By: Antoinette C. Oliver, Esquire aco@muslaw.com
On January 28, 2007 the Family and Medical Leave Act (FMLA) was expanded for the first time in 15 years, with the enactment of the National Defense Authorization Act.
Employees who need time off to care for a recovering family member who served in the military are eligible for up to 26 weeks, rather than the standard 12 weeks of FMLA leave within a 12 month period. A recovering service member is defined as a Member of the armed services who falls ill or is injured during active duty and, as a result, is unable to perform his or her duties. To qualify for leave, the employee must be the spouse, parent, child or nearest blood relative of the injured service member.
An employee is also qualified for leave due to “any qualifying exigency” that arises out of a family member’s service in the Armed Forces or because a family member is called to duty. A family member under this provision is limited to spouse, parent or child. Notably, the term “any qualifying exigency” is yet to be defined by the Secretary of Labor, and therefore is not yet effective. In the meantime, the Department of Labor (DOL) is encouraging employers to provide this type of leave for employees until the act is effective. Employees who take leave under “qualifying exigency” will be entitled to 12 weeks of FMLA leave.
Employers should be sure to update their handbooks in order to comply with these amendments. Because the DOL has not yet promulgated regulations for the expansion, there is little guidance to assist employers. In the meantime, employers are expected to act in good faith in complying with the new law.
Tuesday, January 13, 2009
Monday, December 29, 2008
Employee Right of Privacy in Text Messages
By: Melissa M. Hall, Esquire mmh@muslaw.com and Jane Lewis Volk, Esquire jlv@muslaw.com
In June 2008, the Ninth Circuit Court of Appeals issued a decision regarding an employee’s right of privacy in text messages. Although the decision is not binding in Pennsylvania, the case presents an interesting issue of which employers should be aware.
In Quon v. Arch Wireless Operating Co., Inc., the Court held that an employee did have a reasonable expectation of privacy in text messages sent via an employer-provided pager. The employer contracted with Arch Wireless to provide text messaging services and distributed pagers to its employees. The contract provided for a certain number of characters per pager, per month after which the employer required the employees to pay for any overages. Quon exceeded his character limit on several occasions and, as required, paid for the overage charges. The employer informed Quon that, so long as he continued to pay for any overages, his text messages would not be audited. Notably, although the employer had a “Computer Usage, Internet and E-mail Policy” in place which put employees on notice that they had no expectation of privacy in the use of those devices, the written Policy did not include the pagers. The employer did, however, verbally inform employees that the text messages sent from the pagers were considered e-mail under the Policy.
Despite the employer’s assurance that it would not review the content of text messages, the employer did audit Quon’s text messages and determined that, aside from being over the allotted number of characters, many of the messages were personal and not business related. Quon subsequently sued the employer for violations of their Fourth Amendment right to privacy. The Court held that the employees had a reasonable expectation of privacy in the content of the text messages because (1) the employer had a practice of not reviewing text messages for content and (2) text messages were not significantly different from email, which had been afforded privacy protections. However, the Court noted that the employees had no privacy interest in the address or phone number used to send the text messages.
This decision is an important reminder to employers to issue and enforce consistent policies reminding employees that, even if personal use of company communication devices is permitted, there should be no expectation of privacy.
For more information about this decision or other employee policy issues, contact Melissa M. Hall at mmh@muslaw.com or Jane Lewis Volk at jlv@muslaw.com.
In June 2008, the Ninth Circuit Court of Appeals issued a decision regarding an employee’s right of privacy in text messages. Although the decision is not binding in Pennsylvania, the case presents an interesting issue of which employers should be aware.
In Quon v. Arch Wireless Operating Co., Inc., the Court held that an employee did have a reasonable expectation of privacy in text messages sent via an employer-provided pager. The employer contracted with Arch Wireless to provide text messaging services and distributed pagers to its employees. The contract provided for a certain number of characters per pager, per month after which the employer required the employees to pay for any overages. Quon exceeded his character limit on several occasions and, as required, paid for the overage charges. The employer informed Quon that, so long as he continued to pay for any overages, his text messages would not be audited. Notably, although the employer had a “Computer Usage, Internet and E-mail Policy” in place which put employees on notice that they had no expectation of privacy in the use of those devices, the written Policy did not include the pagers. The employer did, however, verbally inform employees that the text messages sent from the pagers were considered e-mail under the Policy.
Despite the employer’s assurance that it would not review the content of text messages, the employer did audit Quon’s text messages and determined that, aside from being over the allotted number of characters, many of the messages were personal and not business related. Quon subsequently sued the employer for violations of their Fourth Amendment right to privacy. The Court held that the employees had a reasonable expectation of privacy in the content of the text messages because (1) the employer had a practice of not reviewing text messages for content and (2) text messages were not significantly different from email, which had been afforded privacy protections. However, the Court noted that the employees had no privacy interest in the address or phone number used to send the text messages.
This decision is an important reminder to employers to issue and enforce consistent policies reminding employees that, even if personal use of company communication devices is permitted, there should be no expectation of privacy.
For more information about this decision or other employee policy issues, contact Melissa M. Hall at mmh@muslaw.com or Jane Lewis Volk at jlv@muslaw.com.
Monday, November 10, 2008
Business Workshop: Part-time is optional, Cash or accrual?
By: Tony J. Thompson, Esquire tjt@muslaw.com
A federal appeals court recently confirmed that employers do not have to accommodate employees who want to return from Family and Medical Leave and switch from full-time to part-time work.
In the case in question, the employee requested and received leave from a manufacturer after suffering a nervous breakdown.
After using up her 12 weeks of FMLA leave, the employee said she still could not work full time and asked to go on a part-time schedule.
The company insisted that she could get only her full-time job back and fired her. The employee sued, alleging the company interfered with her FMLA rights and discriminated against her because of her disability.
The district court dismissed the case after the company proved that it did not have any part-time positions that were comparable to the employee's full-time work.
The appeals court agreed, stating that the FMLA does not require accommodation when the employee cannot return to the same or a comparable job.
During FMLA leave, an employer may have to provide reduced schedule leave to eligible employees.
But once employees have exhausted FMLA leave, the law does not require employers either to hold the job open or to change a full-time position into a part-time one.
The FMLA covers employers with 50 or more employees and entitles eligible employees to take unpaid leave of up to 12 weeks for the care of a newborn child or an immediate family member with a serious health condition or to take medical leave when the employee is unable to work because of a serious health condition.
A federal appeals court recently confirmed that employers do not have to accommodate employees who want to return from Family and Medical Leave and switch from full-time to part-time work.
In the case in question, the employee requested and received leave from a manufacturer after suffering a nervous breakdown.
After using up her 12 weeks of FMLA leave, the employee said she still could not work full time and asked to go on a part-time schedule.
The company insisted that she could get only her full-time job back and fired her. The employee sued, alleging the company interfered with her FMLA rights and discriminated against her because of her disability.
The district court dismissed the case after the company proved that it did not have any part-time positions that were comparable to the employee's full-time work.
The appeals court agreed, stating that the FMLA does not require accommodation when the employee cannot return to the same or a comparable job.
During FMLA leave, an employer may have to provide reduced schedule leave to eligible employees.
But once employees have exhausted FMLA leave, the law does not require employers either to hold the job open or to change a full-time position into a part-time one.
The FMLA covers employers with 50 or more employees and entitles eligible employees to take unpaid leave of up to 12 weeks for the care of a newborn child or an immediate family member with a serious health condition or to take medical leave when the employee is unable to work because of a serious health condition.
Monday, November 3, 2008
Supreme Court Declines To Make Definitive Ruling on Admissibility of “Me Too” Evidence
By: Elaina Smiley, Esquire es@muslaw.com
Often in discrimination cases, employees attempt to introduce evidence of alleged discriminatory acts against other employees to bolster their claims. The Supreme Court in Sprint v. Mendelsohn, declined to make a determinative ruling on whether or not this type of evidence is admissible. Mendelsohn was terminated by Sprint as part of an company-wide reduction in force and then sued Sprint for age discrimination. In support of her claim, Mendelsohn sought to introduce the testimony of five other former Sprint employees who claimed that their supervisors had discriminated against them because of their age. None of the five employees worked in the same group as Mendelsohn or under the same supervisors. The District Court ruled that the evidence was not admissible because the five employees were not similarly situated to the plaintiff. The Tenth Circuit found that the District Court abused its discretion. The case was appealed to the U.S. Supreme Court which found that the question of whether evidence of discrimination by other supervisors is relevant to Mendelsohn’s age claims depends on many factors, including “how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The Supreme Court concluded that such evidence is “neither per se admissible nor per se inadmissible.” The Supreme Court remanded the case to the District Court to clarify its ruling. The Supreme Court’s decision leaves the door open for plaintiffs in all types of discrimination claims to attempt to bring in evidence of discriminatory conduct against employees who are not part of the lawsuit. This ruling leaves much discretion to the trial court in making the determination of the admissibility of “me too” evidence.
Often in discrimination cases, employees attempt to introduce evidence of alleged discriminatory acts against other employees to bolster their claims. The Supreme Court in Sprint v. Mendelsohn, declined to make a determinative ruling on whether or not this type of evidence is admissible. Mendelsohn was terminated by Sprint as part of an company-wide reduction in force and then sued Sprint for age discrimination. In support of her claim, Mendelsohn sought to introduce the testimony of five other former Sprint employees who claimed that their supervisors had discriminated against them because of their age. None of the five employees worked in the same group as Mendelsohn or under the same supervisors. The District Court ruled that the evidence was not admissible because the five employees were not similarly situated to the plaintiff. The Tenth Circuit found that the District Court abused its discretion. The case was appealed to the U.S. Supreme Court which found that the question of whether evidence of discrimination by other supervisors is relevant to Mendelsohn’s age claims depends on many factors, including “how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The Supreme Court concluded that such evidence is “neither per se admissible nor per se inadmissible.” The Supreme Court remanded the case to the District Court to clarify its ruling. The Supreme Court’s decision leaves the door open for plaintiffs in all types of discrimination claims to attempt to bring in evidence of discriminatory conduct against employees who are not part of the lawsuit. This ruling leaves much discretion to the trial court in making the determination of the admissibility of “me too” evidence.
Tuesday, October 21, 2008
Social Network Indiscretions
By: Beth A. Slagle, Esquire bas@muslaw.com
A new study of Internet social networks finds that there are 120 million profiles on the four most popular social networks.
While many are high school and college students, there are millions of employees, and offensive material or images in these profiles may hurt their employers.
It's more than the embarrassing or graphic photograph.
For example, if an employee makes discriminatory comments about another employee or posts confidential information about the company in a social network profile, the employer could be held liable for the actions, particularly if the employee posts during work hours or through the employer's computer system.
An employer's power to discipline or terminate employees for their private Internet postings is not absolute.
One way that some companies attempt to balance their legitimate business interest against an employee's right to free speech is to provide social networking guidelines in a technology policy.
The guidelines should include:
In disciplining an employee for something on a social network profiles, employers should proceed with care to make sure they are not retaliating against a whistle-blower or punishing an employee for engaging in protected activities such as union organizing.
A new study of Internet social networks finds that there are 120 million profiles on the four most popular social networks.
While many are high school and college students, there are millions of employees, and offensive material or images in these profiles may hurt their employers.
It's more than the embarrassing or graphic photograph.
For example, if an employee makes discriminatory comments about another employee or posts confidential information about the company in a social network profile, the employer could be held liable for the actions, particularly if the employee posts during work hours or through the employer's computer system.
An employer's power to discipline or terminate employees for their private Internet postings is not absolute.
One way that some companies attempt to balance their legitimate business interest against an employee's right to free speech is to provide social networking guidelines in a technology policy.
The guidelines should include:
- A disclaimer of employer responsibility for private employee profiles.
- A warning that employees making personal comments about the employer's products or services or other employees in a profile (or blog) will be subject to disciplinary action.
- A warning not to use company equipment or networks to create or update a profile, except if it is part of company business.
- A specific statement that social networkers must abide by company policies on confidential information and trade secrets.
In disciplining an employee for something on a social network profiles, employers should proceed with care to make sure they are not retaliating against a whistle-blower or punishing an employee for engaging in protected activities such as union organizing.
Monday, October 13, 2008
Prevent 401(k) Lawsuits
By: Joseph A. Vater, Jr., Esquire jav@muslaw.com
When the stock market goes down, so do 401(k) assets.
The result: employees look for someone to blame, and the fiduciaries of their 401(k) plan, which often include the employer, are the target.
While there is no way to make a company's 401(k) plan lawsuit-proof, the United States Department of Labor recommends some basic steps that companies can take to avoid liability when their employee's 401(k) assets go south:
When the stock market goes down, so do 401(k) assets.
The result: employees look for someone to blame, and the fiduciaries of their 401(k) plan, which often include the employer, are the target.
While there is no way to make a company's 401(k) plan lawsuit-proof, the United States Department of Labor recommends some basic steps that companies can take to avoid liability when their employee's 401(k) assets go south:
- Review or have a consultant review fund performances periodically and consider replacing underperforming funds.
- Offer an investment education program for employees who participate in the 401(k) plan, but make sure you follow the guidelines set forth in the Pension Protection Act so you don't inadvertently assume fiduciary responsibility for the information provided by the consultants.
- Disclose all direct and indirect fees associated with the 401(k) plan and all investment choices. Most 401(k) plans do not disclose all fees.
- Enable employees to select mutual funds from more than one fund family and make sure low-fee funds are included in the choices.
Friday, October 10, 2008
Executive Education Seminar: Privacy in the Workplace
November 13, 2008 at the Rivers Club - Pittsburgh, PA
Presented by: Douglas M. Hottle and Quinn A. Johnson
Seminar Description: Privacy in the Workplace: What Employers Need to Know About Getting, Using and Protecting Employee Information
Nearly three-quarters of major U.S. firms report that they record and review their employees’ communications and activities on the job, including their phone calls, e-mail, Internet connections and computer files. While employers have a legitimate business interest in tracking their employees’ workplace activities to protect safety, ensure productivity, and even to comply with anti-discrimination laws, employers need to avoid inappropriate and unreasonable invasions of employees’ privacy interests.
This seminar will help employers who find themselves asking:
Presented by: Douglas M. Hottle and Quinn A. Johnson
Seminar Description: Privacy in the Workplace: What Employers Need to Know About Getting, Using and Protecting Employee Information
Nearly three-quarters of major U.S. firms report that they record and review their employees’ communications and activities on the job, including their phone calls, e-mail, Internet connections and computer files. While employers have a legitimate business interest in tracking their employees’ workplace activities to protect safety, ensure productivity, and even to comply with anti-discrimination laws, employers need to avoid inappropriate and unreasonable invasions of employees’ privacy interests.
This seminar will help employers who find themselves asking:
- Can I monitor my employee’s cell phone conversations throughout the work day?
- Can I search an employee’s purse or personal belongings?
- Can I access their personal E-mail account during work hours?
- Can I censor my employee’s blog?
- Can I monitor an employee’s location throughout the day?
Subscribe to:
Posts (Atom)
