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Human Resources Connection Newsletter
On January 6, 2011, Governor Christie conditionally vetoed a bill (S2388 and A3359) intended to prevent employers (or an employer’s agent) from publishing, in print or on the Internet, a job advertisement that prohibits, announces or suggests that unemployed individuals should not apply for the job.
In returning the bill to the Assembly, Governor Christie made a number of recommendations for reconsideration. First, the Governor noted that the bill’s restriction preventing employers from “suggesting” in a job advertisement that they will not hire an unemployed individual is too vague, as the bill does not define any of its terms. Second, the Governor suggested the proposed...
Not all workplace discrimination is unlawful. For example, employers can refuse to hire candidates who will not wear necessary safety equipment. That is discrimination. That is not unlawful discrimination. One type of employment discrimination that is not unlawful in some states is discrimination against smokers or, more usually, discrimination based on tobacco use.
We've written about the efforts of many employers to reduce health-care costs and increase productivity by not hiring applicants who smoke or use tobacco. (See, Health vs. Privacy: Employers Continue to Juggle Both; How Far Should Employers Go When It Comes to Employees' Health?; Not Everyone Is Fired Up...
IRS Issues Guidance on Distinguishing Tips and Other Third-Party Incentive Payments
By: William Hays Weissman
In Chief Counsel Advice (CCA) 2011060091 and 201106010,2 the Internal Revenue Service (IRS) determined that amounts paid by adult entertainment clubs, bars and other establishments to taxicab drivers who deliver passengers to the establishments are income to the drivers, not tips received by the drivers in the course of their employment with taxicab companies. Rather, the payments are for services separate and distinct from the drivers' employment, and thus the establishments making the payments are responsible for issuance of Form 1099 to the drivers.
Background
The taxi drivers at issue are employees of taxicab companies engaged in the business of transporting ...
Most hiring organizations underestimate the amount of information one can obtain from reference checks if you both ask and listen carefully. You’re looking not just for things that will rule out a candidate but for things that will help you make trade-offs among candidates, or will help ensure that the person you pick will be positioned to succeed within the organization. Though in some cases you might only conduct a reference check on your clear first choice, in other cases it makes sense to gather references for more than one finalist. Information from the reference check may elevate a finalist to “the” candidate and/or help you think from the start about how to support and...
Employees take and misuse company information for a variety of reasons. Some do it because they want to document what they believe to be unlawful conduct. Others do it because they intend to use it in competition with their soon to be former employers. Regardless of their motivation, when employees misuse customer information, employers must recognize that such misconduct presents more than simply a competitive or employment concern. It also may trigger significant obligations under state breach notification laws.
Forty-six states, the District of Columbia, Puerto Rico and the Virgin Islands have enacted legislation requiring companies to notify individuals when there...
An employer did not interfere with its employee’s rights under the Family and Medical Leave Act by firing her for violating repeatedly the company call-in policy, a federal appeals court in St. Louis has ruled in an unpublished decision. Thompson v. CenturyTel of Central Arkansas LLC, No. 09-3602 (Dec. 3, 2010). The Court also ruled that the FMLA did not require an employer to provide its employee with written notice of its call-in policy each time she requests leave.
FMLA
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for certain family and medical reasons. It is unlawful for any employer:
To interfere with,...
As part of the Federal Trade Commission’s ongoing campaign to protect consumers’ personal information, three companies whose business is reselling consumers’ credit reports have agreed to settle FTC charges that they did not take reasonable steps to protect consumers’ personal information, failures that allowed computer hackers to access that data. The settlements require the companies to strengthen their data security procedures and submit to audits for 20 years. These are the FTC’s first cases against credit report resellers for their clients’ data security failures.
“These cases should send a strong message that companies giving their clients online access to sensitive...
On January 26, 2011, the U.S. District Court for the District of Connecticut denied a Rule 12(b)(6) motion to dismiss a whistleblower retaliation claim brought under Section 806 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. § 1514A) (SOX) in Barker v. UBS AG & UBS Securities LLC (Case No. 09-CV-2084). The court took a rather liberal approach in analyzing the plaintiff’s burden of alleging that she engaged in protected activity cognizable under Section 806 and that the protected activity contributed to her discharge.
Background
Plaintiff Barker worked in UBS’s Equities Americas Division, where she was responsible for providing support to the Equities Proprietary Trading...
EMPLOYEE PERFORMANCE EVALUATIONS
By: Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
Employers have different perspectives about whether to conduct formal employee performance evaluations. Some employers believe the evaluation process is too time-consuming and are unwilling to invest the energy and resources necessary. Other employers evaluate their employees on a regular basis, such as annually, or at the end of the "introductory period," but do not think about why it is important to do so.
Why Conduct Performance Evaluations?
The primary reason for conducting performance evaluations is improving employee performance. Employees want to understand where they are succeeding in their jobs and where their performance could be improved. Providing...
On January 21, 2011, in Collins v. Gee West Seattle, the Ninth Circuit Court of Appeals held that the Worker Adjustment and Retraining Notification (“WARN”) Act’s 60-day plant closing notice requirement could be triggered despite the fact the employer terminated fewer than 50 employees on the day it closed its doors. The court held that employees who decided to quit after learning the plant was closing should be included in calculating the number of employees who suffered an “employment loss” under WARN.
In doing so, the Court rejected the employer’s argument that the total number of employees to be counted towards the 50-employee threshold under the statute should be...
Jackson Lewis has learned that the United States Immigration and Customs Enforcement (“ICE”) will be issuing notices of inspection to review the hiring records of some employers based in Denver on February 14, 2011. The employers will have three days to produce I-9 forms or fines will be assessed. ICE will inspect and review hiring records to determine whether they comply with employment eligibility verification laws and regulations.
Worksite Enforcement Initiative
ICE implemented a nationwide worksite enforcement initiative in 2009 to focus on auditing and investigating employers to “hold employers accountable for their hiring practices.” In 2010, ICE filed a record...
In our last issue we provided an overview of the Immigration Reform and Control Act (IRCA), including I-9 requirements generally, along with a few special situations. In this article, we'll hone in on the E-Verify program, and government investigations.
E-Verify Generally
E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). E-Verify allows participating employers to electronically verify the employment eligibility of their newly-hired employees. To participate in E-Verify, the employer submits a query to E-Verify for any newly-hired employee after completion of the...
(Dealership Update)
As Saturday Night Live's Roseanne Rosannadanna used to say: "It's always something!"
Just when you think you have everything under control, some new problem or challenge comes along. It is that way with many things and the law is no exception. The federal-wage hour law, called the Fair Labor Standards Act (FLSA), was passed in 1938, so you would think that in the last 70+ years, the courts and the Department of Labor have resolved every issue once and for all. Unfortunately, that is not the case.
As most dealers know, the FLSA contains a number of exemptions from overtime that dealerships rely on. One important exemption, which has been...
KAPLAN GETS TESTED
By: D. Gregory Valenza
The Daily Journal
2011-02-09
In my May 13, 2010 column,"What's in Your Wallet, Job Applicant," I addressed increased government scrutiny of employers who rely on credit checks to screen applicants. The Equal Employment Opportunity Commission has decided to turn up the heat.
The EEOC recently filed a class action against Kaplan Higher Education Corp. The agency's basis for doing so is contained within one paragraph of its short complaint, now pending in U.S. District Court for the Northern District of Ohio (Case no. 1:10-cv-02882): "Defendant has used [as] a selection criterion for hiring and discharge...credit history information, that...continues to have, a significant disparate impact on [b]lack...
After the tragic shooting in Tucson, details have emerged about the alleged gunman's history of disturbing behavior. Although there are no easy answers, people continue to ask whether there were any warning signs that could have been addressed in a way that might have prevented such a tragedy. Because of the complexity of the issue, employers may be unsure how to deal with employees who exhibit unsettling behavior that could foreshadow violence in the workplace. In considering their alternatives, employers should keep in mind both state and federal laws as well as workplace safety.
Workplace violence is a problem. According to the Bureau for Labor Statistics, nearly five...
On February 14, 2011, the U.S. Court of Appeals for the Ninth Circuit in Christopher v. SmithKline Beecham Corp. (Case No. 10-15257) affirmed a district court decision holding that that pharmaceutical sales representatives for GlaxoSmithKline (“Glaxo”) are exempt from overtime under the Fair Labor Standards Act (FLSA) because they qualify as “outside sales” employees. The decision creates an important split of authority in the courts of appeals, as the Second Circuit issued a contrary decision last year in In re Novartis Wage and Hour Litigation, 611 F.3d 141 (2d Cir. 2010).
Background
Federal law prohibits the sale of any prescription drug without the authorization of...
The Office of Federal Contract Compliance Programs has intensified its efforts to require medical providers to comply with various government contracting regulations, in particular affirmative action requirements.
As part of these efforts, the OFCCP has issued a new Directive providing guidance on when it believes healthcare providers and insurers qualify as federal contractors or subcontractors. Because of the wide variety of healthcare plans and service arrangements, the determination of whether a federal contract or subcontract exists must be made on a case by case basis.
According to the Directive, the following relationships are generally not covered ...
Redefining a "Serious Violation" of Workplace Safety Standards in California
By: Eugene Ryu & Arturo Tafolla
On January 1, 2011, California expanded the definition of what constitutes a "serious violation" of workplace safety standards. AB 2774, which amended California Labor Code section 6432 on that date, creates significant consequences for California employers subject to enforcement by the California Division of Occupational Safety and Health (Cal/OSHA). The new law also establishes a rebuttable presumption that a serious violation occurred and enables Cal/OSHA to rely on the testimony of its inspectors – which was previously impermissible – to prove the existence of these serious violations.
Background to Passage of AB 2774
The Federal Occupational Safety and ...
Where Love Abounds: Dealing With Workplace Romance
By: Christopher W. Olmsted
As Valentines Day approaches, some of your employees are getting into a romantic mood—perhaps with their co-workers. Your killjoy lawyer asks a question: Should an employer be concerned about workplace romances?
Workplace romances are quite common. According to a 2003 survey conducted by Vault.com, 47% of workers have participated in an office romance. Others are left hoping. The survey revealed that an additional 19% would be willing to do so if the opportunity arose.
Workplace romance is not necessarily a bad thing. But a prudent employer needs a strategy. Given that the majority of workers date or want to date other employees within the company, employers ought...
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