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Supreme Court Term Promises a Range of Labor and Employment Cases

October 24, 2012 Leave a comment

The U.S. Supreme Court opened its 2012-2013 term on October 1st. The Court is likely to hear a number of cases with significant implications for employers. Already selected to hear this term are the following key labor and employment cases:

  • Vance v. Ball State Univ
  • Genesis Health Care Corp. v. Symczyk
  • U.S. Airways, Inc. v. McCutcheon
  • Comcast Corp. v. Behrend

Please click here to read more about each of these cases and how the outcomes may affect your business.

New California Employment Laws Signed by Governor Brown

October 5, 2012 Leave a comment

AB 1844 (Passed):  This bill would prohibit an employer from requiring or requesting that an employee or applicant disclose user name or password information for personal social media, or to divulge any personal social media.

Chapter 2.5. Employer Use of Social Media

980.  (a)  As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.

(b)   An employer shall not require or request an employee or applicant for employment to do any of the following:

(1)      Disclose a username or password for the purpose of accessing personal social media.

(2)      Access personal social media in the presence of the employer.

(3)      Divulge any personal social media, except as provided in subdivision (c).

(c)    Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

(d)   Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e)    An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

SB 1255 (Signed):  This bill would specify circumstances under which “injury” would be presumed to an employee as a result of an employer not providing wage statements, or providing incomplete wage statements.  Presumed injury would allow the employee to recover penalties and/or actual damage.  Presumed injury could be shown by the failure to provide a wage statement at all, or by the failure to include the employee’s name and last 4 digits of the social security number.  It could also be shown by failing to provide complete wage information, causing the employee to be unable to determine (from the statement alone) gross and net wages earned, deductions therefrom, and the name and address of the employer.

“An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.

AB 1744 (Signed, effective July 1, 2013):   This bill would require temporary services employers to include additional information on itemized wage statements for employees, including the rate of pay for each assignment, the name and address of the entity that secured the services and total hours worked for each entity.

AB 2103 (Signed): Payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee’s regular, non-overtime hours, notwithstanding any private agreement to the contrary.

AB 2674 (Signed):  This bill would amend section 1198.5 of the Labor Code relating to employee rights to inspect personnel files.  The bill would require employers to maintain employee personnel files for at least 3 years following termination of employment, and to permit current and former employees (or their designated representatives) to inspect and copy personnel records, within 30 days of a request to do so by the employee.  The bill specifies that an employer is not required to comply with more than 50 requests for copies of personnel records by a representative of employee(s) in one calendar month.

Resources:

Labor Commission www.dir.ca.gov
Dept. of Fair Employment and Housing www.dfeh.ca.gov
EDD www.edd.ca.gov

And of course, HR That Works!

HR Director Gone Wild?

September 20, 2012 Leave a comment

I was browsing on the internet looking for employee complaints about HR for a piece I’m writing. There’s a ton of it out there. In the process, I ran across what most business executives would consider a nightmare-employees fighting internal battles online. Take a look at this doozy out of L. A. involving the city’s corrupt Section 8 housing authority, of which HR was a full participant.

 

Looks like these folks had a good ol’ time at taxpayer expense a search shows much worse than that. The HR director was fired last December.

 

What lessons can be learned from a crazy story like this?

  1. You can’t trust anyone blindly; even HR. Checks and balances are a must in ANY organization.
  2. Bad HR can create far more liabilities than it is hired to prevent.
  3. There is no hiding your dirty laundry anymore.
  4. Set Google alerts for your company and employees. Just stay out of private, non-work-related activities.
  5. Deal with internal conflicts now…before they spill out onto the internet.
Categories: Risk Management

Should Sexual Harassment Be a Crime?

September 13, 2012 Leave a comment

Apparently France now thinks so, as reported in the Huffington Post. In fact, sexual harassment can be a crime in the U.S. if it involves a battery, assault or false imprisonment. Times have certainly changed. I can remember the French scoffing at U.S. sexual harassment laws claiming that flirting was the French national pastime. Now that pastime can land them some jail time!

Darwin Award Applies to the Most Popular Claims of the Week

August 24, 2012 Leave a comment

This list I was sent from Claims Journal has some great titles.  What I conclude from them is as follows:

  1. When you  go parasailing it’s called an assumption of risk.
  2. Taking ecstasy is not an accident, it’s stupid…and an assumption of risk.
  3. You don’t want baby seats causing skull fractures. Bumbo?
  4. I learned something: “Consumers generally need only share their names, correct vehicle insurance information and the phone numbers of insurance providers. Sharing additional personal information, such as driver’s license numbers and home addresses, puts consumers, their property and their safety at risk.”
  5. I learned that Work Comp insurers want: “The elimination of sleep disorder, sexual dysfunction and psychological issues as additions to primary injuries, when determining disability awards”. Not sure what witty thing to say about that.
  6. If you look at the numerous comments to this article you can see just how much of an emotional issue this is. Obesity is a choice that has nothing to do with logic; otherwise people wouldn’t be obese.
  7. Did anyone really think those stupid looking Skecher sneakers would help them somehow? Seriously? Because Joe Montana endorsed them? That guy is so beat up he can hardly walk anymore.
  8. The guy at the beach doesn’t want to pay for your fires and the guy in the mountains doesn’t want to pay for your coastal flooding. And nobody wants to pay for their own problem! Which is a problem.
  9. Remember, work comp is a no fault system. This was an accident with no fault you can assign other than perhaps  poor walking skills or footwear being present. She gets the WC.
  10. Too much dust and lint is a bad thing. Clean your ducts.

Top 10 for the Past Week

1. Woman Falls From Parasail Harness Off South Florida
Aug 17, 2012 — South Florida authorities say a woman plummeted as much as 200 feet into the Atlantic ocean after her parasail harness broke. Pompano Beach Fire Rescue spokeswoman Sandra King tells the Sun Sentinel that the 28-year-old woman was parasailing with …
2. Student’s Death in Las Vegas Ruled an Accident
Aug 16, 2012 — A coroner has ruled that the death of a 22-year-old pre-med student from Arizona who fell from her Las Vegas hotel room after taking Ecstasy was an accident. Family and friends of Emily McCaughan have told The Arizona Republic that the University of …
3. Skull Fracture Incidents Lead to Recall of 4M Bumbo Baby Seats
Aug 16, 2012 — About 4 million Bumbo Baby Seats are being recalled after nearly two dozen reports of infant skull fractures. The Consumer Product Safety Commission says babies can wiggle out of the floor seats. About 1 million of the molded foam seats were …
4. NAIC Unveils WreckCheck Mobile App
Aug 16, 2012 — According to the National Highway Traffic Safety Administration, more than 5 million wrecks occur every year. However, according to a July 2012 survey from the National Association of Insurance Commissioners (NAIC), many Americans do not know what …
5. Lawyers Throw Workers’ Comp Deal on the Rocks
Aug 15, 2012 — A highly sheltered workers’ comp reform proposal being quietly passed around California’s capitol has the potential to make some noise when and if it ever gets introduced. The general consensus among those seeking reform is the need for roughly …
6. States Ranked by Obesity Rates
Aug 15, 2012 — In 2011, rates of adult obesity in the U.S. remained high, with state estimates ranging from 20.7 percent in Colorado to 34.9 percent in Mississippi, according to the Centers for Disease Control based on 2011 data. No state had a prevalence of adult …
7. Judge Tentatively OKs $40M Skechers Settlement
Aug 15, 2012 — A federal judge tentatively approved a $40 million settlement between Skechers USA Inc. and consumers who bought the toning shoes after ads made unfounded claims that the footwear would help people lose weight and   strengthen muscles. An undetermined …
8. California Fire Fee Ignites Anger as Bills Go Out
Aug 14, 2012 — More than 800,000 Californians who own property in wildfire country will begin receiving bills this week for a new annual fire-protection fee, rekindling outrage among rural residents and leading to a likely lawsuit seeking to overturn the …
9. Michigan Court: Icy Lot Couldn’t Be Avoided at UP Lodge
Aug 14, 2012 — A woman who was just days away from leaving a job at an Upper Peninsula lodge can sue her former employer over her broken leg in an icy parking lot. An Alger County judge dismissed the case after the Cherrywood Lodge in Munising argued that the ice …
10. USFA: Clothes Dryer Fires Cause $35M in Property Losses
Aug 14, 2012 — An estimated 2,900 clothes dryer fires in residential buildings are reported to U.S. fire departments each year and cause an estimated $35 million in property losses, according to a new report by the U.S. Fire Administration (USFA). The …

Equal Pay Act Guidebook

The DOL has issued a Guidebook for Employers on the Equal Pay Act. Part of the agency’s agenda is to step up its enforcement of the law.

Employment Recruiters Deemed Subject to Commissioned Employee Exemption

In yet another effort to tap into the wage and hour jackpot, in the case of Muldrow v. Surrex, the plaintiffs brought a claim for overtime and a failure to provide meal periods, among other claims, arguing that the senior consulting managers at the recruiter, Surrex, were not covered by the sales exemption, as they were not in “sales” positions. The court distinguished these recruiters from mechanics and drivers and ruled, “they are salespeople.” Fact was, the plaintiffs were involved principally in selling the product or service of recruiting.

A few points were made by the court:

  1. An employer is not precluded from calculating commissions based on anything other than a straight percentage profit.
  2. The employer may offset costs to determine profits as part of a commission scheme.
  3. The commissions must be sufficiently related to the price of services sold to constitute commissions for purposes of the exemption.