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Top 5 Labor/Employment Law Risks for a Company in 2010
The document outlines the top five risks for employers related to labor-employment law, including expanded ADA regulations, wage-hour laws, retaliation, and lesser-known state laws. It emphasizes the increasing difficulty of defending against ADA claims, the importance of compliance with wage-hour laws, and the rise in retaliation charges. It also highlights privacy issues, urging employers to establish clear policies and stay updated on relevant laws and technology.
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Top 5 Labor/Employment Law Risks for a Company in 2010
- 1. Top 5 RisksFor Employers In Labor-Employment LawPresented by Mr. Benjamin H. BantaAugust 25, 2010
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- 5. State Laws YouDon’t Know About
- 6. PrivacyExpanded ADAMuch easierfor employee to show “disability”Not an “extensive analysis”Expanded list of “major life activities”“Substantially limited” term is diluted
- 7. Expanded ADA (cont.)Result: more disabled employeesResult: more accommodations to consider or makeResult: more ADA charges and lawsuitsResult: decreased summary judgment chances
- 8. Wage-Hour LawsMeal breaks“Offthe clock” workMisclassifying workers as exemptRuining “salary basis” requirement
- 9. RetaliationAlleged in 36%of all charges in EEOC’s FY 2009Alleged in 15% of all charges in EEOC’s FY 1992Virtually all aspects of job may become an issueWhite standard: “materially adverse action or conduct”“could well dissuade a reasonable worker from making . . . charge”
- 10. State Laws YouDon’t Know AboutFirearm possessionFines against workersNon-competition provisions you’re not complying withJury duty (pay/discharge)Voting leave
- 11. State Laws YouDon’t Know About(cont.)SmokingAccess to personnel recordsWARN-type statutesBreastfeeding timeWhat else?
- 12. Privacy IssuesEvolutionSearches onemployer premises or parking lotVideo surveillanceE-mails and Internet usageGPS trackingPlanting chips in employees
- 13. Privacy IssuesCase2010 SupremeCourt case involving public employerCity of Ontario, Calif. v. Quon (No. 08-1332)
- 14. Privacy IssuesFactsEmployees exceedcharacter limits on text messages (pager)Employer investigates; many messages not work-relatedSome text messages are sexually explicitEmployee disciplinedEmployee sues for violation of privacy rights
- 15. Privacy IssuesLegal AnalysisReviewof text messages on pager was reasonableLegitimate interest in, and reason for, the search (work-related)Search not excessive in scope or “excessively intrusive”Employee had only limited privacy expectationLessened risk of intrusion on highly private details of personal life
- 16. Privacy Issues“To Do”Havean explicit policy in placeWork with HR, IT, Legal on policyUpdate it annually, keeping up with technology and your equipmentState business need/interestRight (not a duty) to monitor/inspect at will
- 17. Privacy Issues“To Do”(cont.)Address social media?Create no expectation of privacyHave employees acknowledge receipt annually (consent)If inspecting, start small and narrow with searchBe consistent and reasonable; how would you feel?
- 18. Privacy IssuesPossible ClaimsInvasionof privacy (state law)Fair Credit Reporting Act (FCRA)Stored Communications Act (SCA)Electronic Communications Privacy Act (ECPA)Computer Fraud and Abuse Act (CFAA)Traditional labor (NLRA), employment (Title VII), tort laws (defamation)
- 19. Privacy IssuesThink AboutMixed-use(work and personal) Blackberries or laptopsEmployer reimburses only fraction of monthly billGetting into personal e-mail accounts or the likeNexus to job performanceConsistent enforcementKnowing too much