Thursday, August 28, 2008

Delantero! 앞! Dianteiro!

UPDATE: The LPGA has reconsidered its English-proficiency rule and withdrawn its planned implementation. Read more about it here. We'll watch for the LPGA's "revised plan" for its communications initiative and keep you informed.

Original post:
English-only rules have been pursued in several settings over the last few years. Employers who have attempted to implement those types of rules have generally been required to demonstrate that speaking English is a requirement of an employee's particular job.

Enter the LPGA. As you may have heard, the women's golf organization has implemented a rule that becomes effectively immediately but will not observe its enforcement provisions until 2009. The rule requires that LPGA tour members of at least 2 years be able to speak English "proficiently" and pass an oral evaluation. Failure to do so will result in a suspended membership.

The LPGA has explained that the rule is necessary in order to appeal to sponsors of the tour and to provide an enjoyable experience in pro-am tournaments (where professionals are expected to interact and entertain amateurs). As you might imagine, there is some push-back from the public.

Time will only tell if the rule will stand, be challenged, or resort to a non-issue. Nevertheless, it will be interesting to see how the LPGA manages this rule (assuming it is found to be enforceable) and how players (employees) respond.

Tuesday, August 26, 2008

Paid (sick) time off?

You've probably heard us talking about the movement to require businesses of any size to provide paid sick days for their employees. That movement appears to be gaining momentum, as twelve states now have active legislation for such leave. On the federal level, The Healthy Families Act has seen life in several sessions of Congress. Presently it is in committee for both Houses of Congress (i.e., it's in the first stages of the legislative process).

You can track your state's legislation and activity on this subject through the National Partnership for Women and Families. Regardless of your stance on paid sick time, the NPWF's website keeps tabs on the latest developments and provides easy monitoring of each state's and, in some cases, city's, status on the legislation.

Tuesday, August 12, 2008

No match letter? No big deal? No problem? Not sure? No kidding!

The Social Security Administration continues to produce the no-match letters employers dread receiving. You've seen it (if you haven't, knock on wood, dance on one foot, throw salt over your shoulder, or do anything else you believe continues your string of good luck)--the letter where the SSA politely informs you that a Social Security number for one of your employees as reported on Form W-2 does not match the records kept by the Social Security Administration. The letter requests you take steps to verify the information submitted by the employee and take "corrective steps" with SSA. The letter also sternly warns you not to take any adverse action based upon your receipt of the letter.

The U.S. Department of Justice's Office of Special Counsel ("OSC") recently issued guidance intended to help employers understand when the OSC may find reasonable cause that an employer discriminated against an employee during the verification process. Noteworthy is that the employee must be authorized to work in the U.S. before the OSC will consider the allegation of discrimination.

The OSC's guidance references the handling of no-match letters by employers, warning that employers who terminates before attempting to resolve the no-match issue with the employee or who treats employees differently based upon national origin or ethnicity (such as requiring more proof of authorization to work than is required of other employees) may be found to have engaged in discriminatory conduct.

The OSC guidance goes on to say that an employer who follows all of the Department of Homeland Security's safe harbor provisions and terminates due to an inability to resolve the no-match issue will not be found to have engaged in discriminatory conduct. That is, of course, assuming that the employee was treated no differently than other employees in the same or similar situations.

Interestingly, the safe harbor provisions that the OSC requires an employer to follow are still in limbo. You may recall that the original DHS "Safe-Harbor Procedures for Employers Who Receive a "No-Match" Letter" proposed rules were suspended from implementation by an injunction issued by a northern California federal district court in 2007. DHS and SSA issued a proposed modification to the proposed rules on March 26, 2008, meaning that no official "safe harbor" rule as referenced in the OSC guidance is actually in effect.

What's an employer to do? Certainly, investigate any no-match letter received. As you've heard us say before, be consistent in your methods of investigating, the time period allowed an employee to correct the situation, and the result for any employee who is unable to correct the situation. And keep your counsel on speed dial!

Monday, August 11, 2008

It's an election year? Who knew?

It is not unusual for hot button issues to become hotter button issues in an election year. It is also not unusual for Congress to make a push during the summer/early fall months to get legislation passed before it adjourns in time to make last minute election pushes for the candidates. So, it's not unusual that a few matters are facing our legislators as the session winds down.

Of particular interest to employers is legislation that easily passed the House concerning amendments to the Americans With Disabilities Act ("ADA"), H.R. 3195. The legislation attempts to address the myriad of decisions from various circuits as well as the U.S. Supreme Court. For instance, "substantially limits" would still be part of the ADA definition of "disability," although the House measure would redefine the concept as "materially restricts." Additionally, the legislation would prohibit consideration of mitigating measures (such as medication) except eyeglasses/contacts when assessing whether someone is "disabled" as defined by the Act.

Should you have a particular interest in this measure, consider contacting your Senator (as the bill now moves to the Senate for approval) and voicing your opinion. It is an election year, after all!

Monday, August 4, 2008

OMi aching thums

Technology is wonderful. We are a society of constant contact, instant responses, portable documents and all access all the time.

While e-mailing may still be the leader when it comes to non-voice messaging, texting has exploded in popularity and use in recent years. Most wireless device plans include the ability to send and receive text messages. E-mail, even when it is routed to a wireless device, is usually also hosted by and downloaded to a company server. Text messages, on the other hand, usually only appear on the employee's phone/wireless device.

Many employers who have a company property policy include the disclosure that the company has reserved the right to monitor communications, in whatever form, where and when the need arises. So that would include text messages on a company-issued wireless device, right? No, according to a recent decision from the Ninth Circuit Court of Appeals. (The Ninth Circuit includes the states of California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska and Hawaii.)

A police department had examined text messages sent by its employees to determine how much the employees should pay for personal use of the wireless device. Now, it is not uncommon for employers to allot a certain amount of the communication expense each month to employees based upon personal use of the devices. Usually, that is handled in ways that are considered non-intrusive, such as having the employee review the monthly charges for personal expenses. In this case, the department actively reviewed the actual messages in order to determine if they were work-related.

The employees filed suit, claiming invasion of privacy. Traditionally, courts have recognized that an employee has a limited expectation of privacy in the work setting, an expectation that has been extended to the use of company-issued communication devices. In this case, though, the Ninth Circuit said the employees had a reasonable expectation of privacy since the text messages were not hosted or downloaded by a company server but were instead stored by a third-party (the wireless service provider). For employers in the Ninth Circuit, they must now obtain the employee's consent or a search warrant before they view text messages or communications stored by third parties.

Thus, although the Ninth Circuit ruling may not be applicable to you because of where you are located, it does offer some insight on the distinction that may be drawn among types of wireless communications and where the privacy line lies. Additionally, it is noteworthy that the case dealt with a situation where the company was not conducting an investigation, but rather simply wanted to note the amount of personal use of text messaging. It remains to be seen whether the same conclusion would have been reached had the company had a more business-related necessity to review the text messages.

Some employers have eliminated the text messaging feature from company plans since those messages usually cannot be saved and are more difficult to monitor. Short of doing that, if you find yourself in a situation where you believe reviewing actual text messages is necessary to your business operations, tread lightly. And talk with your counsel!

TNT, hpE txtN!