Friday, June 29, 2012

Week in Review

You can run, but you can't hide--not from technology anyway. Just ask the eight TSA agents who lost their jobs this week because a video camera caught them sleeping at work, or the Houston journalist who was fired after a rival newspaper exposed her secret stripping gig, or the Dallas police officer under investigation after his aggressive arrest was recorded by a motorcyclist's helmet camera. I guess if you can't fight the technological takeover, you might as well embrace it. Ready to give in? Check out the links below, including latest apps, which claim to save your life in times of emergency, your wallet while on vacation, and your waistline when trying to lose weight.

Technology and the Workplace
Eight TSA Employees Fired After Caught on Video Napping in Checked Baggage Room (Mail Online)
County Employee's "Monkey" Comment in Email Sparks Outrage Among Residents (WSB-TV)
Journalist Fired After Secret Career as Stripper Exposed, Now Striking Back (Times of India)
Website Collects & Displays Facebook Updates Your Boss Shouldn't See (CNN) (Huffington Post)
Survey Finds Employees Working From Home Watch TV and Play Video Games (Huffington Post)

Technology and the Law
Miami Heat Owner Sues Google, Blogger Over "Unflattering" Photo (CNN)
Lying Online is No Longer a Crime in Rhode Island (LA Times)
Motorcyclist Roughly Arrested After Refusing to Give Up His Helmet Cam; Camera Films Whole Thing (Above the Law)
Judge Rules That Netflix is Subject to Americans with Disability Act (Boston Globe)
Password Privacy Bills Move Forward in California and New Jersey (LA Times) (DE Employment Law Blog)

There's an App for That
Want to Get Fit? Pull Out Your Phone (CNN)
Must-Have Road Trip Apps (ABC)
Bad Weather Coming? National Weather Service Will Send Warnings Right to Your Phone (LA Times)
New App Tracks Colorado Wildfires (CNN)
Survey Finds 59% of People Would Reach into a Toilet to Retrieve Smartphone (CBS)

Big Week at the Supreme Court

It’s been a big week at the Supreme Court. The health care ruling (available here) is grabbing most of the headlines. While more analysis will be pouring out over the next several weeks, several sources are beginning to provide helpful information for employers:
Employers will want to consider the long-term impacts of the Court’s decision and the continued implementation of the Patient Protection and Affordable Care Act. This effort will be complicated, however, by continued political uncertainty as the fight over the health overhaul moves back to Congress and the Presidential election.

While the healthcare decision is making more headlines, the Court’s decision limiting Arizona’s immigration enforcement statute (here) is also important, and will inform the immigration debate. While the broader effects of this Court decision remain uncertain, employers need to stay tuned as their role in immigration enforcement is debated and defined.

Thursday, June 21, 2012

The EEOC Crackdown: Part Two – Avoiding Liability for Leave Policies

Yesterday I wrote a post reminding readers about the EEOC litigation focus on inflexible leave policies, which raises the question: what should employers be doing to avoid liability in this area?

To answer this question, I think it helps to take a step back.  As most employers know, a leave of absence or an extension of a leave of absence are two types of reasonable accommodations that employers covered by the ADA (i.e. employers with 15 or more employees) must consider to accommodate a disabled employee.   When a disabled employee needs an accommodation, employers are required to engage in an “interactive process” with the employee to determine what reasonable accommodations will effectively allow the employee to perform the essential duties of his or her position.  The interactive process is a fact-specific process that includes consideration of the particular employee’s needs and the duties of that employee’s position.

Despite these requirements, many employers have implemented strict attendance policies, policies that limit the amount of time an employee can take as leave, or policies that place strict conditions on employee’s return to work. The motivation for these policies is not necessarily bad – “inflexible” policies that apply equally to everyone ensure consistent treatment of employees.  However, under the ADA, if an employee suffers from a disability (and disability is broadly defined to include many, many non-temporary medical conditions), employers are not allowed to be inflexible.  Rather, employers must consider, with an open mind, employee accommodation requests.
 So, here are some tips:
  • First, employers covered by the ADA should never have a black and white policy on the maximum duration of leave available to employees. Even generous leave policies of one year or more are problematic if the limits are strict and do not allow for accommodations.  Employers must be willing to consider a longer period if necessary to reasonably accommodate the employee's disability. 
  • Leave policies that place general limits on available leave should also say that additional leaves may be available in accordance with applicable law.  
  • Policies that prohibit an employee from returning to work until they have “no restrictions” are unlawful.  While some work restrictions may effectively prevent an employee from being able to perform the essential functions of his or her position, employers are required to consider whether the restrictions can be reasonably accommodated.  If an employer finds itself having difficulty accommodating a particular restriction, it’s a good idea to consult with legal counsel about the issue and potential next steps.
  • Attendance policies should be closely examined to ensure that disabled employees and employees on FMLA leaves of absence are not inappropriately subject to negative treatment because of their protected absences.
  • Finally, employers must consider qualified disabled employees for open positions on the same basis as other employees. Any program that restricts certain light-duty jobs to a certain class of individuals (i.e. those returning from a workplace injury) is likely to run afoul of the ADA.

Wednesday, June 20, 2012

The EEOC Crackdown: Part One – Don’t Be Inflexible


According to a recent statement by an attorney for the EEOC, “[O]ne of the hottest areas of EEOC litigation right now involves the agency’s efforts to root out inflexible leave policies.” Although this statement is hardly news to anyone who closely follows EEOC enforcement efforts, it is a good reminder to employers that inflexible leave policies are an invitation to costly litigation. The type of inflexible leave policies the EEOC has challenged include no-fault attendance policies, policies that provide a maximum limit to the length of leave that may be available, and policies that require an employee to stay on leave until s/he can return to work with “no restrictions.”

EEOC Regional Attorney John Hendrickson made the statement above following a recent order by a federal judge approving a consent decree entered into between the EEOC and a Minnesota employer. In that case, the employer had a policy that required employees who took a medical leave of absence to return to work with no restrictions unless the injury or condition giving rise to the leave was related to an on-the-job injury. The EEOC alleged that this “no restrictions” policy violated the ADA because employers have a duty to explore whether a disabled employee with restrictions could return to work with or without a reasonable accommodation. After the EEOC charge was brought, the employer wisely dropped its “no restrictions policy,” and as part of the consent decree, the employer agreed to fully compensate two former employees who were terminated because they could not return to work without restrictions. While the total monetary value of this settlement was relatively low ($30,912), in other cases, companies have paid significant amounts to settle EEOC claims related to inflexible leave policies. For example, in 2011, Supervalu Inc. agreed to pay $3.2 million to settle ADA claims related to its inflexible leave policies, and in 2009, Sears Roebuck agreed to pay $6.2 million to settle similar claims. Likewise, in 2011, Verizon agreed to pay $20 million to settle ADA claims related to its no-fault attendance policy.

While the issue of inflexible leave policies is not new, the EEOC’s recent statement about its enforcement efforts in this area is a good reminder that this issue is not going away.

Friday, June 15, 2012

Week in Review

This Father's Day, dads might have more to worry about than how to enthusiastically thank their children for yet another tie. News stories this week highlight the increasing vulnerability of today's youth in a technology-filled world. From cyberbullying to predator apps to camera phones in the locker room, parents around the country are wondering how to keep their children safe. Luckily, they're not alone. The law--and tech companies--are stepping in. The New York Legislature is working on a bill to fight cyberbullying, a Minnesota prosecutor is making an example of  teens who disseminated partially-nude locker room pictures of their classmates, and the makers of the Skout app have blocked minors’ access until the company can build better safeguards, such as age verification. With allies like these, maybe dads can get what they really need this year: peace of mind.

Technology and the Workplace
Social Media and the Job Hunt: Squeaky-Clean Profiles Need Not Apply (Forbes)
Professor's Academic Freedom Was Violated, UC Davis Faculty Leaders Say (LA Times)
Brocade Drops Trade Secrets Suit Against Ex-Employee (Law 360)
FCC to Review Mobile Phone Radiation Safety (Post)

Technology and the Law
Flirting App Skout Suspends Teen Community After Child-Rape Charges (CNN) (NYT)
NY Lawmakers Near Deal to Combat Cyber Bullies (CBS)
4 Minnesota Middle-Schoolers Charged in Locker Room Photo "Game" (Star Tribune)
Maryland Students Suspended Over Offensive Picture (CBS)
Judge Refuses Request to Serve Party by Facebook, Orders Newspaper Publication Instead (ABA Journal)

There's an App for That 
"Stress at Work" App Warns Users of Negative Messages, Color-Codes Incoming Texts (Huffington Post) (CNN)
I Don't Anymore: App to Help with Details of Divorce (LA Times)
Apps for Dads to Download on Father's Day (Chicago Tribune)
eHarmony App Helps Couples Share Their Love Story on Facebook (LA Times)

Thursday, June 14, 2012

Another Day, Another 500 Audit Notices from ICE

Here at the Modern Workplace, we encourage employers to adopt the Scout Motto when it comes to immigration paperwork: “Be Prepared.”  Immigration enforcement through “silent raids,” or workplace audits of Forms I-9 and other documents, continues apace and doesn’t look like it’s going to slow down anytime soon. Just last week, U.S. Immigration and Customs Enforcement (“ICE”) informally confirmed that it has issued audit notices to another 500 employers. 

ICE has issued thousands of Notices of Inspection since 2009. The Notices often request not only I-9 documentation, but also payroll records, copies of immigration filings, copies of Social Security Administration communications requesting corrections, information on independent contractors, and other documents. Generally, an employer must produce the requested information within three business days of receiving the Notice. Moreover, paperwork errors can be extremely costly to both employers and employees.  Abercrombie and Fitch paid over $1 million in fines to ICE after an audit “uncovered numerous technology-related deficiencies” in the Company’s I-9 verification system. Chipotle laid off hundreds of workers from Minnesota restaurants after an ICE audit identified problems with worker documents, bringing on union protests and, as of last month, an SEC probe. The SEC is seeking “information regarding [Chipotle’s] compliance with employee work authorization requirements, [their] related public statements and other disclosures, and related information,” according to a company filing.

As we reminded employers back in November, it is more important than ever for businesses to have an effective immigration compliance plan, which includes, at a minimum, a written I-9 policy, an audit response plan, and procedures for responding to information that may constitute “constructive knowledge” that a worker lacks proper work authorization. For more on the I-9 audit process and tips for how to respond to a Notice of Inspection, see our July 1, 2011 Modern Workplace blog post or visit our I-9 Compliance Audit Program web page. Having your immigration compliance house in order before ICE stops by is a worthwhile endeavor—Scout’s Honor.


Friday, June 8, 2012

Week in Review

While the powers of technology often spell trouble for employers and employees, they sure do make for interesting Weeks in Review. And this week is no different. Drag-queen Facebook photos, surreptitious surveillance, and anonymous emails all led to employee terminations this week. Perhaps the most noteworthy is the Oklahoma publisher who fired 25 employees over an anonymous, company-wide email that spoke of alleged outsourcing and mass layoffs. Not knowing the exact source of the email, the owner fired those he thought might be involved. To make matters more interesting, one of the fired employees recorded the termination meeting - prayer, insults, and all - and leaked it to the press. Curious?  Listen to it here.

Technology and the Workplace
Gay Coach Fired Over Facebook Photos with Drag Queens (LA Times)
Catholic University Employee Fired After Caught Filming Coworker Pumping Breast Milk (Mail Online)
OK Publisher Fires 25 Workers Over Anonymous Email, Employee Records the Rant (The Journal Record) (ABC)
New Website Offers Helping Hand on Retirement Savings (WSJ)

Technology and the Law
Millions of LinkedIn and eHarmony Passwords Stolen (CNN) (CBS)
Teen Gets Jail Time After Texting-While-Driving Crash (LA Times)
Unmanned Aerial Vehicles: Will Our Civil Liberties be Droned Out? (ABC)
Lawyers Warned About Perils of Unintentional Juror Contact During Online Research (ABA Journal)

There's an App for That
Rather Than Share Your Location, Foursquare Wants to Suggest One (NY Times) (LA Times)
StreetSafe App Offers Advice in Potentially Dangerous Situation, Silent Alarm that Calls 911 (NY Times)
Milk Gone Sour? There's an App for That (CNET)
Diet Goggles: Can Virtual Reality Glasses Help You Lose Weight? (LA Times)

When Laws Collide: Balancing Workers’ Religious Beliefs with Workplace Safety

Employers these days have a lot of obligations. They have bills to pay, workers to manage, customers to satisfy, and laws to follow. But what happens when two obligations conflict? What is an employer to do?   When in doubt, follow the law–right?  But one Minnesota employer recently discovered things aren’t that simple, especially when “the law” may be telling the employer to do two different things.

A company in southeast Minnesota had approximately 30 Somali workers walk off the job on Monday morning to protest the company’s new dress code policy. The policy, which prohibits women from wearing skirts that hang below the knee, was adopted in response to an earlier incident involving a woman’s long dress getting caught in a boot washer machine. The protesting employees claim that the new policy conflicts with their religious beliefs, which require women to wear clothing that does not reveal their bodies. The employer says that long skirts are a safety hazard and that employees have the option of wearing slacks or leggings under shorter skirts. Protesters say that they should be responsible for their own safety.

Under Title VII, employers must reasonably accommodate employees’ religious beliefs, observances, and practices, unless doing so creates an “undue burden.”  According to the EEOC Compliance Manual,such a reasonable accommodation may include altering workplace policies, such as dressing and grooming codes.  The undue burden exception allows an employer to avoid accommodations that  jeopardize workplace safety; however, the employer must demonstrate that a real safety risk is present.  Employers must also, of course, comply with OSHA, which requires a workplace free of recognized hazards.  Employers may also have a common-law duty not to be negligent in the way that the workplace is maintained and run. So what is an employer to do? An employer must balance respect for workers’ religious beliefs with the need to keep the workplace safe. The first thing an employer must do is ascertain if there is a real safety risk created by accommodation of the religious practice at issue. If not, and if no other undue-burden factors exist (such as extraordinary expense or detriment to other employees), the employer is likely required to accommodate the religious practice. 

Each situation is different and must be evaluated based on all the facts and circumstances involved. In this instance, a prior workplace accident provided evidence that long skirts could create a safety risk. If a safety risk is present, and there is a way to minimize or eliminate it while still respecting employees’ religious beliefs, the employer should attempt to do so. This might include giving employees the option of wearing pants or leggings. It might also include transferring an employee to a position that doesn’t involve a safety risk, or eliminating the safety risk in some other way.

If there is no way to make both obligations work, the employer should likely enforce the safety policy, although that is a decision best made in consultation with legal counsel.

In any event, clear and respectful communication can be helpful. Good communication may help employees  have a better understanding of the legal constraints on the employer, and of the employer’s safety and liability concerns. It may also allow the employer an opportunity to express its understanding  of and respect for the employees’ religious practices.

Friday, June 1, 2012

Week in Review

As technology continues to change, so too do employers' efforts to keep up. With new laws preventing employers from using passwords to access employees' Facebook pages, employers are finding other ways to monitor employees' online activities.  A new Gartner report predicts that by 2015, 60% of businesses will be using Internet-monitoring technologies to monitor employees' social media use. However, employers must be careful in their quest to control online employee expression. This week, the NLRB issued a social media report cautioning all employers (even those with non-unionized workforces) not to adopt social media policies that chill protected activity. The report contains examples of lawful and unlawful policies.

Technology and the Workplace
NLRB Releases Report on Employer Social Media Policies (NLRB)
8 Ways to Stay Secure When Working at Starbucks (CBS)
Seamless, Smart, Successful Social Marketing (E-Commerce Times)
Gartner Predicts Huge Rise in Monitoring of Employees' Social Media Use (LA Times) (PC World)

Technology and the Law
Sex Offenders Fight for Right to Use Facebook (Huffington Post)
Jury to Hear No Doubt's Claims Against Game Maker (NPR)
Google Files Patent Claim Against Microsoft, Nokia (CBS)
Obama Takes Cyberwarfare to New Level (CNET)

There's an App for That
Skype to Be Integrated into Windows 8 (ABC)
First Contract-Free iPhone Comes to Cricket (CNN)
Google Offers Virtual Tours of World Famous Sites (CBS) (Business Week)
Cell Phones Monitoring Radiation to Sell in Japan (CBS)