Jackson Walker Labor and Employment e-Alerts

Discovery of Facebook Allowed in Sexual Harassment Case

12:00 AM

A recent discovery order in the case of EEOC v. Simply Storage Management in the U.S. District Court for the Southern District of Indiana discussed how much information from social network sites is discoverable to an employer defending a sexual harassment claim.

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Obama Calls on Senate to Pass the Paycheck Fairness Act

12:00 AM

On July 20, 2010, President Obama called on the Senate to pass the Paycheck Fairness Act (H.R. 12, S. 182). In his renewed push for passage of this legislation -- which followed the Senate's refusal in 2009 to accept similar provisions in the House version of the Lilly Ledbetter Fair Pay Act -- President Obama characterized the Paycheck Fairness Act as "a common sense bill that will help ensure that men and women who do equal work receive equal pay." Passage of the PFA in its present form would result in sweeping changes to the Equal Pay Act ("EPA").

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Department of Labor Clarifies Meaning of "Son or Daughter" under FMLA

12:00 AM

On June, 22, 2010, the U.S. Department of Labor issued an opinion letter clarifying the meaning of "son or daughter" under the Family and Medical Leave Act as to employees who are not legally or biologically related to the child.

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Supreme Court Strengthens Use of Employee Arbitration Agreements

12:00 AM

Yesterday, in Rent-A-Center, West, Inc. v. Jackson, the U.S. Supreme Court held that where an arbitration agreement includes a provision that the arbitrator is to determine the enforceability of the agreement, any challenge to the enforceability of the agreement as a whole is for the arbitrator, not the courts.

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U.S. Supreme Court Rules Public Employee's Text Messages Not Private

12:00 AM

The U.S. Supreme Court held that a public employer did not violate an employee's constitutional privacy rights by searching his personal (and often sexually explicit) text messages that were sent and received on his employer-issued pager.

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New Limits on Common Law Claims In The Workplace

12:00 AM

The Texas Supreme Court announced on June 11, 2010, in a decision styled Waffle House, Inc. v. Williams, new limits on common law claims that can be prosecuted by Texas employees against their employers. In this case, a Waffle House employee claimed that because a supervisor allegedly engaged in offensive conduct towards the employee with the company's knowledge, Waffle House should be found liable both for sexual harassment in violation of the Texas statute prohibiting employment discrimination, and for negligence in violation of Texas common law.

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Pitfalls in Administering Overtime Pay: Substance Triumphs Over Form

12:00 AM

The Fair Labor Standards Act (FLSA) requires employers to pay overtime, at the rate of one and one-half times the regular rate of pay, to all employees who are "covered," that is, "not exempt," for working more than forty (40) hours in a calendar week. Recently, the federal appeals court for Texas had the occasion to consider what actually constitutes the "regular rate of pay" when calculating overtime pay, and decided that substance triumphs over form.

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Texas Supreme Court Wades Again into Murky Waters of Covenants Not to Compete

12:00 AM

On April 9, 2010, the Texas Supreme Court announced that it had granted review in Marsh USA Inc. v. Cook, 287 S.W.3d 378, 381-82 (Tex. App.- Dallas 2009). On the surface, the case presents the question of whether a covenant not to compete contained in a stock option grant is enforceable. But the outcome of the case will have far greater implications for Texas employers.

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New Jersey Supreme Court Rules Company Violated Employee's Privacy by Reading Emails Between Employee and Attorney

11:00 PM

A New Jersey employee who sent messages to her attorney from her personal, password protected Yahoo! email account, using a company issued laptop, had a reasonable expectation of privacy in those emails, according to the New Jersey Supreme Court in the Stengart v. Loving Care Agency case.

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Is it Time to Create a Social Media Policy? Employee Online Postings May Create Liability for Unwary Employers

11:00 PM

The Federal Trade Commission ("FTC") recently issued a new set of revised guides ("Guides") relating to endorsements and testimonials that may impose liability on businesses for statements employees post on personal blogs and social networking sites, such as MySpace, Facebook, LinkedIn and Twitter. What's more - there is potential for liability even when the employer has no knowledge of its employee's statements.

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Restated Prototype Plan Deadline April 30, 2010

11:00 PM

Employers with pre-approved defined contribution Master & Prototype plans or Volume Submitter plans (collectively, "prototype plans") must adopt an EGTRRA-approved plan document by April 30, 2010. Adverse tax consequences to the employer's plan and its participants could result if this deadline is not met.

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Department of Labor Releases Model Employer CHIP Notice

12:00 AM

The Department of Labor has promulgated a model Employer CHIP Notice (Model Notice) that satisfies the new employer notice requirement under the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA). CHIPRA added new notice and disclosure obligations for employers that maintain group health plans in states that provide Medicaid or state children's health insurance program (CHIP) assistance in the form of premium assistance subsidies. CHIPRA also permits eligible employees and their dependents additional opportunities to enroll in an employer's group health plan.

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New Notice Requirements under COBRA Subsidy Extension

12:00 AM

On December 21, 2009, the ARRA COBRA premium subsidy (the premium subsidy) was extended and expanded. The premium subsidy period was extended from the original nine months to fifteen months. However, the premium subsidy will not be provided beyond the end of an individual's maximum 18-month period of COBRA continuation coverage.

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Countdown to Compliance: Covered Entities and Business Associates Have Little Time Left to Comply With Certain New HIPAA Requirements

12:00 AM

Last February, Congress included in the American Recovery and Reinvestment Act of 2009 (ARRA) provisions that revise and increase the scope of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Specifically, Title XIII of the ARRA, known as the "HITECH Act," included both new and heightened HIPAA privacy and security requirements.

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Public Companies Must Review Certain Compensation Arrangements By Year End; Changes May Be Necessary

12:00 AM

Code Section 162(m) generally imposes a $1 million per year limit on the deduction a public company can take for compensation paid to certain executive officers. However, compensation is exempt from the $1 million limit to the extent it constitutes "qualified performance-based compensation" under Code Section 162(m).

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The Final Increase in Minimum Wage (For Now)

12:00 AM

In early 2007, Congress passed the Fair Minimum Wage Act of 2007, which raised the federal minimum wage incrementally over three years, from $5.15 per hour to $7.25 per hour. The final increase will become effective on July 24, 2009, when the federal minimum wage will be raised to $7.25 per hour.

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Beware of Good Deeds: Employer "Recommendations" on Social Networking Websites

12:00 AM

Although an employer may want to publically praise an employee, that well-intentioned act may be damaging if the employee later thinks there are reasons to sue their employer for some alleged act of discrimination.

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Worksite Enforcement Update - ICE Launches Initiative to Audit Hiring Records - DOL to Increase Wage and Hour Enforcement

12:00 AM

Companies in the Cross-Hairs. The most extensive round of U.S. Immigration and Customs Enforcement (ICE) audits/raids yet is set to begin against employers whose employee records are believed not to comply with U.S immigration and labor laws.

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Important Age Discrimination Ruling by U.S. Supreme Court

12:00 AM

Yesterday on June 18, the United States Supreme Court issued its decision in Gross v. FBL Financial Services, Inc., making it easier for employers to defend claims of age discrimination in court. The Court ruled that the proper standard by which to evaluate a discrimination claim under the Age Discrimination in Employment Act (ADEA) is whether "but for" the employee's age, the employer would have acted differently towards the employee.

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What To Do About Flu: Key Legal Issues for Health Care Providers

12:00 AM

The American Health Lawyers Association (AHLA) has published on its website a checklist of key legal issues for health care providers dealing with pandemic flu outbreaks, such as the current Influenza A (H1N1) "Swine Flu Epidemic."

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Department of Labor Issues Model Notices for COBRA Changes

11:00 PM

As discussed in a previous Jackson Walker e-Alert, the American Recovery and Reinvestment Act of 2009 (the ARRA), commonly referred to as the economic stimulus package, includes several important provisions that affect COBRA continuation coverage and places new requirements on employers.

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More Information on Changes to COBRA Health Plan Benefits

12:00 AM

Recently, Jackson Walker sent an e-Alert about upcoming changes to COBRA health plan benefits as a result of the American Recovery and Reinvestment Act of 2009, commonly known as the economic stimulus package, which was signed into law last week. As a supplement to that e-Alert, included below are links to several informative materials from the U.S. Department of Labor's Employee Benefits Security Administration (EBSA).

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Economic Stimulus Package Includes Big Changes to COBRA Health Plan Benefits

12:00 AM

The American Recovery and Reinvestment Act of 2009 (the Act), more commonly referred to as the economic stimulus package, signed by President Obama on Tuesday, February 17, 2009, includes several important provisions that affect COBRA continuation coverage and places new requirements on employers. Most notably, certain COBRA beneficiaries may be eligible for a 65% discount on their COBRA premiums for a limited period of time.

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Gender-Based Disparate Pay Claims Redo: How Congress is Rewriting Gender Discrimination Laws

12:00 AM

On January 9, 2009, the House combined the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act and passed the combined legislation. Most observers expect the legislation to pass the Senate later this month.

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