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. Feel free to forward this to anyone who might benefit . . . all are welcome to join this FREE email group of 2600+ subscribers!

A special welcome to new subscribers who attended my talks at the University of Dallas, HR Southwest Human Resources Conference and Exposition in Fort Worth, the real estate HR group, and the Remington Hotels HR staff meeting! Here’s the latest:

1. Hot Tip – Unlike a voluntary tip, an “imposed gratuity” cannot be counted toward a tip credit used to bring a non-exempt worker’s wages up to the minimum wage. The subject of the recently issued DOL Wage and Hour Division Opinion Letter was a chauffeur for a limousine company, but the same rule applies to other tipped workers, such as wait staff who automatically tack on a fixed percentage of the bill for large groups served in restaurants. If you’d like to receive DOL WH opinion letters, hot off the presses, just go to www.dol.gov and click on “Subscribe to e-mail updates” in the right hand margin.
   
2. Taking Credit – Check out S. 1868 which, if passed, would give both employees and employers a tax credit for telecommuting (in lieu of guzzling gas to get to and from work). The credit would apply to “furnishings and electronic information equipment” up to $1000/year for employees and $2000 for employers. For complete text, go to www.thomas.loc.gov and put the bill number in the search box. In the meantime, go to http://autos.msn.com/everyday/gasstations.aspx?zip=&src=Netx and put in your zip code, to find the cheapest gas for sale in your area!
   
3. Giving Credit – The Environmental Protection Agency is giving kudos to 90 Fortune 500 employers who offer employee commuter benefits designed to reduce fuel consumption, vehicle emissions and traffic congestion. It’s “Top 20” list recognizes companies who offer the benefits to the highest percentage of their U.S. workforces and includes Texas-based Texas Instruments. The top five are Intel, Qualcomm, Oracle, Sun Microsystems and Microsoft. For a complete list, go to www.epa.gov and click on EPA Newsroom. A North Texas coalition is recognizing eco-friendly employers, too, with a full page ad in the Nov. 1 Dallas Morning News.
   
4. Finally! – After years of study, the OFCCP has published its final rule which contains the definition of an electronic applicant, as it applies to federal contractors’ record-keeping requirements. The rule, which takes effect 120 days after Oct. 7, is not much different from the March 2004 proposed rule. The four criteria to be deemed an applicant are [1] the individual submits an expression of interest in employment through the Internet or related electronic data technologies; [2] the contractor considers the individual for employment in a particular position; [3] the individual’s expression of interest indicates the individual possesses the basic objective qualifications for the position; and [4] the individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates the he or she is no longer interested in the position. The old “any expression of interest” rule still applies to non-electronic applications (unless both electronic and non-electronic apps are accepted for a particular position . . . then the new definition applies to both types). Go to www.dol.gov/esa/regs/fedreg/final/2005020176.htm for a copy of the final rule.
   
5. FMLA Follies – An employee had no FMLA protection from termination of his employment because he did not give sufficient notice of the need for leave to his employer, and ignored letters asking for medical certification of the need for leave. The employee called the security office, which is staffed by contractors, to say he would be out sick for a few days due to a knee injury. Some cases have held failure to comply with internal notice procedures won’t nix FMLA rights, so long as the employee gave timely notice. In this case, however, employees were expressly notified not to ask for FMLA via the security office, and by notifying only contractors of the need for leave, the employer had not been properly notified. Walton v. Ford Motor Co. (6th Cir. 9-28-05).
   
6. More Fun with FMLA – FMLA leave for placement of an adopted or foster child in the employee’s home applies only to a “new” placement, and not when the employee decides to adopt a foster child who has been in the home for awhile. In addition to the regulation which limits FMLA leave entitlement to the first 12 months after the birth/adoption/foster placement of a child, the language also expressly mentions that the employee is needed to care for a “newly placed child.” See CFR sec. 825.200(a).
   
7. Check Your Policy – A rule that requires employees to give two weeks’ notice before using vacation can violate the FMLA. A nurse who took unforeseeable leave to care for her terminally ill father was wrongfully denied the ability to use vacation pay to cover the absence. Employees have the right to substitute accrued paid time off for FMLA leave taken, whether foreseeable or not. The court found the rule created an economic hardship (two weeks without pay) that could discourage use of FMLA leave. Solovey v. Wyoming Valley Health Care Sys. (M.D. Pa. 10-13-05).
   
8. Bring Home the Bacon – Suspension of the Davis-Bacon Act (which guarantees payment of prevailing wages to workers on federally funded construction contracts) is being reversed by the Bush administration. The Act was suspended on Sept. 8, to help reduce the cost of rebuilding hurricane-ravaged areas, but will be reinstated on Nov. 8, after outcries that the effect was to displace unemployed storm victims with out-of-state workers and line the pockets of profiteers.
   
9. New Home for Workers’ Comp – Go to www.tdi.state.tx.us for the new home of workers’ compensation in the state of Texas. If you go to the old website at www.twcc.state.tx.us you will be automatically redirected to the new site. The TWCC was abolished, effective Sept. 1, and the Texas Department of Insurance has assumed those duties.
   
10. Thanks, Governor! – For the second year in a row, Governor Rick Perry of Texas has declared October “HR Awareness Month” and publicly recognized the HR profession for “fostering business excellence and promoting prosperity.” Go to www.tsc-shrm.org and click on two links in the left hand margin, to see the proclamation and cover letter from the governor. And while you’re there, check out the new website features!
    

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