Paycheck Fairness Act - Coming Soon?

dschwartz@pullcom.com (Daniel Schwartz) — Tue, 09 Feb 2010 03:47:06 GMT

As those who have been following my tweets know, I have been at the American Bar Association's House of Delegates and midyear meetings. There's lots of substance to these meetings and you can certainly follow along with the ABA Journal.

Among the topics discussed today, was the Paycheck Fairness Act now pending in Congress. If you are not familiar with it, you should be because by all accounts, it's moving front and center this year as an important piece of legislation for the Obama Administration and others. Rep. Rosa DeLauro of Connecticut is the primary sponsor of the bill in the House of Representatives.

John Phillips reported on this recently. As a result, employers should take stock of their compliance programs and certainly begin a review (if it is not done regularly) of your current compensation procedures.

What does the bill do? John has a good summary but some of the key changes would be to revise the remedies for sex discrimination in the payment of wages by permitting uncapped punitive and compensatory damages and limit employers’ ability to defend against EPA claims. The bill would also prohibit an employer from retaliating against an employee who inquires about, discusses, or discloses his/her own wage or that of another employee unless the disclosing employee has access to that wage information as part of his/her essential job function.

Turner v. The Saloon, Ltd., No. 07-2449 (7th Cir. Feb. 8, 2010)

Mon, 08 Feb 2010 21:37:03 GMT

Though the Seventh Circuit long ago affirmed under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), that evidence of pre-charge harassment is admissible to prove a Title VII hostile-work-environment claim (see West v. Ortho-McNeil Pharmaceutical Corp., 405 F.3d 578, 95 FEP 961 (7th Cir. 2005)), it occasionally has to remind the district court judges of this rule, as in this female-on-male harassment case.

Snow Storms & Slip and Falls

Mon, 08 Feb 2010 21:28:15 GMT

The great snowstorm of Feb. 5-6, 2010, is history. Officially, 28.5 inches was measured at Philadelphia International Airport, just shy of the all-time record and putting the winter of 2009-2010 to No. 2 for snow in 126 years of record-keeping. They are calling for another big storm this week.

Of course, all of this snow makes for very dangerous walking conditions. The chances of being hurt as a result of slipping on ice or snow only increases.

There are a few things that you should do if you are hurt on someone’s property as a result of snow or ice. The first thing is to be sure that you receive the appropriate medical attention. If you are seriously hurt, you should call 911 and wait for an ambulance.

Next, you should notify the property owner so that they may correct the dangerous condition. You do not want any one else to be hurt. Also, this will help later prove that you were really hurt on their property. If you are hurt on a commercial property, they may want you to complete a report or given them a statement. Be careful about doing this. They will usually try to use whatever you tell them against you later.

Pictures. Pictures. Pictures. If possible, you should take pictures of the dangerous condition. If you have a camera, then you should take five pictures of the area. You can also use a cellphone camera. Pictures can be very valuable in proving that the dangerous condition existed. Also, it will prove that the property owner should have taken care of the condition before you were hurt. These pictures will sometimes help you win your case.

Your next call should be to an attorney that handles slip and fall cases. At Stark & Stark, we handle these cases every day. We will have experts that will want to inspect the dangerous condition as soon as possible. Also, we will want to make sure that you are fully compensated for the damages that you suffered.

Physical Attractiveness Suggests Gender Based Discrimination

Mon, 08 Feb 2010 20:31:08 GMT

One of my first jobs was waiting on tables. I envied the female waitresses because they often scored better tips simply because they were attractive. The women knew that. They generally accepted that fact and used it. But, what if the employer told the waitresses, as some do to put on more makeup and look more feminine? Would that be discrimination? The argument would be that if stereotyping by gender itself is a form of discrimination. In one recent case, a female clerk at a hotel was fired because she could not or would not dress up and put on that "Midwestern Girl look." The clerk needed to look pretty, said her manager. Was that discrimination based on gender?

The 8th Circuit Court of Appeals thought so and ruled in her favor. Several circuits have adopted the reasoning that gender stereotyping is discrimination. The 2-1 decision resulted in one dissent. The dissenting judge said that hiring or firing based on physical attractiveness is not discrimination unless it is pretext for putting women at a disadvantage. One commentator agrees with the majority in this decision.

Becker Cloture Vote Delayed

Mon, 08 Feb 2010 18:26:00 GMT

Due to the massive snowstorm that hit the Washington, D.C. area over the weekend, the cloture vote on Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB) has been rescheduled to Tuesday at 5:00 pm. At least 60 votes are needed to lift the blanket hold Sen. Richard Shelby (R-Ala.) put on his nomination, among others, and effectively limit debate. Unless Becker can garner the requisite 60 votes – made more difficult now that Scott Brown has been sworn in as the Senate’s 41st Republican – it is expected that those opposed to Becker will filibuster to prevent a confirmation vote.

Complimentary Webinar - Massachusetts Data Security Regulations: A Plan for Compliance

Mon, 08 Feb 2010 18:22:20 GMT

Beginning March 1, 2010, businesses will be required to safeguard from identity theft and other dangers personal information about Massachusetts residents under a “written information security program” or WISP. Similar requirements exist in other states around the country, although those requirements generally are not as comprehensive as those becoming effective in the Bay state.

Our complimentary webinar is designed to help employers and businesses become compliant. The program will cover:

the emergence of data security mandates across the country,
the Massachusetts approach to data security – breach notification, data destruction, the nuts and bolts of the identity theft/data security regulations, and
best practices when creating a WISP.

We hope you enjoy the webinar.

What Kind of Boss Are You?

Mon, 08 Feb 2010 17:40:22 GMT

CBS rolled out its’ new reality television show “Undercover Boss,” right after the Super Bowl Sunday evening. In the first episode, Waste Management President and COO, Larry O’Donnell, went undercover for one week performing entry level positions in his own company. A camera crew followed him under the guise they were filming a documentary on entry level positions.

President O’Donnell was filmed working the conveyor belt and picking out cardboard from other recyclables, learning to clean out portable toilets, picking up paper at a worksite, following an overworked administrative assistant/payroll clerk/ truck weigher, and riding along with a female garbage hauler.

Overlooking the manufactured drama of reality television, O’Donnell seemed to really learn from his experience performing the entry level positions. He learned one of his recycling plants implemented his 30 minute lunch rule, by docking employees 2 minutes for each minute they were late returning from their limited lunch break. This punishment was never his intention, not to mention the possible FLSA problem it may pose to reduce an employee’s earned wages this way.

O’Donnell also learned the female garbage hauler was forced to drive a route which does not permit her to stop and use a restroom, so she carries along a can in her truck to use when she needs to urinate. He admitted maybe his company was not too female friendly and he vowed to make necessary changes. He was surprised to find the employee who cleans out the portable toilets had a cheerful attitude and worked hard at his given tasks. O’Donnell wondered how he could translate that work ethic and attitude to more of his employees.

The big lesson for O’Donnell was making the connection between his management policies and the impact they had on his front-line employees. It was an eye-opening experience and O’Donnell vowed to be a better boss based on the experience. What kind of boss are you?

Stay-tuned for next week’s expose where the CEO of Hooters goes undercover as a management trainee. He uncovers a Hooters manager requiring the waitresses to perform a reindeer dance which looks a lot like sexual harassment.

Insurance Coverage for Adult Children under Act 4 Optional for Employers

Mon, 08 Feb 2010 16:38:33 GMT

We have had a number of inquiries and comments on our blog post regarding Act 4, the amendment to Pennsylvania's insurance company law relating to health insurance coverage for adult children up through and including age 29. Prior to Act 4, if an employer offered dependent coverage, insurance companies were only required to provide coverage to children on their parents' insurance until the age of 19. The Pennsylvania Insurance Department estimates that almost 40% of those who were uninsured in Pennsylvania are between the ages of 19 and 29.

A key phrase of Act 4 provides that the insurer's obligation to provide coverage to a child of an insured employee beyond a specified age, up through and including the age of 29, is "at the option of the policyholder", meaning the employer. Also, coverage would be provided at the insured employee's expense. Employees may wonder why an employer would not choose to provide this coverage and what the value is of legislation mandating insurers to offer coverage while giving employers the ability to opt out. In addition, if an employer is self-insured, Act 4 does not make any change in what coverage must be offered because it applies only to insurers.

While insurers may appreciate the opportunity to provide coverage to the group of young adults who are underserved, employers are not likely to be as supportive. It has been projected that the mandate would increase employees' contributions to their group health insurance, since insurance laws require additional costs to be spread among all employees, and not just those with adult children. This may result in overall health insurance premiums rising for employers and all employees. In addition, this effect could result in more employers becoming self insured to avoid legal mandates such as extended adult child coverage or Pennsylvania mini COBRA application requiring COBRA coverage for employers employing fewer than 20 employees.

You can visit the Pennsylvania Insurance Department's website for additional information regarding Act 4.

Cleaning Up Workplace Banter

Mon, 08 Feb 2010 14:22:18 GMT

In a decision issued last week, the U.S. Court of Appeals for the 11th Circuit held that gender-derogatory words and conduct that are either severe or pervasive may state a claim of a hostile work environment, even when the words at issue are not directed specifically at the plaintiff. Reeves v. C.H. Robinson Worldwide Inc., 11th Cir. (en banc), No. 07-10270, January 20, 2010.

The case involved a female employee working in a male dominated field. Her coworkers blasted offensive radio shows in shared workspaces. One coworker displayed an explicit picture of a naked woman on his computer screen. And the men in the workplace frequently used derogatory terms to refer to women generally. Even though her coworkers never directly insulted or threatened the Plaintiff, the Court held that the their actions created an objectively hostile work environment for any woman. With this decision, the 11th Circuit joins the majority of Circuits in holding that a hostile work environment may be created in violation of Title VII, even when the plaintiff is not individually targeted.

Courts have uniformly held that Title VII is not a general civility code. It does not protect against isolated sexually-tinged remarks. Nor does it protect against pervasive harassment that is non-discriminatory. But while the law tolerates general vulgarity, and even boorishness, liability arises when employers abide the frequent use of gender-derogatory language.

This holding bears special significance for work environments where curse words are part of the everyday vernacular of the employees. Employers wishing to avoid this kind of litigation should pay careful attention to address employee complaints. Training supervisors to reign in gender derogatory words and conduct could prevent a situation where an employee feels he or she has to complain in the first place.

Going "Undercover" to Determine How Corporate Policies Play Out in the Workplace

Mon, 08 Feb 2010 13:59:24 GMT

Last night CBS launched its new series "Undercover Boss" following the Super Bowl. The premise of the semi-reality series is the president of a large company goes undercover as a rank-and-file employee to work for the company and get a bottom-to-top look at how the company operates. [Spoiler Alert --Don't read further if you have the show DVR'd to watch later]. Last night's episode exemplified a situation where appropriate and legal policies formulated at the corporate level sometimes get contorted or twisted at the tactical level.

In last night's episode the President and COO of Waste Management (Larry O'Donnell) went to work undercover as a new employee in various operations of his company over the course of a week. At a recycling plant operated by Waste Management, the company apparently had a policy requiring employees to take exactly a thirty minute meal period. It was unclear from the show whether the policy was required by state law, but an employee had to clock-out for exactly thirty minutes. If the employee clocked in a minute late, local management, docked the employee for 2 minutes of pay. Presumably, if the employee clocked in 5 minutes late, she would be docked 10 minutes of pay. In any event, it is unlikely that Waste Management's Human Resources or Legal Departments encouraged or condoned the application of the policy in this manner given the potential that such docking of work time (depending on the state and whether the total time docked is de minimus) could result in a wage and hour violation .

The lesson employment lawyers and human resources personnel can take away from "Undercover Boss" is that there is often a difference in how a policy is designed to work and how it actually works in practice. When investigating a potential legal claim to answer a complaint or draft a statement of position to the EEOC, it is often important to talk to the people who are actually responsible for implementing company policies to determine how they really operate in the field rather than relying on middle or senior management who may only know how the policies are supposed to work. Failing to do so can cause employers to make misrepresentations to governmental agencies or courts and can lead to accusations that the employer either doesn't know what is going on in the workforce or to claims that the stated reasons for taking some action against an employee are pretextual or false.

Breaking Down Legal Jargon on Texas Non-Competes

Mon, 08 Feb 2010 10:47:09 GMT

In Texas a non-compete has to be ancillary to an otherwise enforceable agreement. What does this mean? The consideration (or value) in the separate agreement must give rise to the employer's interest in keeping the employee from working and the non-compete must be designed to prevent the employee from breaching the promise she gave as consideration (value) in the other agreement. Examples are the best way to understand what this means.

Say I go to work as a programmer for a company that makes a state of the art mp3 player with a highly advanced new technology. In order to carry out my job I will be provided access to the source code for the technology and my job will include manipulating and altering the code. The company states in my employment agreement that it will provide me with the source code and that because I am being provided with the source code I cannot work in the mp3 player industry for 1 year after I quit or am fired from the company. (Yes there is a nondisclosure agreement and common law duty not to disclose an employer's trade secrets but ignore that.) So, there is an otherwise enforceable agreement (the agreement to provide me with the source code) and providing me with the code gives rise to the non-compete.

The alternative is an agreement that has nothing to do with a non-compete. Say a company agrees to pay me $100 in the event I quit or am fired. There is also a one year non-compete. Yes, there is an ancillary agreement - the promise to pay $100- but it has nothing to do with keeping me out of the industry for a year. This doesn't work.

The trick is to tie what the company is trying to protect to the non-compete. Court's are far more likely to enforce a non-compete when the employer has provided something of value that is worth protecting.

Massive Natural Gas Exolosion Kills 5 and Injures More in Middletown

JFAspell@AspellLaw.com (James F. Aspell) — Mon, 08 Feb 2010 04:41:49 GMT

In what will likely prove to be Connecticut's largest single worker's compensation incident in years, the Associated Press is reporting that at least 5 workers were killed today and 12 more were injured when a Kleen Energy plant they were constructing in Middletown, Connecticut erupted in a natural gas fueled fireball. The photos I have scene from the scene depict the building ---which was under consruction but reportedly 95% complete--- with both of its' sides blown out. Homes across the Connecticut River in Portland suffered cracks in their walls and buckled doors as testimony to the force of the explosion.

In a case such as this, I am certain the members of the Connecticut Worker's Compensation bar will rally together to aid in bringing justice to the families of those killed and care to those who have been injured. Our prayers go out to all involved.

Court of Appeal Upholds Arbitration Agreement

Sun, 07 Feb 2010 01:27:48 GMT

I know, I've been remiss in my blogging. Blame it on Jennifer Shaw's new baby. She can't read yet.

So, the Court of Appeal in Dotson v. Amgen (opinion here) held that Amgen's arbitration agreement was lawful. Specifically, a limitation of one deposition per side unless the arbitrator ordered more based on need was lawful. The Court also noted that a provision reserving all interpretation issues to the arbitrator save unconscionability was ok. The Court also held that a provision permitting appellate review in a separate court action to set aside an award was lawful.

The model arbitation agreements can be amended again.

EPCRS Issues Arising from 403(b) "Disqualification"

Sat, 06 Feb 2010 20:24:54 GMT

In a lunch conversation with Kathy Elliott , (a CPA specializing in 403(b) audits) at the annual meeting of the TE/GE Councils in Baltimore (which, by the way was pulled off fantastically by Warren Widmayer (and a few others), in the face of a snowstorm of historic dimensions), we went into more detail on my blog on 403(b) plan disqualification.

In talking about what now seems to be the obvious, Kathy pointed out the absurdity of "disqualifying" an entire 403(b) plan: the employer suffers little direct tax sanction, and the burden of the employer's errors are borne by the employees. There is no "stick" to the "carrot and stick" combination that makes 401k plans work, according to Kathy.

Think about it. In a 401(a) disqualification, the employer will lose its tax deduction and suffer potentially significant tax penalties when disqualifying the plan. There is no such penalty for the 501(c)(3) employer (except where there is UBTI) or school district. So, should the plan fail eligible employer status, be discriminatory or have a failed plan document, what really is the impact on the employer? Well, it seems, it is only the feeble link upon which audits were based prior to the regulations: W-2 reporting failure, with its current max penalty of $30 per W-2. The real "sanction" is the threat to report as taxable all amounts contributed to employee accounts. Again, as is so often the case with the impact of these regulations (see, for example an earlier blog), it is the employees of these tax exempt organizations which are to suffer the brunt-and, this time, for things outside of their control.

The IRS will soon publish a new set of EPCRS rules, which are generally intended to update the program for the new 403(b) regs.It will be interesting to see what these rules will claim as the appropriate VCP pr Audit CAP sanction, where the largest tax liability to the employer is really only W-2 based. Under the prior audits, any sanctions paid by the employer where really only part of a settlement agreement with the IRS, where it agreed not assess tax penalties against employees in return for the payment of a sanction. To its credit by the way, the IRS was not aggressive in imposing these penalties upon audit, and were extraordinarily reasonable where there was good faith attempts at compliance by the employer.

Please do not read this as any criticism of the IRS TEGE staffs, as they have the duties of interpreting and imposing an awful set of regs. Application of these regs are settling in nicely due to the thoughtful efforts of the dedicated staffs. There are really only a handful of difficult issues (from the tax side) which are yet open, and these are mostly being worked on. But application of these regs are repeatedly demonstrating some really unusual effects-all related to the point that he basis of the 403(b) plan is the idea of an individual pension.

Peace Officer Investigation: Some Special Considerations

Sat, 06 Feb 2010 15:26:44 GMT

Workplace investigations involving Public Safety Officers are governed by special procedural rules set forth in the Public Safety Officers Procedural Bill of Rights Act ("POBR").

Specifically, California Gov't Code section 3303 says:

When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions. For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.

The POBR contains many requirements, more than contained in this posting, but highlights of some of the "investigation" procedures are:

The interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty, or during the normal waking hours for the officer.
If the interrogation does occur during off-duty time of the officer, the officer shall be compensated for any off-duty time in accordance with regular department procedures.
The officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation.
All questions shall be asked by and through no more than two interrogators at one time.
The officer under investigation shall be informed of the nature of the investigation prior to the interrogation.
The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue.
The officer shall be allowed to attend to his or her own personal physical necessities.
The officer shall not be subjected to offensive language or threatened with punitive action.
However, an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.
No promise of reward shall be made as an inducement to answering any question.
No statement made during interrogation by an officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding.
The complete interrogation of an officer may be recorded. If a tape recording is made of the interrogation, the officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.
The officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.
No notes or reports that are deemed to be confidential may be entered in the
officer's personnel file.
The officer shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
If prior to or during the interrogation of an officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights (Miranda rights).
Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.
The representative shall not be a person subject to the same investigation.
The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation
for non-criminal matters.

If an officer under interrogation refuses to answer a question and “takes the Fifth,” the investigator must inform the officer of the protections offered to him or her. This instruction is called the “Lybarger Warning,” named after the California Supreme Court case. In such circumstances, officer should be provided, in writing if possible, a Lybarger instruction, for example:

You have been asked to provide information as part of a Police Department [insert employer's name] investigation. Failure to fully cooperate in this investigation may subject you to disciplinary action. Please be advised that in order to protect your Fifth Amendment right against self-incrimination in a criminal proceeding, any information you provide as part of this investigation cannot be used against you in any subsequent criminal proceeding.

Any investigator commencing an investigation involving a public safety officer should carefully read and understand California Gov't Code sections 3300-3311 before doing any work (note, Firefighter's have their own separate Firefighter's Procedural Bill of Rights).

CGS 31-312 Mileage Rate Falls as of January 2010

JFAspell@AspellLaw.com (James F. Aspell) — Sat, 06 Feb 2010 04:49:03 GMT

Effective January 1, 2010, the mileage reimbursement rate for Connecticut Worker's Compensation Claim related travel fell to 50 cents per mile regardless of the date of injury.

The notation on the Connecticut WCC website may be read by clicking here.

Expert's Testimony Leads to New trial in Connecticut Medical Malpractice Case.

JFAspell@AspellLaw.com (James F. Aspell) — Sat, 06 Feb 2010 04:43:03 GMT

The case of ERIK M. PIN ET AL. v. DAVID L. KRAMER ET AL.
(AC 29314 was officially released by the Connecticut Appellate Court on January 19th, 2010. In this medical malpractice case brought against a respected Fairfield County orthopedic surgeon, the jury returned a verdict in favor of the Defendant, David Kramer, MD. That is to say that the Plaintiff--the one who sued---lost their case and recovered no money for the doctor's alleged malpractice.

At trial, the Defendant presented testimony from an expert witness, Todd Albert, MD, who testified that Dr Kramer had not deviated from the requisite standard of care. Doctor Albert went on, however, to opine that in not ordering certain additional tests, Dr. Kramer was on solid footing:

"I am with residents, fellows,
and medical students all the time. So, we are
ordering a lot of tests on everything so they have the
opportunity to read them. And you could say, oh, that’s
wasteful, but that is part of being at a teaching institution.
One. It is for teaching purposes as much as anything,
for they have one more chance to look at just
one more—they have another dot in their exposure.
‘‘The second reason is much different than in this
part of the country and this state. I live in the worst
malpractice community in the world. And people—and
we practice a lot of defensive medicine. It’s true. It’s
unfortunate, but it’s true. And so we order way more
tests. You hear about the cost of medicine going up.
Weare the epicenter of it because we have more doctors
leaving because they can’t get insurance and things like
that. So, we order way more tests than are necessary
to protect ourselves. And that’s just a fact. And so we
get acclimated to practicing like that."

At that point, the Plaintiff's lawyer moved for a mistrial based upon Dr. Albert's prejudicial remarks. The trial court refused to do that and the Plaintiff, after losing the case, took an appeal.

The Appellate Court ruled that Dr. Albert's remarks as cited above were in fact unduly prejusicial and ordered a new trial.

The entire text of the Court's opinion can be read here.

Best Buy Counsel Speaks on Data Privacy

Fri, 05 Feb 2010 22:37:58 GMT

On January 29, 2009, I had the opportunity to attend a brief presentation sponsored by Minnesota CLE entitled, “Corporate Data Privacy & Security: 10 Legal Practice Tips,” given by Brad Bolin, Senior Corporate Counsel for Best Buy, Inc. a Fortune 500 electronics retailer headquartered in Richfield, Minnesota. Bolin is a specialist in information security and privacy law. I was curious to hear what data privacy issues were on the mind of someone who monitors these issues for a living on behalf of a large corporation, especially a company that sells some of the very devices that make data privacy more challenging and which is known for its “results oriented” work environment. Many of the issues relate to topics discussed on this blog. The views expressed were strictly those of Bolin, not Best Buy. Here were his observations:

1. Work/Life Balance. Electronic connections are collapsing the distinctions between work and personal life. Employees expect to be connected 24 -7. Bolin quoted Best Buy CEO Brian Dunn as noting, “Technology is … a constant backdrop in people’s lives, at home, at work, on the road and literally in the palms of their hands. We call it the ‘connected world’ and, as exciting as it is, it’s also increasingly complex, and difficult to keep pace with.”

2. Smart Phones Part 1. Smart phones are becoming common and are a great example of how the “limited personal use” exception is swallowing the rule. He cited a survey showing that 20% of companies allow their employees to use personal devices for work, and the number is surely growing. Bolin discussed how under the old corporate model, a company that pays for an employee’s smart phone ought to take it back from the employee upon his or her departure, erase the contents and either recycle or reuse the device to prevent the disclosure of confidential corporate information. But what about the employee’s personal photographs, “apps”, movies, contacts and downloaded songs? What if the employee paid for the device but the company reimburses the cost? Securing employee-owned smart phones is not the same as securing corporate-owned devices, he emphasized.

3. Smart Phones Part 2. Bolin said that, whatever rules you choose, a departing employee should be able to take his or her personal data, while IT should be able to ensure that any corporate information has been safely removed. The process should be simple and transparent to all. Adopt simple rules that make corporate data on an employee's smart phone easier to identify and control. For example, distinguish between media files on the one hand, and xls doc, ppt, and pdf documents on the other. Have a transparent dialog with employees about the trade-offs that exist cost when placing personal phones on the corporate network. For example, an employee might be required to archive SMS text messages on his phone for e-discovery purposes.

4. Texting Issues. While e-mail typically is stored on a common server, text messages usually are stored by cell phone companies or directly on phones, and often the employer does not directly pay for their storage. Employers must have either a warrant or the employee's permission to see cell phone text messages that are not stored by the employer or by someone the employer pays for storage, Bolin said, citing Quon v. Arch Wireless, et al. 529 F.3d 892 (9th Cir. 2008), The case is now under review by the United States Supreme Court.

5. TMI = Too much information. An embedded Global Positioning System (GPS) feature is great for supporting and measuring effectiveness of a mobile sales force, but it raises the danger of collecting information about employees regarding the personal part of their life.

6. Social Networking. Much has been made of social networking, he says, but this is not different in kind from past employee disclosure concerns, only in degree. Most policies on employee's social networking tend to be recitations of or references to standard confidentiality, acceptable use, and other policies. He suggests guidelines like:

a. Disclose your affiliation with your employer.

b. State that it’s your opinion, not the employer’s.

c. Protect yourself – be careful of disclosing personal information on line.

d. Act responsibly end ethically.

e. Respect diversity and honor policies against discrimination.

7. Monitoring Electronic Communications. Bolin says the “old news” is having an electronic communications policy addressing employee expectations of privacy when using company email. The “new news” is that companies have to have a governance policy in place regarding how the company may and will use such information, and it needs to follow it. Tools to gather emails and other electronic information today are immensely powerful, and very easy to use. The temptation will be great to pursue investigations without adequate cause, or without sufficient protective boundaries in place. Bolin cited the Hewlett Packard pretexting scandal of 2006.

8. HITECH Act (HIPAA Redux). HIPAA is still HIPAA, Bolin says, but HITECH ups the ante by requiring breach notification to government and affected consumers of Protected Health Information (‘PHI”), and placing enforcement powers in the hands of the states attorneys general. Covered entities must promptly notify affected individuals, Health and Human Services (“HHS”) and the media in cases where a breach affects more than 500 individuals, and report ALL breaches on an annual basis. Bolin noted that the “hysteria” that has arisen around recent credit card breach notifications could well develop around PHI breach notifications.

9. Employee Privacy in Europe. Privacy is fundamental human right in the European Union and, unlike in United States, can't be waived, Bolin emphasized. If a company wishes to transmit data concerning EU employees to the U.S., he noted, “you'll be required to bring your game up” and enact policies to take advantage of the safe harbor provision.

I think he gives us all some good points to consider.

OFCCP Releases FAQs on the Impact of the Supreme Court's Ricci Decision on Federal Contractor Obligations

Fri, 05 Feb 2010 21:05:15 GMT

The Office of Federal Contract Compliance Programs (OFCCP) has posted on its website a set of frequently asked questions (FAQs) about the U.S. Supreme Court’s decision in Ricci v. DeStefano, the reverse discrimination case involving New Haven firefighters. In Ricci, the Court determined that the City of New Haven – by tossing the results of an exam that would have disqualified African American from receiving promotions – discriminated against non-African Americans whose scores would have qualified them for advancement. The Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” This decision has left many federal contractors – who must implement affirmative action programs – wondering whether Ricci will affect the OFCCP’s compliance reviews, and whether the decision would change the contractor’s obligations regarding the use and validation of job-related tests.

According to the FAQs, Ricci does not change a contractor’s affirmative action obligations, nor its obligation to comply with Uniform Guidelines on Employee Selection Procedures (UGESP) when using a test as part of its selection process. If such a test shows that it would have a disparate impact on a protected class, then the test must be validated for the job at issue. Additionally, the contractor is required to investigate alternative selection procedures that would have a lesser impact on the particular race, ethnic group, or gender.

The FAQs also explain that “to comply with its nondiscrimination obligations, a contractor must examine its tests and other selection procedures to identify whether there are any problem areas in terms of adverse impact on a particular race, ethnic group, or gender, and to prevent prohibited discrimination from occurring.” The OFCCP advises that contractors that are proactive in assessing their testing procedures are “more likely to avoid problems and successfully defend against any claim of disparate impact.” The OFCCP also suggests that it may be permissible to “pre-test” the use of an actual test by determine whether there is adverse impact. So long as results are not disclosed to candidates or hiring officials, the company can adjust the test or seek reasonable alternatives before using the procedure to make actual selection decisions.

As for how the OFCCP will address an allegation of discrimination, the FAQs explain that the agency will use established complaint procedures to investigate any class complaint from applicants or employees who believe that they were discriminated against when a contractor refused to use the results of a selection procedure. Additionally, “[w]here the contractor defends its action by asserting that using the selection procedure could result in liability for an unlawful adverse impact based on race, ethnicity, or gender, OFCCP will evaluate whether, as prescribed by Ricci, there is a strong basis in evidence for the contractor's claim.”

Cloture Vote on Craig Becker's Nomination to the NLRB Set for Monday

Fri, 05 Feb 2010 19:49:25 GMT

Sen. Harry Reid (D-Nev.) has filed cloture on the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). According to the Hill.com’s Blog Briefing Room, Sen. Richard Shelby (R-Ala.) has put a hold on all of Obama’s nominations pending before the Senate, including Becker’s. Therefore, at least 60 Senators must vote to end debate on the nomination – a feat likely made more difficult now that Republican Scott Brown has been sworn in as a Massachusetts senator. The Senate House, Education, Labor and Pensions (HELP) Committee cleared Becker’s nomination on Thursday on a party-line vote. Becker’s cloture vote is scheduled for Monday at 5:00 pm.

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