Welcome to Legal Briefs for HR! You know the drill . . . this update is sent to over 3600 HR professionals, in-house counsel, business owners and others all over the U.S. who like to be educated (and entertained) when catching up on employment issues. Anyone is welcome to join . . . just email me to be added (or removed) from the list. Missed one? Past issues are posted on my firm's website at www.munckcarter.com under E-Newsletter.

So what's hot (in addition to outdoor temperatures)?

1. R U Monitoring IMs? - The 9^th Circuit recently held that employer review of employee text messages (by receiving copies from their IM service provider without IM users' consent) violated federal and state privacy laws, despite the existence of "no expectation of privacy" language in the employer's policy. Quon v. Arch Wireless Operating Co. (9^th Cir. 6-08). Do not make the mistake of disregarding this case simply because it involved public sector employees (not private) and happened in CA (which has a state constitutional right to privacy that pops up in employment cases regularly). Two key lessons learned are [a] complete bans on personal use of employer-provided electronic communications are almost never enforced; and [b] where your "operational reality" (i.e., nonexistent or inconsistent enforcement of a ban) is inconsistent with the ban, your "no expectation of privacy" defense to monitoring is likely to fail. As mentioned in past LB4HRs , just because your handy IT folks can help you access employees' electronic communications, it does not mean it's OK to do so under all circumstances.

2. Tech Toy Trouble - It's not unusual for employers' electronic time-keeping systems to include a manager override feature, which allows the working time inputted by employees to be modified by others. Unfortunately, it's also not unusual for managers who lack wage and hour savvy to misuse this feature, to the detriment of the employer. Such manipulation of a nonexempt employee's time was cited as evidence that the employer failed to keep proper and accurate records, as mandated by the FLSA, so the employee is relieved of her burden of producing proof of the time she claims to have worked "off the clock." Brown v. Family Dollar Stores (7^th Cir. 7-08). And, no surprise, she's claiming a lot of time. If you're going to use a time-keeping system with an override feature, be sure to train anyone who can effect a change to employees' inputted data (e.g., supervisor, layers of local and regional management, payroll staff) about the importance of accurate record-keeping and periodically audit employees' submitted time against their paychecks, to make sure the message stuck.

3. More Tech Toy Trouble - An employer may have violated state privacy law (i.e., unreasonable intrusion upon seclusion of another) and federal wiretap law if it's shown that the plaintiff/former employee did not consent to having her workplace phone conversations with clients monitored by her supervisor via a baby monitor. Smith v. NWM-Oklahoma LLC d/b/a LA Weight Loss Centers (W.D. Okla. 7-08). Employer's response? Wah!!

4. What's Up? - The federal minimum wage, of course! Don't forget that an automatic increase was triggered, effective July 24, raising the rate from $5.85/hour to $6.55/hour (and will take a final hop to $7.25/hour on July 24, 2009 unless legislators enact further increases in the interim). Some states' minimum wage rates are higher than the federal rate, so plan on paying that rate if you're in interstate commerce. Go to www.dol.gov/esa/whd/ and click on Minimum Wage Laws in the States to see a chart displaying all states' rates.

5. Not That You Would - Add Missouri as the fourth state (in addition to CA, ND and WI) enacting legislation to prevent employers from requiring employees to be micro-chipped as a condition of employment. The legislative history will make you howl with laughter, as it implies that some employers might involuntarily "chip" their employees, if not statutorily barred from doing so. Chips are generally inserted at the doctor's office via a large syringe, so I'm having a hard time envisioning your supervisors chasing down employees while wielding big needles. Although it's really tempting for the individual who keeps losing his security badge, right?

6. Religion Revisited - EEOC has rewritten the Compliance Manual section (79 pages) and prepared a 10-page Fact Sheet and a 4.5-page Best Practices list on the issue of religious discrimination and accommodation under Title VII. The new guidance does not change the applicable regulation (29 CFR sec. 1605) and is intended to explain rather than change EEOC's view of these issues. The reasonable accommodation standard is still de minimis (i.e., less than that required for reasonable accommodation under the Americans With Disabilities Act (ADA)) and harassment claims are to be judged by the same standards that apply to other protected categories under Title VII. EEOC's view does not always track with the courts, so remember that this is guidance, not gospel. All three docs are available at www.eeoc.gov.

7. Gas Pains - Thanks for the thoughtful responses to last months' query about employer efforts to soften the pain of employees' commuting expenses due to rising gas prices. One astute question asked was whether employers should treat the value of "gift" gas cards as taxable income to the employee. The IRS has rules for employer-provided transportation benefits (e.g., transit passes, paid parking) under Section 132, but gas cards are not on the list of items to which this exclusion from taxable income applies. Further, the Employer's Tax Guide to Fringe Benefits (Publication 15-B) does mention exclusion of "de minimis transportation benefits" from employees' taxable income, but the example provided, of "occasional transportation fare you give an employee because the employee is working overtime" does not seem to encompass mass distribution of $50 gas gift cards. The good news is that under the "gift" exclusion in the FLSA regulations at 29 CFR sec. 778.212, you probably don't have to add the value of the gas card into nonexempt employees' "regular rate" (as part of the overtime rate calculation) unless it's tied to the number of hours worked or the amount is so substantial that employees will reasonably consider it to be a part of their wages. We all know that good deeds often do not go unpunished, so heads' up!

8. Hot Stuff - Don't forget to take extra measures to protect your workers who spend some or all of the workday outdoors. If you're in CA, you are subject to mandates about providing frequent breaks, fresh drinking water and shade. Even if no mandate applies to your business, a little consideration goes a long way to prevent harm and build goodwill. Hats' off to the employer who pondered ways to provide a shady spot for employees to park their motorcycles . . . no toasted buns, please!

9. More Fun With FMLA

1. Pop Top - No FMLA interference found, where an employee was fired for violating a United Auto Workers CBA provision prohibiting other employment while on FMLA leave. The worker, who took intermittent leave for chronic anemia, claimed she was going to a bar for a couple of hours nightly, in order to relax and feel better, and would occasionally find money on the floor or have her drinks paid for. The employer's investigator said that on more than one occasion, she would take a suitcase into the bar, change clothes, dance in lingerie while removing layers of clothing and receive tips. Sing it with me . . . she works hard for the money! Stanley v. Volvo Parts North America (S.D. Ohio 6-08)

2. Flip Flop - An employee who was technically ineligible for FMLA (due to less than 50 employees within 75 miles of his worksite) may be able to sue his employer for breach of contract or promissory estoppel, where the [a] the employee handbook provided for 12 weeks of leave and did not mention the 50/75 requirement; and [b] the employer sent two letters to the employee, OK'g FMLA leave. Even if the handbook and letters do not amount to a contract, the court may find that the "promise" of job-protected leave that the employee relied upon must be enforced. Peters v. Gilead Sciences Inc. (7^th Cir. 7-08)

10. Let's Talk - Texas Employers for Immigration Reform (TEIR) is hosting the North Texas Immigration Summit: A Forum for Employers, to be held on Monday, August 25 from 10 a.m. to 3 p.m. at the Dallas Marriott Las Colinas. Cost is $50@ and includes lunch, until August 17, when price increases to $60@. For registration info, go to www.txeir.org. And don't forget to register for HR Southwest Human Resources Conference and Exposition, an exceptionally good HR-fest to be held from October 14 to 17, in Fort Worth. Go to www.hrsouthwest.com for details and registration info!

Until next time,

Audrey E. Mross
Labor & Employment Attorney

Munck Carter P.C.
600 Banner Place
12770 Coit Road
Dallas, TX 75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (cell)

amross@munckcarter.com
www.munckcarter.com

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