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

Date Published: 3/26/2012

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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.  

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Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel


Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.


We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel