Legal Briefs for HR

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.  Welcome to new subscribers who attended my speeches for the North Texas SHRM chapter in Denton and the Sage Summit conference in Denver!

Here’s the dish:

1. Happy New Year– Here are just a few of the federal mandates which employers should be looking at now, prior to their January 2009 effective dates:
   1. Amendments to the Americans With Disabilities Act, eff. January 1 (new regulations are pending); will expand coverage of the Act via changes to definitions; employers should revisit internal procedures for receiving and acting upon requests for accommodation
   2. Mandated Use of E-Verify for Certain Federal Contractors and Subcontractors, eff. January 15; applies to contracts valued at $100,000+  and subcontracts valued at $3000+; affected employers must enroll in E-Verify within 30 days of being awarded a contract and begin verifying new and existing employees who will provide services under the contract
   3. New regulations for the Family and Medical Leave Act, eff. January 16;  will require rewrite of covered employers’ FMLA policies (and procedures) and use of new forms
2. Religious Rites and Wrongs– A pair of cases demonstrate that the EEOC fully intends to act upon a relatively new (July 2008) Compliance Manual section which deals with religious discrimination, harassment and accommodation.  A Nov. 7 consent decree involving the University of Phoenix and its parent company secures $1.9 million to settle allegations that online enrollment counselors who were not Mormons (aka members of the Church of Latter Day Saints) were discriminated against in pay, promotion and unfairly disciplined, when compared to their Mormon co-workers.  The relief granted will also require U of P to post notices about the settlement, provide EEO training internally, designate a diversity officer and toughen up their policy, as it relates to religious discrimination.  On Nov. 12, a Minnesota-based poultry processor and the employment agency which sent workers to the plant settled religious discrimination claims with the EEOC.  In this case, Somali Muslims were required (by the agency) to sign a form stating they would not refuse to handle pork and the employer did not provide adequate breaks to observe daily prayer.  The mediated settlement will provide $365,000 to between 40 and 80 affected individuals and will require (a) addition of a paid break during the second half of each shift for prayer; (b) timing of the added break will vary during the year; (c) cease use of the form relating to pork; and (d) the agency will offer jobs at the plant to individuals who refused to sign the form and were not hired as a result.
3. That Rings a Bell– Here’s the latest in the tussle between the Salvation Army, the EEOC and Congress over the former’s workplace English-only rules.  The Salvation Army fired two Hispanic clothes-sorters who had no customer contact for speaking Spanish in violation of the employer’s English-only rule.  The EEOC sued them for national origin discrimination and Sen. Lamar Alexander (R.-Tenn.) responded by blasting the EEOC and sponsoring an amendment to an appropriations bill that would bar the EEOC from using tax dollars to sue employers over English-only rules.  The amendment never got traction, but there is a pending bill (H.R. 4464) which would amend Title VII and make it NOT unlawful for an employer to require employees to speak English while engaged in work.  In the meantime, the EEOC’s suit has been settled and the Charging Parties have their Right to Sue notices.  Under the settlement, the Salvation Army will change its policy to state that employees will use English “to the best of their abilities when speaking to any other employee, beneficiary, customer or a supervisor” but non-English speakers may use their native language with co-workers, while on breaks, and with customers who speak the same language.  The Salvation Army will also change its sales associate job description to allow the hire of individuals with limited English proficiency “so long as they are able to speak and understand English consistent with the job description.”  EEOC v. Salvation Army (D. Mass. 11-08)
4. Snoopy– A former employee who used a co-worker’s password to peek into his former employer’s emails was found to have violated the federal Stored Communications Act (SCA).  The court’s narrow (and not universally shared) interpretation of “intercept” prevented a finding that the federal and state (TN) wiretap laws had been violated, too.  The SCA prohibits an individual from intentionally accessing without authorization a facility through which an electronic communication service is provided, or intentionally exceeding the scope of an authorization.  While at least one court has found no violation where a former employee used his own password to access his former employer’s email system, by implying such conduct was “authorized,” this court noted it would be “absurd” to conclude that access via use of co-worker’s password was authorized.  Cardinal Health 414 Inc. v. Adams (M.D. Tenn. 10-08).
5. Rock and a Hard Place– That’s where employers find themselves, when domestic violence comes to the workplace.  The workplace can be a place of solace and support from caring co-workers, but it also creates the income stream and independence that enrages some batterers and fuels their need to control.  Some states have tiptoed into the arena, legislating job-protected leave which allows victims to seek medical, financial, legal and emotional support without losing their jobs.  A few businesses have tried to manage these situations, mostly on an ad hoc basis.  For a thoughtful read on the subject, pick up this week’s issue of Fortune magazine or go to http://money.cnn.com/2008/11/18/news/Domestic_violence_morris.fortune/index.htm.
6. Simply the Best– Modern Healthcare magazine has announced it’s first national “Best Places to Work” list, which includes some of our neighbors here in north Texas.   Kudos to Harris Methodist Southlake Center for Diagnostic and Surgery (#68), the Beryl Companies (#69) and the Baylor Health Care System (#99).  Congrats!
7. Sneak Peek– The Texas legislature will convene on January 13, but bills are being filed now.  Here are a few of the labor-related bills I’ll be keeping an eye on for you:
   1. HB 48 – Suspend certain licenses held by employers who knowingly employ illegal aliens
   2. HB 226 – Prohibit employers from requiring employees to make charitable contributions
   3. HB 308 – Employers pay employees for the first day the employee responds to juror summons (since 2005, the court pays them $40 per day, starting with the second day, if he or she is called back)
   4. SB 60 – Job protected time off for an employee who is a victim of a crime
8. Do The Math (or Not)– Even in a tough economy, many employers are sharpening their pencils to calculate year-end bonuses.  If you offer bonuses to your nonexempt workers, it’s very likely that the amount paid will need to be added to each employee’s FLSA “regular rate.” This means the bonus must be allocated over the relevant time period and overtime will need to be re-calculated for each workweek in which overtime was earned, to reflect the new, higher “regular rate.”  Until the regulations requiring this administrative headache are revised, there is a way to simplify your task.  Rather than offering a lump sum or an amount tied to profits, offer a percentage of each nonexempt worker’s earnings, including overtime.  If you do it that way, you won’t have to recalculate the “regular rate” and pay more money for any overtime earned during the bonus period.
9.  Don’t Forget the Personal Touch – If you or your managers are handing out bonuses, don’t squander this golden opportunity to look each employee in the eye and say “Thank You.”  Even better, recall something specific the individual did when handing over the check and expressing your thanks.  A check in a mail slot or envelope is nice, but the cash is soon spent and forgotten (and often, expected).  What folks don’t expect and won’t forget is when you make an effort to personalize the gesture and tie it to something he or she can feel proud of.  I used to have a boss who did this with every single paycheck . . . and it felt great, every time. 
10. Thanksgiving– As HR professionals, counsel, and business managers and owners, you make workplaces functional, safe, productive and a source of pride (not just income) for so many people.  You’ve been tasked with the complex task of shepherding the most important resource any organization has . . . its people.  And you do it so well.  In case you haven’t heard it lately, THANK YOU for what you do, and have a wonderful Thanksgiving and holiday season with friends, family, colleagues and co-workers. 

Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX  75251

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

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