Employment Law Update - Summer 2014

K&C's Annual Employment Law Update: Educating Employers for 30 Years

Over thirty years ago, the founder of K&C’s Labor & Employment Practice Group, Burt Whitt, wanted to try a new way to educate clients and human resource professionals on rapidly changing employment laws. This recognized need led to the Employment Law Update – the first law firm sponsored seminar of its kind in Virginia.

Three decades later, the seminar has grown but Whitt’s goal for the Annual Employment Law Update has remained the same, “I wanted to create a seminar that catered to employers and featured top industry speakers, representatives from key government agencies and employment law subjects that were relevant to the times.” With showings in Virginia Beach, Richmond and Hampton, the seminar is one of the best attended employment law conferences in Virginia. Past attendees have consistently praised the program for its emphasis on providing “down-to-earth” answers to all employment law questions and for providing relevant topics in an interesting and entertaining environment.

The final showing of this year’s seminar will be held on Thursday, July, 24th, 2014 at the Hampton Roads Convention Center. Employment topics will be presented by members of the K&C Employment Law Team and a host of employment professionals including representatives from the EEOC, VEC and Worker’s Compensation Commission. The program will also include a special luncheon presentation by humorist, author and motivational speaker Steve Kissell. As always, the popular K&C Answer Booth will be open and to mark the program’s 30th anniversary, attendees will have a chance to win a set of freshwater hand-strung pearls.

FYI

The 30th Annual Employment Law Update will provide essential employment law information for HR Professionals and small business owners. Given all of the legal changes over the last 30 years, the theme of this program is how to deal with changes in the workplace. Additionally, attendance at this conference qualifies for 5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information or to register online, please visit www.kaufCAN.com or contact Andrea King by email at adking@kaufcan.com or (757) 624.3232.


Specific Smart Phone Policies Now Recommended

Not long ago, it was sufficient for an employer to have a general “Internet use” policy. In that simpler time, access to the Internet was generally through employer-owned computer equipment. Today, many companies are adopting the bring-your-own-device (“BYOD”) model. In a BYOD company, the employee uses his or her own smart phone for work, accessing the Internet and receiving and sending work-related emails and texts on that device. In such an environment, the line between work and personal use is blurred. Inappropriate smart phone use can lead to a loss of productivity, office distractions, and wage and hour compliance issues.

Accordingly, it is a good idea for employers to develop a specific smart phone policy that should have at least the following five provisions:

Limit personal phone calls and other personal uses. The policy should set restrictions on when and how smart phones can be used for personal reasons. For example, smart phone use can be limited to lunch and breaks, or employees can be given a location to take personal calls. A vague statement such as personal smart phone usage should be “reasonable” is not particularly effective.

No smart phone use while driving. Require employees to pull over and park before initiating a call, and as soon as possible after taking a call. If avoiding smart phone use is unrealistic, provide employees with safety features like hands-free equipment.

Minimize workplace distractions. Require employees to set their smart phones to “silent” or “vibrate” in the work place. Prohibit smart phone use in meetings. If an employee must take a call, send a text, or respond to an email, require the employee to leave the meeting. When talking on a smart phone in the work place, the employee should be required to use a low tone of voice.

Limit smart phone usage in private areas. Remember that almost all smart phones have cameras, video recorders, and audio recorders. This can lead to unwanted mischief in restrooms and changing rooms. This can also lead to potential misappropriation of confidential information or trade secrets if not controlled.

Permit emergency calls. Employees must be permitted to take emergency calls. Emergency calls, however, should be narrowly defined. Require employees to notify their supervisor if a situation arises that might require smart phone use at any time. Such a situation would include the hospitalization of a family member.


4TH Circuit Confirms Employer Liability for Third-Party Harassment

The United States Court of Appeals for the Fourth Circuit (which governs federal courts in Virginia, North Carolina, South Carolina, West Virginia and Maryland) recently confirmed that an employer can be liable for harassment of its employees by third parties (customer, vendor or other business invitee). Liability for such third-party harassment attaches when the harassment is severe and/or pervasive, the employer knew or should have known of the harassment, and the employer did not take prompt and appropriate steps to alleviate the harassment.

K&C’s Employment Team has been ahead of the curve in counseling its clients to avoid liability in this area. In fact, K&C Team member Scott Kezman foresaw this legal risk in a 1996 article he co-authored in HR Magazine (Harassment by nonemployees. Deadrick, Diana L.; Kezman, Scott W. // HR Magazine; Dec 1996, Vol. 41 Issue 12, p108).

Practical Pointer

Complaints about workplace harassment should be taken seriously and investigated thoroughly by objective parties. Certainly firing someone the same day she complains about unlawful conduct, for a made-up reason, is not appropriate, which is why the Appellate Court reversed the lower Court and allowed this case to proceed to trial.


Court Clarifies ADAAA Coverage of Short Term Disabilities

In 2008, Congress amended the Americans with Disabilities Act (“ADA”) with the ADA Amendments Act of 2008 (“ADAAA”). This was a reaction to several U.S. Supreme Court decisions which narrowed the ADA’s scope of protection, resulting in too many potentially disabled individuals being excluded from coverage. In enacting the ADAAA, Congress sought to “right the ship” by making it easier for individuals to establish a “disability.” As one employer recently learned, even temporary impairments may now be protected under the ADA.

Earlier this year, in Summers v. Altarum Institute, Corp., an employee broke both of his legs while he was exiting a commuter train. According to doctors’ orders, the employee was unable to put weight on one leg for six weeks and was not expected to walk normally for seven months. Although the case was initially dismissed because of the short-term nature of the injuries, the Fourth Circuit Court of Appeals reversed the lower Court and allowed the case to move forward. The Fourth Circuit explained that under the ADAAA even a temporary injury can be severe enough to constitute a “disability.”


Practical Pointer

Because the ADAAA makes it easier for an employee to establish a “disability” under the ADA, an employer must not disregard the short-term disabilities of its employees. Instead, the employer should conduct an individualized assessment of the impact of the condition upon the employee. Most importantly, if the condition would likely be deemed a “disability,” the employer must engage in an interactive dialog with the employee to determine whether and how the employee can be reasonably accommodated to allow him/her to perform the essential functions of the job in question.


Large Employers Face New ACA Reporting Requirements

The Patient Protection and Affordable Care Act (ACA) mandates that “large employers” offer adequate and affordable health coverage to all full-time employees or pay hefty penalties. In order to administer and enforce the penalties, the IRS requires extensive new information reporting from all “large” employers beginning with the 2015 calendar year. Here are a few key points:

For reporting purposes “large” employers are those who average 50 or more full-time and full-time equivalent employees in 2014.

The reporting form will be new Form 1095-C, effectively a companion to Form W-2 that will be distributed to employees and filed with IRS on the same time frame.

Form 1095-C will report information and “indicator codes” for every employee for each calendar month including the employee’s full-time or part-time status and whether he or she was offered ACA compliant health coverage for that particular month.

The new ACA reporting will undoubtedly become an integral part of the payroll function. All third party payroll services and payroll software providers are working on modifying their systems to capture the requisite ACA data and prepare the new forms. Ultimately, however, the burden of making the legal determinations of employee status and health coverage compliance will fall to the employer, and it’s not too soon to contact your provider to confirm that they are prepared to assist you in meeting your ACA reporting obligations.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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