Employment Law Update

The U.S. House of Representatives is now considering the Healthy Families Act (H.R. 2460), which would require an employer (with 15 or more employees) to provide its employees with one hour of paid leave for every 30 hours worked, up to seven days (or 56 hours) of paid sick leave per year. This time could be used by employees to care for themselves or a family member during illness or preventative care and could also be used by employees who are the victims of domestic violence, stalking, or sexual assault. Employers with policies already allowing such leave would not have to permit additional leave. The sponsor of the bill claims that about half of the workforce, or 57 million persons, do not have paid sick leave benefits. National SHRM opposes the bill as an unnecessary mandate.

Watch What You Say: It Can and Will Be Used against You

A recent Connecticut Supreme Court decision is a timely reminder that what you say, as an employer, can and will be used against you in a court of law. The Connecticut court upheld a quarter-of-a-million-dollar verdict against an employer, finding it was liable for defamation after firing an employee based on false allegations of theft and commenting on the same. The involved employee had worked at an elder-care facility and was fired after she took a deceased patient's furniture. It turns out the patient's daughter had given the employee permission to do so. This case illustrates a common mistake employers make in documentation: overstating the case or not carefully investigating it. Make sure you know all the relevant facts before firing someone and then do it for reasons you can support if needed. For example, if you think an employee has engaged in theft, dishonest, or suspicious activities, but cannot prove it, don't call it theft or dishonesty. You are far
better off to discipline or terminate on the grounds that the employee has been involved in conduct that causes you to lose trust in him or her.

EEOC Weighs in on Swine Flu

The Equal Employment Opportunity Commission (EEOC) has weighed in on the national discussion about what an employer can and cannot do in responding to the swine flu outbreak and on health risk assessments generally. The EEOC concludes that employers can offer voluntary assessments and programs but cannot mandate disclosure of disability or genetic-related information. For more information, click here.

The EEOC also reminds employers that the Americans with Disabilities Act (ADA) allows medical inquiries of employees only when they are job-related, justified by business necessity and applied to all persons in similar circumstances. Such information also must be received in confidence. For more specific details on these issues and what you can do in the face of a possible pandemic, see the EEOC's question and answer format guidances here and here.

Government to Step up Wage/Immigration Enforcement

Recent announcements by the U.S. Departments of Labor (DOL) and Homeland Security (DHS) indicate the government is preparing to step up its wage and immigration law enforcement activities directed at employers. DHS has a renewed mandate to target employers who hire illegal workers. DOL is hiring 250 new investigators to help enforce the laws requiring payment of overtime and a minimum wage. It might be a good time to audit your employment policies and practices in both areas to make sure you are not the target of the new enforcement efforts.

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or or visit Reprinted with permission.

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