Legal Alerts Archive
On April 23, 2010, Arizona Gov. Jan Brewer signed into law the toughest immigration law in the country, which makes it a misdemeanor for an individual to lack proper immigration paperwork in Arizona. Local police who have "reasonable suspicion" that an individual is undocumented now have the authority to determine that person's immigration status. Under current law, officers may only inquire about immigration status if the person is a suspect in another crime.
On April 21, 2010 the Supreme Court affirmed that a court must give deference to an ERISA fiduciary's second interpretation of ambiguous plan language, even if the first interpretation made by the fiduciary is struck down by the court as unreasonable. Using a "one strike doesn't mean you're out" analysis, the Court held that where the plan gives the fiduciary the broad authority to interpret the plan, that authority extends to the fiduciary's alternative interpretation if the first was a mistake. The so-called Firestone standard of judicial review which requires a court to give deference to a plan administrator's interpretation of a plan provision was upheld as a principle not susceptible to special exceptions. A court's duty is to be sure the fiduciary does not abuse its discretion, not to substitute its judgment if the fiduciary gets it wrong the first time because of an "honest mistake." Conkright v. Frommert
On April 15, 2010 the Oregon Supreme Court handed employers a comprehensive victory in the long-running medical marijuana battle, deciding that employers need not accommodate an employee's use of medical marijuana. The decision now means that employers can rest comfortably knowing they can consistently enforce their zero tolerance drug policies without regard to medical marijuana registry status. Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries.
There's a lot of information about the new health care reform acts on the Internet and in the news – much of it vague, some of it incorrect, and most of it overwhelming. The acts are very complex, of course, which is reflected in the reports. While several of the changes will be effective in 2011, most of the changes in the law won't take effect until 2014. The provisions with delayed effective dates will be clarified in future regulations and some of the provisions may be changed or repealed before they become effective. We'll report on those aspects of the law in future legal alerts. For now, here's what you need to know.
Until last week, most employers believed that they had the right to review -- and in fact owned -- any electronic information stored on company computers. In a recent decision, the New Jersey Supreme Court carved out an exception to this rule. When an employee exchanges emails with her attorney through a personal web-based email account using a company computer, that email is attorney-client privileged even though the computer may automatically create a viewable copy of the email's text in temporary internet files on the company computer. In addition to ratifying, once again, the sanctity courts grant to the attorney-client privilege, the case highlights the importance of well-drafted company policies to enforce workplace rules and protect employer rights. Although the precedent applies only in New Jersey, the decision is significant for all employers. Stengart v. Loving Care Agency, Inc.
As the healthcare drama recedes from center stage, the next labor reform domino has already fallen. For 27 months, the National Labor Relations Board (NLRB) has operated with only two of its five seats filled. But with the commencement of Easter recess on March 27, President Obama moved swiftly to change that by unilaterally appointing SEIU counsel Craig Becker and union attorney Mark Pearce to seats on the Board.
- Appeals Court Holds That An Employee's Self-Diagnosis Can Establish Ongoing Medical Condition Under The FMLA3.19.10
Brace yourself for yet another twist in the ever-evolving standards governing an employee's leave under the Family Medical Leave Act (FMLA). On March 11, 2010, the U.S. Court of Appeals for the 3rd Circuit joined the 8th Circuit Court of Appeals in holding a combination of expert and lay testimony can establish that an employee was medically incapacitated for more than three days, thereby triggering FMLA protection. Schaar v. Lehigh Valley Health Services.
On March 3, 2010, U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Form I-9 Notices of Inspection to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. The Notices of Inspection require employers to allow ICE to inspect their I-9 forms to determine compliance with employment eligibility verification laws.
On April 1, 2010, the United States Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications for employment that will begin on October 1, 2010. The H-1B visa is a popular choice for companies who want to hire a foreign worker to fill a "professional" or "specialty occupation" position requiring a minimum of a bachelor's degree or the equivalent.
On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (H.R. 4691), which amends the American Recovery and Reinvestment Act of 2009 (ARRA). Among other things, the Act extends eligibility for the 65%, 15-month COBRA premium subsidy to individuals who have been involuntarily terminated through March 31, 2010. Without the extension, employees laid off after February 28th would have been ineligible for the subsidy. The law is retroactive, so individuals who were involuntarily terminated on March 1st and 2nd are eligible for the subsidy.
Most Oregon employers who review job applicants' credit history reports before deciding whether to hire them will no longer be able to do so as of July 1, 2010. Billed as a means to help out-of-work Oregonians find jobs more easily, the Oregon legislature passed a new law on February 22 which will greatly restrict your ability to perform credit checks on applicants and employees. Once signed into law by the Governor (which is expected), Oregon will become the third state in the country – joining Washington and Hawaii – to prohibit this common practice.
The Miami-Dade County Board of Commissioners recently approved an ordinance prohibiting "Wage Theft" in the county. The new ordinance will become effective on February 28, 2010.
On February 23, 2010 the U.S. Supreme Court handed down a ruling clarifying when employers can remove a lawsuit from state court and have it heard in the friendlier forum of federal court. The ruling deals with what is called "diversity jurisdiction" and is seen as highly favorable for employers, particularly large employers conducting business in multiple states, because it will make it easier for companies to know when they will likely be able to avoid the jurisdiction of plaintiff-friendly state courts.
In the midst of finding childcare for children unexpectedly home from school, coping with business disruption, power outages, and dangerous streets, we often forget that winter storms, like Hurricanes, pose special workplace hazards especially when employers begin to clean up and restore business. Many fatalities, injuries, and OSHA citations occur as employees perform non-routine tasks after the storm eases.
Many Toyota dealerships have announced that they will remain open 24 hours a day in order to fix the accelerator problem that has prompted the recent recall of several models. This unprecedented step is likely to raise a number of employment law issues for the affected dealerships, and may serve as a model for any other companies that may face similar issues in the future.
Most employers are required to maintain the Occupational Safety and Health Administration's 300 Logs for workplace injuries and illnesses and post their 2009 annual summary by February 1, 2010. Employers must utilize the annual summary form (form 300A) when complying with the posting requirements. The form is available for downloading from the OSHA website.
New York's state law requires employers to notify newly-hired individuals – before they start work – of their pay rates, pay dates, and overtime rates (assuming eligibility for overtime) in writing, and to obtain written acknowledgment from these new employees that such information has been provided. But up until now, the law provided no guidance on how such notices were to be delivered or the acknowledgments were to be obtained. No forms, no rules.
On December 19, 2009, President Obama signed into law a new Defense Appropriations Act. The Act contains a provision, originally introduced by Senators Al Franken of Minnesota and Mary Landrieu of Louisiana, with important implications for federal defense contractors and subcontractors that have implemented arbitration agreements for their employees. Specifically, the Act prohibits the federal government from awarding funds appropriated by the Act for any federal contract in excess of $1,000,000 if a contractor requires its employees or the employees of an independent contractor to arbitrate certain claims.
On December 19, 2009, President Obama signed into law the Fiscal Year 2010 Defense Appropriations Act. The Act extends the current nine-month COBRA subsidy for an additional six months, for a total of 15 months. It also extends eligibility for the subsidy to workers who are involuntarily terminated through February 28, 2010. The prior law covered workers involuntarily terminated through December 31, 2009. The Act requires employers to provide current and future COBRA beneficiaries with notice of the extension.
On December 8, 2009, the U.S. Supreme Court issued a unanimous decision holding that a panel of the National Railroad Adjustment Board (NRAB) violated the Railway Labor Act (RLA) when it refused to hear five grievance cases on the ground that the railroad and the union had not presented sufficient evidence to show that they had completed the required "conferencing" before arbitration.
On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced the issuance of Form I-9 Notices of Inspection to 1,000 employers nationwide. The Notices of Inspection require employers to allow ICE to inspect their I-9 forms to determine compliance with employment eligibility verification laws. This is ICE's second round of immigration audits this year. The first round occurred on July 1, 2009, when ICE issued Notices of Inspection to 652 businesses.
Upon initial notification of the inspection, targeted employers are given three days to prepare for a meeting with federal officials in which the company's Form I-9 records will be reviewed. In addition to properly completed I-9 forms for all current and recently terminated employees, employers are being asked to turn over payroll documentation, any Social Security "no-match" letters they may have received, and other employee documentation. According to ICE, the 1,000 businesses targeted in this nationwide audit have been selected as a result of specific leads and information obtained by the agency.
On October 29, 2009, we alerted schools to the looming November 1, 2009 deadline of the Federal Trade Commission's Red Flags Rule. This rule was implemented by the Federal Trade Commission (FTC) and mandates that financial institutions and creditors with covered accounts develop and implement a written program that detects, prevents, and mitigates identity theft. On October 30, 2009, the FTC posted a notice on its website that it was delaying enforcement of the Red Flags Rule until June 1, 2010. We will keep you posted on the status of the FTC's actions. However, because most private schools' tuition payment practices place them squarely within the definition of a "creditor with covered accounts," thus requiring implementation of an Identity Theft Program, we recommend that you become familiar with the FTC's guidelines so you won't be in a rush next June. It is also important to note that while the FTC has delayed enforcement of the Red Flags Rule, "creditors with covered accounts" should technically be in compliance with the rule today.
The Equal Employment Opportunity Commission has revised the workplace notice that employers covered by federal anti-discrimination laws must post to reflect the requirements of the new Genetic Information Nondiscrimination Act and the changes made by the ADA Amendments Act. The commission posted a notice on the EEOC website stating that the revised workplace notice includes information regarding GINA's ban on employment discrimination based on an individual's genetic information, which takes effect on Nov. 21, 2009, and changes made by the Americans with Disabilities Act by the ADA Amendments Act, which took effect on Jan. 1, 2009. To comply with federal posting requirements, employers can download from the website and print an "EEO is the Law" poster supplement and post that document alongside EEOC's September 2002 edition of the poster. Alternatively, employers can download from the EEOC website, print, and post the November 2009 version of the poster. Employers also can order copies of the new posters, which are available in English, Spanish, Chinese, and Arabic, from an EEOC clearinghouse located in Annapolis Junction, MD.
Less than a year after the Department of Labor issued regulations implementing and clarifying new forms of military-related FMLA leave, Congress has approved measures that will substantially expand the scope of these provisions. Yesterday President Obama signed into law the 2010 National Defense Authorization Act, which among other things extends eligibility for "qualifying exigencies" and military caregiver leave to a larger population of employees. The legislation does not include an effective date, suggesting that it took effect immediately upon the President's signature.
Many schools have been contacted by vendors advising that the school must set up an identity theft program to comply with the new federal regulations called the "Red Flags Rule." This rule was implemented by the Federal Trade Commission (FTC) and mandates that financial institutions and creditors with covered accounts develop and implement a written program that detects, prevents, and mitigates identity theft. If your school operates like most private schools, you will likely find that your tuition payment practices will place the school squarely within the definition of a "creditor with covered accounts," thus requiring implementation of an Identity Theft Program. This article discusses the purpose of the Red Flags Rule, the definitions, and guidelines for both removing your school from coverage or coming into compliance.
August 15, 2009 marked the effective date for a new law, which dramatically expands leave rights for those parents who choose to participate in school-related activities of their children.
On October 1, 2009 the Occupational Safety and Health Administration released its plan for implementing its National Emphasis Program (NEP) to assess the accuracy of injury-and-illness data recorded by employers. The NEP was enacted in response to several studies, including one by the Government Accountability Office (GAO), that have claimed that there exists a serious problem of underreporting workplace injuries and illnesses on the OSHA Form 300. Specifically the NEP will focus on auditing employers' reports of workplace injuries and illnesses to identify instances of underreporting in high-hazard industries.
Plagued by controversy and legal battles, the Department of Homeland Security (DHS) is rescinding the 2007 No-Match Rule in a regulation to be published in the October 7 Federal Register.
On September 29, 2009, the National Labor Relations Board (NLRB) asked the Supreme Court to resolve a split in the United States Circuit Courts of Appeals as to whether a panel of only two members of the NLRB has the authority to issue final orders under the National Labor Relations Act (NLRA). As of today, three Circuit Courts - the 1st, 2nd, and 7th Circuits - have ruled that a two-member panel of the NLRB may issue decisions, while the District of Columbia Circuit has held that two-member decisions are illegitimate.
Approximately one year after former President Bush signed the ADA Amendments Act (ADAAA), the EEOC has finally issued proposed regulations and an Interpretive Guidance for public comment. As expected, the new regulations make significant changes in how certain terms under the ADA are defined, which certainly will give rise to more disability claims. This is a summary of the most significant changes and guidance to the regulations.
- Dose of Sugar and Spice: Georgia Court Reminds Businesses How They Can Guard Against Unfair CompetitionUsing Restrictive Covenants and Protecting Confidential Information9.21.09
On September 8, 2009 the government will begin requiring federal contractors to use E-Verify to verify the legal work status of newly-hired employees and current employees working directly on the covered federal contract. The U.S. Chamber of Commerce is seeking an emergency order from the U.S. Court of Appeals for the 4th Circuit to delay implementation but it appears unlikely to be granted.
On August 24, 2009, the Department of Health and Human Services (HHS) issued interim final rules regarding the new security-breach-notification requirement of the Health Insurance Portability and Accountability Act (HIPAA). Covered entities and their business associates (service providers to covered entities) only have 30 days after publication (or until September 23, 2009) to comply with these new rules.
On August 10, 2009, New Hampshire Governor John Lynch signed into law the New Hampshire Worker Adjustment and Retraining Notification (WARN) Act. The purpose of this Act is to protect workers during sudden business closings and mass layoffs. The New Hampshire WARN Act will take effect on January 1, 2010.
U.S. Immigration and Customs Enforcement (ICE) announced yesterday that 652 businesses nationwide have been targeted for in-person inspection of I-9 employment verification forms. Upon initial notification of the inspection, targeted employers are given a very short time frame, as little as three days, to prepare for a meeting with federal officials in which the company's Form I-9 records will be reviewed. Some employers have already begun receiving these audit notices.
Effective July 1, 2009 the minimum wage in Kentucky will increase from $6.55 per hour to $7.25 per hour. Although the federal minimum wage increase of this same amount does not become effective until July 24, 2009, the Kentucky General Assembly voted to have the wage hike take effect earlier for Kentucky employees.
The Kentucky Labor Cabinet, Division of Employment Standards, Apprenticeship and Mediation has received a number of inquiries regarding the upcoming change in minimum wage because of the two effective dates. July 24, 2009 is the federal deadline for all states to comply with the new minimum wage rate. But for Kentucky employers the date of compliance is now July 1, 2009, rather than July 24, 2009.
- Employers and Employees Both Find Comfort in Decision6.29.09
In one of the most important employment law cases of the decade, the U.S. Supreme Court handed employees a 5-4 victory by recognizing that even good-faith employment decisions can sometimes lead to results that give rise to lawsuits if those results fall more harshly on one class of employees than on another.
For private employers in South Carolina with 100 or more employees, compliance with the employment verification requirements of the South Carolina Illegal Immigration Reform Act begins July 1, 2009. The Act's verification procedures apply to all employees hired on or after July 1, 2009.
On June 18, 2009, the Supreme Court held that the Age Discrimination in Employment Act (ADEA) does not authorize mixed-motive claims of age discrimination. The burden of proof is at all times with the plaintiff to establish that age was a "but for" cause of the adverse employment action. Gross v. FBL Financial Services, Inc.
- Massachusetts Supreme Judicial Court Rules Employers Must Pay Terminated Employees For Any Unused Vacation Time6.12.09
On June 11, 2009, the Massachusetts Supreme Judicial Court issued a ruling in the case of Electronic Data Systems v. Attorney General holding that, under the provisions of the Massachusetts Wage Act (Massachusetts General Laws chapter 149 § 148) employers must compensate any involuntarily discharged employee for unused accrued vacation time. This ruling is consistent with a 1999 advisory issued to all employers by the Massachusetts Attorney General's office.
Pennsylvania has adopted a "mini-COBRA" law which covers group health insurance policies offered to employees of small employers. The new law protects employees who are not covered by the health coverage continuation rules imposed by COBRA at the federal level. Generally, insured group health plans offered by Pennsylvania employers with between two and 19 employees now must provide continuation of health insurance coverage under its group health insurance plans under circumstances similar to those set forth in the federal health coverage continuation rules frequently referred to as COBRA.
It's time for Colorado employers to update their employee handbooks. On June 1, 2009, Gov. Bill Ritter signed the "Parental Involvement in K-12 Education Act," which will take effect on August 5, 2009. This new law requires Colorado employers with 50 or more employees to grant up to six hours per month (up to 18 hours per academic year) of unpaid leave for the purposes of attending an academic activity for or with the employee's child.
On June 2, 2009, Governor Ritter signed into law H.B. 1310 paving the way for any person to file complaints with the Colorado Department of Labor and Employment ("CDOLE") asserting that an employer has improperly classified an employee as an independent contractor. The new law became effective immediately and imposes a fine of $5,000 per misclassified employee, which could jump to $25,000 for a second or subsequent offense. Additionally, repeat offenders could be barred from contracting with the state for up to two years.
On May 18, 2009, the Supreme Court upheld AT&T's method of calculating pension benefits for women who, prior to the April 1979 effective date of the Pregnancy Discrimination Act (PDA), took pregnancy-related leave and did not receive full service credit for the period of their leaves. AT&T Corp. v. Hulteen.
Health experts have long warned that the question is not whether we will have a pandemic, but when one will strike. Now, world governments and health organizations are closely monitoring outbreaks of swine flu that have reportedly killed more than 150 people and sickened more than 1,600 across Mexico. As of April 29, confirmed U.S. cases of Swine Influenza A (H1N1) reportedly numbered over 60 in California, Kansas, Indiana, New York City, Ohio, and Texas which includes one death.
The federal government has announced a third delay in the implementation of the Federal Contractor E-Verify Rule. The new date for implementation of the rule is now June 30, 2009.
On April 1, 2009, the Nevada State Labor Commissioner issued his annual wage bulletins that outline increases in Nevada's two-tiered minimum wage rates. Currently, the state's minimum wage is either $5.85 or $6.85 per hour, depending on whether an employer offers qualified health benefits to its employees, but these will increase this summer. Coupled with a scheduled increase in the federal minimum wage, the situation is potentially confusing.
Starting April 3, 2009, employers must use the new version of the Department of Homeland Security's Form I-9, Employment Eligibility Verification (Rev. 02/02/09). The Department of Homeland Security also has issued a revised Handbook for Employers to be used with the new Form I-9. The new form and handbook are available on the I-9 Compliance page of the Fisher Phillips website. The new Form I-9, among other things, narrows the list of acceptable documents to show identity and work authorization and eliminates the use of expired documents. Please view our January 20, 2009 Legal Alert for a detailed description of the proposed changes. All employers are required to complete and retain a Form I-9 for each employee hired after November 6, 1986 to show that the employee is authorized to work in the United States. Additionally, the employer must re-verify documents for any employees whose work authorization documents are expiring.
On February 4, 2009, President Obama signed the Children's Health Insurance Program Reauthorization Act of 2009 (CHIP). CHIP extends and expands the State Children's Health Insurance Program (SCHIP), and it contains several provisions that affect employer-sponsored group health plans.