Welcome to Legal Briefs for HR! This update on issues that matter to employers is provided as a service of the SHRM Texas State Council, which I serve as Co-Director of Legislative Action. Feel free to forward this email to anyone who would benefit . . . all are welcome to join this FREE service with over 2900 subscribers!

I'm looking forward to speaking at the Open4 Users Conference (April 10), the San Antonio HRMA annual symposium (April 13), the Austin HRMA legislative meeting (April 17) (a double dip - luncheon keynote legal/legislative update plus afternoon workshop on employee handbooks)!

Here's what's up:

1. Immigration in the News - Loud protests across the nation are a jarring reminder that HR staff are in the crosshairs of the growing debate over the fate of undocumented workers in the U.S. Since jobs are the magnet that draws workers to the U.S., HR will have to deal with the "fix," whether by amnesty, a guest worker program, or a crackdown via enforcement of existing laws. Before the resolution is defined, however, we have an opportunity to speak and an obligation to educate our legislators on how their decisions will play out in workplaces across the U.S. Be thinking about the effect on your workplace and tell your legislators!

2. Healthy Response? - Massachusetts is poised to take health insurance coverage of its citizens to 100% by 7-1-07, using auto insurance as a model. Everyone must have insurance by then, or face fines of $1000 or more, per year. To get there, the financially needy will receive free or heavily subsidized coverage, mid-income earners will pay based on a sliding scale and the plan purports to lower the premium paid by those who are currently covered. Businesses that do not offer employee insurance would be required to pay the State $295 per employee, per year. Maine and Hawaii offer near-universal access and Illinois offers a subsidy to increase coverage of kids, but Massachusetts is the first state to make coverage a legal requirement. Stay tuned!

3. Deal or No Deal? - A jilted salesman is proceeding to court alleging breach of contract arising from a claimed employment contract. Baum v. Helget Gas Prods. Inc. (8^th Cir. 3-16-06). The employer says they only provided the prospective hire a projection of possible salary and benefits over a three-year period, but the plaintiff claims they had a three-year deal that must be honored when he was fired after only eleven months on the job. The document was titled "contract" and contained multiple references to a contract (e.g., "buy out of leased car if ee is discharged before contract expires"). If it walks like a duck and quacks like a duck . . . .

4. From Quacker to Hacker - Ever heard of the federal Computer Fraud and Abuse Act? It was used to bring the hammer down on a disgruntled former employee who deleted all data on a company laptop and then installed a secure-erase program to make the data irretrievable before leaving the job. Under the Act, a person who "causes the transmission of a program, information, code or command, and as a result of such conduct, intentionally causes damage without authorization to a protected computer" violates the law. Loading the secure-erase program was the prohibited "transmission of a program" and, in addition, he was not authorized to delete the files. Int'l Airport Centers v. Citrin (7^th Cir. 3-8-06). Add this tool to your kit and use as needed!

5. Physician, Heal Thyself - A chiropractor is being allowed to pursue a whistleblower claim against his insurance company employer, which is notable for two reasons - [a] the claim is brought under NJ's Conscientious Employee Protection Act ("CEPA"); and [b] the worker bringing the suit is an independent contractor, not an employee. D'Annunzio v. Prudential Ins. Co. of America (NJ Super. Ct. App. Div. 2-23-06). The CEPA protects workers who make either internal or external complaints, provide info to an investigating public body or object or refuse to participate in an "activity, policy or practice" the worker reasonably believes violates a law or reg, is fraudulent or criminal" or "is incompatible" with public policy. Whew! That's a lot of protected activity. Are you familiar with all of the whistle-blower statutes in your state? Second, the court agreed that the good doctor was an independent contractor, but found that the remedial purpose of the CEPA would not be served if it were limited to employees. It's worth noting the flurry of state laws that expressly include independent contractors within the protected group of "employees." Why? Legislatures are responding to a perceived erosion of workers' rights via overuse of the contractor classification.

6. No Tats for Troopers - The Texas Dep't of Public Safety has a new rule - no visible tattoos on its nearly 2700 state troopers. They must cover them with clothing or skin-colored patches (which is less painful than those police departments which require the removal of tattoos - ouch!).

7. Awwww - Congrats to Caremark Rx Inc., on receipt of the Silver Cradle Award from the Cradle Foundation, in recognition of their exceptional employee adoption benefits. That's for adopting a child, not for adopting an employee, OK?

8. Not Music to Employers' Ears - There's an article in the current issue of ABA Journal, reporting that the Recording Industry Association of America (RIAA) continues to pursue legal remedies against folks who download music from the Internet without paying for it. Per the article, RIAA is behind 17,000 lawsuits filed to date and another 700 - 750 being filed monthly, with average settlements around $4000. What it didn't mention is that some of these music-nappers are downloading from work instead of home computers and employers have been caught in the middle. With the rapidly changing face of electronic communications, that handbook policy needs updating most frequently. Have you "tuned up" yours lately?

9. Flower Power - An employer defending itself against a FMLA claim said the employee failed to notify it of her need for FMLA, but the court nixed their motion for summary judgment, noting that the employer knew the employee had been hospitalized, as evidenced by sending flowers to her hospital. Robinson v. Hilton Hospitality, Inc. (S.D. Ohio 2-28-06). Is the lesson to chop down your flower policy? No, the lesson is that strict compliance with employers' notification policies is not required, especially during an emergency. Re-read sec. 825.303 of the FMLA regs, which says "In the case of a medical emergency . . . written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved."

10. More Off the Clock Lessons - Non-exempt call center employees will divvy up $352,376.00, under a DOL settlement for duties performed, without pay, before their regular work began. Chao v. Convergys (D. Ariz. 3-6-06). If you can round up a copy of this week's issue of Texas Lawyer, it includes an article by yours truly on the FLSA's "continuous workday" as recognized by the U.S. Supreme Court in IBP v. Alvarez, plus a checklist for auditing your workplace toward compliance.

11. Post It - Here's an interesting approach used by one employer to discourage visits to inappropriate websites at work . . . employees are put on notice that their workplace Internet browsing will be monitored and that the IT Department will randomly pick an employee browsing history and post it for all to see. In effect, "You've been warned . . . now, make my day!"

12. Helpful Hosts - Go to http://www.grizzaffidarby.com/ to check out a free seminar on consumer-directed healthcare. Go to Steve Browne at sbrowne@cds-assoc.com for access to the HR Net, an (OH-based but nationwide in scope) exchange of HR ideas (and humor, thanks to Steve).

Until next time,

Audrey E. Mross

Labor & Employment Attorney

Munck Carter, P.C.

600 Banner Place Tower

12770 Coit Road

Dallas, TX 75251

972.628.3661 (direct)

972.628.3616 (fax)

214.868.3033 (cell)

amross@munckcarter.com

www.munckcarter.com