Employer Law Report

Ohio WARN Legislation Proposed

Franck Wobst — Mon, 08 Feb 2010 09:41:31 -0500

Ohio employers will want to pay close attention to H.B. 434, which was proposed by House Representative Kenny Yuko, D-Richmond Heights, last week. The Bill is similar in nature to the Worker Adjustment and Retraining Notification Act ( “WARN”), but goes further than the federal law in several respects. For example, the Bill would require an employer in Ohio laying off 25 or more employees in any 30-day period to give at least 90-days’ advance written notice of the layoff to affected employees, local workforce policy boards, and certain state departments and local elected officials. The notice period would be expanded to 120 days for employers planning to lay off 250 or more employees. Also, the penalties for violations include double back pay for all affected employees, as well as the full value of their employee benefits.

The Bill does contain exceptions similar to those found in WARN, including exceptions for temporary facilities, layoffs arising from “circumstances that were not reasonably foreseeable,” caused by “physical calamity, natural disaster, or act of war,” or where the employer can show that "notice would have blocked incoming capital which might have prevented the layoff.”

H.B. 434 is still in the very early stages of the legislative process. However, because it would expand employer advance notice obligations in several respects beyond WARN’s requirements, it bears watching – and perhaps warrants a call to your State representative. We will continue to keep you updated.

Recently Released DOL Budget Makes Worker Misclassification and State Paid Leave Priorities for the Next Fiscal Year

Michael A. Jackson — Wed, 03 Feb 2010 10:39:59 -0500

On Monday, February 1, 2010, the U.S. Department of Labor (DOL) released its budget for the 2011 fiscal year. In a 95-page summary of the new budget, the DOL elaborated upon its plans for the approximately $14 billion it seeks in discretionary budget authority. According to the summary, the DOL will focus its efforts in 2011 on supporting reform of the Workforce Investment Act, rebuilding Worker Protection Programs, initiating a multi-agency legislative proposal to establish automatic workplace pensions, and boosting funds for unemployment insurance integrity efforts. From our perspective, however, the two most notable aspects of the 2011 budget are its provisions concerning employer misclassification of workers and paid family leave.

The DOL proposes to devote $25 million to a joint Labor-Treasury Misclassification Initiative that will enable the agency to better detect, investigate, and prosecute employers who misclassify their workers, and to offer competitive grants to boost states’ incentives to address the problem. In addition, the DOL proposes to further limit the possibility of employer misclassification by:

requiring employers to demonstrate that their employees are classified correctly,
closing the safe harbor created by Section 530 of the Revenue Act of 1978, and
making misclassification of employees an explicit violation of the FLSA.

As the Labor and Treasury Department coordination suggests, this Initiative has a dual focus of adding to state and federal government revenues by ensuring that businesses pay appropriate payroll taxes on behalf of individuals would be more properly classified as employees and ensuring that those persons who should be classified as employees receive the overtime and benefits to which they would be entitled. As we previously have reported, Ohio Attorney General Richard Cordray announced an initiative approximately one year ago to target independent misclassification. Assuming that the DOL’s budget is approved, employers will need to pay even more attention ensure their intended independent contractor relationships will pass muster. Errors in classification undoubtedly will prove to be very expensive.

Finally, another important provision of the DOL’s budget for this next fiscal year is additional funding to establish more state paid leave funds. Currently, three states (California, Washington, and New Jersey) have state paid leave insurance programs which allow workers, who cannot afford to take unpaid leave under FMLA, to take time off to care for an ill child, spouse, parent, or bond with a newborn while still receiving benefits from the state. The 2011 Budget establishes a $50 million fund within the DOL that provides competitive grants to states that choose to launch such paid-leave programs. These funds will be allocated to assist states with planning and start-up activities related to paid-leave programs.

New York Jets Coach Fined for "Off-Duty" Conduct

Brian Hall — Wed, 03 Feb 2010 09:27:34 -0500

While attending a Mixed Martial Arts event in Miami, New York Jets head coach, Rex Ryan, apparently made an obscene gesture at some Miami Dolphin fans who were taunting him. Yesterday, the Jets fined Ryan $50,000. Ryan was attending the event, which was neither team nor NFL-sponsored, on his own time, but the team obviously felt that as head coach, Ryan is their representative even when he is "off duty" and that he must conduct himself accordingly.

In the real world, most employees are not celebrities that the general public will try to egg on until they do or say something stupid. Nevertheless, it is important for all of us to remember that the world is now filled with opportunists with camera phones and easy access to YouTube and other media outlets. Though we should not be expecting to see a rash of employers firing factory workers for flipping off a bunch of bar patrons after work, there are real world lessons to be learned from this episode. First, employees need to recognize when they are out in public that there is a significant risk that anything that they do or say that either embarrasses or otherwise reflects poorly on their employer ultimately may get back to the employer. On the other hand, employers should exercise restraint before taking disciplinary action against employees for their off duty conduct to make sure that the conduct truly does negatively impact the company's business or reputation.

Death Benefits Denied for an Accidental Death Caused by Overdose of OxyContin

Darin Van Vlerah — Mon, 18 Jan 2010 12:46:35 -0500

Ohio’s Third District Court of Appeals recently held that the family of an injured worker whose accidental death was caused by a lethal concentration of OxyContin is not entitled to death benefits under Ohio Workers’ Compensation Act.

In Parker v. Honda of America Mfg., the decedent suffered a severe back injury in 1988. Mr. Parker underwent several surgical procedures in an unsuccessful attempt to alleviate his back pain. Eventually, Mr. Parker was prescribed and began using OxyContin in 1999 and subsequently became addicted. He sought treatment for his addiction in August 2004 and again in March 2005. In March 2006, he was discovered dead with a syringe in his arm, along with a lighter and spoon and 37 OxyContin pills. Cocaine and OxyContin were found on both the syringe and spoon.

The decedent’s surviving spouse filed a claim for death benefits under the workers’ compensation law. After the request for benefits was denied administratively by the Industrial Commission of Ohio, Ms. Parker filed a complaint in common pleas court asserting that the decedent’s death was the result of an OxyContin overdose which was the direct and proximate result of his work injury. Finding that Mr. Parker’s death was “self-inflicted,” the trial court granted Honda’s summary judgment motion. Ms. Parker then appealed to the Third Appellate District.

Ohio Revised Code § 4123.54 precludes the dependents of an injured worker from receiving benefits as a result of his death if the death was “purposely self-inflicted” or where the death was caused by the injured worker being intoxicated or under the influence of a controlled substance not prescribed by a physician. The Supreme Court of Ohio, however, has carved out an exception to §4123.54 in cases where an allowed work-related injury causes the employee to become “dominated by a disturbance of the mind of such severity as to override normal rational judgment;” and the disturbance results in the employee’s suicide.

In Parker, the plaintiff presented expert testimony that Mr. Parker’s OxyContin addiction had caused him to become dominated by a disturbance of the mind as to override normal rational judgment, but the Third Appellate District was unwilling to expand Borbely to include accidental deaths caused by drug abuse. The plaintiff also relied on the Second Appellate District decision in Osborne v. Ohio Bureau of Workers’ Compensation in which that court upheld a benefits award to the dependents of an injured worker who had accidentally taken a fatal dose of prescription medication for his industrial injury, resulting in an accidental death. The Parker court, however, distinguished that case on the ground that Mr. Parker intentionally used the OxyContin in a manner other than as prescribed (in fact by mixing it with cocaine and injecting it in his veins) which then resulted in an accidental death.

Sadly, in light of the seemingly increased incidences of injured workers misusing pain and other medication prescribed for their industrial injuries, the facts depicted in the Parker case are not isolated. To date, the courts in both intentional and accidental drug overdose cases have appropriately evaluated the evidence by looking at the causal connection between the industrial accident and the overdose. In the suicide line of cases, the courts in essence have looked to whether the allowed conditions in the workers’ compensation claim caused a mental disturbance of such severity that it overrode normal rational judgment and that then prompted the employee to commit suicide. Likewise, the accidental overdose line of cases, typified by Osborne, have focused on the cause of the accidental overdose. Therefore, it seems that the Parker court has drawn the correct, albeit narrow, line for plaintiffs to walk in these types of cases. Simply put, by intentionally misusing the prescribed Oxycontin, the decedent in Parker broke the causal connection between his industrial injury and his death and benefits were appropriately denied.

Explosion of FLSA Litigation Should Prompt Employers to Review Their Practices

Rob Stalter — Thu, 14 Jan 2010 14:15:31 -0500

Recent reports have indicated that the number of FLSA collective actions rose sharply in 2009. Many believe this trend will continue in 2010 as employees gain increased awareness of their rights under wage and hour laws and the plaintiffs' bar recognizes the potential value of FLSA collective actions.

Indeed, there has been a recent flurry of activity across the country in the area of wage and hour class actions. Assistant managers at Foot Locker Retail Inc. filed a nationwide collective action in the Southern District of California, alleging that the company misclassified them as exempt and failed to pay them overtime wages. Similarly, Vermont state employees have brought a putative class action under the FLSA, claiming that the state has failed to pay overtime to employees in higher pay grades.

A federal judge in Florida has denied conditional class certification in a putative class action brought against H&R Block by its tax agents because the lead plaintiffs could not show that the company's failure to pay overtime was a companywide practice. In Missouri, however, a group of AT&T call center workers won conditional certification in their collective action, in which they seek overtime compensation for the amount of time it takes them to log onto their systems prior to shifts.

Recent settlements have also been reached. A judge in the Middle District of Florida signed off on a settlement between Cemex Inc. and a group of former truck drivers who had accused the company of withholding overtime wages. Finally, the plaintiffs in an FLSA case against First Residential Mortgage Network Inc. settled their claims following the decertification by the court of a class of loan advisors.

Given the increase in FLSA collective action activity, it is important that all employers be mindful of their classifications of employees and pay practices. These cases can be very expensive for employers to defend and sometimes even more expensive to settle.

If employers have any questions about whether they have properly classified their employees as being exempt, they would be wise to spend a little money up front to conduct a self-audit. Among the steps employers can take are (a) confirming that job descriptions truly describe exempt executive, administrative, professional, computer professional or outside sales positions; (b) confirm that employees are actually doing what their job descriptions say they are supposed to do; and (c) ensure that exempt employees are being paid at least the minimum qualifying salary. In addition, to avoid other potential wage and hour litigation, employers should confirm that non-exempt employees are recording all hours worked, that minors are not forced to work outside state law requirements, and that individuals that are treated as independent contractors are not really employees.

Department of Labor Announces that Sample Notices for Extended COBRA Subsidy Will Be Forthcoming

Jamie LaPlante — Thu, 14 Jan 2010 13:16:59 -0500

As you will recall from my earlier post, Congress and the President extended the COBRA subsidy, originally a part of the American Recovery and Reinvestment Act of 2009 (ARRA) (the stimulus bill), to individuals involuntary terminated through February 28, 2010 (from December 31, 2009) and the length of the subsidy to 15 months (from 9 months).

This COBRA subsidy extension will require new notices be sent to individuals involuntarily terminated (and otherwise qualifying under ARRA as an “assistance eligible individual” (AEI)). These model notices were released yesterday, and, in many cases, AEIs must be notified by February 17, 2010. The Department of Labor revised its General Notice to reflect the COBRA subsidy extension. This notice is to be used for all AEIs who have not already received a general COBRA notice. The Department of Labor also issued a model Premium Assistance Extension Notice to be provided to:

Individuals qualifying as AEIs as of October 31, 2009 and individuals who experienced a termination of employment on or after October 31, 2009 and lost health insurance coverage (unless they were already provided a timely, updated General Notice). This notice must be provided by February 17, 2010.
a) Individuals whose original 9 months of COBRA subsidy ended prior to December 19, 2009 and who are still eligible for some portion of the extended 15 months of COBRA subsidy and (b) individuals whose 9 months of COBRA subsidy ends or ended after December 19, 2009. These individuals must be notified within 60 days of the termination of the 9 month COBRA subsidy period or, for individuals whose COBRA subsidy ended prior to December 19, 2009, prior to February 17, 2010.

Both model notices are available at: http://www.dol.gov/ebsa/COBRAmodelnotice.html. In addition, the Department of Labor has updated its fact sheets, posters, and frequently asked questions available at: www.dol.gov/COBRA.

EEOC Report On Charge Statistics Provides Lessons For Employers

Brian Hall — Thu, 07 Jan 2010 09:46:21 -0500

Yesterday, the EEOC released its charge statistics report for its 2009 fiscal year, which ended on September 30, 2009. Not surprisingly, during an economically difficult period, the statistics show a near record number of charges filed -- 93,277 -- which is second only to the 2008 fiscal year when 95,402 charges were filed.

As usual, sex and race discrimination charges led the pack, but they also showed a slight decline from the previous fiscal year. Somewhat surprisingly, during a period that saw extensive reductions-in-force, age discrimination charges were significantly down. On the other hand, disability discrimination and retaliation charges showed the sharpest increase, both numerically and statistically.

The increase in disability discrimination charges likely can be tied directly to the enactment of the Americans with Disabilities Act Amendments Act (ADAAA) which makes it significantly easier for applicants and employees to establish that they have a protected disability. Employers can reduce the likelihood of being targeted for a disability discrimination charge by recognizing this new reality and engaging in good faith in the interactive process to determine whether a reasonable accommodation exists for applicants or employees with alleged disabilities. Frequently, the give and take of the interactive process if conducted in good faith will either result in finding an accommodation that both sides can live with or demonstrating to the applicant or employee's satisfaction that no reasonable accommodations actually exist. Remember, the ADA, even as amended by the ADAAA, still does not require the employer to provide applicants or employees with the accommodation they want -- only a reasonable one.

With respect to retaliation charges, as we have preached in previous posts both here and here, employers must be careful to treat employees who have filed discrimination charges or lawsuits as they would treat any other employee -- no better, no worse. In fact, the U.S. Supreme Court's decision in Crawford v. Metro. Gov’t of Nashville and Davidson County early in the 2009 term held that the retaliation protection provided by Title VII extend to employees who speak out about discrimination during the employer’s investigation into another employee’s internal complaint of discrimination. The Crawford decision, therefore, underscores employers' need to protect themselves from potential retaliation cases in this context as well by following up on any employees who claim "me too" in the course of internal discrimination investigations.

Missed Our Recent Wage-and-Hour Webinar? Listen To The Recording

Erin Hawk — Thu, 07 Jan 2010 09:31:43 -0500

Wage and Hour Audits 101:
Preparing for Audits and Preventing Them in the First Place

Presented on Thursday, December 3, 2009
Our December wage and hour webinar focused on how you should prepare for a wage and hour audit and, perhaps more importantly, how to prevent an audit in the first place.

If you missed this session, you can listen to the recorded webinar here.

Congress Extends COBRA Premium Subsidy

Jamie LaPlante — Wed, 23 Dec 2009 15:32:41 -0500

The much-publicized COBRA subsidy contained in the American Recovery and Reinvestment Act (ARRA), commonly known as the “stimulus bill,” has been extended and expanded by Congress through House Resolution 3326. Under ARRA, individuals who were involuntarily terminated and became eligible for COBRA benefits between September 1, 2008 and December 31, 2009 were eligible for 9 months of subsidized COBRA premiums. The government, through a payroll tax rebate to employers, paid 65% of an eligible employee’s COBRA premiums for 9 months. This meant that employees could pay just 35% of what they would ordinarily pay for COBRA benefits. (Please see our earlier blog posting relating to the original passage of ARRA.)

HR 3326 expands the eligibility period to include individuals involuntarily terminated before February 28, 2010. In addition, it extends the length of the subsidy period to 15 months (from 9 months).

Individuals who were on COBRA coverage for the 9-month subsidy, may re-enroll in COBRA and receive benefits without any gap in coverage for the newly extended 15 months, less the 9 months they already received. The amendment gives employees a period of 60 days to re-enroll or, if later, 30 days after they receive notice of the extended subsidy. Employers are required to notify employees of the 15-month extended COBRA subsidy who were on COBRA on or after October 31, 2009 or who have a qualifying event on or after October 31, 2009. It is unclear how long of a COBRA coverage lapse can exist before an individual is no longer eligible to make up the premiums and re-enroll. We will be watching for further guidance form the DOL on this point and reporting further on the blog. Any employees who paid full COBRA premiums after expiration of their 9-month subsidy period who are now eligible for the new 15-month premium subsidy, will be given a refund of 65% of their premiums for any periods now covered by the extended subsidy.

In addition, this amendment to ARRA conditions the eligibility for the subsidy on only the involuntary termination date. Thus, if the COBRA start date is deferred until after February 28, 2010 but the involuntary termination date was pre-February 28, the employee will still be eligible for the subsidy. All of the remaining rules for the COBRA subsidy set forth by the Department of Labor presumably remain in effect for this extension and expansion.

We will update you as more details become available on this COBRA subsidy extension from the Department of Labor. In the meantime, here are some action items to be thinking about:

Identify all individuals who were on COBRA coverage on or after October 31, 2009 or had a COBRA qualifying event on or after October 31, 2009 and would be eligible for notice of the 15-month subsidy.
Identify any individuals who allowed COBRA coverage to lapse after the termination of the 9-month COBRA subsidy.
Identify any individuals who paid their full COBRA premiums because of the expiration of the subsidy and will now be eligible for a refund or credit on future premiums.
Watch for new sample notices from the Department of Labor reflecting these changes. We will post a link to these notices when they are available.
Informally notify employees who are involuntarily terminated between now and when the COBRA notices are distributed about the existence of the extended COBRA subsidy to avoid confusion in the interim.

H-1B Cap Reached

Kyle Knapp — Tue, 22 Dec 2009 14:46:04 -0500

U.S. Citizenship and Immigration Services (CIS) announced today that the H-1B cap was reached on December 21, 2009. CIS will conduct a random lottery among the petitions it received on December 21 to allocate the remaining visa numbers. The cap does not apply to H-1B employees changing employers or to individuals who will work at an institution of higher education or related nonprofit entity, a nonprofit research organization or a governmental research organization. Cap-subject employers now must wait until April 1, 2010 to file petitions for the next fiscal year (October 1, 2010 – September 30, 2011).

U.S. Supreme Court to Weigh In On Workplace Electronic Monitoring

Brian Hall — Mon, 21 Dec 2009 13:29:14 -0500

On Monday, December 14, 2009, the United States Supreme Court agreed to hear a case that will permit it to provide guidance to employers about their right to monitor its employees' electronic communications. Specifically, the Court has accepted for review the City of Ontario's appeal of the Ninth Circuit's decision in Quon v. Arch Wireless Operating Co. finding that a city police officer had a reasonable expectation of privacy in personal text messages that were sent from his city-issued pager.

Like most employers, the City of Ontario had a written electronics communications policy that expressly prohibited personal use of its computers and notified employees that they had no expectation of privacy with respect to any communications using the city's computer systems. The City's policy, however, did not make clear that this policy applied to its police officers' pagers or to text messaging. Instead, because the city's pager service contract with Arch Wireless charged the city additionally for each pager that exceeded 25,000 characters per month, the city informally permitted employees who exceed their monthly character limit to simply pay the overage charge. Despite this informal practice, the city contacted Arch Wireless to determine whether the pagers were being used primarily for personal reasons and Arch Wireless provided transcripts to enable the city to do so. After receiving these transcripts, the city learned that many of Sergeant Quon's texts were personal and even sexually explicit in nature. Upon learning that their texts had been reviewed, Sergeant Quon and others sued the city and the police department under the Fourth Amendment for an illegal search and seizure and the Stored Communications Act "SCA" and Arch Wireless for violating the SCA by turning the transcripts over to the city.

It is somewhat surprising that the Supreme Court accepted this case for further decision. Many initially were concerned when the Ninth Circuit's Quon decision was announced because it seemed contrary to the general trend permitting employers to monitor and review employee's emails on employer computers once they put employees on such notice. To me, Quon does not present a radical departure at all. First, the City's electronics communications policy did not explicitly address text messages. Then, the City complicated matters by permitting an informal practice to develop that strongly suggested to employees that their text messages would not be reviewed so long as they paid the overage charges from Arch Wireless. Simply put, by not updating its electronics communications policy and by permitting informal practices to develop, the City created a problem for itself that did not need to exist. As a result, the Supreme Court easily can decide Quon based on current judicial philosophy without breaking new ground.

Facebook Announces New Privacy Controls

Brian Hall — Wed, 09 Dec 2009 14:37:52 -0500

Facebook has announced that it is implementing new privacy controls beginning today that will give its more than 350 million users more control over the privacy of what they post to their Facebook pages. As reported, Facebook will now give its users the ability to set up lists that, for instance, can place their "friends" into separate groups such as family, high school buddies, and work friends and to choose who to share content with each time they post something. As a result, people easily should be able to choose to share family photos with only family and close friends and other less wholesome postings with whomever they choose. Of course, Facebook also will give users the option of choosing to share a post with "Everyone."

From an employment standpoint, these privacy control changes could make it more difficult for those employers who like to use Facebook as a surveillance tool. For instance, the employee who requested bereavement leave while he actually was on a hunting trip should be able to choose to post comments or photos without sharing them with the boss or co-workers who happen to be Facebook "friends." On the other hand, someone who posts a comment that is disparaging of or detrimental to his employer will have a hard time arguing that the comment was not intended to be widely distributed if he chose to share it with "Everyone" when he posted it.

As with all things social media, only time will tell what impact these changes will have on what we post and what is available for us to see on Facebook.

Time is running out to file H-1B petitions for current fiscal year

Kyle Knapp — Thu, 03 Dec 2009 10:06:25 -0500

At a December 1, 2009 seminar in New York, representatives of U.S. Citizenship and Immigration Services (USCIS) provided an update on the H-1B cap numbers for the October 2009 – September 2010 fiscal year (please see my earlier post for more on this topic -- The H-1B "Cap" - 2010 Fiscal Year Is The Canary In The Mine) .

While a recent report indicated that 58,900 petitions had been filed against the 65,000 cap, USCIS explained that the low number of filings for nationals of Chile and Singapore (who benefit from a set aside of 6,800 visas) means that there still are visas available. USCIS also confirmed that there were approximately 2,000 petitions filed in late November. This makes it difficult to predict how much longer visas will be able for the current fiscal year. Once the cap has been reached, employers will need to wait until April 1, 2010 to file a petitions requesting an October 1, 2010 effective date. Given this recent announcement, employers that still want to file H-1B petitions for the current fiscal year likely will need to do so soon. Experience has shown that there is a rush of petitions as the filings approach the 65,000 cap. The USCIS announcement concerning recent filings suggests that this rush already has begun.

H-1B Site Visits to Increase

Kyle Knapp — Tue, 01 Dec 2009 13:43:08 -0500

In response to Senator Charles Grassley's September 29, 2009 inquiry into the H-1B visa program and fraud detection efforts, Mr. Alejandro Mayorkas, Director of Citizenship and Immigration Services, indicated that the H-1B fraud detection site visits would increase five-fold. For the most recent federal fiscal year, October 1, 2008 – September 30, 2009, there were approximately 5,000 site visits. The goal for fiscal year 2009 – 2010 is to complete 25,000 such visits. Therefore, as outlined in the previous posting on this topic, employers can continue to expect site visits as part of the H-1B petition process.

Porter Wright Recognized Among 30 Elite Law Firms Nationally For Superior Client Service in BTI Survey

Erin Hawk — Wed, 25 Nov 2009 14:14:18 -0500

Porter Wright is deeply honored to be ranked among the 30 elite firms in the country when it comes to client service. In a national survey of in-house counsel at Fortune 1000 companies conducted by The BTI Consulting Group (BTI), Porter Wright ranked 22 out of 505 core firms named by in-house counsel.

Porter Wright was honored as a “Leader of the Best” when it comes to advising clients on business issues. According to the report, “Porter Wright differentiates itself with clients by translating legalese into business speak — a key method to prove your commitment to help clients.” The report also cites specific comments from corporate counsel about Porter Wright’s commitment to client service, specifically, “They know our business and us. They have skilled people in a number of areas critical to our business.”

Based out of Boston, BTI is the leading provider of strategic market research to law firms and professional services firms. BTI’s analysis draws on candid feedback from 240 corporate counsel at Fortune 1000 companies to determine which law firms among 505 core firms nationally top the charts in client service. Corporate counsel ranked Porter Wright among the best in the country in 14 areas:

Anticipates the Client’s Needs
Breadth of Services
Brings Together National Resources
Commitment to Help
Deals with Unexpected Changes
Helps Advise on Business Issues
International Capability
Keeps Clients Informed
Legal Skills
Meets Scope and Budget
Provides Value for the Dollar
Quality Products
Understands the Client’s Business
Unprompted Communication

For more information about this survey, visit www.bticlientservicesateam.com.

Facebook Photos Prompt Termination of Long Term Disability Benefits

Brian Hall — Mon, 23 Nov 2009 11:32:34 -0500

CBC News in Canada is reporting that a Canadian long-term disability insurance carrier recently terminated the long-term disability benefits a Quebec woman was receiving for "major depression" after photos she posted on her Facebook page showed her "having a good time at a Chippendales bar show, at her birthday party and on a sun holiday." According to the CBC, the woman, 29-year-old Nathalie Blanchard, contends that her doctor recommended that she try "to have fun, including nights out at her local bar with friends and short getaways to sun destinations, as a way to forget her problems." Nevertheless, Manulife, the insurance carrier, which acknowledges that it uses Facebook for investigation purposes, terminated her long-term disability benefits.

Though anecdotal news flashes like this one may embolden employers to use Facebook and other social media to investigate employee activity while they are on a medical leave of absence or workers' compensation leave, caution is still necessary. For instance, Manulife confirmed that ít "would not deny or terminate a valid claim solely based on information published on websites such as Facebook." Presumably, Manulife forwarded Ms. Blanchard's Facebook photos and perhaps other evidence to a medical professional for an opinion as to whether the photos evidenced Ms. Blanchard's ability to return to work. Similarly, employers should resist the urge to make their own medical judgments as to an employee's ability to work when they obtain this kind of photographic or video evidence.

In addition, Ms. Blanchard apparently contends that she kept her Facebook photos private and does not understand how the insurance carrier obtained them. As I have preached before on this blog, employers should not circumvent an employee's Facebook privacy settings in order to investigate alleged misconduct. In this instance, a co-worker or other Facebook "friend" of Ms. Blanchard likely dropped the dime on her. When faced with this kind of evidence, employers and their insurance carriers would be wise to consider the motivations of the person providing the evidence and to conduct its own investigation. If employers avoid the temptation to immediately jump to conclusions, they will find that Facebook can be their "friend" when conducting investigations of workers' compensation or medical leave fraud.

U.S. Customs and Border Protection Issues Proposed Regulation To Make Permanent The Voluntary Global Entry Pilot Program

Kyle Knapp — Fri, 20 Nov 2009 14:08:22 -0500

Since June 6, 2008 certain low-risk U.S. citizen, U.S. national and U.S. permanent resident travelers have been able to enroll in the Global Entry program to allow for expedited clearance upon arrival at U.S. airports from travel abroad. Rather than wait in the traditional passport control line, program participants proceed to a kiosk to scan their travel documents, provide electronic fingerprints and a photograph and receive a receipt to present to a Customs and Border Protection Agent. The program requires an online application (available at www.globalentry.gov), criminal background check, and an in-person interview at a Customs and Border Protection facility. The application fee is $100, and the average processing time for approval is one week.

The pilot program began with three airports and since has expanded to include the following 20 international airports: Atlanta (Hartsfield-Jackson), Boston-Logan, Chicago O'Hare, Dallas/Ft. Worth, Detroit, Ft. Lauderdale Hollywood, Honolulu, Houston (George Bush), Las Vegas, Los Angeles International, Miami International, Newark Liberty, New York (JFK), Orlando International, Orlando-Sanford International, Philadelphia International, San Francisco, San Juan, Seattle-Tacoma and Washington Dulles.

The proposed permanent program would be available to U.S. citizens, U.S. nationals and U.S. permanent residents aged 14 and older. Children aged 14-17 would require the consent of a parent or legal guardian to participate. The proposed program also contemplates expansion to certain nonimmigrants (e.g. individuals traveling with a visa, such as B, E, H or L) provided certain reciprocal programs are in place with the individual's country. Risk factors that would disqualify applicants from participating include false or incomplete applications, prior arrests or convictions, prior violations of customs, immigration or agriculture regulations in any country, current criminal investigations or inclusion on a government watch list. Program participants still would be subject to primary inspection by CBP agents based upon random selection or declaration of certain goods, restricted items or more than $10,000 in currency or monetary instruments.

Interested parties may view the entire regulation and provide comments by searching for "Global Entry Program" at www.regulations.gov. The regulation was published on November 18, 2009. Comments are due by January 19, 2010.

GINA Interim Final Regulations: Highlights and the Potential Impact on Group Health Plans

Brian Hall — Thu, 19 Nov 2009 10:49:06 -0500

On October 7, 2009, the DOL, IRS, and HHS issued interim final regulations implementing Sections 101 to 103 of the Genetic Information Nondiscrimination Act of 2008 (GINA). For group health plans, these regulations become effective on the first day of the plan year beginning on or after December 7, 2009. For the individual market, the regulations are effective December 7, 2009. The new regulations broaden GINA’s general prohibition on requesting or requiring an individual or their family member to undergo genetic testing. Of note is the new rule that health plans may not provide incentives to induce participants to fill out health risk assessments that ask for family medical history. Under the regulations’ expanded definition of "underwriting purposes", providing an incentive under these circumstances violates GINA’s prohibition against requesting genetic information for underwriting purposes. The regulations also clarify that sponsors and administrator may obtain and use the results of genetic tests to aid in payment determinations so long as they only request the minimum amount of information necessary to make the determination. In nearly all other cases, sponsors and administrators may not request or require that an individual or their family member undergo genetic testing.

To ensure compliance with these new regulations, sponsors and administrators must familiarize themselves with the new regulations and update their policies and procedures. They must also examine their health risk assessments and wellness programs to ensure they do not violate the new rules. A copy of Porter Wright's Employee Benefits Practice Group's Law Alert, which addresses some of the major changes included in the regulations, can be found here.

In addition, keep in mind that Title II of GINA, which prohibits employers from discriminating on the basis of genetic information goes into effect on November 21, 2009. Generally, Title II prohibits employers from discharging, refusing to hire, or otherwise taking adverse employment action against applicants or employees based on their genetic information. It also prohibits employers from intentionally acquiring or disclosing genetic information about applicants and employees. Finally, Title II requires employers to maintain any genetic information in its possession separate from employee personnel files in accordance with the medical confidentiality provisions of the ADA.

EEOC Revises "EEO Is The Law" Poster

Brian Hall — Wed, 11 Nov 2009 08:40:41 -0500

The EEOC has revised its "Equal Employment Opportunity is the Law" poster. This new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008). The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which becomes effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

Follow this link to obtain the new poster.

Expansion of FMLA Entitlement for Military Families

Marc Fleischauer — Thu, 05 Nov 2009 11:40:22 -0500

The Family and Medical Leave Act has undergone yet another expansion. On October 27, 2009, President Obama signed H.R. 2647, known as the "Fiscal Year 2010 National Defense Authorization Act.” This new law comes on the heels of new FMLA rights that were just drafted at the end of 2008 for employees with family members serving in the military.

As we described at the time in 2008 Final Regulations for the FMLA: A Summary, the FMLA military leave provision effective at the beginning of 2009 originally extended the following protections:

(a) up to 12 weeks of leave for families of National Guard and Reserve personnel on active duty in order to manage activities associated with such service, known as “qualifying exigencies,” and

(b) up to 26 weeks of leave for employees needed to care for family members in the military with a “serious injury or illness” that was incurred in the line of duty.

The new law expands both of these protections:

(a) The 12-week “qualifying exigency” leave now applies to employees whose spouses, children or parents are on “regular” active military duty (i.e., not just National Guard and Reserve personnel) and are deployed to a foreign country. The prior language of the statute was ambiguous as to protection for families of regular military personnel.

(b) Likewise, the 26-week “caregiver” leave now expressly extends to employees whose family members or next of kin have been discharged from the military (i.e., veterans) within five years before the need for treatment of a serious injury or illness. “Serious injury and illness” is now defined by the statute to include instances where a preexisting impairment merely has been aggravated by military service.

These expansions of the FMLA went into effect upon signing. It seems likely that the U.S. Department of Labor will promulgate yet another set of recommended forms to cover these new circumstances in the near future. We will continue to monitor the issue and keep readers informed.