By Patrick M. Watts
The Genetic Information Non-Discrimination Act of 2008 (“GINA”) prohibits employers from discriminating against employees because of genetic information related to the employee. GINA makes it unlawful for employers to “request, require, or purchase genetic information.” As one exception, GINA states that an “inadvertent” request does not violate this prohibition against requesting genetic information.
Recently, the Equal Employment Opportunity Commission published the final regulations interpreting GINA. The final regulations provide additional explanation regarding what constitutes an inadvertent request. The final regulations state that a request or acquisition of genetic information “will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider…not to provide genetic information.” 29 C.F.R. §1635.8. Further, the final regulations go on to specifically state the requirement for an inadvertent disclosure statement applies to (1) requests for medical information to support a request for a reasonable accommodation and (2) requests for medical information “as required, authorized, or permitted by Federal, State, or local law, such as where an employee requests leave under the Family and Medical Leave Act…” 29 C.F.R. §1635.8.
As a result, in order to comply with GINA and protect against inadvertent disclosures, employers should conduct a review of their current procedures regarding requests for medical information. In doing so, employers should consider whether to modify their procedures, including correspondence to employees, to exclude, specifically, genetic information. If you need any assistance in your leave of absence administration, please feel free to contact us.
Friday, November 19, 2010
Tuesday, November 9, 2010
GEORGIA ON MY MIND: Georgia Non-Competes can now be "blue-penciled"
By Roy E. Lachman
For employers with restrictive covenants with their employees, Georgia’s recent constitutional amendment makes a dramatic change in Georgia law. Before the amendment, Georgia courts were hostile to restrictive covenants such as non-competition, non-solicitation, and confidentiality provisions. If a court found any of the covenants in an agreement to be unreasonable, then the court would strike down the entire agreement. This could harm the employer not only with respect to the employee involved in the case, but also with respect to all other employees who had signed similar agreements. As a result, an employer could lose all its contractual protections with its employees.
The recent amendment ends the risk for employers in Georgia, and conforms its law to that of the majority of other jurisdictions. A Georgia court will now have “the power to limit the duration, geographic area, and scope of prohibited activities in a contract…to render such contract…reasonable under the circumstances for which it was made.” This means that even if a court finds a covenant restriction unreasonable, the court will not invalidate the entire agreement. Instead, it can modify the provision to a reasonable restriction under the circumstances.
This amendment was intended to attract businesses to Georgia and to enhance the predictability of employment agreements in that state. However, even with the amendment now in place, employers should continue to exercise care to draft agreements with reasonable restrictions. Such careful drafting will provide greater certainty that the restrictions will apply. If you have any questions about restrictive covenants, please do not hesitate to contact us.
For employers with restrictive covenants with their employees, Georgia’s recent constitutional amendment makes a dramatic change in Georgia law. Before the amendment, Georgia courts were hostile to restrictive covenants such as non-competition, non-solicitation, and confidentiality provisions. If a court found any of the covenants in an agreement to be unreasonable, then the court would strike down the entire agreement. This could harm the employer not only with respect to the employee involved in the case, but also with respect to all other employees who had signed similar agreements. As a result, an employer could lose all its contractual protections with its employees.
The recent amendment ends the risk for employers in Georgia, and conforms its law to that of the majority of other jurisdictions. A Georgia court will now have “the power to limit the duration, geographic area, and scope of prohibited activities in a contract…to render such contract…reasonable under the circumstances for which it was made.” This means that even if a court finds a covenant restriction unreasonable, the court will not invalidate the entire agreement. Instead, it can modify the provision to a reasonable restriction under the circumstances.
This amendment was intended to attract businesses to Georgia and to enhance the predictability of employment agreements in that state. However, even with the amendment now in place, employers should continue to exercise care to draft agreements with reasonable restrictions. Such careful drafting will provide greater certainty that the restrictions will apply. If you have any questions about restrictive covenants, please do not hesitate to contact us.
Friday, November 5, 2010
FACEBOOKED: Does your company need to revise its social media policy?
*By Jason Rossiter and Patrick J. Hoban
With the onslaught of Facebook, Twitter, and related social networking services, many employers drafted aggressive policies regarding employee use of social media. Now, many of those polices may be in jeopardy.
The National Labor Relations Board (“NLRB”) recently issued a complaint against an employer that fired an employee who posted negative remarks about her supervisor on her personal Facebook page. The negative remarks drew supportive "comments" from her co-workers, which in turn led to further negative comments being made about this supervisor from the employee. The employee was fired three weeks later.
The NLRB took the position that the employee’s posting on her personal Facebook page constituted protected concerted activity. The NLRB stated its belief that the company’s social media policy, which also covered blogging and internet posting, contained unlawful provisions. Specifically, in its policy, the company prohibited “employees from making disparaging remarks when discussing the company or supervisors” and “depicting the company in any way over the internet without company permission.” The NLRB concluded that this policy language interfered with the employees’ exercise of their rights to engage in protected concerted activity.
Though no court has yet adopted the NLRB's position, it is nonetheless likely that, given the NLRB's broad authority, its decision to pursue this case could have a far-reaching effect on how far employers can safely go in enacting social media, blogging, and internet policies. The NLRB's complaint could also have the effect of greatly limiting the extent to which employers can control employees' off-duty internet use – including in workplaces that do not have labor unions.
The NLRB has scheduled an administrative hearing for January 25, 2011. Until then, employers should carefully review their social media policies and watch for further updates. Based upon the NLRB’s position in this case, employers face an increased risk for disciplining employees who use social media to criticize their employer. Such discipline may result in an unfair labor practice charge. If you have questions about whether your company’s social media policy is at risk of violating the National Labor Relations Act or any other laws, please feel free to contact us.
*Jason Rossiter and Patrick J. Hoban, have extensive experience in all aspects of workplace law, including drafting and implementing social media policies for union and non-union employers. For more information about the use of a social media policy, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
With the onslaught of Facebook, Twitter, and related social networking services, many employers drafted aggressive policies regarding employee use of social media. Now, many of those polices may be in jeopardy.
The National Labor Relations Board (“NLRB”) recently issued a complaint against an employer that fired an employee who posted negative remarks about her supervisor on her personal Facebook page. The negative remarks drew supportive "comments" from her co-workers, which in turn led to further negative comments being made about this supervisor from the employee. The employee was fired three weeks later.
The NLRB took the position that the employee’s posting on her personal Facebook page constituted protected concerted activity. The NLRB stated its belief that the company’s social media policy, which also covered blogging and internet posting, contained unlawful provisions. Specifically, in its policy, the company prohibited “employees from making disparaging remarks when discussing the company or supervisors” and “depicting the company in any way over the internet without company permission.” The NLRB concluded that this policy language interfered with the employees’ exercise of their rights to engage in protected concerted activity.
Though no court has yet adopted the NLRB's position, it is nonetheless likely that, given the NLRB's broad authority, its decision to pursue this case could have a far-reaching effect on how far employers can safely go in enacting social media, blogging, and internet policies. The NLRB's complaint could also have the effect of greatly limiting the extent to which employers can control employees' off-duty internet use – including in workplaces that do not have labor unions.
The NLRB has scheduled an administrative hearing for January 25, 2011. Until then, employers should carefully review their social media policies and watch for further updates. Based upon the NLRB’s position in this case, employers face an increased risk for disciplining employees who use social media to criticize their employer. Such discipline may result in an unfair labor practice charge. If you have questions about whether your company’s social media policy is at risk of violating the National Labor Relations Act or any other laws, please feel free to contact us.
*Jason Rossiter and Patrick J. Hoban, have extensive experience in all aspects of workplace law, including drafting and implementing social media policies for union and non-union employers. For more information about the use of a social media policy, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
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