Welcome to Legal Briefs for HR! This update on issues that matter to employers is provided to HR professionals, in-house counsel, business owners and others who can benefit from receiving monthly updates on new laws, recent court cases, helpful websites and pending legislation. Anyone is welcome to join the group of over 3400 subscribers to this free newsletter. Just email me to be added to the group (or removed) and you can find previous editions posted on the Munck Carter, P.C. firm website at http://www.munckcarter.com/ under E-Newsletter.

A warm welcome to new subscribers I had the pleasure of speaking to during presentations for the SHRM Texas State Council Legislative Impact Day, 49^th Annual County Auditors' Institute, Texas A&M/Prairie View A&M Leadership Extension meeting and the Self Opportunity "Meeting of the Minds."

Here's the latest:

1. What's Cookin' in Austin - Six bills that would have prevented employers from banning guns in their workplace parking lots have been shot down. The bills were sent to the House Calendars Committee but only one (SB 534) was set for a vote on the final day it was eligible for consideration by the full House. Due to the bill's placement on the calendar, the deadline for a vote passed before it got a second reading. Gov. Perry signed HB 991 into law, sealing the formerly public records that identify individuals who are licensed to carry a concealed weapon. The law took effect immediately, on May 23, so only law enforcement agencies will have access to that information. The proposed statewide smoking ban was snuffed out last week, too, so Texas employers must look to local ordinances to determine their obligations, if any, related to smoking in workplaces. For a list of Texas local ordinances on smoking, go to http://txshsord.coe.uh.edu/createReports.aspx.

2. What's Cookin' in DC -

1. New Minimum Wage - A three-step increase in the federal minimum wage was signed by President Bush on May 25. The first increase, to $5.85/hour takes effect July 24 (60 days after signing); the rate jumps to $6.55/hour next summer and to $7.25 during the summer of 2009.

2. Gene Pool - The House passed the Genetic Information Non-Discrimination Act (H.R. 493) by a vote of 420-3 and the action moves to the Senate. If passed, the measure will amend Title VII and ERISA to prohibit employers from discriminating against employees on the basis of genetic information . . . which, by the way, is not limited to DNA test results and can include individual and family medical history.

3. Gender Matters - A bill prohibiting employment discrimination based on sexual orientation and gender identity was introduced on April 4. The Employment Non-Discrimination Act (H.R. 2015) does not require employers to provide domestic partner benefits and has exclusions for religious organizations and the U.S. military. For info on similar protection currently in place under state and local law, go to http://www.hrc.org/.

4. FMLA for Soldiers' Families - A Dep't of Defense authorization bill (H.R. 1585) passed in the House on May 17 and includes an amendment of the FMLA, to allow the family of a citizen soldier who is called up or home on leave to use FMLA job-protected leave to be with that soldier. Some states (e.g. IL and MN) already provide such leave for the family of military members.

3. Houston, We Have a Problem - Per a U.S. DOL press release, Mudlogging Company USA in Houston paid over $1.1 million in backpay to 233 employees, representing unpaid overtime between Aug. 2004 and Aug. 2006. The mistake? Paying a day rate to mudloggers, trainees and non-exempt unit managers without additional overtime for workweeks in which more than 40 hours were worked.

4. The Importance of Being Essential - A recent case points out the importance of identifying essential vs. marginal functions of jobs, in writing, before a dispute arises. Rehrs v. Iams Co. (8^th Cir. 5-15-07) A warehouse technician worked in a facility that had rotating shifts. Following a heart attack and bypass surgery, he was temporarily accommodated with a fixed shift based on his doctor's recommendation. When the employee asked for the accommodation to be made permanent, the employer declined citing shift rotation as an essential function. The employee was advised of other fixed shift job openings, which he was either unqualified to perform or did not want to do. While on disability, he sued under the ADA. The court found for the employer and noted:

1. Shift rotation was a non-discriminatory essential function, used at all company facilities as a way to cross-train and enhance productivity;

2. Plaintiff's inability to perform the essential function rendered him unqualified under both the ADA and analogous state law;

3. Offering fixed shift work for 60 days as a temporary accommodation did not convert shift rotation to a nonessential (aka marginal) function; and

4. Transforming the short-term accommodation into an entitlement would discourage employers from attempting to accommodate disabled workers by punishing them for doing more than the ADA requires

5. Bad Math - A doctor claimed he was lured to a new job based, in part, on a recruiting manager's representation that the doc would be eligible for full retirement benefits of $3100/month at age 62. He moved to a new state to accept the job and soon learned that the actual pension amount would be $816/month. The unhappy doc sued and lost in the district court (which said his state law fraud claim was preempted by ERISA), but the appeals court disagreed. At the time of the misreps, he was neither an employee nor a plan participant so he could not sue for breach of fiduciary duty under ERISA. Further, his plea for reliance damages (i.e., what he lost by walking away from a higher salary and stock options with his former employer) were not related to the pension plan. Had he sued for expectation damages (i.e., the difference between the puffed and actual monthly retirement benefit), then ERISA would've come into play. Thurman v. Pfizer Inc. (6^th Cir. 5-8-07).

6. More Fun With FMLA

1. Employers Not Required To Be Clairvoyant - FMLA claim denied, where an employee was fired for excessive absences after taking time off to be with her son. While the child had chronic asthma, mama told her employer she was staying home to keep an eye on her son because he had fallen into "muddy nasty water." She did not provide enough info verbally for the employer to inquire further and she declined her supervisor's suggestion that she document the condition for purposes of the FMLA. Greenwell v. State Farm Auto Ins. Co. (5^th Cir. 5-10-07)

2. More Math - FMLA claim denied, where a weekend nurse had been paid for more than 1250 hours in the 12 months prior to leave, but some of those hours were not worked. The hospital paid weekend nurses for more hours than they actually worked, but the FMLA eligibility formula is based on hours worked. Mutcher v. Dunlap Memorial Hosp. (6^th Cir. 5-2-07)

7. Tech Toys - A wage claim is moving forward, in part, because of electronic time-keeping technology that allows employees to opt for "clock in as scheduled" as opposed to having the system register the actual time he or she is clocking in. The court observed that [1] tying the restaurant's computer system access to being clocked in infers that "off the clock work" will be performed; and [2] the FLSA's de minimis exception to compensability, which applies to brief periods of time that are difficult to calculate, is not available here since the electronic system allows for calculation of time to the minute. Fast v. Applebee's (W.D. Mo. 5-3-07) Watch out for the gap between what tech toys can do and what you should do!

8. A Taxing Decision - The Vermont Supreme Court found that home-based workers who knit and sew clothing on their own machines are "employees" who are eligible for unemployment comp benefits and their employer owed back taxes. The issue arose when a former worker filed for unemployment insurance benefits ("UI") after leaving a subsequent employer and had listed the clothing company among her prior employers. Fleece on Earth v. Dep't of Employment and Training (Vt. 5-4-07) States are increasingly questioning employee vs. contractor status, especially where state, UI and/or disability taxes are not being paid on certain workers.

9. Throwing Money Away - Last month, it was reported in Legal Briefs for HR that the Texas Attorney General had taken enforcement action against four businesses in as many weeks, due to their improper disposal of records containing personal identifiers, like name, address, social security numbers and debit/credit numbers. Add two more to the list . . . Austin-based EZCorp was sued on May 8 for disposing of customers' loan and pawn service applications in readily accessible trash bins and CNG Financial Corporation (and its subsidiaries, Check 'n Go of Texas, Inc. and Southwestern & Pacific Specialty Finance, Inc.), was sued on May 24 for the same offense, under the Deceptive Trade Practices Act (penalties up to $20,000 per violation), the Identity Theft Enforcement and Protection Act (up to $50,000 per violation) and sec. 35.48 of the Business and Commerce Code (up to $500 for each record). A message is being sent to those who improperly dispose of customers' and employees' personal information . . . are you listening?

10. You're the Best - Congratulations to the many LB4HR subscribers who are listed in the Dallas Business Journal's "Best Places to Work in Dallas-Fort Worth" special edition (May 4 - 10)! The white Stetson for the best in each category went to: Frontline Source Group, Inc. (small business); esoftsolutions Inc./LiquidAgents Healthcare (mid-sized business); Medical Center at Plano (large business); and The Ritz-Carlton (business HQ'd outside of DFW). If you didn't read it, get your hands on a copy . . . the energy exuded by these organizations through their employees practically leaps off the page!

11. North Texas SHRM Annual Conference - Go to http://www.northtexasshrm.org/ to register for a 2-day conference to be held in Denton that has been approved for 14.5 HRCI certification credits and includes featured speaker, Libby Sartain of Yahoo Inc.

12. Immigration Seminar - The Texas Association of Business (TAB) has tapped into immigration reform as its monthly meeting topic for June. Brent Huddleston will discuss H-1B visas, Form I-9 work authorization and Social Security Administration "no match" letters during a lunch meeting on June 21 at the Crowne Plaza on Midway Road. To register, contact Monna Miller at mmiller@txbiz.org.

13. Employment Relations Symposium - TAB and SHRM have joined forces to offer another great two-day learning opportunity with a combo of attorney and HR professional speakers, including yours truly, to provide a legal and practical perspective on current workplace issues. Visit http://www.txbiz.org/ (See Quick Links) for a complete agenda, hotel and registration info. The Symposium will be held July 12 and 13 (with an optional meet-n-greet the evening of the 11^th) at The Westin La Cantera Resort in San Antonio, TX!

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

http://www.munckcarter.com/

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