Top 25 Business Law Blog? Only If You Say So

dschwartz@pullcom.com (Daniel Schwartz) — Thu, 02 Sep 2010 17:27:00 GMT

As I approach the three-year anniversary of this blog (stay tuned for more details), it's certainly touching to receive accolades for this blog.

Each year, LexisNexis “honors a select group of blogs that set the online standard for a given industry.” Amazingly, the Connecticut Employment Law Blog is a nominated candidates for the LexisNexis Top 25 Business Law Blogs of 2010.

The list is impressive. I'm particularly fond of Doug Cornelius' Compliance Building blog. But in contests such as this, there is no room for compromise. I need to enlist your help.

You see, apparently LexisNexis wants readers to voice their support of their favorite blogs. Since Doug has already sent out a call to his readers to support his blog; I know readers of this blog can do better.

While Doug is willing to "sit back and take the consolation prize: the honor of being nominated", I think we have a shot to take this. Sure, we're up against the WALL STREET JOURNAL, and HARVARD LAW SCHOOL, but...

Ok, I know we're not fooling anyone, but if you'd like to say a good word about the blog, I'd be grateful. Lexis Nexis invites you to comment on the announcement post at either of the following links:

To comment, you have to register. Registration is free and supposedly does not result in sales contacts (though I'd use one of your backup e-mail addresses just in case). The comment period for nominations ends on October 8, 2010. They don’t say how they will end up selecting the top 25 out of the nominees other based on their review and your comments.

El Paso Worker Reinstated to Job

Thu, 02 Sep 2010 14:17:45 GMT

A worker in El Paso was vindicated after he was fired for talking to his co-workers about work conditions. The employer's action in firing the worker violates the National Labor Relations Act. Taking action against a worker for discussing "terms and conditions" of employment with co-workers violates the NLRA. Eric Murillo worked for Chaffhaye, Inc. and arranged a meeting with other employees to discuss unsafe working conditions. His employer fired him.

After filing a complaint with the National Labor Relations Board and seeking representation from the Paso del Norte Civil Rights Project, he was reinstated with lost wages. OSHA also eventually got involved and also found violations. See report. Chaffhaye produces livestock and forage feed.

New California Workers' Compensation Regulations

Thu, 02 Sep 2010 13:00:36 GMT

Workers' compensation law is just one more thing that HR has to be worried about. I try not to worry about it, but I can't help it. Our friends at the California Chamber of Commerce published a handy FAQ regarding new regulations. The regulations concern Medical Provider Networks. In particular, the posters and notices must be revised substantially. The FAQ's lead you to the government's source documents. The deadline is October 8, 2010, so get ready.

CHRO Human Rights Referee Dismisses Case for Failing to Attend Hearing Pretrial Conference

dschwartz@pullcom.com (Daniel Schwartz) — Thu, 02 Sep 2010 02:12:13 GMT

Every once in a while there comes a decision that can shake up your expectations.

The case of CHRO ex. rel Nemeth v. Westport Big & Tall, Inc. is one of them. In it, the presiding human rights referee dismissed a CHRO complaint because the employee's (and his attorney) failed to attend a hearing conference -- essentially a meeting were upcoming schedules are discussed.

What's surprising about the decision is that the employee's attorney had notified the referee that she would be in Florida on the date in advance and said she could participate over the telephone.

In the referee's opinion that wasn't good enough because the request by the attorney didn't satisfy other procedural requirementst, including proposing alternative dates and copying the CHRO's counsel on the requests.

Now, you might think that perhaps this was because the conference was scheduled well in advance and the request for a delay came about at the last minute. But that's not the case here either. In fact, notice for the July 23, 2010 hearing conference was only sent out the prior week, on July 14, 2010. To the human rights referee, this too provided no excuse for failing to follow other regulations:

Notwithstanding the policy in favor of having cases heard on their merits, parties and their attorneys do not, without consequences, decide for themselves if they will attend hearings, what hearings they will attend, what procedures they will follow and what procedures are too inconvenient for them to attempt compliance.

What's the takeaway for employers (and even employees) from this case? If you have a matter in which reasonable cause has been found and you're proceeding with a hearing at the CHRO, strict compliance with the procedural requirements is the path being advanced by the CHRO now. Even vacation schedules are no match, unless other attempts are made to comply with the rules.

Cell Phone Activation Before Receiving Phone?

Wed, 01 Sep 2010 23:07:03 GMT

If you ordered a cell phone from a retailer and the phone was to be mailed to you, have you been charged for service before receiving the phone? Sprint (S), among others, is one company that has elected to sell their phone through third party retailers.

It is not uncommon for some third party retailers to sell a cellular phone to a customer, and before the customer actually receives the cell phone, activate the service. This violation is most common with third party retailers who sell phones for cellular companies but have the inability to activate the cellular services at the time of purchase. While this may seem like a small issue and only cost the cellular phone user a few days of service charges prior to receiving the phone. Nevertheless, it is wrong. Moreover, when you consider that this violation affects potentially thousands of consumers, the damages add up quickly.

When a single individual has common damages of many other individuals, class action treatment may be the most efficient to prosecute the company or companies committing these violations. It would not be cost effective or efficient for the courts for hundreds or thousands of claims to be litigated. This is the reason why California class action cases are filed in many instances.

If you have purchased a phone through a third party retailer, you should speak to a California class action attorney to determine if your rights have been violated.

New York Enacts Domestic Workers' Bill of Rights

Wed, 01 Sep 2010 22:53:35 GMT

On August 31, 2010, just in time for Labor Day, New York Governor David Paterson signed into law the “Domestic Workers Bill of Rights” (“Bill of Rights”), which grants certain employment protections to household domestic workers such as nannies, caregivers and housekeepers. The Bill of Rights, which takes effect on November 29, 2010, is the first of its kind in the nation and amends New York Labor Law, in addition to other statutes, to entitle domestic workers to receive overtime pay, one day of rest per week or overtime pay when they work on their day of rest, and three days of paid time off after one year of employment. To learn more about the law and its implications for employers, please continue reading Littler's ASAP, "New York Enacts Bill of Rights for Domestic Workers," by Stephen A. Fuchs.

When Can an Employer Ask for a Second Opinion for FMLA Leave?

Wed, 01 Sep 2010 21:26:03 GMT

Recently I was asked when an employer may seek a second opinion to verify an employee's serious health condition for purposes of Family Medical Leave Act ("FMLA") leave. The folks at the FMLA Insights blog addressed this very question in their recent post, FMLA FAQ -...

Enforcement Action by Federal Trade Commission Highlights Importance of Social Media Guidelines for Employees

Wed, 01 Sep 2010 17:15:43 GMT

Employees who post reviews of their employer’s products and services on social media sites, without disclosing their corporate affiliation, can land their employer in an FTC enforcement action. The FTC’s second enforcement action for violation of the agency’s endorsement guidelines, announced on August 26, makes this point.

According to the FTC, Reverb Communications, an on-line public relations firm, sought to boost sales of its clients’ gaming applications by having its employees post positive reviews on iTunes. Over the course of nine months, Reverb employees, posing as disinterested users, gave clients’ games a rating of 4 or 5 and posted comments, such as “Amazing new game,” “ONE of the BEST,” and “Really Cool Game.” According to the FTC, these reviews were misleading because they did not, as suggested, come from independent, ordinary consumers, but from Reverb employees who had a financial incentive to provide a positive endorsement.

In the agreement resolving the FTC’s complaint, Reverb agreed, among other things, (a) not to permit its employees to endorse any product without conspicuously disclosing the employee’s connection to Reverb and/or the manufacturer or advertiser of the product; (b) to take reasonable steps to remove the endorsements that were posted without full disclosure; (c) to maintain for five years all documents related to the company’s compliance with the agreement; and (d) to obtain for five years all current and future employees’ acknowledgement of receipt of the company’s agreement with the FTC.

With social media sites offering endless opportunities to recommend and review products and services, and employers increasingly pushing into Web 2.0 to promote their own products and services, well intentioned but misleading endorsements can easily mushroom throughout the Web. Employers can reduce this risk by explaining in a social media policy how the FTC defines an endorsement and by requiring any employee who provides an endorsement to disclose conspicuously his or her corporate affiliation. In addition, employers, as part of their social media training, should explain that even a numerical score or a brief comment about the employer’s products or services on a site not sponsored by the company could constitute an “endorsement” under the FTC’s guidance. The training also can provide the employee with different ways to disclose their affiliation with the employer, such as by stating, “I work in Employer’s product development department, and I think our product is the best in its class,” or by including the employer’s name and the employee’s job title when posting a comment.

This entry was written by Philip L. Gordon.

Photo credit: parasoley

Preventive Fitness for Duty Exams

Wed, 01 Sep 2010 15:24:01 GMT

Fitness for duty exams are not popular with the workforce. They can be very stigmatizing. But, employers want to know if an employee has issues that could affect business. Most caselaw says fitness for duty exams for unspecified reasons are not justified - they are perceived s a backdoor to discriminate based on disability. But, the 9h Circuit found in Brownfield v. City of Yakima that sometimes they are appropiate. See decision. In this case, a police officer exhibited erratic behavior a few years after he sustained a head injury. He was complaining over a period of years about a supervisor who Brownfield believed was keeping him from promotion. After exhibiting some erratic behavior, his employer required him to see a doctor and provide a report. Brownfield cooperated at first and then refused to follow through. The first doctor did find a mental diagnosis.

The court found that in a workplace where the employer is engaged in dangerous work, preventive fitness for duty exams might be appropriate where there is a business necessity. The court cautioned that they should not be used as a means to harass an employee or to fish for non-work related medical issues. The business necessity standard is "quite high" and should not be confused with mere expediency, said the court. The court then concluded:

   "Nevertheless, we hold that the business necessity standard
   may be met even before an employee’s work performance
   declines if the employer is faced with significant evidence
   that could cause a reasonable person to inquire as to whether
   an employee is still capable of performing his job. An employee’s
   behavior cannot be merely annoying or inefficient to
   justify an examination; rather, there must be genuine
   reason to doubt whether that employee can perform
   job-related functions."

This ruling may not provide the clearest guidance, but it is a start.

Miss Blu's Workplace Policy #103: Perfume Assaults Policy

Wed, 01 Sep 2010 13:16:49 GMT

MEMO From: Miss Blu in HR To: All Employees Re: Perfume Assaults Policy It has been brought to the attention of HR that some employees feel (okay, ONE employee feels) assaulted by the ridiculous amounts of perfume some of you are wearing, so HR created the following policy,...

Medical Malpractice in Pennsylvania - Part 2

Wed, 01 Sep 2010 13:00:50 GMT

In this video, Anthony Zabicki, Shareholder in Stark & Stark's Accident & Personal Injury Group, discusses the various issues you need to consider if you or a loved on are every involved in a medical malpractice case. Mr. Zabicki also discusses the necessary components for a successful medical malpractice case such as the assistance of medical experts and health care professionals.

Medical Malpractice - Part 2 from Stark & Stark on Vimeo.

The Risks of Using Social Media Sites for Hiring

dschwartz@pullcom.com (Daniel Schwartz) — Wed, 01 Sep 2010 12:18:02 GMT

The rise in social media sites has provided employers with the opportunity to learn more about the candidates that they are considering hiring than every before.

But the problem is that some of the information they may be learning is irrelevant to the job qualifications, or worse, may be improper for the employer to use.

Sharlyn Lauby published an article on the American Express Open Business Form last night that goes into these issues in-depth from a human resources perspective. While I am quoted in the piece, I highly recommend it for a different reason: It doesn't try to sugarcoat the issue.

On the one hand, I think we have to recognize that it is unrealistic to expect that employers will simply ignore these social media sites; after all, who hasn't Googled their name (or their friends) to see what is out there.

But the amount of data now available can also be overwhelming and without filters or controls, it's tough trying to place such information into a proper perspective.

I suggest in the article asking yourself a few questions to decide if using social media in the recruiting process makes sense for your organization.

Why do you want to use social media?
What information are you hoping to find?
Is the fact that an employee uses social media a bonus or a demerit?

As I then note in the auricle, "I think too many employers think that adding social media to the hiring process will make their decision-making easier, but because of the volume and types of information available, it may only make it more complicated."

There's good input from other human resources professional about how they balance the need to know with other legal and practical concerns. If you're considering using social media sites in your hiring process, it's an article worth reading.

Vacation Policy Pitfall: Superior Court Awards $8.3 Million in Vacation Pay Dispute

Wed, 01 Sep 2010 03:01:51 GMT

California employers should take heed of yet another reminder about the need to carefully craft and administer employee leave and benefits programs such as a paid vacation policy.

In a decision made public on August 28, 2010 (Molina v. Lexmark Int’l, Inc., Cal. Super. Ct., No. BC339177), Judge Gregory Alarcon of the Los Angeles County Superior Court ordered Lexmark International, Inc. to pay nearly $8.3 million in damages resulting from the company’s longstanding (and illegal) “use-it-or-lose-it” vacation policy.

The class action suit involved 178 current and former Lexmark employees in California. Lexmark was found to have violated Labor Code Section 227.3 by implementing a policy under which its California employees forfeited vacation benefits if their vacation time was not taken within a specific timeframe. California law treats accrued vacation benefits as a form of deferred wages, which vest as the employee renders services. Once vested, vacation pay becomes the property of the employee, and employers are prohibited from requiring employees to forfeit accrued vacation for any reason. Thus, the “use-it-or-lose-it” policy adopted by Lexmark is unlawful in California, and any vested vacation benefits should have been paid upon termination of employment.

Exacerbating the liability and resulting damages for Lexmark, the Court found that the statute of limitations on the employees’ Labor Code claims should be tolled in this situation, resulting in an extension of the company’s liability to all employees who worked for Lexmark in California since the policy’s implementation 19 years ago in 1991.

Accrue It, Not Lose-It

This case clearly demonstrates the potential for large-scale liability awards arising from an improper vacation pay policy. California employers are not required to provide employees paid vacation time off, but if they choose to do so, the policy must be implemented in compliance with California law. While a “use-it-or-lose-it” policy is impermissible, employers may impose a reasonable cap on the amount of vacation time employees may accrue. Under such a policy, vacation ceases to accrue once the employee reaches the cap and will only resume accruing once some of the previously accrued vacation has been used. Employees are not entitled to vacation time that they would have earned during the period the vacation benefit was at the cap.

The vacation benefits cap set by the employer must be reasonable considering factors such as the amount of vacation offered, the opportunities for employees to take vacation during the year, and the type of business involved. California employers commonly cap vacation at one-and-one-half to two times the annual accrual rate established by their vacation policies. Employers seeking to revise their vacation policy or wishing to verify their current compliance with California’s unique vacation policy rules should consult legal counsel to avoid potential liability pitfalls.

Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage

Tue, 31 Aug 2010 23:38:31 GMT

In an important decision that will affect countless numbers of small businesses in Florida, the Eleventh Circuit Court of Appeals today rejected the arguments of several employers that they were not subject to “enterprise coverage” under the Fair Labor Standards Act. The decision, Polycarpe v. E&S Landscaping Services, Inc., is bound to lead to an increase in the number of FLSA cases filed against small businesses in Florida – which are already the frequent target of such claims. I will provide some analysis of the Polycarpe decision in the near future.

Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage

Tue, 31 Aug 2010 23:38:31 GMT

Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010)

Tue, 31 Aug 2010 18:15:26 GMT

The Seventh Circuit enters into a long-standing split about what level of protection - for purposes of the Title VII anti-retaliation section - an employer must give the employee's "participation" in an internal harassment investigation prior to an EEOC charge being commenced. While some circuits have treated it as a litigation privilege, with nearly absolute protection against retaliation even if the complaints are frivolous or false, the Seventh Circuit holds that (1) there is a good-faith requirement for "participation," and (2) in any event, "participation" means only involvement in an official Title VII proceeding.

Rastafarian Won't Lose Dreadlocks, Loses Employment Opportunity, Loses Case

fcs@lawfirmnewjersey.com (Frank Steinberg) — Tue, 31 Aug 2010 15:34:05 GMT

Words have meanings, and sometimes imprecision in the use of a word can affect substantive legal rights. In illustration of this principle, from Chicago comes the tale of Lord Osunfarian Xodus. The case is Xodus v. Wackenhut.

A Rastafarian who wears dreadlocks, Xodus applied for a job as a security guard with Wackenhut Corporation. At his interview Xodus was told that Wackenhut has a grooming policy that would require him to cut his hair. Xodus responded that cutting his hair was against his "belief," without specifying that the belief was religiously based. As a result, he was not hired.

At trial the court found the person who conducted the interview for Wackenhut was not told that Xodus claimed a religious basis for his refusal to lose his dreadlocks. Neither did the circumstances compel the conclusion that the interviewer should have known of the religious consideration.

In affirming the judgment of the trial court, the 7th Circuit Court of Appeals noted that "unlike race or sex, a person's religious belief is not always readily apparent." Thus, Xodus had an obligation to bring his religious belief to Wackenhut's attention, and his failure to do so was fatal to his claim of religious discrimination.

So "belief" does not necessarily mean "religious belief." If Xodus had used the adjective "religious" to modify "belief," the case probably would have had a different outcome. As noted above, words have meanings, and we need to be mindful of that in our business dealings.

If My Claim For Workers Comp Was Denied, What Do I Do Next?

Tue, 31 Aug 2010 15:24:41 GMT

Call experienced PA Work Comp Lawyer Michael W. Cardamone for a free and prompt consult at 215-206-9068. We can file a Petition on your behalf and pursue the benefits you are entitled to.

Do NOT let the insurer have the last word. They often deny claims for no reason whatsoever. There are time limits, so the sooner we file the Petition, the better.

For more info on Pa Work Comp, call or email me.

215-206-9068
mcardamone@krasno.com

A Unique Pennsylvania Workers Comp Lawyer Who Cares For Injured Workers

Reasonable Accommodation Requires More

Tue, 31 Aug 2010 13:14:33 GMT

How much accommodation is enough? There is surprisingly little caselaw on the subject. Most issues arising under the old ADA concerned whether a person was truly a person with disability.Now that the ADA hs been substantially amended, we will surely start seeing more accommodation issues. In EEOC v. UPS Supply Chain Solutions, we see a case addressing the issue of how much accommodation is "reasonable." In this case, the employee had been deaf since birth. His first and primary language was American Sign Language. He reads and writes at the 4th grade level. That is not unusual for people who have been deaf since birth. Many ASL signs do not correlate to written words, and vice versa.

In this case, UPS used an ASL translator sometimes but often relied on written communication. When the employee would not know a written word, they would tell him to look it up in the dictionary. When that did not help, UPS provided nothing further. The employer held weekly and monthly meetings - the employer relied on written agendas, notes and emails to convey the information in these meetings to the employee, Mauricio Centeno. The company refused to provide an interpreter for meetings that lasted less than two hours. That level of accommodation is not enough, according to regulation. Lack of a translator at key meetings is the same as no translator at all. Centeno said he could not understand what was in some of the written communications. UPS would not hire a translator for the weekly and monthly meetings and trainings.

The EEOC advised Centeno that he did not need to attend meetings without an interpreter. Centeno missed some meetings. The employer then told him he had to attend all meetings. Later, he was counseled in writing for his behavior in the lunch room. The EEOC later filed suit based on the employer's failure to accommodate.

The 9th Circuit reversed the summary judgment in favor of the employer. The appellate court said at the least, there is a fact question whether this accommodation was "reasonable." The employer never claimed the obvious defense that the translator was too expensive. Translators in the San Antonio area charge anywhere from $75-100 per hour. The appellate court wrote:

“In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.

See decision. Frankly, I am surprised the lower court granted summary judgment. As Workplace Prof says, this is one the employer should settle. If the employer wishes to fire or discipline an employee for violating policy, the employer must make certain the employee understood that policy.

Employment Discrimination Complaints at CHRO Up Slightly in 2009-2010

dschwartz@pullcom.com (Daniel Schwartz) — Tue, 31 Aug 2010 12:54:07 GMT

The conventional wisdom in a down economy is that employment discrimination claims will skyrocket. While there have been some indications of that at a national level, the numbers in Connecticut tell a very different story.

The state agency in Connecticut responsible for investigating discrimination complaints recently released its annual report (download here) for the fiscal year ending June 30, 2010.

It shows that 1740 employment discrimination complaints were filed in the 2009-2010 fiscal year, up slightly from 1716 complaints the year before (a little over 1 percent). However, these numbers are still well below the 1814 complaints filed in FY2008, and the over 2000 complaints in FY 2001.

(I've previously looked at the annual report numbers in posts here, here and here.)

Notably, the numbers of "reasonable cause" findings are down 15 percent from the year prior -- to just 75 instances during the whole year (down from 91 in FY2009). It is the first time in 4 years, that the numbers of reasonable cause findings were this low.

In upcoming posts I'll delve into the numbers a bit further including increasing numbers of retaliation complaints being filed.

The numbers confirm what I had suspected last year -- a discrimination complaint is not a foregone conclusion from a layoff, at least not in Connecticut.

Photo credit: Grafixar from morguefile.com

Recent Articles in Employment & Labor Law from LexMonitor

Top 25 Business Law Blog? Only If You Say So

El Paso Worker Reinstated to Job

New California Workers' Compensation Regulations

CHRO Human Rights Referee Dismisses Case for Failing to Attend Hearing Pretrial Conference

Cell Phone Activation Before Receiving Phone?

New York Enacts Domestic Workers' Bill of Rights

When Can an Employer Ask for a Second Opinion for FMLA Leave?

Enforcement Action by Federal Trade Commission Highlights Importance of Social Media Guidelines for Employees

Preventive Fitness for Duty Exams

Miss Blu's Workplace Policy #103: Perfume Assaults Policy

Medical Malpractice in Pennsylvania - Part 2

The Risks of Using Social Media Sites for Hiring

Vacation Policy Pitfall: Superior Court Awards $8.3 Million in Vacation Pay Dispute

Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage

Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage

Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010)

Rastafarian Won't Lose Dreadlocks, Loses Employment Opportunity, Loses Case

If My Claim For Workers Comp Was Denied, What Do I Do Next?

Reasonable Accommodation Requires More

Employment Discrimination Complaints at CHRO Up Slightly in 2009-2010