As long as the sun rises each day, regulation of California employers will increases each year. And employers received more attention this year with 554 bills introduced in the California Legislature mentioning “employer,” compared to 346 last year. Fortunately, most bills do not become law. Mark Terman, partner in the Los Angeles office, has compiled an overview of significant new regulation affecting private employers which appears in the December issue of CAL CPA magazine. To read the list in its entirety click here.
Category: Counseling & Compliance Training
David Raizman Quoted in Daily Journal
Los Angeles partner David Raizman was quoted in the Daily Journal in an article titled, “Increasing Disability Discrimination Claims Bring up Fraught Workplace Issues.”
The article discusses the rise of disability discrimination and failure to accommodate disability complaints in California, a state that has long had strong provisions against workplace disability discrimination.
Lawyers on both sides of the fence attribute the increased filings to a growing awareness of workplace disability rights among employees and an increased willingness among judges to put such claims before a jury.
California legislators have long employed a broad definition of disability, for example, to include conditions that merely “limit” various life activities, as opposed to “substantially limit” such activities. Then in 2008, the U.S. Congress adopted many of California’s broad interpretations into federal law.
David, a partner in the Labor & Employment Practice Group, said, “California really led the way here” and, as a result, workers in the state are more likely to see a “less traditional” disability like obesity as something to be accommodated by employers.
David said he tells his clients that if the plaintiff has a medical diagnosis of any kind, a court will most likely consider him or her disabled. He also said that plaintiffs’ lawyers have learned that the claims are likely to go before a jury because they’re “very hard to dispose of at the summary judgment stage.”
He noted that an employer’s claims of undue hardship in accommodating a disabled worker are “frankly, generally squishy concepts that are more subject to factual dispute than others.”
David added that as California’s workers age, claims of workplace disability discrimination will only continue to increase.
“Given the broad definition of disability, the population is getting more disabled,” he said.
New Guidance May Help Employers Avoid Significant Penalties: How to Prepare for 2014 and the New Employer Shared Responsibility Rules and Waiting Period Limitation
From our friends in the Employee Benefits and Executive Compensation Group: New guidance is available to help employers prepare for the significant new rules that become effective in 2014, including the employer shared responsibility mandate (i.e., the penalties that may be imposed on an employer that doesn’t offer certain health care coverage) and the prohibition on waiting periods in excess of 90 days, under the Patient Protection and Affordable Care Act of 2010 (health care reform).
Employers may rely on the new guidance through the end of 2014. Employers will not be required to comply with any subsequent guidance that is more restrictive until January 1, 2015 at the earliest. This is good news because it provides employers a measure of certainty about how to prepare for the 2014 employer shared responsibility mandate – particularly those employers concerned about what must be done to avoid significant penalties for failing to provide coverage, or for providing unaffordable coverage.
Click here to download a summary of the current rules to help determine who is a full-time employee for purposes of the employer shared responsibility mandate and the 90-day waiting period limitation, as well as suggested steps employers should take now to prepare for 2014.
PEPping Up the Economy and Employers
On October 26, Governor Tom Corbett (R-PA) signed into law the Promoting Employment Across Pennsylvania Act (PEP) (House Bill 2626). This law is touted as an attempt to create new jobs in Pennsylvania and promote economic development.
What does this mean for thousands of Pennsylvania employers? If you are able to create at least 250 new jobs in Pennsylvania within 5 years (with 100 of the new jobs created within the first 2 years), you will be eligible to retain 95% tax witholdings for the persons employed in the new jobs. Under the Act, the employer may select to remit all of the personal income tax witheld from employees then receive a rebate of the tax from the Commonwealth.
Job creators grow while growing the economy in the process. These tax savings may provide opportunities for employers to further increase their number of employees beyond the initial 250 or reinvest in other areas of the business. Presumably, the Commonwealth benefits as well. More persons employed in the Commonwealth lead to economic growth through purchasing power and sales tax revenues.
There are restrictions and critiques. Non-profit entities, religious organizations, utilities, restaurants/bars, gambling establishments, retail stores, and education or public administration offices need not apply. Plus, an open question remains whether the program amounts to an employee paying an employer for his/her job.
To take advantage of this opportunity, employers must enter into an agreement with the Department of Community and Economic Development (DCED). Any interested employer should move quickly because the ceiling for the program in Pennsylvania is $5 million per year. This Act expires January 1, 2018.
Extreme Weather, Natural Disasters and Personnel Issues
What happens when a business is temporarily closed due to extreme weather? What about overtime as employees try to catch up on work? These are questions that employers on the East coast find themselves asking in the wake of Hurricane Sandy. William Horwitz, counsel in the Florham Park office, has authored a client alert to answer these and other questions that employers are now faced with.
Who Owns a Social Media Account? Court Rules that Employer Did Not Violate the Computer Fraud and Abuse Act (CFAA) by Taking Over a LinkedIn Account
A recent summary judgment ruling issued out of the Eastern District of Pennsylvania, Eagle v. Morgan, et al., CIV-No. 11-4303, 2012 U.S. Dist. LEXIS 143614 (E.D. Pa. Oct. 4, 2012), highlights the need for employers to have clear policies regarding social media accounts established and used on the employer’s behalf. While plaintiff Dr. Eagle was president of defendant Edcomm, a banking education company, she created a LinkedIn account and used that account to promote Edcomm’s banking education services, foster her reputation as a businesswoman, reconnect with family, friends, and colleagues, and build social and professional relationships. Edcomm contended that it had an unwritten informal policy of “owning” the LinkedIn accounts of its former employees after they left the company. Dr. Eagle was terminated and subsequently denied access to her LinkedIn account by Edcomm, which had accessed her account, changed her password and altered her LinkedIn profile to display the company’s new president’s name and photograph while retaining some elements of Dr. Eagle’s profile. Dr. Eagle ultimately regained control of her LinkedIn account but nonetheless sued Edcomm and its employees, alleging, among other things, violations of the Computer Fraud and Abuse Act and the Lanham Act, and invasion of privacy by misappropriation of her identity.
On October 4, 2012, the district court granted Edcomm’s motion for summary judgment to dismiss Dr. Eagle’s federal claims. Holding that a reasonable jury could not find that Dr. Eagle had suffered a “legally cognizable loss or damage in the brief period in which her LinkedIn Account was accessed and controlled by Edcomm,” the district dismissed her CFAA claim. The district court concluded that Dr. Eagle’s claim of lost business opportunities and damage to her reputation were “speculative” at best and “not compensable under the CFAA,” and that even if types of damages were recoverable, she failed to present any evidence to quantify these damages. The district court also dismissed Dr. Eagle’s claims under the Lanham Act, finding that she had failed to produce any evidence of a likelihood of confusion to the public by switching her name and photo with that of her successor. However, the district court retained jurisdiction over Dr. Eagle’s remaining state law claims as well as Edcomm’s counterclaims (a conversion claim over a laptop and a misappropriation claim that asserts that Edcomm was the rightful owner of the LinkedIn account).
Given the rapidly evolving standards regarding employee/employer use of social media websites for marketing and business development (both for the employer’s business and the employee’s reputation), employers should take a proactive role in developing clear guidelines regarding the creation, control and ownership of business-related social media accounts. Policies stating, for example, that the company owns the social media site can help employers avoid disputes with departing employees. In addition, during exit interviews with departing employees, employers should consider inquiring generally about the employee’s social networking activities as they relate to his or her employment. Ask employees whether any client or customer information exists on their social networking accounts. If it does, request that this information be removed immediately. If an employer learns of an employee’s social networking activity that it believes violates a non-solicitation or other restrictive covenant, consider sending a cease and desist notice, including a specific request for the removal of any and all offending information. Finally, be prepared to adapt to changing norms, laws, rules and regulations affecting or regulating the use of social media sites.