Legal Briefs

Welcome to Legal Briefs for HR! This 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 email to anyone who would benefit . . . all are welcome to join this FREE service with over 3100 subscribers. Just email me to be added to the group and you can find previous issues for 2006 on the Munck Butrus law firm website (www.munckbutrus.com) under E-Newsletter.

Here’s what's up:

1. Candid Camera – An employer trying to discover the identity of an after-hours viewer of porn on company computers found itself on the losing end of an invasion of privacy claim. With knowledge that someone was accessing porn via the Internet at night, the employer hid motion-activated video cams on the premises each night (and removed them in the morning), including in an enclosed office used by two women. The office had a door that locked, blinds on the windows and the women occasionally changed clothes in the room during the day. When one camera was inadvertently not removed in the a.m. and the women found it in their office, they sued. The trial court held for the employer since the women were never actually recorded by the camera (all the action was at night, remember?). The appeals court, however, reversed summary judgment, noting that there was a reasonable expectation of privacy within the enclosed office and the camera installation itself was an intrusion on that privacy. Hernandez v. Hillsides, Inc. (Cal. Ct. App. 9-14-06). Lesson learned? Investigations should be jointly planned and executed with input from HR, Legal and Security. Just because whiz-bang tech toys let you do something, does not mean that you should do it.
   
   
2. Paper or Plastic? - U.S. House reps from CA and TX (including Democrat Silvestre Reyes, a former border patrol agent) are pushing for new Social Security cards that would be made of hard plastic (instead of paper) and contain electronic ID strips unique to each person. Their hope is to have the measure enacted before the end of 2006 and to establish the new card as the sole means to satisfy I-9 identity and work authorization requirements. Stay tuned!
   
   
3. Growing Minimums – California’s new minimum wage is $7.50/hour effective 1-1-07, with a second increase to $8/hour on 1-1-08. Not to be outdone, Oregon’s minimum wage will rise to $7.80/hour effective 1-1-07.
   
   
4. Big Boxing Match – Mayor Richard Daley of Chicago vetoed the ordinance that would subject “big box” retailers in Chi-Town to their own minimum wage (in this case, $10/hour). The two-thirds majority on the Council needed to override the veto seems unlikely, given that three alderman who gave the measure a “thumbs up” the first time around say they will now switch their votes.
   
   
5. Devil’s in the Details – A pair of decisions point out the need to be very careful in what you waive and how you waive, when using severance agreements containing a release. The first decision points out that the DOL regulations do not allow waivers of FMLA rights. Dougherty v. Teva Pharmaceuticals USA (E.D. Pa. 8-30-06). The second decision explains that an ADEA waiver is invalid if not “knowing and voluntary” which means, in part, that it should be written in plain language “calculated to be understood” by the average employee. It also means that use of a release and a covenant not to sue are “particularly murky when both are included in a single document.” Syverson v. IBM (9th Cir. 8-31-06). In some cases, there are also state law variations on what must be included when seeking a release, so be sure to get effective counsel when using such agreements.
   
   
6. Déjà vu – An employer’s motion for summary judgment was denied, notwithstanding earlier successful attempts to address sexual harassment, because the offender repeated and the employer had no systems to detect and address the pattern of harassment. The court faulted the employer for [1] lack of documentation of the original complaint (so that future allegations would be recognized as repeats); and [2] the supervisor who addressed the initial complaint did not involve the HR department. These failings can be particularly troubling in an environment where supervisors change frequently, either due to project-type work or personnel attrition and turn-over. EEOC v. Walsh Construction Co. (N.D. Ill. 8-30-06).
   
   
7. I Spy – A labor union violated a federal privacy law by accessing employees’ motor vehicle records and using license plate numbers to obtain home addresses, which were used as part of an organizing campaign. Pichler v. UNITE HERE (E.D. Pa. 8-30-06) The union argued that it was availing itself of exceptions to the law which allow access for use in connection with lawsuits or on behalf of a government agency. The judge wasn’t buying it.
   
   
8. Disability? Not! – A 405-pound dockworker had no protection under the ADA since the EEOC did not show that his morbid obesity stemmed from a physiological cause (or that morbid obesity always stems from a physiological cause). EEOC v. Watkins Motor Lines (6th Cir. 9-12-06). Depression which does not significantly restrict or substantially impair a major life activity, including work, is not a protected disability under the ADA. McWilliams v. Jefferson Cty. (10th Cir. 9-6-06).
   
   
9. Computer Professional? Not! –Possessing a degree in computer information systems and being referred to as an “engineer” is not enough to satisfy the FLSA computer professional exemption. Although his job description used words like “consulting, analysis and testing” and his technical proficiency meant he did not need to consult manuals to do the work, the plaintiff’s duties were that of a customer service rep who spent most of his time answering questions about technical difficulties. Hunter v. Sprint Corp. (D.D.C. 9-22-06).
   
   
10. Woo Hoo! We’re #10! – An article in the 9-17-06 issue of Parade magazine, listing the countries which lose the most workdays due to workers on strike, lists the U.S. at #10 with an average of 40 days lost per 1000 workers, per year. So who’s “ahead” of us? Iceland, at 581 days/year; Spain, at 200 days/year; Canada, at 193 days/year; Denmark, at 172 days/year; Italy, at 100 days/year; Finland, at 85 days/year; Norway, at 83 days/year; Ireland & Australia, at 68 days/year; and Austria, at 41 days/year.
    

Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Butrus, P.C.
900 Three Galleria Tower
13155 Noel Road
Dallas, TX  75240

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (cell)

amross@munckbutrus.com

www.munckbutrus.com

Legal Briefs for HR is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters. For answers to your specific questions, please consult with counsel.