Many Florida HR managers will be needing to update their policy handbooks in the wake of contentious new legislation giving employees the right to keep a gun in a locked car at work. On April 15, Governor Charlie Crist signed the Preservation & Protection of the Right to Keep & Bear Arms in Motor Vehicles Act of 2008, which says that beginning July 1, employees with concealed weapons can keep a gun locked in their car at work, even on the employer's private property. Organizations that have polices banning weapons from company premises will need to revise those policies. The law pertains to both public and private employers with some few exceptions: aerospace, nuclear power plants, hospitals, schools, prisons and manufacturers that use combustible materials.

Many employers have been fighting this legislation for years under a coalition called Guns at Work. In reaction to the newly enacted legislation, the Florida Chamber of Commerce and the Florida Retail Federation announced plans to file for an injunction in federal court against the legislation. Mark Wilson, President and CEO of the Florida Chamber of Commerce stated:

"This law is unnecessary and a violation of the private property rights provided by the Constitution. We are taking this action to restore what 80 percent of Florida voters believe to be true—that a business owner should be able to decide if employees can or cannot bring guns on their property."

Oklahoma - similar measure overturned in court
Opponents have some grounds for hoping that this might be overturned. A similar measure passed in Oklahoma in 2004 in response to the firing of a dozen Weyerhaeuser employees in 2002 for having guns locked in their cars in the company parking lot. After wending its way through courts for a number of years, the law has been overturned. In October 2007, U.S. District Judge Terence Kern issued a permanent injunction against the law which prohibits employers from banning firearms at the workplace. The judge made his ruling based on the law's conflict with federal law, specifically, the 1970 Occupational Health and Safety Act, which preempted the Oklahoma law. OSHA requires requires employers to lessen hazards in their workplaces that could lead to death or serious bodily harm. OSHA also encourages employers to prevent gun-related workplace injuries.

For further discussion on this topic, see our prior post Should employers have the right to ban guns at work?.

Posted by Julie Ferguson on April 18, 2008 at 9:49 AM | Permalink | Comments (1)

This week marks the 15 year anniversary of the 1993 Family and Medical Leave Act (FMLA), which was signed into law on February 5, 1993. FMLA requires employers of 50 or more employees to provide eligible employees up to 12 weeks of unpaid, job-protected leave each year for the birth and care of a newborn child, for placement with the employee of a child for adoption or foster care, or for the serious illness of the employee or of the employee’s child, spouse, or parent. D.O.L.'s FMLA Compliance Assistance page offers more detail and resources.

On January 28, the FMLA had its first major expansion when President Bush signed the 2008 National Defense Authorization Act into law, which, among other provisions, extends FMLA to family members of military personnel who are recovering from illness or injury. While regulations are still pending, the Department of Labor (DOL) states that the amendment to the FMLA allows a "spouse, son, daughter, parent, or next of kin" to take up to 26 weeks of work leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

More changes in the works
In addition, more regulatory changes to FMLA are forthcoming. DOL will be issuing recommendations for additional amendments on February 11. According to Human Resources Executive, it is expected that DOL recommendations might address the difficulties posed by intermittent leave and might strengthen the definition of "serious medical condition." It is also anticipated that employees will be required to request FMLA-related leave two days prior to taking time off, a change from the current system in which employees can be absent for two days before requesting the leave be designated as FMLA leave.

Once the new recommendations are issued, final regulations will need to be approved, a process that could take 90 days or longer. Once approved, Congress has up to 60-days to review the rules. As the HRE article points out, "That means a new Congress next year could reject what the Congress this year approved."

At least one of the authors of the original FMLA legislation would like to see even more changes. Senator Christopher Dodd wants to strengthen the law to give Americans 8 weeks paid leave after having a child or during a family illness. Dodd contends that millions of workers do not take advantage of FMLA because they can't afford time off without pay. He also notes that 128 countries provide paid and job-protected maternity leave, with an average paid leave of sixteen weeks. Dodd has made several prior attempts to expand FMLA to include paid leave but has met with little success. Time will tell whether a Congressional party shift and change in administration would create a more favorable climate for such a proposal.

Employer advice from legal experts
Meanwhile, legal experts are advising that employers act expeditiously to amend their FMLA policies and practices to reflect the changes. And the employment law firm Littler Mendelson also reminds employers that in addition to these changes, employers may face other obligations under state laws:

"Employers should be aware that time off under this new legislation may be in addition to family leave available under state law. Several states have now passed legislation providing their residents with unpaid family military leave. These states include California, Illinois, Indiana, Maine, Minnesota, Nebraska, and New York. Other states, including Hawaii and Wisconsin, have family military leave legislation currently pending before their respective state legislatures. Employers also should be aware of applicable state statutes and modify their leave policies as appropriate. The family military leave laws do not purport to affect an employee's right to any other legally-mandated leave or employee benefit, including the additional leave benefits now available to employees under the Amendment."

Posted by Julie Ferguson on February 7, 2008 at 4:45 PM | Permalink | Comments (1)

In a pre-Christmas ruling, the National Labor Relations Board issued an opinion that strengthens the employer's right to restrict the use of company e-mail for non-work related activities, including union solicitation. It applies to all private employers, regardless of union or nonunion status. According to the New York Times:

The ruling involved The Register-Guard, a newspaper in Eugene, Ore., and e-mail messages sent in 2000 by Susi Prozanski, a newspaper employee who was president of the Newspaper Guild’s unit there. She sent an e-mail message about a union rally and two others urging employees to wear green to show support for the union’s position in contract negotiations.

During the years that this case was pending, many companies were uncertain whether they could bar union-related e-mail. But the labor board’s decision gives companies nationwide the green light to flatly prohibit union-related e-mails as part of an overall non-solicitation policy.

“An employer has a ‘basic property right’ to regulate and restrict employee use of company property,” the board’s majority wrote. “The respondent’s communications system, including its e-mail system, is the respondent’s property.”

Prior to this ruling, conventional wisdom held that e-mail would be treated in much the same manner as other communications under Section 7 of the National Labor Relations Act, which forbids employers to discriminate in terms of union organizing. To avoid discrimination, employers that wanted to maintain nonunion status were strict about disallowing any other types of non-work solicitations and communications in the workplace, encompassing communications from Girl Scout cookies and bowling clubs to Avon.

But while this opinion strengthens employer control over e-mail, it apparently does not hold to the same non-discrimination standards, making allowances for some types personal e-mail messages. This would seem to indicate that employers may want to revise organizational policies to clarify what communications are and aren't allowed. It also raises the question as to whether this newer standard will apply to other forms of communication as well. This ruling was politically controversial, split between party lines, and some think that the decision may be revisited by a new Board in the next administration.

We are not lawyers, so for a greater understanding of some of the legal nuances in the decision, we turn your attention to the following experts:

Ross Runkel at LawMemo discusses the "two bombs" that the NLRB dropped in its last day in office. Jeffrey M. Hirsch of Workplace Prof Blog and Mitchell H. Rubinstein of Adjunct law Prof Blog both discuss problems with the ruling.

Rod Satterwhite of Suits in the Workplace also offers a history and summary of the decision and this explanation of what the ruling means to employers:

With respect to e-mail policies, employers may now "distinguish between charitable solicitations and non-charitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations to support any group or organization such as unions, political parties or religious groups. Allowing the employer to distinguish between personal and organization interests is extremely important, because the Board had previously held that if an employer allows employees to discuss personal matters, such as athletic scores, news or family affairs, it could not prohibit discussions of union matters.

Equally important, the Board clearly intends this new understanding of discrimination to apply in other contexts, including right of access to employers' property and internal non-solicitation/no distribution policies, although it excluded situations in which employees had no opportunity for face-to-face communication.

We'll keep you updated if we see any other good legal guidance on the matter.

Posted by Julie Ferguson on January 16, 2008 at 12:57 PM | Permalink

As of May, 2008, employers must bear the cost for personal safety equipment (PPE) used by their workers. On November 14, OSHA issued a new rule clarifying employer responsibilities for payment of PPE, requiring that employers bear the cost of most PPE mandated by OSHA's general industry, construction and maritime standards. This rule had been in limbo since it was first proposed in 1999, and the current implementation is thought to be an effort to deter a lawsuit that was filed earlier this year by several unions. One of the controversies around the rule has been whether employers should be required to pay for prescription safety eyewear. The new rule exempts ordinary protective equipment such as prescription eyewear, safety footwear, protective clothing, and weather-related wear. The new rule does not expand the roster of PPE that is required.

OSHA estimates that implementation of the new rule new rule will reduce occupational injuries by as much as 21,000 per year, saving more than $200 million per year in medical and insurance costs. For more details, the full text of the rule is available here: Employer Payment for Personal Protective Equipment (PDF)

Posted by Julie Ferguson on November 29, 2007 at 9:13 AM | Permalink

We often get requests from our customers for more detailed information about their organization's utilization of EAP services. Employers have a legitimate need to understand how their money is being spent. Some also want to use the data to better address specific issues that their employees and their families might be experiencing. EAPs and other benefits companies—especially health insurance organizations—would like to respond to their customers' needs, but are stymied by the necessity of complying with the regulations set forth in HIPAA.

Since April 13, 2003, all health care organizations have been required to comply with guidelines protecting an individual's health care information. There is a great deal of detail in the Act but, in short, this federal law states that we all have privacy rights and your health information is protected. The law states that no one can release your health care information without your permission. (Detailed information is available at the Health & Human Services, Office for Civil Rights—HIPAA).
Health care organizations, such as hospitals and group health plans, must comply with the law. Physicians are also subject to the provisions of the law. Penalties for noncompliance can be sever—the HIPAA Blog reports on one company that paid $15 million in penalties for breaching personal data.

Many gray areas
When it comes to protecting an individual's medical notes, interpreting and complying with this law is fairly straightforward. Matters become more complex when we start talking about insurance claims data. For instance, suppose you work for a small- to mid-sized company, and one of your employees has been out sick for a period of time. When you later get a claims report from your medical insurer that shows a spike in mental health claims that coincide with this absence, the picture is fairly obvious. Does "putting two and two together" constitute a breach of HIPAA regulations? This is a much more difficult question to answer.

For the short term, employers should expect that benefits organizations will be extra cautious about the information they release. That will make benefit purchase decisions more difficult. It is also likely to cause unwanted friction between benefits companies and the customers they serve.

Posted by Bill Danylik on August 14, 2006 at 11:30 AM | Permalink