Employment Law E-Newsletter—Volume 5
Internet – HR Boon or Bane?
The Internet can be a double-edged sword for your Human Resources staff. Google and Yahoo, and social networking sites like Facebook and MySpace, can provide a lot of often interesting information about that potentially great candidate whose resume you just received – information which doesn't appear on the resume. Unfortunately, cyberspace may also provide information that you absolutely do NOT want to know at this point in the hiring process. That great human interest story about his personal struggle with cancer, the touching pictures of their wheel-chair bound child with its three small siblings, the interview with her discussing the challenges of finding reliable day care, his active role in his church's "rebirth," his article on the struggles to find employment after age 60 – all of this is information which will arguably "taint" the process and can make you vulnerable in the event you select another candidate. Does that mean you should ignore this potential information source? No; but be fully aware of the risks in utilizing it.
Cell Phones -- Risky Technology?
Some time ago we spoke of the risks of employee cell phone use while driving on company business, a la the texting Engineer involved in the recent LA train wreck. There may be another price to pay for those Smart Phones and Blackberries. Are your hourly-paid employees using such technology to access their company phone or e-mail or otherwise sending or receiving business messages – or simply researching or "finishing up" projects -- outside their scheduled work hours? This activity probably constitutes "time worked" for purposes of both federal and state minimum wage and overtime regulations, thus creating overtime liability. Remember, the test for "work" is not what you want or direct the employee to do; it is any time that the employee is "permitted" to engage in activities which tend to benefit the employer. The issue is also a factor which may add to the problems faced in the event that an employee whom you consider exempt is found to be covered by the act. If this may be a problem in your workforce, consider adopting policies governing use of technology to perform work outside of normal work hours and/or requiring the reporting of time spent in such activities.
EEOC's New Tactics
In what it says is an effort to eliminate race and color discrimination by dealing with the underlying factors contributing to it, the Equal Employment Opportunity Commission has adopted its E-race initiative. It is a two-pronged effort which will assure that life will get more complicated for employers. The campaign has essentially created two new types of "prohibited" conduct: Associational Discrimination and Code Word Harassment. Associational Discrimination refers to adverse action based on the person's relationship or friendship with persons in a protected class. For instance, the EEOC has prosecuted cases where a woman was terminated after her manager met her biracial children and where an employee referred to biracial couples as "Oreos" or "Zebras." Code Word Harassment will definitely keep HR on its toes. Here the EEOC has sought relief in a situation where a co-worker referred to an employee as "Cornelius," which the employee considered an insulting reference to the character from Planet of the Apes; and one where an employee of mixed, partially Asian, heritage was referred to as "Bruce Lee." Employers cannot lose sight of the fact that harassment is in the eye of the beholder. A zero tolerance policy and prompt action upon receipt of a complaint is the surest means of avoiding costly litigation.
ADA Expansion
President Bush has now signed the Americans with Disabilities Act Amendments which effectively overrule several Supreme Court decisions that arguably limited the scope of the original statute. The amendments will become effective January 1, 2009. In addition to stating that "disability" should be broadly interpreted, the amendments specifically list "major life activities," including such things as reading, bending and communicating, and adds a list of "major bodily functions" such as functions of the immune system, normal cell growth, digestion, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. No longer is the availability of mitigating measures a valid consideration in determining disability – except for such things as ordinary eyeglasses or contact lenses. The new law also directs the EEOC to revise its definition of "substantially limits" – presumably to limit it -- and makes clear that a condition that is episodic or in remission is to be looked at as if it were active, rather than the actual situation. When the implementing regulations are issued, employers will need to make a careful examination of their practices regarding employees with limitations to determine what is required under the new law.
Mental Health Parity
Lurking in the fine print of the infamous "bail out" legislation is the Mental Health Parity and Addiction Equity Act of 2008. It requires that employers with more than 50 employees, who offer mental health coverage as a part of a group health insurance program, provide the same financial and treatment coverage for mental health issues that is provided for physical illnesses/conditions. This means that "parity" – which under the 1996 statute was limited to equalizing annual and lifetime limits between mental health and medical surgical coverages -- now includes deductibles, co-payments, out-of-pocket expenses, coinsurance, covered hospital days, and covered out-patient visits as well. Covered employer plans can no longer provide higher deductibles or co-pays or shorter limits on hospital stays and out-patient treatment. The new law, however, does not require any employer to offer mental health coverage. It simply requires an employer who does offer it to offer the same benefits as are available for routine medical coverage.
Wondering how all this impacts your business? Call Kathy Mills at (610) 797-9000 x 308.
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