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.
Tuesday, October 26, 2010
Do I Need To Give Employees Time Off To Vote?
*By Stephen S. Zashin
With the 2010 elections just a week away, many employers wonder if they must give employees time off to vote. Most states require that employers provide time for employees to vote on Election Day. Because no federal law requires private employers to grant employees leave time to vote, the laws vary from state to state. The laws vary greatly – some specify whether the employer must provide paid time off while others only specify how many hours the employer must provide.
In general, most employers will need to provide time to vote if the polls are not open within two to three hours of the employee's scheduled shift. Is your company required to give employees time off to vote?
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in all aspects of workplace law, including questions about employee leave. For more information about employment law, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
With the 2010 elections just a week away, many employers wonder if they must give employees time off to vote. Most states require that employers provide time for employees to vote on Election Day. Because no federal law requires private employers to grant employees leave time to vote, the laws vary from state to state. The laws vary greatly – some specify whether the employer must provide paid time off while others only specify how many hours the employer must provide.
In general, most employers will need to provide time to vote if the polls are not open within two to three hours of the employee's scheduled shift. Is your company required to give employees time off to vote?
- The following states require employers provide voting leave and require a specific amount of time the employer must provide to vote: Alabama (up to one hour), Alaska (two hours) Arizona (three hours), California (two hours), Colorado (two hours), Georgia (two hours), Hawaii (two hours), Illinois (two hours), Iowa (up to three hours), Kansas (up to two hours), Kentucky (at least four hours), Maryland (up to two hours), Massachusetts (up to two hours), Missouri (up to three hours), Nebraska (two hours), Nevada (up to three hours), New Mexico (two hours), New York (two hours), Oklahoma (at least two hours), South Dakota (two hours), Tennessee (up to three hours), Utah (two hours), Washington (up to two hours), West Virginia (up to three hours), Wisconsin (up to three hours), and Wyoming (one hour)
- The following states require employers provide voting leave, but do not specify the amount of time required: Arkansas, Minnesota, Ohio, and Texas.
- The following states allow employers to designate voting hours: Alabama, Arizona, Colorado, Georgia, Illinois, Iowa, Kansas, Kentucky, Massachusetts (limited to certain employers), Missouri, Nebraska, Nevada, New York, Oklahoma, South Dakota, Tennessee, Utah (limited to certain employers), Washington, Wisconsin, Wyoming.
- Paid leave for voting exists in 23 states, including: Alaska, Arizona, California, Colorado, Hawaii, Illinois, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wyoming.
- Seven states do not require paid time off: Alabama, Arkansas, Georgia, Kentucky, Massachusetts, Ohio, and Wisconsin.
- States that require advance notice include: Alabama (reasonable notice), Arizona (one day), California (two workdays), Colorado, (one day), Georgia (reasonable notice), Illinois (one day), Iowa (one day), Kentucky (at least one day), Massachusetts (one day), Missouri (one day), Nebraska (one day), Nevada (one day), New York (two to ten days), Oklahoma (one day), Tennessee (by noon before Election Day), Utah (one day), West Virginia (three days), and Wisconsin (one day).
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in all aspects of workplace law, including questions about employee leave. For more information about employment law, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
Monday, October 11, 2010
Massachusetts Law Requires Employees Receive Notice of Negative Information in Personnel Records
By Patrick M. Watts
Massachusetts recently passed an amendment to their Personnel Records Statute (Mass. Gen. Laws c. 149, § 52C). Employers of 20 or more employees must notify employees when negative information is placed into personnel files.
The Office of the Attorney General will enforce this amendment and may set fines anywhere from $500 to $2,500 per violation. To date, no guidelines from the Attorney General have been issued.
Under Massachusetts law, an employee’s personnel record is defined by what it contains – not by where the records are kept. Formal personnel files maintained by Human Resources are contained within the definition. More problematic are more informal supervisor files and reviews which are also included in an employee’s “personnel record.”
The language within the amendment is broad and vague, leaving many employers confused over how to implement this change. The amendment requires employers notify employees within 10 days when “any information” is placed within an employee’s “personnel record” that “may be used” to “negatively affect” an employee’s qualifications. This includes anything that could negatively affect employment, including: promotion, transfer, compensation, or the possibility of disciplinary action. Employers must comply with an employee’s request for review within five days of the request.
Employees in Massachusetts have a right to review personnel records up to two times per year. However, if the notice is triggered, the employee’s review does not count in the two reviews permitted annually. Additionally, employees may seek judicial action to expunge any information from personnel records the employer knew or should have know was false.
Employers affected by this statute should examine their policies and practices to comply with the new amendment.
Massachusetts recently passed an amendment to their Personnel Records Statute (Mass. Gen. Laws c. 149, § 52C). Employers of 20 or more employees must notify employees when negative information is placed into personnel files.
The Office of the Attorney General will enforce this amendment and may set fines anywhere from $500 to $2,500 per violation. To date, no guidelines from the Attorney General have been issued.
Under Massachusetts law, an employee’s personnel record is defined by what it contains – not by where the records are kept. Formal personnel files maintained by Human Resources are contained within the definition. More problematic are more informal supervisor files and reviews which are also included in an employee’s “personnel record.”
The language within the amendment is broad and vague, leaving many employers confused over how to implement this change. The amendment requires employers notify employees within 10 days when “any information” is placed within an employee’s “personnel record” that “may be used” to “negatively affect” an employee’s qualifications. This includes anything that could negatively affect employment, including: promotion, transfer, compensation, or the possibility of disciplinary action. Employers must comply with an employee’s request for review within five days of the request.
Employees in Massachusetts have a right to review personnel records up to two times per year. However, if the notice is triggered, the employee’s review does not count in the two reviews permitted annually. Additionally, employees may seek judicial action to expunge any information from personnel records the employer knew or should have know was false.
Employers affected by this statute should examine their policies and practices to comply with the new amendment.
Nickel and Dimed – Ohio’s Minimum Wage Increases to $7.40 in 2011
*By Michele L. Jakubs
As part of a Constitutional Amendment approved by voters in 2006, Ohio’s minimum wage will increase by ten cents in January 2011. The Amendment provides for an indefinite increase every January 1st tied to the rate of inflation. After a stagnant year in 2009, inflation rose 1.4 percent in the 12 months ending August 31, 2010. This rise in inflation will increase the minimum wage by 10 cents in January.
Workers who are 16 years and older and do not receive tips will see an increase of ten cents to $7.40 per hour. Tipped employees will see an increase of five cents to $3.70 per hour. This new wage affects employers who gross more than $271,000 annually.
Employers who gross less than $271,000 annually will be required to pay the same as the federal minimum wage, currently set at $7.25 per hour. Employees who are 14- and 15-years old will also receive $7.25 per hour, regardless of company revenue.
If you have any questions about complying with these new wage increases, please contact Michele L. Jakubs.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in all aspects of workplace law, including wage and hour compliance. For more information about employment law, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
As part of a Constitutional Amendment approved by voters in 2006, Ohio’s minimum wage will increase by ten cents in January 2011. The Amendment provides for an indefinite increase every January 1st tied to the rate of inflation. After a stagnant year in 2009, inflation rose 1.4 percent in the 12 months ending August 31, 2010. This rise in inflation will increase the minimum wage by 10 cents in January.
Workers who are 16 years and older and do not receive tips will see an increase of ten cents to $7.40 per hour. Tipped employees will see an increase of five cents to $3.70 per hour. This new wage affects employers who gross more than $271,000 annually.
Employers who gross less than $271,000 annually will be required to pay the same as the federal minimum wage, currently set at $7.25 per hour. Employees who are 14- and 15-years old will also receive $7.25 per hour, regardless of company revenue.
If you have any questions about complying with these new wage increases, please contact Michele L. Jakubs.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in all aspects of workplace law, including wage and hour compliance. For more information about employment law, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Wednesday, September 29, 2010
Sign of the Times: State of Economy Sees Explosion of EEOC Claims
*By Jon M. Dileno
More than 70,000 claims were filed with the Equal Employment Opportunity Commission (EEOC) for the six months leading up to April 2010, alleging various types of discrimination. This amounts to a 60% increase in claims filed for the same period last year. The dramatic increase in claims is likely a product of the economy, where more workers are being terminated and are also finding it more difficult to find jobs, thereby becoming more likely to sue.
One of the specific areas of increased claims are those based on disability discrimination. In 2009, more than 21,000 individuals filed disability-based claims with the EEOC, amounting to a 10% increase from 2008, and a 20% increase from 2007. Congress’ recent amendments to the Americans with Disabilities Act, wherein it expanded the definition of “disability,” have undoubtedly contributed to the increase in claims based on physical or mental disabilities.
The EEOC has also seen an increase in complaints generated by employees of Muslim faith. In 2009, Muslim workers filed a record 803 claims – an increase of 20% from the previous year. Muslims make up less than two percent of the U.S. population but account for about one-quarter of the religious discrimination claims filed with the EEOC. The EEOC has recently filed several lawsuits on behalf of Muslims. Additionally, the EEOC has seen a significant increase in complaints from males alleging sexual harassment and complaints from federal employees.
Given the protracted nature of our country’s economic downturn, complaints with the EEOC are not likely to subside anytime soon. In response, Employers need to make sure their work environments are free from discrimination by maintaining adequate policies and through the training and education of their workforce. To that end, Employers should consider whether their employment policies and training practices are in need of updating and review, in light of recent trends and developments in the law.
*Jon M. Dileno has extensive experience in all aspects of public and private sector workplace law, including defending contentious claims with the EEOC. For more information, please contact Jon at 216.696.4441 or jmd@zrlaw.com.
More than 70,000 claims were filed with the Equal Employment Opportunity Commission (EEOC) for the six months leading up to April 2010, alleging various types of discrimination. This amounts to a 60% increase in claims filed for the same period last year. The dramatic increase in claims is likely a product of the economy, where more workers are being terminated and are also finding it more difficult to find jobs, thereby becoming more likely to sue.
One of the specific areas of increased claims are those based on disability discrimination. In 2009, more than 21,000 individuals filed disability-based claims with the EEOC, amounting to a 10% increase from 2008, and a 20% increase from 2007. Congress’ recent amendments to the Americans with Disabilities Act, wherein it expanded the definition of “disability,” have undoubtedly contributed to the increase in claims based on physical or mental disabilities.
The EEOC has also seen an increase in complaints generated by employees of Muslim faith. In 2009, Muslim workers filed a record 803 claims – an increase of 20% from the previous year. Muslims make up less than two percent of the U.S. population but account for about one-quarter of the religious discrimination claims filed with the EEOC. The EEOC has recently filed several lawsuits on behalf of Muslims. Additionally, the EEOC has seen a significant increase in complaints from males alleging sexual harassment and complaints from federal employees.
Given the protracted nature of our country’s economic downturn, complaints with the EEOC are not likely to subside anytime soon. In response, Employers need to make sure their work environments are free from discrimination by maintaining adequate policies and through the training and education of their workforce. To that end, Employers should consider whether their employment policies and training practices are in need of updating and review, in light of recent trends and developments in the law.
*Jon M. Dileno has extensive experience in all aspects of public and private sector workplace law, including defending contentious claims with the EEOC. For more information, please contact Jon at 216.696.4441 or jmd@zrlaw.com.
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