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Save the Date: March 26 (Tulsa), April 2 (OKC)
The Employer's Legal Resource 2009 Workshop
New administration...
new regulations…
and a new world for employers?
Plan to spend the day with us where we will be discussing
- the ADA Amendments Act which became effective January 1,
- the renewed importance of non-union employers understanding labor law with pending legislation such as the Employee’s Free Choice Act,
- drug and alcohol testing issues in the workplace including recent opinions which impact your policy and how you test, and
- the new FMLA regulations which became effective January 16.
Based upon comments received from previous workshops, we will provide more in-depth coverage of these issues to better equip you to handle the day-to-day issues that arise. Keep watching your inbox for more information.
Immigration Law
FIDUCIARY DUTY APPLIES WHEN EMPLOYER AGREES TO ASSIST WITH IMMIGRATION APPLICATION
In a recent case, DerKervorkian v. Lionbridge Technologies, Inc., the Tenth Circuit Court of Appeals found that an employer owed a fiduciary duty to an employee when the employer agreed to assist in an application for lawful permanent residence (also known as a “Green Card”). In DerKervorkian, Lionbridge offered to assist DerKervorkian in obtaining a Green Card. DerKervorkian had been working on temporary work visa which was about to expire. Lionbridge changed its mind when it discovered that it would have to pay the employee almost double her current salary in order to qualify for the Green Card. So, Lionbridge decided not to petition for a Green Card on her behalf. The Court found this constituted a breach of fiduciary duty, but Lionbridge would not be liable for all damages because DerKervorkian had a duty to attempt to mitigate, or lessen, her damages by pursuing alternative options. In this case, Lionbridge had offered DerKervorkian a lower paid position which would have also qualified for a Green Card. DerKervorkian declined this position, believing it would adversely affect her career and limit her duties. The Court found that, at the trial, a jury must consider how this failure to accept an alternative position contributed to part of her damages.
This case demonstrates how important it is for an employer to ensure they have the proper guidance when assisting with any application for immigration benefits. Employers must take care not to breach the fiduciary duty owed to employees. Such a breach may arise from failure to file an application on time or errors in an application. Although applications for immigration benefits often appear to be simple, the immigration regulations are quite complicated and an employer should always consult a qualified immigration attorney before agreeing to assist any employee with an immigration application.
By Hilary L. Velandia, hvelandia@dsda.com
Wage and Hour
Obama Signs Lilly Ledbetter Law
As we predicted in our January newsletter, Congress passed the Lilly Ledbetter Fair Pay Act and President Obama signed it into law on January 29, 2009. This law overrides a Supreme Court decision that the statute of limitations on an equal pay claim begins to run when the discriminatory pay decision is made. Under that decision, employees like Lilly Ledbetter, who don’t find out that they are being paid unfairly until long after the decision is made, are out of time to bring a claim. Under the Lilly Ledbetter Fair Pay Act, a new period of time in which to bring a claim begins each time a discriminatory paycheck is issued.
Sometimes wage disparities become so embedded that no one remembers why or how those pay decisions were made in the first place. With a new year and a new law, it may be a good time to look at the range of pay within job categories.
Interesting fact: All four women Republican Senators voted in favor of the Lilly Ledbetter Act; both Oklahoma Senators voted against it.
By Rebecca M. Fowler, rfowler@dsda.com
New dol opinion on whether on-call time is compensable
An employee is “on call” when he or she must be “available” to work at times in addition to his or her regular schedule. If you call your non-exempt employee to work during the on call period, you have to pay the employee for time worked. Do you have to pay your employees when they are “on call” but not actually working? Well, that depends on a lot of things. The bottom line is whether your employees are free to do their own thing while waiting for your call.
Generally, if your employee lets you know where he or she can be reached during the on call period, but is not required to stay at work, then your employee is not considered to be working while on call. So, if your employee carries a cell phone or pager, and must report to work within a specific, reasonable time after a call, then you are not required to compensate your employee for on call time. But, if your on call requirements seriously limit your employee’s ability to use the on call period as personal time, then your employee is considered to be working while on call and must be paid for that period.
The Department of Labor, and then the courts, have considered a number of factors when trying to decide if employees are working or just on call. For example, geographical limitations may interfere with an employee’s freedom to use on call time as personal time. Although most employers don’t actually state a geographic limitation in their on call policies, they always state a response time. And when that response time is very short, it limits the distance from work that an employee can travel, and thus limits an employee’s freedom. Another factor frequently considered, is the number of call-backs employees actually receive during the on call period. If call-backs are frequent, the employee has very little freedom to take advantage of the on call time. One court has found that four to five call-backs a week did not limit an employee’s freedom to use the call back period for his own purposes. On the other hand, another court found that three to five call-backs in a 24-hour period significantly limited an employee’s freedom and required the employer to pay the employee for that time.
One thing is clear. The determination of whether an employer must pay an employee for the on call period is always a question of fact and must be considered in the circumstances of a particular job and the specific requirements of the on call policy. But, the Department of Labor and the courts have issued many opinions over the years which narrow the gray area and provide some meaningful guidance to employers. If you have questions about your on call policy, we can help.
By Rebecca M. Fowler, rfowler@dsda.com
Drug and Alcohol Testing
Time to check that policy again
There are only two ways you can test an Oklahoma employee (which includes applicants): you can be required to do so under the Department of Transportation regulations or you can comply with Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act. This article deals with the latter.
Among the many requirements of the Oklahoma law, an employer must have a written policy in place that complies with the law. This written policy must be in place at least 30 days before you begin (or make any change to the) testing. In our October 2008 edition, we discussed some changes the Oklahoma legislature made, which focused on the ways in which you must get the policy distributed. To see that article again, click here.
But, the law keeps evolving . . .
On January 21, 2009, a Tulsa federal judge entered an order which should cause you to once again look at your policy. Although this order is not (at this time) binding on every Oklahoma employer, it is a good indicator of the possibilities. Remember, it is often better to play it safe and avoid the lawsuit altogether.
As you know, the written policy must comply with the Oklahoma statute, which states that your policy “shall include” information on eleven topics. The last required topic is described as “The available appeal procedures, remedies and sanctions.” Most believed that an employer need not provide any appeal procedures, remedies, and/or sanctions and, that if none were provided, this eleventh topic need not be addressed in your written policy. The Judge disagrees. According to the Order, although an employer need not actually provide appeal procedures, remedies, and/or sanctions, the policy still must address it. The Judge found it is a willful violation of the law to fail to mention the eleventh topic, even if only to say it is not available.
In other words, at least one federal judge believes that compliance with the Oklahoma law requires that your drug and alcohol testing policy either (1) describe the employer-sponsored appeal procedures, remedies, and/or sanctions or (2) tell the employee that the employer does not provide appeal procedures, remedies, and/or sanctions.
If you test Oklahoma applicants or employees for the presence of drugs or alcohol, you should consult legal counsel to ensure your policy and procedures are in compliance with the current state of the law.
Because of the large number of employers who test and the rising number of lawsuits, this is one of the topics which will be discussed in detail at the Employer’s Legal Resource 2009 Workshop. We will go over the eleven topics in detail as well as discuss recent case law, testing procedures, and ways to limit your exposure to lawsuits.
By Kristen L. Brightmire, kbrightmire@dsda.com, and Sharolyn C. Whiting-Ralston, swhiting@dsda.com.
Garnishment
The Employer's Guide to navigating the continuing postjudgment garnishment summons - part I
Wage garnishment is a legal procedure through which a percentage of a person's earnings are withheld by an employer for the payment of a debt. As the employer, you have certain rights, responsibilities, and there are potential liabilities in this process.
What laws governs garnishment?
First, there is an Oklahoma law on the topic. Second, the federal law, Title III of the Consumer Credit Protection Act (CCPA), applies to garnishments. These laws describe the rights of all the parties. The trick is that they don’t always agree. Generally speaking, if the two laws are in direct conflict, the federal law trumps if it is more favorable to the employee being garnished. Bottom line: this seems like simple stuff, but it’s not.
What types of garnishment are there?
There are several types of garnishments. The most common garnishment an employer receives (and the one we will be discussing) is a “Continuing Postjudgment Earnings Garnishment Summons.” This requires an employer to garnish an employee’s wages for a specified period to satisfy a lawful judgment against the employee.
Who are the players?
There are several players in a continuing garnishment action.
(1) The Court: the court is responsible for issuing the judgment against the employee in the first place. You will file all documents with the Court, and the Court will resolve any disputes concerning whether the appropriate garnishment procedure has been followed.
(2) The Garnishee: the garnishee is you, the employer. You are the garnishee because you the employer are garnishing the employee’s wages.
(3) The Judgment Creditor: the judgment creditor is the entity your employee owes. You pay the withheld wages to either the judgment creditor or, if they are represented by an attorney, the judgment creditor’s attorney.
(4) The Judgment Debtor: the judgment debtor is your employee (or former employee as the case may be).
Next month, we will walk you through the completion and satisfaction of a continuing postjudgment earnings garnishment summons.
If between now and next month, you are caught having to respond, please do so carefully. Read and follow all directions. Keep records to prove you properly complied. Finally, when in doubt, you may need to call an attorney who is familiar with this process. The penalty for not properly garnishing your employee’s wages is that you – the employer – may owe the full debt to the Judgment Creditor.
By McLaine DeWitt Herndon, mherndon@dsda.com
What's New
ANNOUNCEMENTS
Jury returns verdicts for DSDA Client
On January 20, 2009, an Oklahoma County jury returned separate verdicts in favor of DSDA client KWTV and another Oklahoma City television station denying the plaintiff’s claims for defamation and false light invasion of privacy. The case involved on-air reporting about a theft. The police released, and the television stations showed, a surveillance video of the suspect to get the public to assist in identifying and locating the suspect. One of the suspects identified was Linda Stewart who sued alleging that the news reports were defamatory. At trial, the judge instructed the jury that Ms. Stewart had not committed any criminal act.
While the plaintiff elicited some sympathy because of her having been sought by police through the media for crimes the judge instructed the jury that she did not commit, the nine-woman, three-man jury deliberated only two hours before returning verdicts against the plaintiff and in favor of KFOR and KWTV on both the defamation and false light claims.
Congratulations Doug Dodd and Mike Minnis! Job well done.
FEDERAL GOVERNMENT POSTPONES E-VERIFY FOR FEDERAL CONTRACTORS AND SUBCONTRACTORS
On January 9, 2009, the federal government postponed the January 15, 2009, deadline by which federal contractors and subcontractors were required to use E-Verify. Under the law, federal contractors and subcontractors were to verify the work authorization of all new hires and existing personnel assigned to perform work on future federal contracts. Because of a pending lawsuit challenging E-Verify, the deadline has been postponed until February 20, 2009. For more information, contact Michael C. Redman, mredman@dsda.com, or Hilary L. Velandia, hvelandia@dsda.com.
USCIS Implementation of New I-9 Form until April 3, 2009
On January 30, 2009, USCIS announced it will be delaying implementation of the new I-9 rules and the new form until April 3, 2009. USCIS had scheduled the new rule to apply on February 2, 2009. USCIS also extended the deadline to submit public comments on the new rule until March 4, 2009. Accordingly, it is possible that the terms of the new rule may change before the new effective date.
Under the current version of the new rule, employers would no longer be able to accept any expired documents as part of the verification process. Under the current rule, documents establishing identity only, also known as “List B Documents,” are acceptable to prove identity, even if expired. Documents on this list include, for example, driver’s licenses, state ID cards with photographs, and school ID cards with photographs. Additionally, the new rule would add additional documents that employees may present to demonstrate both identity and employment authorization, also known as “List A Documents.” These new acceptable documents would include certain I-551s that appear on foreign passports and certain admission documents for persons holding passports from Micronesia or the Marshall Islands. The new rule would not require employers to complete a new I-9 form for existing employees. Employers should use the new form only for employees hired on or after April 3, 2009, and for re-verifications performed thereafter.
For more information, click here or contact DSDA attorney Hilary L. Velandia at hvelandia@dsda.com.
Dates to Remember
CALENDAR OF NOTABLE EVENTS
February 11, 2009
James C. Milton, Kassandra M. Bentley, and Alicia J. Edwards will be speaking at a seminar on Oklahoma Water Laws and Regulations at the Hilton Garden Inn Tulsa South, in Tulsa, Oklahoma. This seminar is designed to provide continuing education for engineers, surveyors, and attorneys. The seminar will provide information on the Oklahoma Comprehensive Water Plan, water quality laws, and recent developments in the area of water laws. For more information, click here.
February 19, 2009
The Tulsa County Bar Association Employment Law Section is kicking off 2009 with its first meeting. Kristen L. Brightmire will be speaking on the new FMLA Regulations. For more information, click here or contact Kristen L. Brightmire at kbrightmire@dsda.com.
March 11, 2009
Kristen L. Brightmire will be presenting at The Oklahoma Association of Homes and Services for the Aging (OKAHSA) at its Long Term Care Administration Seminar in Midwest City. She will focus on Best Practices for Hiring and Firing in Today’s Complicated Legal Environment. For more information, contact OKAHSA at (405) 640-8040 or Kristen Brightmire at kbrightmire@dsda.com.
March 24, 2009
Elise Dunitz Brennan will speak on the Fundamentals of Healthcare Arbitration at a nationally broadcasted telephone conference sponsored by the American Health Lawyers Association. For further information, click here.
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