Legal Briefs

Welcome to Legal Briefs for HR! This email update on issues that matter to employers is provided as a service of the SHRM Texas State Council, which I serve as Co-Director of Legislative Action for all 35 chapters in Texas. Feel free to forward this email to anyone who might benefit . . . all are welcome to join this FREE email group of 2500+ subscribers!

A warm welcome to new subscribers who attended the Davis Munck/Dallas HR Breakfast Seminar on SOX and my privacy presentation at the July meeting of the Executive Women in Texas Government!

Here's what's up:

1. The New I-9 is Here . . . Sort Of – HR professionals have been waiting for a revised Form I-9 which would reflect the shortened list of documents acceptable to prove identity and eligibility to work in the U.S. Well, there is a new I-9, but the changes are largely cosmetic. References to the INS have been replaced with the applicable Dept. of Homeland Security departments and the date on the form is now May 31, 2005. At some point, List A will be revised by removing documents that are currently numbered 2, 3, 5, 8, and 9 (except that a Form I-551 is still acceptable under #5). If you want the rebranded I-9, go to http://uscis.gov/graphics/formsfee/forms/files/i-9.pdf. And don’t forget that, as of 4-28-05, you are able to store I-9s electronically. Check out http://www.ice.gov/graphics/news/factsheets/i-9employment.htm for more info.
2. Do Not Try This at Work – The CA Supreme Court, relying upon EEOC guidance, has found that a male manager’s consensual affairs with several female underlings may create a hostile environment for other workers. To date, most cases dealing with sexual favoritism focused on isolated cases and found that the conduct, while unfair, did not discriminate on the basis of gender since both male and female “nonparamours” are disadvantaged for reasons other than their gender. The story is different, however, when there is widespread granting of sexual favors in the workplace, since there is a demeaning message being sent that women are “sexual playthings” or that advancement will be conditioned upon submitting to such advances by the boss. Further, the court ruled that an atmosphere that is sufficiently demeaning to women may be actionable by both men and women. If you were looking for another reason to strongly discourage supervisor/subordinate intimate relationships, here it is. Miller v. Dept. of Corrections (Cal. 7-18-05).
3. Do Not Try This at School – A math teacher may proceed with her claim of being sexually harassed, at work, by one of her students. In denying the Dept. of Education’s motion for summary judgment, the court observed that a handful of district court cases suggest that student-on-teacher harassment is actionable under Title VII, and the school could have eliminated the alleged harassment by disciplining, suspending or even expelling the perpetrator. Johnny can’t read but apparently he can . . . never mind. Plaza-Torres v. Rey (D.P.R. 7-5-05).
4. More Fun With FMLA – Are you wondering how “hands on” the care must be, when an employee claims to need FMLA leave to “care for” an immediate family member with a serious health condition? One man found out the hard way that driving cross country for four days and checking in on his pregnant wife periodically via phone was not enough. The plaintiff tried to argue that the purpose of the trip was to retrieve a more reliable family car and therefore provide the missus with psychological reassurance that she would have reliable wheels, but the court wasn’t buying it. Instead, they held that providing care under FMLA requires “some actual care” and the employee should be “in close and continuing proximity to the ill family member.” Tellis v. Alaskan Airlines Inc. (9th Cir. 7-12-05).
5. Dialing for Dollars – In yet another call center case, Humana Inc. will shell out more than $1 million to settle allegations that employees were forced to work “off the clock.” At issue was the time employees spend waiting for computer equipment to power up, logging on, and then loading the programs necessary to do their jobs. This case is in addition to the $5.1 million settlement involving Cingular Wireless and the $4.8 million settlement involving T-Mobile USA arising out of similar claims. The Wage and Hour Division of the DOL is focusing on call centers as a “new” industry with low-wage workers.
6. Think It Over – The EEOC filed a motion to reconsider with the PA judge who sided with the AARP and slapped a preliminary injunction on the publication of new ADEA regulations. The regs, supported by both employers and the EEOC, would have allowed employers to reduce or eliminate health benefits when a retiree becomes eligible for Medicare or analogous state benefits, without violating the Age Discrimination in Employment Act. In its argument to the court, the EEOC pointed to recent Supreme Court decisions holding that agency regulations are entitled to deference, where the law is ambiguous and the reg is a reasonable interpretation of the law. Stay tuned! AARP v. EEOC (E.D. Pa. 6-30-05).
7. Heads Up, Michigan Employers – A new state law that will take effect 1-1-06 requires employers to avoid using four or more consecutive digits of employees’ SSNs on their ID badges, membership cards, permits, licenses or on the outside of a package or envelope that is sent to the employee. The penalties for violations are not nice . . . a fine of not more than $1000 and/or up to 93 days in the slammer. In addition, anyone who collects social security numbers must create a policy designed to protect the confidentiality of SSNs. See Mich. Comp. Laws sec. 445.84.
8. ADA and Cancer – On July 26, the EEOC posted a Q&A on when cancer is a disability under the ADA, when it can be discussed with employees or applicants, how to handle voluntary disclosures of medical information, and suggested reasonable accommodation (to include telecommuting, in some cases). Check it out at www.eeoc.gov then look under “News.”
9. Smarten Up – It’s that time of year . . . back to school! There are several good seminars coming up for HR professionals, including [1] the TAB Employment Law Symposium in San Antonio on July 28 & 29 (details at www.txbiz.org), the DHRMA diversity conference on August 9 (details at www.dallashr.org), a legislative update with Fort Worth HRMA on August 18 (details at www.fwhrma.org) and the Pulse Conference at the InfoMart on August 23 (details at www.tutservices.com/pulse).
10. Oh Baby – With the increasing numbers of individuals (read: your employees) looking into international adoptions and asking you for help (especially if the company offers adoption assistance as a benefit), you might want to refer them to the U.S. Dept. of State website to learn the basics. Go to http://travel.state.gov/family/adoption/adoption_485.html for a ton of advice, including country-specific information.
    

Until Next Time,

Audrey E. Mross
Labor & Employment Attorney
Davis Munck, P.C.
900 Three Galleria Tower
13155 Noel Road
Dallas, TX 75240
amross@davismunck.com
www.davismunck.com