News & Publications

March 2012 - News from Cross, Gunther, Witherspoon & Galchus

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update

New OFCCP Proposed Rules, by Elizabeth Rowe Cummings and William K. Montgomery  

The Office of Federal Contract Compliance Programs (OFCCP) has issued a Notice of Proposed Rulemaking (NPRM) to inform the public about the following proposed changes to affirmative action requirements regarding disabled individuals. The changes would allow the contractor to collect enhanced data regarding individuals with disabilities for use by the OFCCP. Specifically, the changes propose to establish a national utilization goal of 7 percent for the employment of individuals with disabilities in each job group of the contractor's workforce. This seven percent "goal" is neither a quota nor a hiring ceiling, and a failure to attain the goal does not constitute a violation of Section 503 or OFCCP's regulations. In addition, the proposals would also increase the contractor's data collection obligations by (1) proposing anonymous survey of employees in which they will feel more comfortable self-identifying as disabled and (2) require the contractor to invite applicants to voluntarily self-identify as an individual with a disability at both the pre-offer and post-offer stages of the hiring process. 

Mandatory OSHA "Illness and Injury Prevention Programs," by Bo Loftis

In early 2012, the Occupational Health and Safety Administration (OSHA) took the first step in requiring employers to adopt mandatory "Injury and Illness Prevention Programs" (IIPPs) by releasing a White Paper that lays the groundwork for the new regulation. IIPPs, often called Safety and Health Programs (Safety Programs), are proactive processes that help employers find and fix workplace hazards before workers are injured. The Program Rule, which OSHA has stated is its top priority, would require employers to implement systems to identify and remedy safety issues before an accident occurs. 

To date, at least thirty-four states have adopted laws or regulations that require or encourage the implementation of Safety Programs, with fifteen states requiring mandatory Program implementation for at least some employers. Arkansas currently has no laws regarding Safety Programs, so OSHA's new rules would likely be unchartered waters for many of the State's contractors.  

Critics of OSHA's Program Rule, however, question the effectiveness and costs that such a rule will entail. Chief among the concerns is the sheer size of the program that will be needed to ensure enforcement of the Rule. If the Rule applies to all employers (as many believe it will), OSHA will have an enormous opportunity to increase the citations it issues and the amount of bureaucratic red tape that employers must contend with. Many believe that the costs associated with implementing the Safety Programs, and dealing with OSHA enforcement efforts, will take much needed resources away from critical job creation efforts. 

Filing for H-1B visas begins on April 2, 2012, by Mary Cooper

If you have new employees or students who need to adjust to H-1B status, we will need to have all the necessary information and documentation in our office as soon as possible to have sufficient time to obtain the required Labor Condition Application and prepare the necessary paperwork. Contact Donna Galchus or Missy Duke for more information. 

New DHHS Program Assesses HIPAA Compliance in 2012, by Greg Northen

Beginning in 2012, the Department of Health and Human Services' Office for Civil Rights (OCR) will begin a new pilot program in an effort to assess HIPAA compliance in the health care industry. Under the program, every covered entity is eligible for audit and OCR will select approximately 150 entities, with a range of types and sizes of covered entities selected for participation in the pilot program. While the audit is primarily an assessment tool, OCR is authorized to issue civil monetary penalties and, if a serious compliance issue is detected, begin a complete compliance review.    

All entities chosen for participation in the program will receive a written notification that includes a description of the audit procedure. Each audit will require an on-site inspection by OCR as well as documentation provided by the audited entity. Upon completion of the audit, OCR will issue a detailed, written report to the entity and allow a period of time during which the entity can comment on the audit's findings. The identity and report for the entities selected under the program will remain confidential, but OCR will use its findings under the audits to compile technical assistance and best practices guidance for future HIPAA compliance. HIPAA can be a complex issue for covered entities, and this program is a significant reminder of the importance of HIPAA compliance. Contact Amber Wilson Bagley for more information about HIPAA compliance.   

The proposed OFCCP rules modify a contractor's obligations in several other ways. First, the proposal seeks to change the definition of "disability" to bring it in line with the recent amendments to the Americans with Disabilities Act implemented in 2011. Second, the changes propose a mandatory job-listing requirement in which contractors will list all job openings, with limited exceptions, with the nearest "One-Stop Career Center." Third, the rules propose to permit the OFCCP to review contractor records for compliance checks and focused reviews either on-site or off-site, at OFCCP's discretion. Fourth, the changes also require a contractor to develop and implement specific written procedures for processing requests for reasonable accommodation, detailing the minimum elements the procedures must include.

Is It Time to Update (or Create) a Smartphone Policy for Your Handbook?, by Greg Northen

Mobile phones with internet capability (a.k.a. Smartphones) have become tools of efficiency in the modern workplace. In their most basic form, mobile phones facilitate a wide-range of communication between employers, employees and clients. Beyond simply making calls, and sending e-mails and text messages, Smartphones now allow employees to remotely access entire computer networks. With the increased use of Smartphones in the workplace - however beneficial to an employer - companies inevitably assume more risk. Here is a sampling of the pitfalls that Smartphones can create for the unwary employer. 

DOT Final Rule Bans Handheld Cellphone Use by Commercial Interstate Truck and Bus Drivers

In late 2011, the Department of Transportation (DOT) issued a final rule prohibiting commercial interstate truck and bus drivers from using handheld mobile devices while driving. The rule was finalized with the goal of limiting distracted driving. Penalties for violations of the new rule may include: 

  •  Federal civil penalties of up to $2,750 for each offense;
  •  Disqualification from operating a commercial motor vehicle for multiple offenses;
  •  State suspension of driver's commercial driver's license after two or more serious traffic violations; and
  • A maximum penalty of $11,000 for commercial truck and bus companies that allow drivers to use such devices while driving.

Now, the only time handheld mobile phones are permissible is when the commercial driver has pulled off the highway and has sufficiently parked in a safe location, or in the case of an emergency when it is necessary for the driver to communicate with law enforcement officials. Drivers are allowed to use "push-to-talk" mobile communication equipment if the equipment is mounted near the driver and the driver does not reach for, dial or hold the actual mobile telephone in his or her hand while driving. If the driver is able to touch a button needed to operate the push-to-talk feature from a normal seated position with the seat belt fastened, the push-to-talk feature would then be similar to the driver pushing a button to change a radio station or adjusting the temperature in the cabin. Both of these actions, under the regulation, cause minimal distraction and risk to the safe operation of a commercial motor vehicle. 

If an employee-driver is stopped for a suspected violation of the final rule, employers should instruct their employees that the final rule does not authorize law enforcement officers to take the cell phone to review the driver's call history. The DOT takes the position that the final rule can be enforced without raising any Fourth Amendment concerns (search and seizure). However, this is not the position taken by all governmental entities. 

Privacy Concerns for Mobile Devices: How Smartphones Can Destroy Company Security

In City of Ontario, Cal. v. Quon, the United States Supreme Court unanimously upheld the search of a police sergeant's text messages sent or received on the employer-provided pager. The court did not lay down any broad rules about the privacy of workplace electronics, but the opinion by the Court did make clear that government agencies can search employer-provided electronics. The case arose out of a search of the text messages sent by a police sergeant on his department pager, and the officer-employee acknowledged the City's Internet and E-Mail Policy that "reserve[d] the [Department's] right to monitor and log all network activity including e-mail and Internet use, with or without notice," which was later expanded to treat text messages as e-mail. 

The Court did not decide whether the employee had a reasonable expectation of privacy in that case, but said that, even if he did, the search itself was reasonable under the circumstances. The Court found that the "rapid changes in the dynamics of communications" make it difficult to predict "how employees' privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable." Thus, "a broad holding concerning employees' privacy expectations" in employer-provided equipment "might have implications for future cases that cannot be predicted." The Court left the door open for future arguments that employees do not have an expectation of privacy on company equipment, including Smartphones. 

This lessened level of privacy in Smarthphone use can open the door for a company's security problems. For example, if an employee is pulled over by a State Trooper in some states, they may be asked to provide a driver's license, proof of insurance, registration and cellphone. If they consent, the officer will proceed to connect the Smartphone to a seemingly harmless machine-a UFED-that will bypass the phone's password and physically extract every e-mail, text message, call-log entry, picture, GPS location, stored password and any other information that your device may contain, all in just under two minutes. If an employee ever accessed or checked a work e-mail or accessed a workstation remotely on their Smartphone, the UFED device would provide the police with the information to also access those networks. From that point, whether the police intend to use your information or not, your company's data security has been compromised, and while your company's IT department may be secure, the local police department's network may not be. 

As you can see, employers utilizing commercial drivers or providing any employees with Smartphones must ensure that policies are in place to keep their employees from incurring severe monetary penalties or security breaches for the company. Be sure that employees are properly informed of their obligations to the company with a well-drafted handbook policy. In 2012, all employers should revisit their handbooks to make sure they contain a Smartphone Policy, especially considering these significant changes in the law.  

Answering in Garnishment Proceedings: Corporations May Not Allow Non-Lawyer Employees to File Pleadings or Discovery on the Corporation's Behalf, by Abtin Mehdizadegan

Recently, the Georgia Supreme Court adopted a state bar advisory opinion stating that a non-lawyer, such as a payroll clerk or human resources employee, who answers a Georgia garnishment action, is engaged in the unlicensed practice of law. The Georgia Supreme Court's decision effectively requires all Georgia businesses without an in-house legal department to hire outside counsel to review and respond to garnishment actions. This decision has many Arkansas employers wondering whether such a rule exists in Arkansas.

In short, yes. Arkansas Code Annotated § 16-22-211 provides that "It shall be unlawful for any corporation  . . . to practice or appear as an attorney at law for any person in any court in this state or before any judicial body." Interpreting this statute, as well as other Arkansas Supreme Court cases addressing the unauthorized practice of law, the Attorney General's office authored an advisory opinion regarding a corporate non-lawyer employee responding to interrogatories in garnishment proceedings. The opinion concludes that when a non-attorney files pleadings in an Arkansas court on a corporation's behalf, the corporation is engaging in the unauthorized practice of law. 

CGWG Case Corner

"Shy Bladder Syndrome" Now a Disability?

Yes, according to a recent informal opinion letter issued by the Equal Employment Opportunity Commission (EEOC). In the letter, the EEOC notes that although individuals with paruresis, or "shy bladder syndrome," must still meet the statutory definition of disability, broader definitions in the Americans with Disabilities Act Amendments Act make it easier for such individuals to qualify and be entitled to reasonable accommodations. Paruresis involves the inability to urinate in public restrooms or in close proximity to others. To read more, click here.  

Insufficient Medical Facts Lead to Refusal of FMLA Leave

In a recent case (Lewis v. U.S.A. and Michael B. Donley, Sect. of the Air Force), the 9th U.S. Circuit Court of Appeals held that a federal employer had the discretion to convert an employee's conditionally granted FMLA leave to an "absent without leave" (AWOL) status after the employee refused to provide more than minimal information about the reasons for her requested leave. Click here to read more.