Welcome to Legal Briefs for HR, an update on employment issues sent to over 3700 HR professionals, in-house counsel and business owners. Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in! Back issues are posted on my firm’s website at www.munckcarter.com under E-Newsletter. And if you’re in transition, don’t hesitate to provide me with a home email address, so that you don’t miss a thing. Quite a few folks have already done so. Welcome to new subscribers who attended my speeches for the North Texas SHRM chapter in Denton and the Sage Summit conference in Denver! And I look forward to presenting a half-day session on changes to the ADA and FMLA for Lubbock SHRM on January 23. Here’s to a very Happy New Year to all . . . Let's put 2008 behind us and serve up a much improved 2009!

Here’s the dish:

1.Déjà vu – The Department of Homeland Security has finally published an interim rule which will modify the Form I-9, including the list of acceptable documents under Lists A, B and C. As a quickhistorical refresher, the first Form I-9 issued in 1987 and proposals to reduce the list of acceptable documents (to proveprospective employees' identity and authorization to work in the U.S.)first surfaced in 1993 and 1995. This was followed by an interim rule in 1997 and a proposed rule in 1998, to change the acceptable documents list.Years later,a Nov. 2007 press release announced the reduced list of acceptable documents from 1997 would soon be in force, but you probably noticed that the Form I-9 was revised, to replace “INS” with “USCIS,” but Lists A, B and C remained unchanged. This newinterim rule says it will replace all prior attempts, and is set to take effect on February 2, 2009. As of that date, you will need to start using the new Form I-9 (rather than the onewith a revision date[as opposed to the expiration date]ofJune 5, 2007) and (a) expired documents are no longer acceptable; (b) Forms I-688, I-688A and I-688B are no longer acceptable; (c) Form I-94A has been added as an acceptable document; and (d)there are other wording changes to match the language in the statute (e.g., replacing “employment eligibility” with “employment authorization”). When it’s ready to go, the new Form I-9 will be posted at www.uscis.gov in English and Spanish.

2. Trash Talk – Add New York to the list of states that are expanding regulation of employers’ disposal of records containing personal identifying information(PI)and penalizing those who don’t take out the trash properly. The expanded law took effect on September 5, 2008 and requires both for-profit and not-for-profit businesses take steps to carefully dispose of media containingPI (e.g., SSNs, drivers license #s, ID card #s, mothers maiden name, account codes and #s, debit card #s, ATM card #s) by shredding, destroying, modifying the record to make it unreadable or taking steps consistent with industry standards for disposal. Regardless of where your operations are, you should be doing three things. First, collect the smallest amount of PI possible (you really don't need aSSN on every employment form). Second, protect the PI you do collectby limiting access to itand adding similar protectivemeasures. Third, when it's time to dispose of any records, paper or electronic, which contain PI make surethe contents can'tbe reconstructed by dumpster divers and other nefarious types. And in the "no good deed goes unpunished" category, make sure any computers you donate to charity are completely scrubbed of data before they leave your premises.

3. There's More - Even if your trash is pristine of PI, that may not be enough to stop identity thieves. Several bills have surfaced over the past few years in Congress which, if passed, would mandate a host of new security measures for U.S. businesses. As usual, some states are not waiting on Congress and have enacted their own version of the same. For an example, take a look at "Standards for the Protection of Personal Information of Residents of the Commonwealth" which will take effect on May 1, 2009 in MA. One feature of the standard is requiringPI to be encrypted when on a laptop (by 5-1-09) or other portable devices (by 1-1-10). For a detailed disucssion of the requirements (and a sneak peek at what other jurisdictions may emulate) go to www.mass.gov/?pageID=ocatopic&L=3&L0=Home&L1=Business&L2=Identity+Theft&sid=Eoca.

4. More Mandated Sick Days – Milwaukee, WI has followed the example set by San Francisco and Washington, D.C., by enacting an ordinance(OK'd via voter referendum) which requires covered employers to provide a minimum of one hour of paid sick leave for every 30 hours worked, up to a max of 72 hours per employee each calendar year (or 40 hoursmax for employers of ten or less employees). The law takes effect February 10, butcurrent employees can’t use accrued sick days until 90 days after that date. New hires can’t use sick days until after 90 days on the job.The states of CA, WA and NJ (eff. July 2009) have or will have paid family leave on the books. And H.R. 5873 and S. 1681, if passed, will mandate 12 weeks of paid FMLA leave nationwide, when an employee needs time off to care for a child, spouse, parent, sibling, grandparent or grandkid, at a rate between 40 and 100% of normal pay, depending upon the individuals' annual income. I think this qualifies as a trend, so keep your eyes open for more mandates. I will.

5. Taxation Vacation – If passed, S. 3718 will amend the Internal Revenue Code and suspend the taxation of unemployment comp benefits received by individuals during 2008 and 2009. That’s good news for folks who are in a rough spot right now.

6. E-Verify or Else- Rhode Island wants the state government and anyone doing business with the state government to use E-Verify on all new hires. So, the RI Department of Administration (DoA) issued an emergency regulation on Oct. 17 requiring immediate compliance, while the final regulation pends during a comment period. While an attempt to stymie the emergency measure via application for a temporary restraining order failed, the judge did find that the lack of notice and opportunity to comment likely violated the state's Administrative Procedures Act and told the DoA to follow APA procedures and refrain from terminating any contracts based on contractors' failure to use E-Verify. Even though E-Verify remains a voluntary system (for now), be aware that states where you do business may be conditioning the ability to do business in the state (e.g., AZ) or with the state (e.g., RI) on registering with and using E-Verify on some or all new hires.

7. Scent-sible Solution?- A motion for summary judgment is denied and the plaintiff employee may proceed with her Americans with Disabilities Act (ADA) discrimination and failure to accommodate claims, arising from her physical reaction to strong scents. The trouble began with a co-worker's perfume, a plug-in room freshener in the lobby and room freshener and potpourri in the restroom. Noting that the plaintiff's symptoms did substantially limit her breathing, it didn't matter that her other claimed limitations (e.g., can't shop in the detergent aisle, scratchy throat affects speaking, meds made her fertility treatments ineffective affecting reproductive capability) either didn't affect a major life activity or did affect an MLA but not in a substantial way. The court agreed that providing a scent-free workplace would pose an undue hardship on the employer, but plaintiff countered that she never asked for that. Her suggestion had been a policy to curb the strongest scents, not all scents. Also of interest was the court's reliance on co-workers' statements such as "If she's allergic to perfumes and colognes then she has the problem . . . ." to find there was evidence the employer failed to engage in the ADA interactive process, which is a required step toward determining if a disability exists and if a reasonable accommodation is possible. McBride v. Detroit (E.D. Mich. 11-25-08). With the expanded ADA definitions used to determine disability which will take effect on January 1, many employers will need to rethink how they react, when they smell a dispute brewing.

8. DOL Doings- Elaine Chao, the longest-serving Secretary of Labor since WWII, will be replaced by Hilda Solis (D-Cal). Her new boss, the president-elect, says "I know that Hilda will show the same kind of leadership as Secretary of Labor that she showed in California and on the Education and Labor Committee by protecting workers' rights-- from organizing to collective bargaining, from keeping our workplaces safe to making our unions strong." Rep. Solis is a sponsor of the Employee Free Choice Act. Get ready.

9. Classified Information- The hit parade of large settlements stemming from misclassification of workers just keeps coming. A temp agency in Dedham, MA will pay nearly $1.9 million to 973 employees for overtime back wages, based on their alleged misclassification as being exempt from the FLSA. The jobs at issue included payroll systems analysts and accountants, project managers, business or project analysts, technical support, field and network engineers, technical writers, and systems and network administrators. Even HR consultants can get crosswise, as evidenced by the $4.9 settlement involving 1100 benefits analysts. Herring v. Hewitt Associates (D.N.J. 12-9-08). Job titles like "manager" and "engineer" sound pretty impressive, but if the duties actually performed by the individuals with those titles don't satsify one of the FLSA and/or state exemptions, well, prepare to open your wallet. Other misclassification settlements focus on the employee vs. independent contractor conundrum. A 10-year case involving 203 delivery drivers was settled for $27 million. Estrada v. RPS, Inc. (Cal. Super. Ct.12-5-08). And three related construction companies will pony up $600,000 to 99 workers. U.S. Dep't of Labor v. Dipat Construction (D.N.H.9-17-08).

10. Sneak Peek – The Texas Legislature will convene on Jan. 13, but here’s a sneak peek at a few pre-filed bills that could affect employers (in addition to those posted in last month’s LB4HR):

• HB 253 – An employer does not commit an unlawful employment practice by adopting a workplace “English only” rule that applies while employees are conducting the employers business, if necessary to promote safety or ensure effective communications with customers or among the employer’s employees
• HB 162 – Proposing use of an alternate base period to determine eligibility for unemployment comp in certain situations
• SB 377 – Extending eligibility for unemployment comp to certain part-time workers
• HB 345 & SB 327 – requiring businesses that accept credit cards to comply with payment card industry data security standards & authorizing the card-issuing financial institution to sue business that is subject to breach of its security system if at time of breach business was not in compliance with aforementioned standards
• HB 55, 219, 220, 356, 438 and SB 51 – prohibitions on and penalties for using wireless devices while operating motor vehicles (aka “Shut Up and Drive” bills)

11. Celebrate! – On second glance, there is even more to celebrate in the inaugural Modern Healthcare magazine “Best Places to Work List!” My apologies, for failing to include VHA, based in Irving, TX, which came in at #76. Thanks, Florence, for bringing that to my attention. While we’re at it, how ‘bout a round of applause for other Texas health care services who were also honored: #7 is Christus St. Michael Health System in Texarkana; #21 is Covenant Health System in Lubbock; #24 is Rolling Plains Memorial Hospital in Sweetwater; #55 is UMC Health System in Lubbock; #61 is Texas Medical Center in Houston; #64 is St. David’s Healthcare in Austin; #67 is St. Luke’s Episcopal Health System in Houston; #81 is St. Luke’s Community Center-The Woodlands in The Woodlands; #83 is Baptist St. Anthony’s Health System in Amarillo; and #96 is Scott & White Healthcare in Temple! Add that to the three previously mentioned providers and Texas is home to 13 of the 100 Best Places to Work in healthcare! Woo Hoo!

Until next time,

Audrey E. Mross
Labor & Employment Attorney
MunckCarterP.C.
600 Banner Place
12770 Coit Road
Dallas, TX 75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (cell)
amross@munckcarter.com
www.munckcarter.com

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