, during times of military conflict declared by the President or Congress. The new law, effective June 12, 2008, applies to all public and private employers. Eligible employees are entitled to the 15 days of leave for each deployment of the military spouse.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]What nobody tells you about . . . the workplace[/url]
York Daily Record - April 29, 2008

 

Posted by Patrick Della Valle on 05/02 at 08:57 AM
Employment Law
Friday, April 25, 2008

Week In Review (April 25, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=13284”>Workers Tell Future President: “Decrease Outsourcing, Increase Living Wage”.</A>
Americans overwhelmingly want their next President to prioritize improving their standard of living, providing universal healthcare, and slowing the outsourcing of jobs overseas rather than making it easier for immigrants to live and work in the U.S., according to the latest “America At Work” national opinion survey by the non-partisan Employment Law Alliance (ELA).
Located On: Vedder Price

Most Popular State Law Article

<a >New Jersey Set to Become the Third State with Paid Family Leave.</A>
After years of legislative effort and opposition from employers, both houses of the New Jersey Legislature have now passed a bill under which employees would be entitled to paid “family temporary disability leave.” Governor Jon Corzine is expected to sign the bill,1 making New Jersey the third state, along with California and Washington, to enact such legislation.
Located On: Buchanan Ingersoll & Rooney PC

Most Popular Headlines

<a TARGET=“_blank”]Nine questions to ask your boss[/url]
CNN - April 22, 2008

Posted by Patrick Della Valle on 04/25 at 09:52 AM
Week in Review
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
Friday, April 18, 2008

Week in Review (April 18, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=13244”>Sprint/United Management Co. v. Mendelsohn</A>
In a unanimous decision on February 26, 2008, in the case Sprint/United Management Company v. Mendelsohn, the United States Supreme Court held that a trial court can permit a plaintiff employee to introduce evidence that other employees have also experienced discrimination, provided that the testimony—also known as “me too” evidence—is relevant to the case and its probative value is not substantially outweighed by the danger of its prejudicial effect before the jury. In so ruling, the Supreme Court clarified that “me too” evidence is neither per se admissible nor per se inadmissible but, rather, the trial court must make a determination weighing the evidence’s relevance, probative value, and prejudicial effect.
Located On: Baker Hostetler LLP

Most Popular State Law Article

<a >District of Columbia Council Passes Sick Leave Legislation.</A>
Recently, the District of Columbia City Council passed legislation requiring employers to provide paid sick leave to District of Columbia employees for illness and absences associated with domestic violence or sexual abuse. With the passage of the Accrued Sick and Safe Leave Act, the District becomes the second municipality to require paid sick leave for employees, including public employees employed by the City.
Located On: Baker Hostetler LLP

Most Popular Headlines

<a TARGET=“_blank”]Five lies we all tell at work[/url]
CNN International - April 17, 2008

Posted by Patrick Della Valle on 04/18 at 10:45 AM
Week in Review
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
Friday, April 04, 2008

Week In Review (April 4, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=13049”>U. S. Supreme Court Affirms EEOC Medicare Coordination Ruling.</A>
In a closely watched case, the United States Supreme Court has refused the AARP’s request for review of the Third Circuit Court of Appeals’ decision in AARP v. EEOC, thereby affirming the EEOC’s ability to exempt from the age discrimination statutes the coordination of retiree health benefits with Medicare. This ruling clears the way for employers to design retiree health benefit plans that feature coordination of these benefits.
Located On: Littler Mendelson, P.C.

Most Popular State Law Article

<a >Resident Managers Not Entitled to On-Call Time, California Appellate Court Rules.</A>
In a case for alleged unpaid wages, the California Court of Appeal has held that on-call resident managers of an elderly housing complex are entitled to compensation only for time spent actually performing assigned duties and not for all time spent on call. Isner v. Falkenberg/Gilliam Associates, B195860 (Cal. Ct. App. Mar. 18, 2008). Although the plaintiffs were required to remain on the premises while on call, they were otherwise free to use on-call time as they chose. Following their retirement, the plaintiffs filed a class action on behalf of resident managers to recover wages for all time spent on call. The employer moved for summary judgment, which the trial court granted. The appellate court affirmed.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]Ten Pet Peeves About Workplace E-mails[/url]
Small Business Computing - April 01, 2008

Posted by Patrick Della Valle on 04/04 at 11:07 AM
Week in Review
Friday, March 28, 2008

Week In Review (March 28, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=12959”>Employer Immigration Alert - H-1B Visas.</A>
Employers—please note that all petitions for new H-1B visas should be fi led with the U.S. Citizenship and Immigration Service (“USCIS”) on APRIL 1, 2008 to ensure that they have a chance of being adjudicated. As you know, the U.S. government limits the number of new H-1B visas for professionals to 65,000 each year, with limited exceptions. Last year, 124,000 H-1B petitions were received between April 1 and April 3, forcing USCIS to develop a lottery selection process to determine which petitions would be adjudicated.
Located On: Vedder Price

Most Popular State Law Article

<a >Georgia Court of Appeals Reiterates Narrow Scope of Non-Solicitation Clauses.</A>
In a recent opinion, the Georgia Court of Appeals reversed a trial court’s decision to uphold the validity of non-solicitation and non-compete clauses in an employment agreement. The appellate court’s reversal of the trial court decision was premised on a strict reading of Georgia case law that delineates the permissible scope of non-solicitation clauses.
Located On: Ford & Harrison LLP

Most Popular Headlines

<a TARGET=“_blank”]Here’s why young folks leave jobs[/url]
Post and Courier - March 24, 2008

Posted by Patrick Della Valle on 03/28 at 10:16 AM
Week in Review
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