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Employment Law News

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Jacob Lively

on 1 July 2014

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Transcript of Employment Law News

Is it inappropriate to say "Bless You" after a sneeze?
Current Arkansas Law
Whistle-Blower Protection
What's Happening in Other States
Handguns at Work
Religious issues in the workplace:
Liability Issues
$1.25
Tuesday, July 1, 2014
Vol XCIII, No. 311
Ark. Code Ann. § 11-2-124
Issues raised by information potential employers may encounter online
An employer shall not:

1
. Require or request that an employee: disclose username/password to his/her social media account

2
. Add a supervisor, administrator, or associate to contacts list

3
. Change privacy settings associated with account

4
. Take action to penalize employee for exercising the rights above

5
. Refuse to hire an employee based on employee's exercise of these rights
Employment Law News
Arkansas Regulation of Employer Access to Employee Social Media
This regulation will not stop employers from requesting an employee's log-in information and password if social media activity is "reasonably believed" to be relevant to a formal investigation of either violations of the law or employer policies.
For example:
You see that a potential employee’s mother suffers from a rare, but heritable blood disease? This might implicate GINA, the Genetic Information Nondiclosure Act. http://www.eeoc.gov/laws/types/genetic.cfm
You learn of a Wiccan's soltice celebration. (Title VII, Ark Civ Rts Act,1st A)
Sites such as Spokeo reveal information including bankruptcies. Employers cannot take adverse action because of a bankruptcy filing! 11 U.S.C.A. § 525
FCRA Implications
Thomas Robins v. Spokeo, Inc. (9th Cir 2014)
The Court held Spokeo violated its users' "concrete and particularized" statutory rights when it published inaccurate credit information.


The Court also held that actual harm was not required to prevail on an FCRA claim where a willful violation was alleged.
Under the FCRA, if an employer might use consumer information from a credit report to take an “adverse action” — deny employment or promotion, reassign or terminate employment— it must follow procedural reuirements of statute including, notice, consent, informing you of the right to follow up with the agency, before taking the adverse action (als must certify won't violate anti-discrim statutes)
A.C.A. § 5-73-306:

Businesses and other locations can prohibit even licensed carriers from bringing a weapon inside by posting a written notice clearly readable at a distance of not less than ten feet standing that "carrying a handgun is prohibited."
2013 Arkansas House Bill No. 1269
29 U.S.C.A § 654:

The Occupational Safety & Health Act provides that employers have a duty to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
Trafficking in Persons and Employer Liability
Under Arkansas law, an employer may be criminally liable for involuntary servitude by knowingly recruiting, harboring, transporting, or providing a person knowing that the person will be subjected to involuntary servitude. An employer could even be liable by knowingly benefiting from such exploitation. A.C.A. § 5-18-101 et seq.

Additionally, federal law provides for both criminal charges and a private right of action against individuals that knowingly benefit from participation in a venture which has engaged in trafficking.
18 U.S.C.A. § 1591,5.
Organizational Liability
An organization who is convicted of a trafficking offense may be fined, may suffer loss of license, or even be forced to disband as the court deems appropriate. A.C.A. § 5-18-105.
Signs That a Worker Has Been Trafficked
He/She works excessively long and/or unusual hours

He/She exhibits unusually fearful or anxious behavior after bringing up law enforcement

He/She has few or no personal possessions

He/She claims of just visiting and inability to clarify where he/she is staying/address
A.C.A. § 21-1-602

Arkansas law protects public employees from being fired, threatened, or otherwise discriminated or retaliated against for reporting waste or illegal acts.

Protections are broad, including compensation, job location, rights, immunities, promotions, and privileges.

However, the employee is required to report the violation prior to any adverse action by the employer
Dep't of Career Educ., Div. of Rehab. Servs. v. Means
According to a recent Arkansas Supreme Court case, a private contractor can be a public employee under A.C.A. § 21-1-610
Means was held to be a public employee under the statue who was eligible for damages even though he retired after being terminated.
Immediate supervisors are appropriate
reporting authorities under state law.

The employee’s legislator are to give a list of appropriate authorities.
Other Takeaways from
Means
What is OSHA?
The Occupational Safety and Health Act of 1970 created OSHA under the Department of Labor to assist and encourage the States in their their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training.
General Employer Duties
-to provide a work environment free from recognized hazards that may cause serious physical harm to employees

-to comply with occupational safety and health standards and regulations
Additional Responsibilities
-Inform employees about hazards through training, labels, alarms, color-coded systems, chemical information sheets and other methods.

-Keep accurate records of work-related injuries and illnesses.

-Perform tests in the workplace and medical tests on employees as required by OSHA standards.

-Notify OSHA within 8 hours of a serious workplace injury.
Employer OSHA Violations Must Be Posted
Upon receipt of a violation notice, employers must post it “at or near” any place where an alleged violation occurred, unless it is not practicable, and then it must be posted “in a prominent place where it will be readily observable by all affected employees.” 29 C.F.R. § 1903.16.
Each notice has to stay posted until the violating condition has been remedied, or for 3 working days, whichever is later.
New Electronic Posting Requirements May Be Coming
If the employer is currently contesting the violation, information regarding that (steps being taken to abate the violation, the reasons for the contest) may be posted at the same place.

Any employer who fails to post at the proper location for three days or until the violation has abated will be subject to further citation and penalty.
-The Department of Labor has proposed a rule requiring the electronic submission of workplace injuries in order to analyze injury data. 29 CFR 1904

-Employers with as few as 20 employees in particularly dangerous fields may be required to submit annual injury and illness reports.

-It hopes to one day allow for the public viewing of injury information.
Web-Based Employee Screening
The Americans with Disabilities Act was originally enacted in 1990, and covered numerous areas, including employment.


42 U.S.C.A. § 12101
-Employers with 15 or more employees are prohibited from discriminating against qualified individuals with disabilities.
This includes hiring, promotions, pay, and other privileges of employment.
-Prior to employment, employers may not ask applicants’ disabilities.
-Following the job offer, employers must make reasonable accommodations.

After hearing concerns that the courts were too narrowly interpretng“impaired' Congress passed the American with Disabilities Act Amendments Act (ADAAA).
ADAAA:
More Inclusive, More Things to Consider
Changes in the ADAAA
The American with Disabilities Act Amendments Act (ADAAA) has widened the definition of “disability” in order to prevent workplace discrimination. The ADAAA now covers many more conditions that substantially limit a "major life activity."
This could include a large variety of conditions, such as:
bipolar disorder
depression
hypertension
various types of cancer
diabetes
asthma
Even reproductive health issues
are covered
What could this mean for Employers?
"Pretaliation" claims
claims that arise when an inadequate employee requests accommodation before an employer has an opportunity to take disciplinary actions.


Measures for older employees
many of the conditions now covered develop more often later in life. Will this result in discriminatory hiring decisions against older workers?
Accommodation requests
More conditions recognized means more accommodation may be required.
NEW EEOC STRATEGIC PLAN TARGETS
Eliminating barriers in recruitment and hiring
: make sure your hiring protocols are up to date and don't single out any particular group.
Enforcing equal pay laws:
EEOC has announced its intention to target compensation practices that discriminate based on gender.
Preserving access to the legal system
: targeting policies that discourage employees from exercising their rights
Protecting immigrant, migrant, and other vulnerable workers
: a priority right now as such workers may be unaware of their rights.
Emerging and developing issues
: disability accommodations, pregnant workers, and LGBT individuals.
Preventing harassment through systemic enforcement and and targeted outreach:
EEOC warns that it is ready to make examples of organizations which ignore these concerns.
DOL Policy
U.S. v. Windsor

Following the SCOTUS decision, the DOL released a policy statement stating “the terms ‘spouse’ and ‘marriage’ in Title I of ERISA and in related department regulations should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live."
EEOC v. Boh Brothers Construction Co., LLC.
Court ruled that gender-stereotyping (or sexstereotyping) is a form of discrimination/harassment under Title VII.
Employers may want to include a gender-stereotyping reference in their EEO statements; for example, "Employer prohibits. . . based on an individual's non-conformance with a gender-stereotype."
Transgender Employee Workplace Issues
Gender-segregated bathrooms: can a transgender employee use the restroom of the gender he or she identifies with?

Gender-based uniforms: can a biological woman identifying as a man wear a tie with a suit?

Workplace discrimination: according to a study by transequality.org, 90% of transgender employees report experiencing workplace harassment.
Probably not, in Arkansas, but you should stop if a coworker asks you to.

According to EEOC's Q&A:
"Even unwelcome religiously motivated conduct is not unlawful unless the victim subjectively perceives the environment to be abusive and the conduct is severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive."


Arkansas Labor Law letter clarifies, encouraging employers to "Allow religious expression among employees to the same extent that other personal expression is allowed, making sure the expression isn't harassing or disruptive."16 No. 3 Ark. Emp. L. Letter 7.
According to the Equal Employment Opportunity Commission (EEOC), employers must “reasonably accommodate an employee's religious beliefs or practices” as long as those accommodations don’t cause an undue hardship.

This might mean allowing Jewish men to wear yarmulkes, Muslim women to wear hijab, and Pentecostal women to wear skirts.
Nursing Mothers Amendment to FLSA
29 U.S.C.A. § 207
Employers must provide two things:

1. a reasonable break time for nursing mothers to go and express milk whenever they need to for up to a year after the child's birth

2. a place for expressing, not a bathroom, which is "free from intrusion" and shielded from view from coworkers.
Issues
What counts as "free from intrusion?" Are curtains and partitions enough? The case law is silent.

The DOL estimates that an expressing mother will need two to three 20-minute breaks in an eight hour shift. This doesn't take into account the variables of set-up, clean-up, and the location of supplies.

Do you have to pay a nursing mother for theses breaks? Will it upset other workers if you do?
Liquidated Damages in the Wage Payment Statute
A.C.A. § 11-4-218

Any employer who pays less than minimum wage, less than the amount agreed upon, or less than earned overtime could be subject to (in addition to civil fines and the amount of the unpaid wages) liquidated damages up to the amount of unpaid wages.
Other Issues
Corporations must pay hourly employees at least semi-monthly. A.C.A. § 11-4-401.

Employees have seven days to pay discharged employees, and current employees must be paid at the regularly scheduled payday. A.C.A. § 11-4-405.


Employees can recover liquidated damages for unpaid underpaid wages up to the amount owed by the employer. A.C.A. § 11-4-218

Employees have 3 years to bring claims under Arkansas wage laws. Douglas v. First Student, Inc., 2011 Ark. 463, 385 S.W.3d 225 (2011)
Can I file a wage claim if my client is an
undocumented worker?

A.C.A. 11-9-102 provides for benefits regardless of the lawfulness of employment.

The Arkansas Workers Compensation Commission has affirmed that this includes undocumented workers.
Vera v. Built Well ,2012 WL 1997809 (Ark.Work.Comp.Com.)

Note: AR law exempts agricultural farm workers!
YES
Did you know if you have kids and work for the government you can take time off to be involved with school?
A.C. A. § 21-4-216
“All state employees shall be entitled to eight (8) hours of leave during any one (1) calendar year for the purpose of attending or assisting with the educational activities of a child.”
Although the EEOC has priorities, there are additional issues employers should be aware of!
Priorities for the DOL
Restaurants
Construction
Janitorial
Daycare
FMLA Military Leave
Migrant & Agricultural Workers Protection Act Enforcement
Arkansas Wage and Hours Provision
The Right to Refuse Hazardous Work
29 C.F.R.
§

1977.12(B)(1)-(2)
"If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination.

The condition causing the employee's apprehension of death or injury must be of such a nature that a
reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels.

In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition."
The Act does not entitle employees to walk off the job because of potential unsafe conditions at the workplace

If hazardous conditions which may be violative of the Act are not corrected by the employer, the employee will normally have the opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other agencies which have responsibility in the field of safety and health.
Whirlpool
The Court upheld the regulations from 29 C.F.R.
§

1977.12(B)(1)-(2), but indicated that situations in which employees would be permitted to refuse harzardous work, rather than follow the Act's normal enforcement processes would "probably not often occur."
NLRA Coverage
Even in non-unionized settings, employees may have the right to refuse hazardous work under Section 7 of the NLRA.

It is also unlawful under the Act to interfere with, restrain or coerce employees in the exercise of thier Section 7 rigghts.
Tamara Foods
The 8th Circuit upheld a ruling by the National Labor Relations Board that a walkout by 11 employees to protest exposure to ammonia fumes was protected by Section 7 of the Act, even though the employer had compiled with OSHA standards.
City Disposal
The court held that one individual's actions to enforce the terms of a union contract is concerted activity, even though no other emploee joins in, or is even aware of the activity.

In non-union shops, for an employee's activity to be concereted, "it must be engaged in with or on the authority of other employees and not soley by or on bhalf of he employee himself."
Full transcript