September 6, 2005
This is the Employment Law Update No. 2005-16 for the
Utah League of Credit Unions HR Council and the Utah
Chapter of the Credit Union Executives Society (CUES).
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CONTENTS:
- NEW TECHNOLOGY AND EMPLOYMENT LAW
- MOST COMMON EMPLOYMENT LAW MISTAKES
- DOES LEAVE MAKE YOU WANT TO YELL LEAVE ME ALONE?
- FORTY MILLION FOR SEX DISCRIMINATION
- PROFITS AND DRUG TESTING
NEW TECHNOLOGY AND EMPLOYMENT LAW: Three recent news
articles illustrate the interesting impacts that new
technologies have on HR and employment law. First, the
National Law Journal recently reported that employers
need to “start worrying” about the likely
increased use of instant messaging (IM) in the workplace.
Unlike email, IM does not always provide a retrievable
record, occurs in real time, can involve a group and
can involve voice and video transmissions. A research
firm predicted that by the end of 2005, worldwide, there
will be 867 million IM users and 13.9 billion messages
sent each day. Employers, who may be held responsible
for what their employees say, need to adapt their policies
and risk management activities to consider and apply
to IM. Second, the Daily Business Review recently reminded
employers about the liability risks from “blogs,” or
weblogs—on line journals. Blogs tend to be a little
less formal, and a little more freewheeling, than other
forms of written communication. Some commentators fear
they increase the risk of libel or defamation claims.
Finally, discussing that now rather old-fashioned form
of communication—email—an article in the
New Jersey Law Journal outlines the risks of emailing
employer policies to employees. Although email is inexpensive
and convenient, the article also notes drawbacks to its
use—users get an incredible amount of messages,
people often open messages without reviewing them carefully
and it is hard to distinguish between important and frivolous
messages. In other words, email notification of employment
matters will not always be solid proof that someone has
received the notification intended. Employers should
take steps to ensure they have proof of effective email
notification when it is needed—e.g., require replies,
configure systems to show links to policies have been
used, or used low-tech written records.
MOST COMMON EMPLOYMENT LAW MISTAKES: It is always interesting
to hear what other employment lawyers think are the most
vexing mistakes that employers make. A recent article
in Texas Lawyer outlined these worst mistakes: (1) misclassification
of employees as exempt or nonexempt from overtime pay;
(2) poor training of, or failure to train, supervisors
to recognize potential legal issues; (3) failure to properly
document a situation; (4) failure to timely address and
resolve illegal harassment. Obvious, perhaps, but then
again a good reminder never hurt anyone, did it?
DOES LEAVE MAKE YOU WANT TO YELL LEAVE ME ALONE? One
of the most common ways an employer helps an employee
in need is to allow leave. The Family and Medical Leave
Act (FMLA) requires it for serious health conditions.
The Americans With Disabilities Act (ADA) requires it
be considered as an accommodation for a disability but
doesn’t make it plainly clear how much leave is
necessary. The Fair Labor Standards Act (FLSA) allows
you to deduct leave from pay for some employees, but
not others. Is it any wonder that HR folks often suffer
from post traumatic leave-stress disorder? I can’t
solve all your leave problems here, but I can offer five
tips to help you start to tackle the vexing problem.
First, know the applicable laws (or talk to someone who
does) before you act. Many leave missteps are avoidable.
Second, apply one law at a time. They all have different
(and sometimes conflicting) requirements. Third, don’t
get too far ahead of yourself. Take things one step at
a time, because each interim development can affect the
ultimate outcome. In other words, developments tomorrow
may make you decide an issue differently than today,
so let the matter develop so you have the most possible
information. Fourth, document and get appropriate documentation
(i.e., you don’t need an employee’s entire
medical history, only that information relevant to the
current leave). Finally, be patient. Most leave situations
are not resolved quickly.
FORTY MILLION FOR SEX DISCRIMINATION: A national brokerage
firm will pay sixty seven current or former employees
forty million dollars as part of a settlement of allegations
of sexual discrimination. The payment is part of a fifty-four
million dollar deal announced last year. The plaintiffs’ allegations
included claims that the national employer excluded women
from work-related outings, paid women less than male
peers and denied females promotions. The lessons? One
is don’t discriminate. But there is also another
lesson. HR, often criticized as a cost center, is truly
a profit center for a business. Next time your CEO or
CFO doubts this point, tell them about this $54 million
settlement. Remind them that your compliance efforts
have protected the company from these kinds of lawsuits.
Sounds like a profitable activity to me.
PROFITS AND DRUG TESTING: Speaking of profits, believe
it or not some are profiting at helping employees cheat
on drug tests. Ever hear of the “Whizzinator?” It
is a urine delivery system designed to beat drug tests.
SHRM national reports its recent Google search of “beat
a drug test” produced more than one million hits
while “pass a drug test” garnered over three
million. Congress is concerned enough about the issue.
Imagine how you would feel about your airline pilot deceiving
his/her drug test. Thus, Congress has conducted national
oversight hearings. You should think about the issue
too. Do you have in place methods to ensure accurate
testing and, just as important, safe operations?
Written by: Employment Attorney, Michael Patrick O'Brien
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com
The Employment Law Update is a legal and legislative
update service sent out about twice a month to various
members of the Utah League of Credit Unions HR Council
and the Utah Chapter of CUES (Credit Union Executive
Society). As a courtesy to these organizations, the
Utah law firm of Jones Waldo Holbrook & McDonough
P.C. underwrites the costs of this service. If you
have any questions or comments, please contact Michael
Patrick O'Brien. Mr. O'Brien is a Utah employment law
attorney assisting employers with employment matters
and lawsuits. He also serves as the Legal and Legislative
Director for Utah SHRM (Society for Human Resource
Management). The Utah State Bar has named him as its
Employment Lawyer of the Year.
Disclosure: These updates are merely updates and are
not intended to be legal advice. Receipt of this information
does not create an attorney-client relationship.
