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

Date Published: 11/26/2014

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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.    

Click here to read more. 

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.

Click here to read more.  

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.

Click here to read more. 

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.

Click here to read more.

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.

Click here to read more.   

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.

 

 

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Client Successes

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
Partner 

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

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.

Starwood

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