2010 Hot Topics in Labor & Employment Law

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Patient Protection and Affordable Care Act of 2010—Dependent Coverage Through Age 27—Issues & Guidance
New Jersey’s Medical Marijuana Law—An Overview for Employers
No Good Deed Goes Unpunished—Hidden Liability for Volunteers, Interns and Trainees
Updates on Employee Privacy, Military Family Leave, and Workplace Discrimination Issues
Age Discrimination—Changes on the Horizon

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  • 13% increase in applications for GRE 20% increase in applications for LSAT
  • The Courts have not decided yet what criteria will determine whether interns must be paid under the FLSA. However, the Department of labor has issued opinion letters that have opined on the topic
  • Note – “suffer or permit” means that even if the employee was not asked to do the work, and is in essence “volunteering” his time, such time must be compensated or else the employer is violating the FLSA. This is a topic that was covered at our previous seminar and we would be happy to answer any questions relating to this area of the law privately after the seminar is over
  • Give story of Walling v. Portland Terminal – 1947 – Over 60 years ago – Reprinted in DOL Fact Sheet #71 Give story of DOL opinion Letters
  • This is flexible. Discuss 1994 DOL scenario
  • Discuss College Credits here – do not count as payment alone but may satisfy this element. The experience alone can also satisfy
  • The DOL has found that when interns were permitted to work no more than 10 hours per week, this requirement was met. However, watch job postings that say “expected to assume the role of regular staff members”
  • This is by far and away the most difficult – menial tasks around the office are ok. Supervision is helpful because it fulfills the “impediment” requirement.
  • Key word – entitled. The implicit understanding in many of these scenarios is that you are looking for talented people and this person is interested in your field.
  • Discuss stipend. Discuss non-waiver. Discuss minimum wage ($7.25 as of July 1, 2009)
  • Consider discussing the Portal-to-Portal Act – 1947 Amendment to the 1938 FLSA – designed to clarify the law with respect to travel and other activities before and after the work day.
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  • This is important as it is the first of the USDOL’s new AI and while it addresses loan officers, it has broader implications for the administrative exemption and sales people specifically.
  • 1. The employee must be compensated on a salary or fee basis as defined in the regulations at a rate not less than $455 per week; 2. The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and 3. The employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.  29 C.F.R. § 541.200. Exemptions from overtime requirements under the FLSA “are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.”  
  • According to the DOL, mortgage loan officers in general 1. are primarily paid by commissions; 2. often receive training in sales techniques; 3. generally are evaluated by the number of loans generated; and 4. are often characterized by their employers as outside salespersons when trying to qualify them for the outside sales exemption (an argument that does not prevail unless the loan officers are out of the office selling most of the time).
  • Work directly related to management or general business operations of an employer includes work in functional areas such as accounting, budgeting, quality control, purchasing, advertising, research, human resources, labor relations, and similar areas.  29 C.F.R. § 541.201(b).  General definition: “ the principal, main, major or most important duty that the employee performs.”  29 C.F.R. § 541.700(a). 
  • Employers having “sales” employees can expect the interpretation to make it harder to argue successfully that employees with “sales” responsibility qualify for the administrative exemption. This interpretation affects only federal law.
  • In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis. ( Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680 (1946)). It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.
  • NJDOL takes the position that advancements in technology make it possible to track and pay for actual time worked to the minute. The NJDOL acknowledges, however, that “no law or regulation exists that specifies how the time records must be kept or that prevents an employer from making adjustments if the employer believes that the time records do not reflect the actual time worked by the employee.”
  • In order to make this change, the Department must undergo full notice and comment rule-making, including the publication of a notice of proposal in the New Jersey Register, the solicitation of comments from the public, and the holding of a public hearing. In the meantime, the Department may still take the enforcement position that rounding practices must be evaluated on a week-to-week basis. We will continue to monitor developments. Non compliance can put an employer at risk of being audited, and liable for back pay and penalties. Several challenges bought against NJDOL for failing to comply with the Administrative Procedures Act in implementing this new enforcement policy.
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  • Ms. Stengart filed a hostile work environment and constructive discharge claim against her employer, Loving Care Agency. While still working at Loving Care, Stengart sent several e-mails to her lawyer from her company-issued laptop, over the company’s Internet server, but via her personal, password protected, Yahoo e-mail account. Stengart did not store her password to the Yahoo account on the laptop. Unbeknownst to Stengart, a copy of each web page she viewed was automatically saved on the computer’s hard drive so the e-mails, even on her personal account, were captured on the company’s server. In anticipation of discovery, Loving Care accessed all e-mails stored on her laptop, including the e-mails with her lawyer which were clearly marked as privileged. Stengart’s lawyers used the information found during the discovery phase of litigation
  • Your company policy should be tailored to promote legitimate, protectable business interests Your policy needs to be clear and unambiguous Your policy should expressly address the use of personal, web-based e-mails accounts on company-issued computers Your policy should specifically define technologies and devices to which the policy applies Your company should warn employees if e-mails sent via personal accounts will be saved on the server and can be retrieved Your company should refrain from reviewing any possibly privileged communications and consult with counsel if this issue arises
  • This is unique as companies are more accustomed to addressing claims under the NJLAD brought by their employees. The New Jersey Appellate Division liberally construed the NJLAD potentially expanding a company’s liability for sexual harassment directed towards customers of its business.
  • Following a series of late payments by United, “which previously had been buying $29,000 worth of tires per month from J.T, [United] ceased doing business with J.T. altogether,” plaintiff’s complaint alleges.
  • This case states a claim for discriminatory refusal to do business under an infrequently cited provision of the LAD
  • *The court’s broad interpretation of the Act benefits business customers and creates an expanded risk to business owners. *This decision serves a reminder that businesses also must be aware of potential liability to customers, and that the actions of their own employees can potentially create legal liabilities to third parties. *It is imperative for business owners, managers and other corporate decision-makers to keep this in mind as they undertake contracts and otherwise engage in business transactions with third parties. *In addition, management and human resources professionals should be trained on this topic so as to reduce potential liability for the company. *Take my Alert on this case and alert your management of the potential implications. As I said, this type of claim presents a hidden danger. Management must be aware of the potential risk and understand the need to train all employees, and especially sales staff and others who are interacting independently with customers and clients of the companies, including those employees who are working in the field.
  • *2 rounds of amendments to the FMLA that have granted family leave rights to certain military family members under certain defined circumstances. *There were two phrases of amendments to the FMLA permitting family leave for eligible employees in addressing circumstances with a family member in the military.
  • *The coverage applies even if the injury or illness manifested itself after the servicemember’s discharge from military service. *This is the type of leave available to spouse, child, parent or next of kin to care for a servicemember or veteran. *Caregivers = spouse, parent, child or next of kin of service members or veteran. Entitled to 26 weeks of leave in 12 months to care for covered servicemember.
  • Military Exigency Leave Changes Until the changes last week, the spouse, parent, son, or daughter of a service member in the National Guard or Reserves who is on active duty or call to active duty status can take FMLA leave for the following military exigencies:   • Short notice deployment • Military events and activities • Childcare and school arrangements • Financial and legal arrangements • Military Counseling • Rest and recuperation • Post-deployment activities • Additional activities Family members for exigency leave include only spouse, parent, child/caregivers include next of kin
  • New Jersey is the only state that does not allow patients to cultivate their own plants. New Jersey’s law is the most restrictive It is noteworthy that N.J. law does not list severe pain alone as a “debilitating medical condition”
  • Workplace prohibition: For example, the Colorado, Hawaii, and New Mexico statutes specifically state that use of m.j. is prohibited in the workplace. NJ law provides that smoking is prohibited in places of work.
  • Decision is to be made by Legislature before June 30 th summer recess
  • So, how will this law effect N.J. employers? One of the issues that this new law may implicate is the practice of employers who randomly drug test employees. Therefore, we do a quick review of New Jersey’s current law in this area. Hennessey Court: “Whether firing an employee for failing (or refusing to take) a random urine test violates a clear mandate of public policy depends on the nature of the employee’s job…”
  • Hennessey factors for procedural protections to employees: Testing procedures should allow as much privacy as possible Advance notice to employees of policy, selection, testing procedures, analysis of specimens Policy should warn employees of the lingering effects of certain drugs Policy should warn employees of the consequences of testing positive or refusing to take a test Er should maintain confidentiality of test results Employers should conduct only those tests necessary to determine the presence of drugs in urine
  • ADA is only applicable to public sector employers or private sector employers acting at the direction of the State. Current users of illegal drugs are not protected by the ADA and may be refused employment, disciplined or terminated. Further, an employee currently engaged in the use of illegal drugs will not be able to demand accommodation even if he/she is addicted.
  • Note: Washington Supreme Court has agreed to review this case in which an employee was fired solely for her lawful use at home of m.j.
  • Drill press operator was hired. Used medical mj and disclosed to the company  fired. Court found that while the state may lawfully exempt medical marijuana users from state criminal liability, it may not “ authorize” conduct that directly conflicts with federal law
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