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 3100 subscribers!  Just email me to be added to the group and you can find previous issues for 2006 on the Munck Carter, P.C. law firm website (www.munckcarter.com) under E-Newsletter.

A special welcome to new subscribers I had the pleasure of speaking to at the Dallas Bar Association Computer Law section meeting and the Brazos Valley HRMA meeting in College Station.  I look forward to speaking at the Wichita Falls HRMA conference next week, on Sept. 19.

Here’s the latest:

Sorry to See You Go (Not)! – Say good-bye to the OFCCP’s Equal Opportunity Survey!  In a notice published on Sept. 8, the OFCCP said the report “misdirects valuable enforcement resources and fails to provide value to either OFCCP enforcement or contractor compliance” and will no longer be used by the agency. The EOS reportedly took the average contractor 21 hours to complete and cost all contractors around $6 million per year, to track and file the data needed to complete the survey.  Clink your glasses . . . this is a good thing.

One More Time – On August 29, California’s Fair Employment and Housing Commission (FEHC) issued yet another version of its proposed regulations on mandatory sexual harassment training.  One key change is that supervisors who are located outside of CA are no longer subject to the requirement, even if they manage employees who are in CA.  Go to www.fehc.ca.gov/ to see the latest version.

New Chair – Cari Dominguez, Chair of the EEOC, is stepping down upon completion of her five-year term.  The new chair is Naomi Churchill, whose background includes working for the National Institutes of Health (NIH), the Federal Deposit Insurance Corp. (FDIC), the U.S. Dept. of Agriculture and the National Institute of Science and Technology.  Ms. Churchill is an attorney and was owner and principal consultant of a firm that advised management on EEO and HR issues. 

Fun With FMLA – Employers finally have an appellate decision on which to hang their hat, when prorating an employee’s “hours based” bonus due to FMLA leave.  An employee whose annual bonus was reduced in proportion to an eight-week leave filed an FMLA interference claim.  The court relied on Dept. of Labor opinion letters, in drawing a distinction between bonuses that are tied to production (e.g., hours worked or monthly earnings) and those that reward absence of an occurrence (e.g., perfect attendance).  In this case, the employer’s bonus plan tied individual eligibility for the bonus to continuous employment during the plan year, job level, length of service and hours worked.  Further the definition of hours of service was expressly defined as “hours for which an employee is paid or entitled to be paid” for actual work or certain absences (e.g., vacation, holidays, sick time, bereavement, military duty and court duty).  The plan language was equally clear that time spent on STD and LTD did not qualify for the bonus.  Sommer v. Vanguard Group (3^rd Cir. 8-24-06).

Heads’ Up, Federal Contractors – Multi-state contractors who have been using Americas Job Bank as “one stop shopping” to satisfy the VEVRAA requirement of listing most job openings with the applicable state employment service can start mourning.  AJB is being put out of business next year, to the chagrin of employers and the delight of other Internet job boards that will likely benefit from AJB’s demise.

You Too, Drug Testers – An employee who tested positive for marijuana is being allowed to proceed with her wrongful discharge claim under Iowa law.  Some states, including IA, are closely regulating how and when employers may drug test their employees.  In this case, the state requires employers who drug test to provide detailed notice of their policy to all subject employees.  The plaintiff admits that she received the Drug Free Workplace Act notice (required of certain federal contractors) but not the company policy that explained random tests were being used and whether the consequences of a positive test would be disciplinary or rehabilitative.  McVey v. National Org. Serv. Inc. (Iowa 8-11-06).  At last count, only two states WEREN’T regulating employers’ drug testing programs, so be sure that you are in the know and your program is compliant.  And this case is further reinforcement of the “best practice” of having a separate written acknowledgment of the employer’s drug and alcohol policy (in addition to the general handbook acknowledgment) as proof of informed consent.

New Limitation in New Jersey – Under the Worker Freedom from Employer Intimidation Act, employers may not require employees to attend or participate in any communications . . . about religious or political matters.  The Act has a 90-day statute of limitations and remedies include restraining orders, reinstatement, lost wages, attorneys’ fees and punitive damages.

Do You Ever Call Someone in CA? – Then be sure that you do not engage in undisclosed monitoring or recording of telephone calls, unless you want to face the greater of treble damages or $5000 per violation.  That was the hard lesson learned by a Georgia brokerage that routinely recorded CA-based clients’ phone calls.  Kearney v. Solomon Smith Barney Inc. (Cal. 7-13-06).  And make note of the eleven other so-called “two consent” or “dual consent” states that have similar privacy laws – CT, FL, IL, MA, MD, MI, MT, NV, NH, PA and WA.

Home Sweet Home – Sears will pay $15 million to settle four lawsuits involving over 16,000 employees nationwide over allegations of failure to pay for commuting time.  It all began with a new dispatch system and the requirement that technicians download their daily work schedules from home each morning.  The employees alleged they were owed pay for the commute to their first assignment since the workday began at home, and the court agreed.   Lenahan v. Sears, Roebuck and Co. (7-24-06).  Sounding familiar?  If not, go to www.munckcarter.com, click on E-Newsletters and print off a copy of “Texas Lawyer – Effects of the Supreme Court’s Don-Doff Ruling.”  This is not the last “continuous workday” case we will be hearing about.

More “Big Box” Woes – Chicago is the first major U.S. city to set a higher minimum wage for workers in large retail establishments.  By a vote of 35-14, an ordinance was approved making the minimum wage $10 per hour for more than 16,000 workers in 35 stores.  It applies to stores of 90,000 square feet or larger run by companies with annual gross revenues of $1 billion or more.  For a complete copy of the ordinance, go to www.brennancenter.org/programs/living_wage/index.html and click on Chicago’s Retail Living Wage Ordinance, under Legislation.

Kudos! – Congratulations to LB4HR subscribers who were recently recognized as being Mother-Friendly Worksites:  RHD Memorial Medical Center, Blockbuster, EDS, GameStop, Pioneer Frozen Foods and Raytheon Co.!  This designation means that the company has developed a policy to support breast-feeding employees.

More Kudos! – Additional attaboys and attagirls to winners of the Alfred P. Sloan Awards for Workplace Flexibility:  The Beck Group, Brinker International, the Community Council of Greater Dallas, Fleishman-Hillard Dallas, Kaye/Bassman International, Lee Hecht Harrison, McQueary Henry Bowles Troy LLP and the Salvation Army.  For more info, go to http://familiesandwork.org/3w/.

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