President Barack Obama meets with Afghanistan President Hamid Karzai. (Official White House Photo by Pete Souza) (Photo credit: Wikipedia)

While this is terrific news for our military members and their families, as our military’s mission shifts and our troops return home, employers may find themselves navigating the complexities of the Uniform Services Employment and Reemployment Rights Act (“USERRA” or the “Act”), which requires employers to provide certain benefits and rights to employees who serve in our country’s military.

Under the Act, employers cannot deny initial employment, reemployment, retention, promotion or employment benefits based on an applicant’s or employee’s membership in the military, including the National Guard. In addition, as a result of an amendment to the Act contained in the VOW to Hire Heroes Act, employers cannot allow a work environment that is hostile to members of the military. Upon returning from deployment, a service member is entitled to be returned to the position he or she would have attained but for their service. And once back at work, employers cannot discharge a returning service member (other than for cause) for 90 days if the period of service was between 30 and 180 days and for one year if the period of service was more than 180 days long.

To qualify for benefits under USERRA, a returning service member must meet certain criteria:
• he or she must have given his or her employer advanced notice of their service;
• the total of all service related absences must not exceed five years;
• the employee must submit an application for reemployment within certain time frames; and
• the service member must have been honorably discharged.

The timeframe for applying for reemployment varies depending on the length of service:
• if the period of service was not more than 30 days, the employee must report not later than the next work period plus eight hours;
• if the period of service was between 31 and 180 days, the employee must apply within fourteen days of completing service; and
• if the period of service was longer than 180 days, the employee must apply within 90 days of the completion of service.

There are additional rules if an employee has a service-related injury. For example, if the service member is convalescing, the timeframes for reapplying are extended. Additionally, employers must help returning veterans with service-related disabilities become qualified for jobs they would have attained but for their service. This means the employer may need to provide additional training or reassign duties as a reasonable accommodation. If it is not possible to return a veteran with service-related disabilities to the job they would have attained but for their status, the employer must make reasonable efforts to employ the veteran in a position with equivalent seniority, status and pay. Employers can recruit and give hiring preference to veterans with service-related disabilities and can ask those veterans to self-identify for affirmative action plans.

Employers do not have to reemploy returning service members if the service member was not honorably discharged, it would create an undue hardship for the business, or the job previously held by the service member was temporary and there was no expectation of continued employment.

If you need any help welcoming our heroes home, the Virginia employment lawyers at Sands Anderson PC would be glad to answer your questions.

Now, you can Tie A Yellow Ribbon Round The Old Oak Tree, like the song says. What else can your business do to be prepared for the service members who will be looking for work after the war winds down?

Related articles

• Heads Up Employers: ‘Tis The Era For USERRA! (laborandemploymentlawupdate.com)
• USERRA Update (gunnerscorner.wordpress.com)

We have discussed some concerns about background checks before, here and here. While recognizing that criminal background checks are not prohibited by Title VII of the Civil Rights Act, by a four to one vote, the EEOC set forth its position very clearly. Employers will violate Title VII if they intentionally discriminate among individuals with similar criminal histories (i.e. race or national origin discrimination) or if their policies have a disproportionate adverse impact based on race, national origin or some other protected status and employers are unable to demonstrate “business necessity” for utilizing an applicant’s criminal history in making a hiring decision.

Employers should examine their background screening policies based on this recent guidance from the EEOC. Clearly, the EEOC has moved in the direction of urging employers to conduct individualized assessments when utilizing criminal background information. The EEOC would like employers to only request information that is job related. The real rub is the practical difficulty and burden that individualized assessments pose. Currently, most employers have a question on their application that inquires if applicants have ever been convicted of a crime or in some cases ever been arrested. Alternatively, employers may simply request an applicant to provide an authorization to obtain a complete criminal history from an appropriate database. If employers do not particularize such inquiries, or at a minimum scrutinize the particulars of the negative information received on a case-by-case basis, then they may find themselves with too much information and this can be dangerous.

Industry advocates for employers are also raising interesting and challenging questions about the recent guidance. One lobbying group was pleased that the EEOC guidance was an improvement over earlier versions but still concerned that the guidelines recommend banning employers from asking the standard question on applications about prior criminal convictions or arrests.

Commentators rightfully have wondered about the risk of having too little information and drawing a complaint alleging negligence in hiring. Another industry advocate has raised legitimate questions about the interaction between the guidance and certain state laws that may be in conflict.

In the end, the essence of good practice comes down to employers making sure that they are consistently applying their decisions about applicants who have a criminal background history and that these decisions do not have a disparate impact on those protected by Title VII of the Civil Rights Act. If decisions are being made on arrests alone, the focus must be on the conduct that led to the arrest when such conduct makes an applicant unfit for a position. Each case is individual and must be assessed as such, taking state and federal law into consideration, and the need to make consistent decisions that are able to be justified by business necessity.

Most hiring practices almost always benefit from review by an attorney familiar with these laws and recent decisions. You can contact one of our Virginia employment attorneys if you have any questions about the recent EEOC ruling or other aspects of your hiring practices.

Related articles

• EEOC revising background check rules (news4jax.com)
• New rules set on background checks for job seekers (bottomline.msnbc.msn.com)
• EEOC Issues Enforcement Guidance on Using Arrest/Conviction Records (lawprofessors.typepad.com)

The U.S. District Court for the District of Columbia previously upheld the rule.  However, last week, the U. S. District Court for the District of South Carolina found that the rule exceeded the authority given to the NLRB by Congress. As a result, employers will not be required to post the notice on April 30, 2012 as previously reported in this blog.

The NLRA protects non-management employee rights to organize and engage in other protected activity for their mutual aid and protection. The notice must be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. Employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there. If a substantial share of the workplace speaks a language other than English the Notice must be posted in that language as well. The NLRB has prepared Notices in 23 languages other than English.
The Act’s coverage is very broad and includes a majority of non-government employers, such as non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws.

Earned Income Tax Credit Notification. Beginning in December, 2011, IRS required employers to notify each employee who worked for the employer at any time during the year and from whom you did not withhold income tax or who claimed an exemption from withholding on Form W-4 (Employee’s Withholding Allowance Certificate). The notice information could be provided on the back of the W-2 form and/or the employer could post a Notice where other legal notices are posted. IRS encourages employers to notify each employee whose wages for 2011 were less than $49,078 (this income level may be higher in 2012). Virginia also requires similar notification to employees regarding the EITC that is available under Virginia law. The posters, available in both English and Spanish are available for downloading at www.dss.virginia.gov.

For more information on an employer’s legal obligations to provide notice to employees of their rights under Virginia and Federal law, contact a Virginia employment attorney at Sands Anderson PC.

Several recent situations are raising this issue:

• In Spotsylvania Virginia,  law enforcement employees are forced to log onto social media accounts and scroll through while interviewers watch.
• UNC employs an outside  social media monitoring service called Varsity Monitor to watch what its athletes are saying online.  This partly stems from the recent NCAA sanctions for violations in the football program. The NCAA alleged that adequate and consistent monitoring of Tarheel athletes’ social media use would have revealed potential amateurism violations.
• This North Carolina police department job application explicitly asks for usernames and passwords for social media accounts. Bozeman, Montana has been doing this for a while.
• The Maryland Department of Corrections used to ask applicants for password information.  After a complaint by the Maryland Chapter of the American Civil Liberties Union, it now asks applicants to log in themselves during the interview so the interviewer can look over their shoulders to monitor social media use.

Can they? Currently, this is not forbidden in Virginia, although the EEOC among other regulators are considering legislation to forbid it.  The EEOC has been monitoring the “the snowballing problem” of potentially discriminatory hiring practices based on Internet searches and social media use by candidates.  The EEOC is expected to issue regulations as part of the implementation of GINA (the federal Genetic Information and Nondiscrimination Act).

Should they? Absolutely not.

Why not? Let us count the ways:

1. This probably violates the candidate’s use agreement with the social media site (Facebook is strongly behind this position). It irritates applicants. Even if it’s legal, many will resent it, and they may not turn out to be loyal or enduring employees.
2. You will probably find out information that is protected and that you are forbidden by law from considering in making the hiring decision, like the person’s age; health conditions; race; national origin; sexual orientation; or  marriage, family or pregnancy status, race, etc. In North Carolina, for example, you cannot refuse to hire someone because they smoke.
3. One you have seen this information it is impossible to (check your favorite idiom): ___ unring the bell, ___close the door after the horse left or ___ put the genie back in the bottle.
4. You could be in the expensive and distracting position of explaining to the EEOC or a plaintiff’s attorney that you really didn’t use improper facts in not hiring that particular candidate. The EEOC is cracking down on workplace racial discrimination through a program known as E-RACE, which gives heightened scrutiny to actions that have a disproportionate effect within minority populations.
5. A candidate or employee might claim she was coerced into revealing her password, in possible violation of the federal  Stored Communications Act or state equivalents.
6. It could violate state privacy laws protecting intrusion into seclusion.  Virginia recognizes this tort, although to our knowledge, there are no court cases interpreting whether requiring social media login information violates privacy in this way.
7. This practice is seen as so viscerally repugnant that two democratic Senators, Chuck Schumer of New York and Richard Blumenthal of Connecticut are asking Attorney General Eric Holder, the Department of Justice and the EEOC to investigate whether this violated federal law.

What can you do instead:

1. Have a social media policy that governs the company’s use of social media and the employees’ use.  This needs to be carefully crafted to avoid forbidding “concerted activity,” which is protected by the NLRA, even if your company is not unionized.
2. Outsource background checks.  There are many rules surrounding acquisition and use of credit histories and criminal background checks. If your company doesn’t comply with the multitude of rules, especially if you do not hire the candidate based on the background checks, you could face federal liability for not following the rules
3. Have clear company policies and procedures outlining the hiring process. Do not deviate from it.
4. If you simply must electronically research a candidate, try to do it post-offer. Have very specific criteria that a third party, not the decision-maker, will look at, so there is as much proof as possible that no bias was transmitted up the decision-making person.

Related articles

• US senators: Investigate employers asking for Facebook passwords (zdnet.com)
• Background Checks Disproportionately Impact Minorities (sandsanderson.com)
• Twitter Job Search —  Does it Discriminate? (virginiaworkplacelaw.com)
• Background Checks – Minefield For The Unwary (virginiaworkplacelaw.com)

The Pediatric Connection provides medically necessary and compassionate home-based treatment services to children in Virginia from its offices in Richmond, Charlottesville, and Fredericksburg. In 2010, they were awarded the IMPACT Award by the Greater Richmond Chamber of Commerce for their company’s community service efforts as well as the depth and range of their innovative business commitment to healthy children.

Earlier this month, I attended a Richmond SHRM meeting on Great Places to Work. Two speakers shared their insights about what makes an organization a great place to work. Among the key values highlighted for success were having a mission that generates passion among the employees, a core commitment to the community, and a dedication to making the workplace a space where individuals can focus on their assignments but also take time to have some fun and enjoy what they do. Business owners who dedicate themselves to these values often find success in their entrepreneurial efforts and Beth’s award is a testimony to that achievement. Sands Anderson is proud to be associated with this company, whose humanitarian mission and heart-felt customer connection demonstrates the best kind of values-based business philosophy. Congratulations and continued success to Beth and The Pediatric Connection!

The EEOC enforces the ADEA and considers the ADEA to prohibit an employer from using neutral employment policies and practices that have a disproportionately negative impact on applicants or employees age 40 or older, if the policies or practices at issue are not based on a reasonable factor other than age. While a 2009 US Supreme Court Case may make age claims more difficult, (requiring ADEA claimants to show that the discrimination was “because of” someone’s age), that doesn’t mean your practice  won’t get challenged.

If you are using Twitter to advertise, take a look at your applicant pool. If it is disproportionately under 40, you may need to rethink your advertising strategy.

For those who are older than 40 looking for a job, the message is clear –  Twitter up!

In November,  we provided tips on internships after interns on the movie set of Black Swan filed suit. The Black Swan suit was followed last month by another class action lawsuit filed by an unpaid intern at Harper’s Bazaar who claims she did work that’s usually done by a paid fashion assistant.

But employers should not be fearful of providing true internships. As the calls start rolling in, every employer should ask itself one key question. Who is benefiting from this relationship? If the employer benefits, most likely the intern is doing work that the employer should be paying for. Internships are really for the student’s immediate benefit. Internships are not a clever way to save money. They are instead, an investment in the future. They take work and effort by the employer.

While the DOL outlines guidelines for interns,  employers should consider setting out the relationship in writing for the intern, up front. Following is a sample of what that information might include:

• We are offering you an educational unpaid internship at XYZ Company.
• The first day of your internship will begin on [Date]. Your internship will terminate on [Date].
• This internship is provided to you with the following understanding:
• This internship is to provide an educational opportunity for your benefit.
  • You will receive school credit for this internship.
  • You will work under the close supervision of existing staff.
  • Your supervisors will be providing evaluations of your performance as requested by your school.
  • Your time spent on your internship at XYZ Company is UNPAID.
  • Your internship does not entitle you to a job at the conclusion of the internship.
•  If at any time you believe that your educational internship duties have shifted to requiring you to perform general operations work, for example, such that you are replacing an employee, or if at any time you believe that you are performing work which is not for your educational benefit but for which you believe is primarily for the benefit of XYZ Company, you must immediately inform [Name] of your concerns.
• If you wish to accept this internship, please sign in the place provided below. Your signature also constitutes your agreement to abide by our company practices and policies while you are participating in this program, as well as to show your agreement with the provisions set forth above.
• Should you have any questions about starting with XYZ Company please do not hesitate to contact [Name].

By setting forth the parameters up front, everyone benefits. And finally, if the internship is too much trouble, because your company is not getting anything out of it, then you need to reassess why it’s being offered.

If you need assistance with understanding the wage and hour laws, the Virginia employment attorneys at Sands Anderson would be pleased to assist you.

Related articles

• Amid Lawsuits, Fewer unpaid internships to be offered (stiel.org)
• Close to half of internships go unpaid (career-advice.monster.co.uk)

The Jones case occurred  in the criminal law context, and does not apply directly to the private employer/employee context.  Lawyers will, however, be reading the tea leaves for clues regarding how the Supreme Court might decide a private employer/employee tracking issue.  Public employers, such as schools and local government agencies, are bound by the 4^th Amendment constitutional parameters against unlawful searches and seizures in the employment setting.

Private employers already must heed federal and state laws directed to specific monitoring activities.  Federal law governs monitoring of certain aspects of email activity (such as through the Electronic Communications Privacy Act and  Stored Communications Act ).  States are increasingly passing laws restricting employer monitoring of  employee location, visual surveillance, computer/internet monitoring, telephone monitoring and even microchip implantation.

For all of these monitoring situations a common thread is making sure the employer tells the employee up front they are subject to monitoring.

With GPS devices, as with all employee monitoring, (absent a state specific law), the best practice is to have a policy, clearly communicate it to employees, have the employee sign that they are aware of the policy, and administer it evenly.

If you have further questions, contact an employment law attorney.

Related articles

• Sonia Sotomayor’s Heartening Defense of Privacy (reason.com)
• GPS tracking up in private sector (mercurynews.com)
• How Much Privacy Do You Expect? The Death of Privacy In America (jonathanturley.org)
• If You Want Privacy at Work, Don’t Use Employer’s Technology (nclawlife.com)
• Judge: Privacy on Social Networking Sites is “Wishful Thinking” (nclawlife.com)

Karen Elliott contributed to this article.

“English-only” refers to policies that restrict employee communication to English in the workplace. The Equal Employment Commission (“EEOC”) frowns upon the use of these policies given the great potential for discrimination against bilingual and non-English speaking employees. Policies requiring employees to speak only English in the workplace at all times, including breaks and lunch, will rarely be justified. The EEOC even presumes that such policies violate Title VII and should be closely scrutinized. Such policies tend to create an “atmosphere of inferiority, isolation, and intimidation based on national origin which could result in a discriminatory working environment.”

But what about the employer considering an English-only policy in limited circumstances? Despite the EEOC’s express disfavor with these rules, such policies may be important to the workplace and can be adopted as long as

1. the policy is justified by a business necessity,
2. the employer gives proper notice to employees of the policy, and
3. the policy is equally applied.

Notice must include an explanation of the workday circumstances requiring English-only and the consequences of violating the policy. Most employers accomplish this putting the policy in writing (often in employee handbooks) and by asking employees to acknowledge their receipt of the policy in writing.

The employer contemplating this policy must have a valid “business necessity” that can withstand close scrutiny. A business necessity promotes the safe or efficient operation of the employer’s business. This almost always includes emergency situations that require a common language to promote safety. This could also include situations involving communications with customers, coworkers, or supervisors who speak only English to promote efficiency. The federal judicial appellate court governing Virginia (the Fourth Circuit), has even permitted an English-only policy where it was necessary to promote employee morale after English speaking employees complained of the rudeness of coworkers who refused to speak English in their presence. Long v. First Union Corp., No. 95-1986 1996 U.S. App. LEXIS 12431 (4th Cir. 1996).

However, other federal appellate courts have held that English-only policies violate one’s right to speak in the language of one’s choice as a First Amendment right to freedom of expression. This split among the federal appellate courts will only be resolved if Supreme Court of the United States takes a case where this point of law is at issue.

Thus, unless thoughtfully considered, English-only policies can expose employers to a discrimination law suit.

If you should have questions about developing an English-only policy, the Virginia employment lawyers at Sands Anderson PC are glad to talk with you.

Related articles

• EEOC Receives a Record Number of Charges of Discrimination in Fiscal Year 2011 (laborandemploymentlawupdate.com)

As we discuss in our Talking Points Legal Tip video, businesses need to be aware that the Equal Employment Opportunity Commission continues to focus on employment screening policies, including criminal background checks, credit checks and social media checks, in an effort to eradicate discrimination in the workplace. In the Pepsi case, the EEOC determined that Pepsi’s broad policy excluded more than 300 black applicants because it excluded individuals convicted of minor offenses.

The concern is that the use of criminal background checks could have a disproportionate impact on minorities and contribute to discrimination. Any employer’s blanket prohibition against hiring someone with a criminal conviction will bring extra scrutiny. Instead, employers should evaluate prospective employees on a case by case basis, weighing the nature and gravity of the criminal offense and the amount of time since the conviction against the job’s specific duties and responsibilities.

The EEOC considers arrest records to be particularly unreliable indicators of guilt and discourages their use in the hiring process. According to the EEOC, because individuals are presumed innocent until proven guilty and because state criminal record repositories do not always report the final disposition of arrests, an arrest record is not a useful tool . If an employer decides it needs to ask about arrests and charges, the EEOC recommends limiting the inquiry to arrests and charges for offenses that are related to the position at issue and that the applicant be given an opportunity to dispute the validity of any record. Employers also need to remember that if a third party conducts the background check, the process is governed by the Fair Credit Reporting Act, and the employer must have specific disclosure forms signed by employees. Critically, these disclosure forms must be in a document separate from any other information or notice.

The EEOC also scrutinizes the use of traditional credit reports that evaluate an individual’s financial situation. In light of the tough economy the last few years, the EEOC also has expressed concern that using credit reports as a screening tool could adversely affect protected classes. Credit checks provide useful information when employers are hiring for positions that involve access to or control over financial accounts, cash or property. But, there are limitations on how an employer may use this information. For example, an employer cannot refuse to hire an applicant because he or she filed bankruptcy. Nor can an employer discriminate on the basis of medical or health information revealed in a credit report.

Before an employer takes any adverse employment action based on a credit report (either the traditional financial report or a background check performed by a third party), the employer must notify the applicant in writing and supply a copy of the report and a summary of consumer rights under the Fair Credit Reporting Act to contest inaccurate information. Several states have enacted laws prohibiting the use of credit reports in the hiring process.

If you are using social media searches in the hiring process, be aware that you increase the risk of a discrimination claim. Information such as a person’s race, sex and age may be readily apparent on social media sites such as Facebook and LinkedIn. But that information cannot be considered in the hiring process. So, what is an employer to do? To protect yourself from a discrimination claim, consider establishing a policy limiting who conducts social media searches for job applicants, and separate them from the interview process. Employers also should save or record all social media searches for the time period provided under applicable recordkeeping statutes or regulations.

If you need assistance making your way through this minefield, the Virginia employment lawyers at Sands Anderson PC would be pleased to assist.

Related articles

• Pepsi to Pay $3.13 Million for Hiring Discrimination Against Black Workers (alternet.org)
• Pepsi Beverages pays $3.1M in racial bias case (thegrio.com)

So what does any of this have to do with employment law? Well, about 20 years ago a Federal Judge injected the Cat’s Paw theory into employment discrimination law (Shager v. Upjohn and Adgrow Seed, 913 F.2d 398).

The United States Supreme Court brought that concept forward again in a 2011 decision (Staub v. Proctor Hosp., 131 S. Ct. 1186; 179 L. Ed. 2d 144), now known as the Cat’s Paw decision. The Court found that an employer could be held liable for discriminatory conduct when an unbiased HR director fires an employee for seemingly legitimate reasons if a manager motivated by discrimination set the termination process in motion. The Court concluded that even though the HR director conducted an independent investigation, if the termination takes into account the biased supervisor’s report, then the termination is tainted by the underlying discrimination.

The lesson in all of this for HR personnel who are instructed to carry out terminations is to fully investigate the reasons and motives behind management’s direction to fire employees and be sure that the decision is fair and non-discriminatory, and in particular, not based on a biased report. As one commentator succinctly put it, HR directors should not let management monkey around with employment decisions.

If you have doubts about how to handle such situations, we encourage you to contact legal counsel to assist in making the right decision. Any of the Virginia employment attorneys at Sands Anderson PC would be glad to help.

Related articles

• Part 1: A Cat’s Paw View: Staub v. Proctor Hospital – A Case Study for Effective Compliance Investigations (globalcompliance.com)
• Part 2: A Cat’s Paw View: Staub v. Proctor Hospital – Tips for Conducting a Full and Fair Investigation (globalcompliance.com)
• Part 3: A Cat’s Paw View: Staub v. Proctor Hospital – Benefits of Using a Trained Investigator for Compliance Allegations (globalcompliance.com)

The new rule from the Department of Transportation prohibits commercial motor vehicle (CMV) drivers from holding, dialing, or reaching for a hand-held mobile phone while driving, except for emergency purposes. This rule applies to buses and trucks on interstate routes.

Commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

1. Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or
2. Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more), whichever is greater; or
3. Is designed to transport 16 or more passengers, including the driver; or
4. Is of any size and is used in the transportation of hazardous materials as defined in the law. http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=383.5

Hands-free use of cellular phones is allowed. This new regulation does not affect Citizen Band Radio, GPS or fleet management system use.

Drivers can be fined $2,750 per violation and carriers may be fined $11,000.

It is recommended that employers institute new employee guidelines and training in order to be in compliance.

If you should need any assistance with developing a policy, the employment law lawyers at Sands Anderson PC would be pleased to assist.

Related articles

• Ban on Cell-Phone Use, Texting While Driving Sought by NTSB – San Francisco Chronicle (sfgate.com)

The case also sends another strong message to all supervisors and HR Managers – deal with performance issues when they arise – do not wait until a more convenient time or to a time when there are more facts to support the performance conclusions that the supervisor has drawn (the “do not be petty” type of strategy). 

Patricia Weth had been employed for six years prior to her diagnosis of cancer. With the diagnosis and the need for immediate surgery, she was given Family and Medical Leave. When she returned to work, months later, she was told that she needed to begin looking for another job immediately and that she was being placed on leave with pay until she found another job. When she did not find other employment, she was terminated. O’Leary, the Arlington County Treasurer and her employer, terminated Weth for poor performance and other job related deficiencies all arising before she requested FMLA leave. Weth claimed that O’Leary interfered with her FMLA reinstatement rights as well as retaliated against her for taking FMLA leave. The court concluded that there were sufficient facts to take the issue of interference with FMLA rights to trial.

There was little in the court record, or personnel file, to indicate that there were performance issues prior to FMLA leave. The court stated “the timeline in this case is highly suspicious” and sent the case to trial. This is just another example, of an employer harming its case by waiting too long to address performance issues of significance.

O’Leary argued that a FMLA suit could not be brought against him in his individual capacity for he was a public official. The court read the language in 29 U.S.C. 2611(4)(A) and found its coverage to be very explicit;  an “employer” includes “any person who acts, directly or indirectly in the interests of an employer to any of the employees of such employer.”   Although the courts are divided as whether public employee supervisors could be sued in their individual capacity, the court sided with the majority of the courts and held public employee supervisors, like any other supervisor in the private sector, could be personally liable for interfering with an employee’s FMLA rights.

            If you have any questions about the FMLA or other employment practices questions, the employment attorneys at Sands Anderson are available for counsel and assistance.

At first blush, the case appears to be nothing more than another decision in a long line of recent decisions in which the Court rules in favor of the employee against the employer by finding the non-compete provision in an employment agreement over broad and therefore unenforceable. However, this decision commands attention because in it the Court considered the very same provision for the very same company that it considered in another non-compete case in 1989. In 1989, the Court held that provision enforceable. In last week’s decision, the court found the same provision unenforceable.

So what was different? Well, obviously the particular employee was, and this made a difference with the Court’s assessment of the duties and functions this particular employee had with the employer. The Court consistently applies the same basic test of enforceability for non-competes: Is it “narrowly drawn to protect the employer’s legitimate business interests, not unduly burdensome on the employee’s ability to earn a living, and not against public policy?” The court evaluates these limitations based on geographic scope, time duration and function.

In the most recent Home Paramount case, the Court traces its judicial precedent in looking at these agreements from a functionality viewpoint.

By reviewing this history, the Court makes it clear that it will demand that the functional limitation of these agreements be specifically tailored to the business situation at hand. They must not exceed what is necessary to protect the employer’s legitimate business interests. Businesses that desire employees to sign restrictive covenants must give serious consideration to the breadth of the language used and whether such language is narrowly drawn. Drafters of such provisions who use the broadest language possible and cut and paste such language from other agreements do so at their peril.

Phrases such as “directly or indirectly,” or “manage, operate, control, be employed by, participate in, or connected in any manner with…” are frequently seen in describing the functional limitations imposed on the employee. The Court’s recent decision signals a risk in using these words. It also makes it clear that limitations of duration, geographic scope, and function must be considered together and not separately in assessing whether to enforce the restrictive covenant.

The Virginia employment attorneys at Sands Anderson are available to counsel and assist with the drafting of these restrictive agreements and to render advice concerning their enforcement.

Related articles

• Virginia Supreme Court on Non-Competes (lawprofessors.typepad.com)

This random comment fell right in line with the just reported findings by Mercer’s October 2011, What’s Working survey.     The survey finds that employees leave for a host of nonfinancial reasons as well, with a key factor being “how you are treated….”

When I’m leading training sessions for human resources professionals, I remind participants that in spite of the many laws they must know, if they will remember but one rule, they will usually get the law right, quoting Maya Angelou: “People will forget what you said, People will forget what you did, but people will never forget how you made them feel.”  When workers believe that they have not been treated fairly they seek to strike back.  Sometimes they vote quietly with their feet because of how they feel about their “work, co-workers, bosses and the general work environment,” according to Colleen O’Neill at Mercer.

Perhaps fueled by the Occupy Wall Street movement, it is clear that more terminated employees are not voting so quietly. The EEOC’s charge statistics certainly show a steady increase.    And, although the year-to-date numbers are not posted, it is clear from speaking with fellow defense oriented employment lawyers, charges are up across the board. To paraphrase the famous line from the movie Network, workers are “Mad as H_ _ _ and Not Going to Take it Anymore.”

The tide has clearly turned since the end of the official recession.  Making sure that employees understand their workplace situation is key to your company’s economic health. Virginia may be an “at-will” employment state, but if employees don’t feel that they have been treated fairly, your company may become part of the EEOC’s new statistics.

If you need assistance with workplace decisions, The Virginia Workplace Lawyers at Sands Anderson would be pleased to assist you.

            As Fox Searchlight Productions learned earlier this month, as happy as the recent graduates were when working with Natalie Portman on the movie Black Swan, as soon as the movie wrapped, the students realized that they may have been wronged by not having been paid a wage.  Two of the interns brought a class action lawsuit against the production company for minimum wage and overtime compensation. 

            The interns claimed that they were employees not interns.  Where did the production company go wrong (would not any sensible young person crave to be on the set of a major movie)? It was the activities that were given to the graduates while on the set.  One of the graduates worked in accounting, reviewing files, running errands, printing, delivering paperwork and mailing materials.  The other graduate performed office assistant type duties such as making copies, preparing expense reports, preparing coffee, taking lunch orders, and taking out the trash. 

            The problem with the arrangement is that the duties assigned were clearly given not for a training or educational purpose.  The beneficiary of the work performed was the production company not the workers. 

            The U.S. Department of Labor has developed a list of criteria that must be met for a work experience to be unpaid: DOL Wage & Hour Division Fact Sheet No. 71 (April 21, 2010.)   

• The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
• The internship experience is for the benefit of the intern;
• The intern does not displace regular employees, but works under close supervision of existing staff;
• The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
• The intern is not necessarily entitled to a job at the conclusion of the internship; and
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.      

Although each factor is important, the experience must be primarily for training purposes and the beneficiary of the experience must be the intern.  The Black Swan lawsuit brings attention to the issue and every employer should be aware of the potential liability in having interns.  Employees may also file a complaint with the U.S. Department of Labor instead of filing a lawsuit. 

            Before you agree to provide an internship opportunity, check with an experienced employment attorney.  The Virginia Workplace Lawyers at Sands Anderson would be pleased to assist you.

Image via Wikipedia

The NLRB’s rule was initially scheduled to take effect on November 14, 2011 but has now been postponed to January 31, 2012. The NLRB’s decision to postpone the rule cites uncertainty about which businesses are subject to the rule. However the rule also remains subject to court challenges and possible Congressional action to overturn it. While the future implementation of the rule remains in some doubt, employers would be wise to understand and address the requirements of the rule and plan for it to take effect.

The posting requirement applies to all private sector employers (including labor unions) subject to the National Labor Relations Act. It includes employers regardless of the number of employees, but excludes agriculture, railroad and airline employers. In addition to the physical posting, the final rule requires every covered employer to post the notice on an Internet or Intranet site if personnel rules and policies are customarily posted there.

The NLRB has posted frequently asked questions (FAQs) about the rule.

While some HR consultants see the new posting rule as a tempest in a teapot, others share concerns that the posters will prompt questions and unwanted discussions by employees and could lead to further repercussions. Failure to post the notices as required can be considered an unfair labor practice in itself and anyone, including employees and possibly union organizers, can file charges with the NLRB against employers within six (6) months of alleged violations of the notice requirement. Whether or not the poster is successful in bringing the union conversation into the workplace, many commentators see a need for management to strategically consider how management should talk with employees about union issues.

The rollout of the new NLRB rule should not be used as an opportunity to attack an employee’s decision to consider a union or even to bash unions or criticize the wisdom of the poster. It is, however, an opportunity for management to enlighten employees on management’s position regarding unions. Clearly, if you are not familiar with your employees’ rights under the National Labor Relations Act in the non-union, or union, workplace, now is the time to think about those issues before the January 31 deadline requires posting. This is a potential mine field for all employers.

If you need assistance with these issues, Sands Anderson’s Virginia employment attorneys  are available to help you work through your strategies.

The 9/11 attacks destroyed tens of thousands of vital records, irreplaceable documents and art.  The businesses affected lost employee records, customer lists and many, many more documents vital to business operations. As many employers on the East Coast are undoubtedly discovering, it doesn’t take a disaster as devastating as 9/11 to cause an interruption in business.  Earthquakes, hurricanes, floods and fires are just a small sample of the very real disasters that can strike your business.  Are you prepared to pick up the pieces? 

Creating a BCP so that you can get your business up and running as soon as possible after a disaster is vital to your company’s long-term survival.  A BCP should include lists of emergency contact information, both internal and external, and a detailed recovery plan and should be developed with employees from all business units and levels of your company.

Begin by assessing the potential risks to your business’ ability to deliver products or services to customers.  Arizona business may need to plan for the effects of an evacuation due to forest fires, but not for a hurricane.  Businesses in Richmond, Virginia, on the other hand, would be more likely to plan for flooding as a result of a hurricane, for an office fire or even for an earthquake.

After determining the risks that your business might face, consider how to mitigate the effects of those risks on business operations.  The objective is to compile a detailed step-by-step guide to getting your business running again.  You should:

• Identify the employees who are critical to the operations of your business, as well as a backup for each position in case key personnel are not available.  Your list should include every available means of contacting these individuals (e.g., business phone, home phone, cell phone, business and home email).
• Identify the critical products and services you provide to your customers and record the contact information for your most important customers so that you can stay in touch.
• Identify an alternative location from which to operate your business in the event your office is inaccessible. 
• Identify contingency equipment options.  If, for example, the equipment your company uses to operate is its computers, contingency equipment options might include identifying which of your employees can telecommute.
• Identify what protections you need to take to preserve confidential client information.  
• It is vital that your BCP includes a technology recovery plan.  You should regularly back up important IT data, such as customer lists, banking information, employee records and anything else that would be necessary to starting your business again.  Back up the information and arrange a secure off-site storage location.  Redundancy is the key. 

Once you have all the necessary information, put your plan in writing.  Create step-by-step instructions on what to do, who should do it, when it should be done and how.  Ensure that critical personnel have copies of the plan and keep a copy off-site, too.  Then, practice and maintain your plan.  Review your plan periodically and walk through the plan with an imaginary disaster in mind.  Then, make changes where needed.

There are a number of websites that offer additional suggestions on developing a BCP, including the Federal Emergency Management Agency (FEMA) and Inc. .  You can also contact your Virginia employment attorney for assistance in preparing a plan.

Employers, and IT companies who support business computer systems, are likely to find this sort of information in their possession or custody in the course of working on their own systems, or, if the company is in the IT industry, while working on customers’ computers.  Businesses and IT companies may also find this material in a specific search of an employee’s computer based upon a report of misconduct. 

Two major questions facing business are (1) when can you legally search an employee’s computer? and (2)  what do you do when you find child porn on the employee’s computer?

 Neither federal nor Virginia state law prohibits employers from searching an employee’s computer in the non-governmental context.  (Employees of the government are protected by the 4^th Amendment right against unlawful searches or seizures.  A different topic for another day.)   In general, best practices require that the employer have employee permission and recognition that the computer is the property of the employer’s and subject to search.  (For example, this would be included in the Handbook receipt acknowledgment document.)  The extent of the employer’s rights remains somewhat cloudy absent such permission.

When a business does find inappropriate material involving children, the law is very clear that the employer or IT consultant has a duty to report the child pornography to the cyber tip line at the National Center for Missing and Exploited Children.  

The federal law that mandates this duty to report specifically requires that “electronic communication service providers” report child pornography. (18 USC § 2258A. Reporting requirements of electronic communication service providers and remote computing service providers.)  An “electronic communications service” means “any service which provides to users the ability to send or receive wire or electronic communications.”  The term “electronic communication,” for purposes of the reporting requirement, means “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.” 

All of which is to say that both the business/employer that provides the computer or phone system over which the data is communicated, as well as the IT company that helps the employer maintain those systems, are covered by this law.

A business or IT service company ignores child porn at its peril.  Failing to report the information to the National Center for Missing and Exploited Children violates the Section 2258A reporting requirements.    Deleting the material might make the company an accessory to the underlying crime of possessing the information in the first place.  Making copies of the material and then transmitting the copies, except at the direction of law enforcement officials or as required by section 2258A, also runs afoul of the laws proscribing possession of child pornography.  A first violation of Section 2258A carries a penalty of up to a $150,000 fine.  A second violation can be penalized by up to $300,000.

What if an IT company’s  client insisted on a confidentiality agreement to prevent the IT company from sharing information it finds on the client’s hard drives?  Does that agreement trump the disclosure obligation in Section 2258A?  Nothing in the statute itself creates such an exemption.  Generally, private parties cannot contract to consent to criminal activity, especially criminal activity that affects third parties who are not parties to the agreement. 

Section 2258A also requires electronic communications service providers to preserve the report they make to the National Center for Missing and Exploited Children, and to preserve and safely store the images they find that triggered the NCMEC report in the first place.  They may not share the fact of the report with others except for law enforcement purposes.  If the pornography the provider reports is commingled with other images, even inoffensive images, the provider must preserve those images as well.

The boundaries describing private individuals’ and companies’ obligations to monitor and report possible criminal behavior in the electronic era continue to expand.  Legislation currently pending in Congress would require internet service providers to log users’ IP addresses for 18 months so as to better identify which internet users connected to what internet sites and when.  That tool would aid law enforcement in proving a particular user accessed particular pornography.  Some privacy advocates have objected to the log requirement.  Some companies are concerned that they are being enlisted into increasingly broad law enforcement roles.

Protecting children from sexual exploitation remains a top law enforcement priority.  That effort will likely only grow with the broad proliferation of internet connected electronic devices.  The law can be expected to change to try and keep pace with the technology’s capacity.  An IT service provider who encounters child pornography should first act to secure and preserve the data, and second very quickly get competent advice regarding to whom it may, to whom it must, and to whom it must not, make an appropriate report. 

What do you think about this obligation as a business?  Will you find it difficult to comply? 

If you need any assistance with Virginia Workplace Law, the Virginia employment lawyers at Sands Anderson PC are available to assist.