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News From Cross, Gunter, Witherspoon & Galchus-November 2014

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update
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Employer's Response to Off-Duty Misconduct of Employees, by Joe Ramsey, Cindy Kolb and Misty Wilson Borkowski

Employers oftentimes are placed in complicated and difficult situations when it comes to making decisions based on an employee's off-duty conduct. Although most employers would agree it is reasonable for employees to expect a degree of latitude in their off-duty conduct, setting the parameters of that conduct is not an easy task. There is no question that off-duty conduct may negatively affect workplace operations and the company's bottom-line. But, there are additional issues to consider. For example, what is the extent of disruption to an employer's operations or the extent of injury to an employer's reputation? The number of interests an employer must safeguard (for example, the employee, co-workers, customers) is rivaled in scope by the considerations an employer must undertake when addressing off-duty conduct. Consider, too, that the employee facing allegations of off-duty misconduct is likely experiencing embarrassment and facing an uncertain future. Most importantly, consider that the allegations against the employee may not be accurate - at least in part. One of the challenges inherent with implementing company policies in a consistent, measured manner is to not pre-judge the employee until the relevant and available information is acquired.

The domestic violence incident involving NFL running back Ray Rice resulted in a national discussion about the appropriate degree of discipline for off-duty misconduct and generated much debate about whether the NFL and the Baltimore Ravens handled the situation properly. This article looks at some common issues employers face when addressing off-duty conduct, as well as provides analysis from the perspective of both the employer and employee.    

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One Person's Joke May Be Another's Humiliation: Do You Have a "Bully" in the Workplace?, by Greg Northen

We have all heard about or personally encountered someone that we considered to be a "bully." Whether on the school playground, in a social group or even an older sibling, people who regularly pick on or mistreat others can easily be labeled as such. Naturally, because of the close proximity and frequency with which co-workers encounter each other day-in and day-out, bullying in the workplace is not a difficult concept to grasp. But, when does bullying become something more than a situation to shrug off or dismiss?

More and more lawsuits are being filed across the United States where employees allege, among other complaints, cases of workplace bullying. There are currently no federal or state laws that explicitly prohibit "bullying," yet the concepts of bullying and unlawful discrimination, harassment and retaliation easily overlap.

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It's a Trap! Delayed Enforcement of DOL's Home Health Care Regulations Still Subjects Employers to Costly Litigation, by Abtin Mehdizadegan 

The U.S. Department of Labor's Wage and Hour Division (WHD) promulgated new regulations under the Fair Labor Standards Act (FLSA) that change the employment landscape for those who provide home-care services in recognition of the increased demand for home healthcare workers as the Baby Boomer generation progresses in age. The Agency overturned an exemption that had been in place for forty years and declared that most home-care workers would be subject to the FLSA minimum wage and overtime requirements. These regulations become effective on January 1, 2015; however, WHD granted limited reprieve to employers by delaying enforcement of the regulations until June 30, 2015. Delayed enforcement may create a litigation trap for unwary employers, and this article suggests a best-practices approach to compliance during the six (6) month period of delayed enforcement.

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Executive Action on Immigration: What Does It Mean for Employers and Individuals?, by Misty Wilson Borkowski

President Obama recently announced a series of Executive Actions that make several important administrative changes in the immigration process that will impact employers and foreign nationals alike in several important ways. The Executive Actions create a new deferred action program for certain parents of US citizens; expand the 2012 Deferred Action for Childhood Arrivals (DACA) program; increase the work options for spouses of certain visa holders; and seek to expand the visa options for highly-skilled immigrants.

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Estate Planning for Social Media?, by Laura Dyer Johnson

Do you tweet? Did you monitor your newsfeed on Facebook? Have a lot of photos on Instagram? Maybe you just access your bank account online? Have you ever wondered what will happen to your social media accounts or other online accounts when you die or become disabled? This is an emerging area of law, but the legal world is responding.

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CGWG Case Corner

Jury Orders AutoZone to Pay Former Employee $185M for Pregnancy Discrimination

The Equal Employment Opportunity Commission's Pregnancy Discrimination Act forbids companies from discriminating against employees based on pregnancy during the employment process, including hiring, firing, promotions and demotions. A former AutoZone employee claimed she was illegally demoted and subsequently fired after she became pregnant. This week, a California jury ordered the retailer to pay her $185 million, in addition to $872,000 in compensatory damages the jury awarded the woman last week. Officials with AutoZone plan to appeal the decision. To read more, click here.

Publix Super Markets Attempts to Settle for $6.8 Million Over Background Checks

Publix Super Markets Inc. has asked a Tennessee federal court to approve a $6.8 million settlement for a class action lawsuit over its job application process. The class action, launched in March by Publix job applicant Erin Knights, claims Publix violated the Fair Credit Reporting Act by failing to provide potential workers with a stand-alone disclosure during their application process stating that a background check would be run. Knights, who applied for a job with Publix at a kiosk at a store in Tennessee, claims that neither Publix's background check authorization screen nor any other screen met that requirement. If granted, the settlement would provide each of the 90,633 class members with roughly $48.55 and plaintiffs' attorneys would secure approximately $2.3 million. This settlement request comes on the heels of a $4 million settlement from Dollar General to settle a class action claiming it did not properly notify more than 200,000 job applicants that they would be screened by background checks. To read more, click here.