Thursday, June 27, 2013

Week in Review

This week, technology is affecting how we do business, how we plan for the distribution of property at death, and how we enforce the laws. Nevada is the latest state to adopt a social media privacy bill. Businesses are harnessing the power of social media and on-the-go apps, and a new start-up is helping connect foreign farmers to the market place. An Ohio judge upheld the validity of a will that was written and signed on a tablet, finding that it met the state's legal requirements. At the intersection of technology and law enforcement, Montana became the first state to require police to obtain a warrant before using a suspect's cell phone to track his or her location. The FTC took on the subject of online ad transparency, and the 1st Circuit upheld a $675k verdict against a former student found guilty of illegally downloading music.

Technology and the Workplace
Nevada Now Has Social Media Workplace Privacy Law Too (Employer Handbook)
How to Turn a Social Media Disaster into Higher Sales (Forbes)
Start-up Gives Farmers Shot at Fair Prices, Market Access Via Text Messages (ARS Technica)
Mobile Apps That Help You Run a Business While Running Around (Forbes)
Doc Posts Woman's Nose Job Pics Online, She Sues for $18M (NBC)

Technology and the Law
Judge Rules That a Will Written and Signed on Tablet is Legal (Chronicle Online)
U.S. Court to Hear Oral Arguments in Net Neutrality Case on Sept. 9 (Reuters)
1st Circuit Upholds $675k Award Against Tenenbaum in Long-Running RIAA File-Sharing Case (ABA Journal)
Montana Requires Warrants for Cell Phone Tracking (WSJ)
FTC Tells Search Engines to Label Advertising as Such (NTY)

There's an App for That
PasswordBox is New App for Managing Passwords with "Master" Key (LA Times)
Apps to Manage Time, Track Time, and Pass the Time (NYT)
Moving on From Google Reader (CNN)
Measure Your Water Usage in Real Time with MyWater (Mashable)

Same-Sex Marriage Decisions: What Now for Employee Benefits

Click here for a GPM eBenefits Alert on how yesterday’s United States Supreme Court’s decisions on same-sex marriage will impact employee benefits.

Wednesday, June 26, 2013

Are You Ready for the New Hours-of-Service Regulations for Drivers of Commercial Motor Vehicles?

As of July 1, 2013, the Federal Motor Carrier Safety Administration’s Hours-of-Service Regulations relating to drivers of a commercial motor vehicle (“CMV”) are changing. These changes require some significant advance planning for employers of those who drive a CMV.

Who is affected by these new rules? 

First, the changes apply only to drivers of a CMV. A CMV is a vehicle that fits any of the following descriptions:
·       Weighs 10,001 pounds or more
·       Has a gross vehicle weight rating or gross combination weight rating of 10,001 or more
·       Is designed or used to transport 16 or more passengers (including the driver) not for compensation
·       Is designed or used to transport 9 or more passengers (including the driver) for compensation
·       A vehicle that is involve in interstate or intrastate commerce and is transporting hazardous materials in a quantity requiring placards is also consider a CMV

 In addition, the new rules apply to drivers of a CMV who either:
·       Are engaged in interstate commerce and have to comply with FMCS’s safety regulations; or
·       Are engaged in intrastate commerce – conducted entirely within a single state – and that state has adopted and enforces the new federal HOS regulations

What are the main changes beginning July 1?

·       30 Minute Rest Break:  Under the regulations, the driver of a CMV will not be permitted to drive if more than 8 consecutive hours have passed since the end of the driver’s last rest break of 30 consecutive minutes. The regulations do not specify when the 30 minute rest break is required within the 8 hour window. During the rest break the driver is not permitted to perform any duties related to the job. For drivers operating a truck with a sleeper berth, the 30 minute rest break can be taken in the sleeper berth. Drivers who use log books are required to record the 30 minute rest break as off duty. The 30 minute rest period does not extend the maximum duty day of 14 hours. As a result, the on duty day is shortened to 13 and 1/2 hours. Maximum drive time remains 11 hours per day which leaves 2 and 1/2 hours of non-driving work time.
·       Reduction of Hours a Driver Can Log in a 7-Day Period:  The current rule allows a driver to work up to his or her 60 or 70 hour limit, take a 34-hour restart break, then drive again. The current regulation allowed drivers to accumulate 82 working hours in a 7-day period. Under the new rule, the maximum number of hours a driver can work and drive is limited to 70 hours per week. A restart break must now include two back-to-back nighttime periods of rest from 1:00 a.m. to 5:00 a.m., which may force some drivers to be off duty for more than 34 hours. In addition, the driver may only use the restart option once in any 168-hour period (7-days). Under the new regulation, a driver cannot start another restart break until 168 hours have passed since the start of his or her last restart break.

The new regulations will have a big impact on the number of hours that commercial drivers will be allowed to drive. It is important for employers to understand the new regulations well before July 1 in order to plan for the changes that will impact their businesses. Summary charts of the changes to the regulations can be found at the FMCS’s website found here.

Monday, June 24, 2013

Two Important New Employment Decisions from the U.S. Supreme Court

The United States Supreme Court issued two long awaited and employer friendly decisions today. Both relate to issues raised under Title VII of the Civil Rights Act of 1964. 

Vance v. Ball State University: Who is a Supervisor?
Under Title VII, employers may be strictly liable for harassment by a “supervisor.” Employers may also be liable for harassment by a co-worker, but only if the company knew or should have known of the co-worker’s conduct and failed to take prompt and appropriate corrective action. A question that remained disputed until the Vance decision was who qualified as a supervisor under Title VII. 

The Plaintiff in this case was a catering assistant in the Ball State University Dining Services Department Banquet and Catering division. She alleged that another Ball State employee, a catering specialist, had created a racially hostile work environment. The Plaintiff sued Ball State University for workplace harassment by a supervisor. The Plaintiff argued that because the catering specialist could direct her day to day work, the catering specialist was a “supervisor” for purposes of Title VII. 

The Court rejected this argument and held that, to be a supervisor for purposes of Title VII, a person must have the power to take a “tangible employment action” against the targeted employee. According to the Court, someone must be able to “effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” to qualify as a supervisor and create strict liability for an employer.

University of Texas Southwestern Medical Center v. Nassar: What is the Standard of Proof for Retaliation Claims?
At issue in this case was the standard for proving retaliation in a Title VII case. The Plaintiff, a former faculty member at the University of Texas Southwestern Medical Center, alleged that he was denied a job because he had written a prior resignation letter in which he alleged race discrimination in the workplace. The University argued that, regardless of any retaliatory intent, the University had legitimate business reasons for opposing the hiring of Plaintiff by a hospital that had a staffing agreement with the University. The question before the Court was whether the plaintiff had the burden of proving that retaliation was a “motivating factor” in the decision not to rehire him, or whether he had the greater burden of proving that “but for” unlawful retaliation, he would have been hired. 

Some history provides important context for this question. In 1991, Congress amended Title VII to establish the level of proof necessary to prove discrimination in violation of the statute. After the amendment, employees needed to show that the discrimination was a “motivating factor” in the employment decision in order to recover. Once an employee establishes that race was a motivating factor, the burden shifts to the employer to show that it would have taken the same action anyway. This is a lower standard of proof than that applied by the Court in other areas, such as age discrimination under the ADEA, where “but for” causation is required. 

The question in University of Texas Southwestern Medical Center v. Nassar was whether the “motivating factor” analysis applied to a claim of retaliation (as opposed to a claim of discrimination) under Title VII. The Supreme Court held that the “motivating factor” analysis does not apply to a claim for retaliation. Rather, “Title VII retaliation claims must be proved according to tradi­tional principles of but-for causation, not the lessened [motivating factor] causation test.”
The impact of these decisions, which are considered employer-friendly, will be widely felt. There were vigorous dissenting opinions filed in both cases, and most likely there will be some strong disagreement with the decisions. Congress may step in and change the result with new legislation. We will all be watching closely to see the reaction to today’s decisions.

Thursday, June 20, 2013

Week in Review

Summer has finally arrived. While some are outdoors splashing in the lake or pool, there are others who prefer to spend their time making waves online. This week, for example, we bring your stories of a Wendy's employee who was fired after a picture of him drinking directly from a Frosty machine went viral, and a Welsh civil servant who received a 12 month promotion ban due to his "inappropriate comments" on social media. In Ohio, even the police are taking to Facebook, and one city police chief posted ridiculing comments about the city's lawbreakers. In Minnesota, Amazon caused a stir with its announcement that as of July 1st, it will be cutting ties with its online affiliates in the state. This comes on the heels of the new state law that requires online businesses with a physical presence or affiliates in Minnesota to charge state residents sales tax.

Technology and the Workplace
Working from Home? Boss May Still  Be Looking Over Your Shoulder (NBC)
Facebook Comments Get Civil Servant Banned from Promotion (The Guardian)
Wendy's Photo Scandal: Employee Fired After Drinking from Frosty Machine (The Inquisitr) (NY Daily News)
Court Orders Plaintiff-Employee to Produce Social Media Postings on Claimed Emotional Distress, Alternative Potential Stressors and More (Employer Law Report)

Technology and the Law
OH Police Chief Takes Criminals to Task Online (Tampa Bay Times) (ABA Journal)
Google Files First Amendment Court Case Against NSA Surveillance Secrecy (CNN)
Amazon Cuts Ties in MN Ahead of New Sales Tax (NPR) (Pioneer Press)
TX Becomes First State to Require Warrant for Email Snooping (ARS Technica)
School Iris-Scanned Students Without Telling Parents (CNET)

There's an App for That
Smartphone Tools Have Their Place in the Wild (NYT)
App of the Week: Trip Splitter (ABC)
Wanna Confess Your Sins? There's an App for That (FOX)
"Hell Is Other People" App Helps You Steer Clear of Your Awful "Friends" (Huffington Post)

Wednesday, June 19, 2013

EEOC Lawsuits Target Criminal Background Checks

What do discount retailer Dollar General and luxury automobile manufacturer BMW have in common? No, they haven’t started selling BMWs at Dollar General stores. Rather, both companies were sued last week by the Equal Employment Opportunity Commission (“EEOC”) based on the agency’s allegation that their criminal background check policies disproportionately impact black job applicants and employees. These are the first lawsuits brought by the EEOC since the agency issued guidance back in April 2012 (blogged about here) requiring employers to engage in an individualized analysis before rejecting a job applicant based on criminal history. 

In the lawsuit against Dollar General, the EEOC alleges that the company’s policy of revoking conditional job offers based on criminal convictions does not provide for individualized assessment to determine whether the reason for disqualification is job-related or consistent with business necessity because it does not take into account the age of the offender, any nexus between the crime and the specific job duties, or time and events since the offense transpired. For example, the Complaint refers to a job applicant who was given a conditional employment offer that was later revoked because of a six-year-old conviction for possession of a controlled substance even though the applicant disclosed the conviction on her employment application. In another example, an applicant was not hired by Dollar General because of a felony conviction despite the fact that she allegedly explained to the store manager that the background check results were incorrect.

In the lawsuit against a BMW manufacturing facility in South Carolina, the EEOC claims that the company’s criminal conviction policy denies facility access to company employees and employees of contractors with certain criminal convictions. Many of these employees were black and some had worked at BMW’s facility for several years. According to the EEOC, BMW failed to engage in an individualized assessment regarding the nature and gravity of the offenses, the age of the convictions, or the nature of the positions for which the employees had applied before rejecting them for employment. 

As these cases emphasize and as we have noted previously, employers should avoid blanket prohibitions against hiring applicants based on criminal history. Instead, employers should conduct a case-by-case analysis that considers the nature of the crime, the amount of time that has passed since the crime occurred, and the relationship between the crime and the position at issue.  In addition, employers should  be sure that their practices and policies comply with state law requirements, such as Minnesota’s new “Ban the Box” law (blogged about here) which takes effect January 1, 2014.

Thursday, June 13, 2013

Week in Review

The modern workplace this week brought us stories of disability fraud, job recruitment with video games, apps to fight procrastination, and distracted driving. Who says work is boring?

In North Carolina, a postal worker was indicted for disability fraud when her appearance on a nationally-televised game show revealed her lifting and grabbing capabilities. She had been collecting workers compensation checks since 2004 for an injury that supposedly prevented her from lifting and grabbing, among other things. In the wired workplace, both employers and employees are finding new uses for technology. Some employers have begun using a video-game style recruitment process called ConnectCube. This application tests, stores, and analyzes user data measuring various job skills, such as memory, spatial skills, and verbal reasoning, then connects high-scoring employees with employers looking for those skills. Employees are using new apps at work to fight the age-old problem of procrastination. But whether you are an employer or an employee, a new study released this week shows that you should scale back your use of technology (even hands-free versions) while driving.

Technology and the Workplace
"The Price is Right" Contestant Busted for Disability Fraud After Spinning the "Big Wheel" on TV (New York Daily News)
OH County Prosecutor Fired After Posing As Accused Killer's Girlfriend on Facebook to Try to Get Alibi Witnesses to Change Their Testimony (
LinkedIn: How It's Changing Business (and How to Make it Work for You) (CNN)
Gaming Your Way Into Your Next Job (WSJ)

Technology and the Law
ACLU Sues Obama Administration Over NSA Phone Records "Dragnet" (ABA Journal)
Are Electronic License Plates the Future? (CBS) (FOX)
Hands-Free Devices Still Cause Driver Distraction, Says Study (NBC)
Prosecutors Team Up to Combat Smartphone Thefts (CNET)
911 Tech That Locates Cell Phone Users in Buildings Ready to Go (Ars Technica)

There's an App for That
7 Productivity-Boosting Tools to Fight Procrastination (Mashable)
New Sidecar App Turns Strangers' Cars into Cabs (WSJ)
Apps Claim They Can Keep Phone Records Secure (CNN)
iPhone Users Can Expertly Retouch Portraits with Facetune (Mashable)

Monday, June 10, 2013

Fields of Dreams: Small Agricultural Employers Seem to Think the Law Doesn’t Apply

When I’m not lawyering, I like to spend time around horses. That sometimes means spending time observing the habits of horse barn owners and other operators of small agricultural facilities. For an employment lawyer, it’s scary out there on the farm. If you read the help wanted ads on horse industry list serves and web sites, or peruse the bulletin boards at feed stores, or talk to stable and farm owners, you’ll quickly conclude that unlawful employment practices are common and that compliance is not a big concern.

Agricultural workers and non-agricultural workers are treated differently in certain ways under the laws of most states, but the differences are very limited. Maybe the differences that do exist are the source of the casual attitude that small agricultural employers seem to have about employment laws. Or maybe the employers assume that enforcement authorities will not be interested in a barn owner with only a few employees. Whatever the reason for their inattention to the law, these employers are putting themselves at risk and, in some cases, mistreating their workers.
Here are some of the most common violations I’ve observed:

I pay cash.” Employers have to report wage payments to state and federal authorities, and usually have to withhold taxes and pay taxes. Unreported cash payments for labor are usually unlawful, and that goes for small agricultural employers and big corporate employers alike.  
I only hire independent contractors.” Calling someone an independent contractor doesn’t make them one.  Whether or not a worker is an independent contractor or an employee is a legal determination that is based on a number of factors.  Treating a worker as an independent contractor when he or she should be treated as an employee can result in significant legal liability for an employer, including fines, penalties, and back taxes. Click here for an earlier post on this issue.

“$50 a day.”  Wage and hour laws, including minimum wage laws and laws relating to overtime pay, apply to many agricultural employment situations.  Agricultural employers cannot ignore wage and hour laws without risking significant penalties, even if workers are willing to accept a daily pay rate.
“I’ll find myself a hard-working Mexican.”  I must confess that I was astonished the first (and second, and third) time I heard a farmer or barn owner say something like this. It is apparently common practice among some agricultural employers to seek out workers who may or may not be authorized to work in the United States, who are grateful for any work they can find, and who will agree to work long hours for low pay.  These workers are often Hispanic, always paid in cash (see above), may not receive minimum wage (ditto), certainly don’t receive benefits, and it’s assumed that they aren’t likely to complain about anything because of their immigration status.  Common practice or not, everything about this is wrong, and the employer who engages in this sort of hiring is breaking the law.

“Strong young man needed for handling horses.” Discrimination laws apply to every employer who hires one or more employees (except when hiring a family member). Small agricultural employers are not exempt from the laws that prohibit discrimination in hiring based on gender, race, disability, age, religion, sexual orientation, disability, and other protected class status. There is nothing about agricultural work that changes an employer’s obligation to maintain a hiring system and a workplace free of discrimination.

“Working student wanted.” Particularly in the horse world, it is common practice for riding students to work in exchange for lessons or a chance to ride an instructor’s horses. The work includes all sorts of labor around the barn, as well as exercising and grooming horses. That may be fine with the student and the instructor, but it may run afoul of wage and hour laws. As discussed in this Department of Labor fact sheet, internships in the for-profit sector will most often be treated as employment under the law.
“I don’t need workers comp or unemployment insurance.” This may or may not be true. Some but not all family farms are exempt from the requirement to carry workers compensation and unemployment insurance, and the exemptions depend on complicated factors. In some states, including Minnesota, horse breeding and training operations - even if they qualify as a “family farm” -  are specifically not exempted from workers compensation insurance requirements. Agricultural operations that aren’t family farms usually don’t qualify for exemption. In short, the law in this area is complicated, and it’s a big mistake for an agricultural employer to assume that insurance isn’t needed.

Sometimes it takes a discrimination charge, wage and hour audit, IRS inquiry, or workers compensation claim to get an employer to pay attention to the law. Here’s hoping that the barn owners and farmers I’ve been observing and reading about don’t have to find out about employment law the hard way.

Thursday, June 6, 2013

Week in Review

Technology news was dominated by reports of government snooping this week. The Guardian published a top-secret court order forcing Verizon Wireless to turn over "telephony metadata" (i.e. call details) collected on all of its customers making calls to, from, or within the United States. The Obama Administration defended the order as a counter-terrorism measure, and late Thursday, reports began to surface that the data was used to foil a planned terrorist attack.

Individuals used technology to act in ways that could be seen as offensive, discriminatory, or maybe both, depending on the jurisdiction they're in. A visiting professor at NYU tweeted that obese PhD applicants don't have the willpower to complete a dissertation, and some companies are now using the website to hire only good-looking employees.

Additional technology news noted that the pizza you ordered for dinner may make it to your house in record time. Domino's Pizza is working on perfecting the "DomiCopter," a drone that can deliver two large pizzas to anywhere within a four-mile radius within ten minutes.

Technology and the Workplace
Visiting NYU Lecturer Makes Waves With Offensive Tweet About Fat People (New York Post)
7 Social Media Tips for CEOs (Mashable)
Domino's Pizza Testing Pizza-Delivering Drones (FOX)
Fixing Your Online Reputation: There's an Industry for That (NPR)
Job Site Wants Only Beautiful Candidates (Mashable)

Technology and the Law
Feds Getting Phone Records of All Verizon Customers (CBS) (CNET) (NYT)
Leaked Emails That Led to Exposure of Petraes Affair Violated Socialite's Privacy, Suit Claims (ABA Journal) (USA Today)
WI Child Porn Suspect Does Not Have to Decrypt Hard Drives -- For Now (ARS Technica)
Apple Banned from Selling Some iPhones and iPads After Samsung Patent Win (CNN) (FOSS Patents)
Feds Say They Can Search Your Laptop at the Border But Won't Say Why (ARS Technica) (Wired)

There's an App for That
Building Your Own Website, Free (NYT)
App of the Week: Osito (ABC)
5 Apps to Guarantee an Awesome Summer Road Trip (Wired)
Facial-Recognition App Can Help Identify Missing Children (Mashable)

Wednesday, June 5, 2013

Supreme Court Watch: Employment Cases in 2013

The 2013 U.S. Supreme Court term features several employment law cases important to employers and human resource professionals, including the following significant pending cases:

Vance v. Ball State University: This case involves the definition of a “supervisor” for purposes of harassment claims under Title VII of the Civil Rights Act. Under current law, employers may be held strictly liable for the acts of supervisors but harassment by a co-worker will not create liability unless the employer “knew or should have known” about the harassment. This decision will clarify a current split among federal Courts of Appeal concerning the legal definition of a supervisor.

University of Texas Southern Medical Center v. Nassar: This case involves what standard of proof a plaintiff claiming retaliation in a Title VII case must meet in order to prevail. Some courts have required more stringent standards than others when analyzing whether prohibited retaliation was a motivating factor for an employer’s adverse employment action. Employers would be less vulnerable to such claims if a more stringent standard of proof is required. 

Sandifer v. U.S. Steel Corp.: The question presented in this case is whether the Fair Labor Standards Act requires employers to pay wages to employees when they are changing in and out of protective clothing at the beginning and ending of a workday.

What should employers expect from the current Supreme Court?  The Roberts court has been viewed by many commentators as extremely friendly to corporations and big business interests. For example, in 2011 the court issued a blockbuster decision, Wal-Mart v.Dukes, preventing what would have been the largest-ever employment sex discrimination class action case from proceeding in the federal court system. Since the Dukes decision, the court has continued to issue decisions that limit and restrict the ability of plaintiffs to sue on a class-wide basis. 

Most of the “pro-business” commentary, however,  is supported only by anecdotes and individual opinions. A new study published by The Minnesota Law Review and recently featured in a New York Times article takes a more careful and empirical approach to analyze the court’s pro-business decisions. The study reviewed over 2,000 decisions and ranked the 36 justices who have served on the court over a 65 year period. The authors ranked the justices by the proportion of their pro-business votes. Five of the current court’s more conservative members were in the top 10 of pro-business judges. The most notable finding, however, was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr.  The study finds that the Roberts court is, indeed, a friend to corporations,  and that today’s legal landscape has shifted to a definitively  pro-business environment. This means that employers should anticipate more favorable rulings in the 2013 term, right?  

Wrong. The Roberts court’s decisions have not all favored corporations, nor have the decisions been consistently split along  “conservative” and “liberal” lines. In fact, the court’s most recent decision - not employment related - resulted in an unusual split. Just this week, in  Maryland v. King, the Court ruled in a 5-4 split decision that police may take DNA samples from people arrested in connection with serious crimes. The decision featured an alignment of justices that scrambled the usual ideological alliances. Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Samuel A. Alito Jr. and Clarence Thomas joined the majority opinion, while Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Scalia’s dissent.

The Supreme Court decides one case at a time, and its decisions may sometimes strike observers as inconsistent. Individual cases tend to be driven by unique facts and the Court's obligation to consider legal precedent. Historically, the court has displayed constantly shifting judicial alliances. Predicting the court’s future rulings is more art than science. Employers should pay careful attention to employment law cases as the 2013 term continues to unfold. The results are likely to be significant, informative, and anything but predictable.