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SHRM Newsletter: Speed Lawyering - Four Key HR Law Headlines

02/01/2012

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February 1, 2012

This is Utah SHRM Legal-mail no. 2012-3 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 

CONTENTS:

-  SPEED LAWYERING

-  HEADLINE ONE: DISCRIMINATION/RETALIATION CLAIMS AGAINST EMPLOYERS SKYROCKET!

-  HEADLINE TWO: INDEPENDENT CONTRACTOR STATUS UNDER HEAVY SCRUTINY!

-  HEADLINE THREE: EMPLOYEE HEALTH AND WORK IS INCREASING A    MATTER OF LEGAL REGULATION- BEWARE THE TRAPS! 

-  HEADLINE FOUR: SOCIAL MEDIA AN INCREASING HEADACHE FOR EMPLOYERS!

SPEED LAWYERING:  Although Valentine’s Day is just around the corner, and “speed dating” is a popular tool today for romantic singles, speed lawyering is a completely different idea…thankfully!  A group of CEOs recently invited me to talk to them about key employment law concepts and trends for 2012 and, of course, they had very little time.  So I gave them some speed lawyering, four key HR law headlines in twenty minutes.  I thought you might be interested in the presentation too, so here is a summary… 

HEADLINE ONE: DISCRIMINATION/RETALIATION CLAIMS AGAINST EMPLOYERS SKYROCKET! 100,000 new charges were filed in the Equal Employment Opportunity Commission’s (EEOC) fiscal year ending 2011.  This is the second straight year a new record was set in the total number of new charges. Here are the most commonly-filed claims: (1) retaliation; (2) race bias; (3) sex discrimination/harassment; (4) disability bias; (5) age bias.  The EEOC recovered $455 million from employers in 2011.  Case in point…a large national soft drink company recently agreed to pay $3.1 million to settle race discrimination claims related to background check administration.  Last but not least, there is a possible new statewide protected class in Utah- sexual orientation.  It already is a protected class in numerous other states as well as about a dozen Utah counties and cities.

HEADLINE TWO: INDEPENDENT CONTRACTOR STATUS UNDER HEAVY SCRUTINY! Economic troubles = States paying out lots of unemployment insurance benefits = States strapped for cash = States looking for cash.  Thus, States (Utah Workforce Services) and the Internal Revenue Service (IRS) are now carefully reviewing worker independent contractor classifications.  This is the most scrutiny on this issue I have seen in 25 years of practicing employment law.  Remember the distinctions.  Independent contractor- typically someone who has own business, sets own hours, provides own tools and equipment and not subject to control and supervision. Employee- typically wage worker, trained, controlled, provided tools and equipment and directed on hours worked. Are your classifications correct?  If not, beware the Workforce Services audit. 

HEADLINE THREE: EMPLOYEE HEALTH AND WORK IS INCREASING A MATTER OF LEGAL REGULATION- BEWARE THE TRAPS!  Beware the Bermuda Triangle of Employment Law- (1) ADAAA- Americans With Disabilities Act Amendments Act- liberalized the definition of who is considered disabled; (2) FMLA- Family and Medical Leave Act; and (3) Worker’s Compensation laws. These laws give employees different and sometimes conflicting workplace rights as a result of health problems and/or injuries. I field numerous questions (daily) and dozens of questions (each week) on how these laws impact existing employee.  New twist from GINA (Genetic Information Nondiscrimination Act)- don’t gather genetic information rules and be careful what you ask for when dealing with the Bermuda Triangle laws (don’t collect genetic information unless absolutely necessary).  Are you managing these laws in your workplace? 

HEADLINE FOUR: SOCIAL MEDIA AN INCREASING HEADACHE FOR EMPLOYERS! What are we talking about?  Facebook, MySpace, Twitter, IM, internet, smart phones, texting, etc. Are there productivity issues from personal use at work?  Likely.  Do you use social media in job recruiting?  Possible problems.  Risks to your trade secrets and confidential information?  Every smart phone has a camera and recorder, so perhaps.  OK to fire someone who bad mouths his/her supervisor on Facebook?  It depends.  Lots of issues here…are you managing this potential set of problems?

 

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.