Employment Law Update

The Equal Employment Opportunity Commission (“EEOC”) recently issued new guidance for employers using settlement agreements and waivers to have current and former employees release discrimination, harassment and retaliation claims. Among the points explained or clarified by the EEOC: (1) employees who sign valid waivers can still file EEOC charges because the agency has the independent statutory mandate to enforce the laws, so employer waivers should not prohibit the filing of the same; (2) all waivers should be knowing and voluntary, i.e. entered into under circumstances where the employee knows what he/she is doing and is not coerced to do it; (3) remember state law requirements (e.g. Minnesota requires a 15 day revocation period in waivers of age claims); (4) remember the special federal law requirements for waivers of age bias claims and especially in the context of a group termination; (5) the EEOC looks more closely at fairness issues in waivers where an employee has not been advised to seek legal counseling before signing it; and (6) each waiver is a legal contract that should be customized to the individual employee and considered within the individual context for compliance issues. You can read the full EEOC guidance on employee waivers here.

Big Employment Lawsuits and Settlements

A national telecom has paid $1.3 million to satisfy a judgment in a religious discrimination case filed in Arkansas. A jury ruled the involved employer illegally fired two workers after they attended a national Jehovah's Witnesses convention. A large garment manufacturer recently paid about $1.7 million to settle national origin, age, and pregnancy discrimination charges. Finally, the EEOC has sued a major Las Vegas casino alleging that an Eqyptian kitchen worker was subjected to national origin harassment, specifically racial slurs.

Marines Ban Twitter and Facebook—Should You?

The United States Marine Corps has banned the use of Twitter, Facebook, and other social networking sites on its computer networks. The Marines have concluded that the sites are a “proven haven for malicious actors and content” and create a “larger attack and exploitation window” by exposing information that can be used by “adversaries.” The Marines also have expressed concerns for unchecked scams, worms, and viruses on the sites. Although most employers do not have the same strategic and security concerns as the Marines, the Corps' action is food for thought. Do these sites help or hurt your worksite and employer productivity? Does your use of them increase your exposure to legal liability? The answer may be very different for various employers, but the question is at least worth asking and answering.

Congress Continues to Sprout Employment Law Proposals

There continues to be a good news/bad news scenario in Congress for employers right now. The good news is only one or two significant new national employment laws have been passed. The bad news, at least in terms of the sheer volume of employer compliance requirements (I'll let you decide whether or not the content of the proposals is good or bad), is that several new employment law proposals seem to sprout up every week. Here are the latest new proposals. The House has passed a bill (H.R. 3269) putting limits on the compensation of executives of certain large, publicly-traded companies. Among other things, the bill requires non-binding shareholder votes on executive pay, requires independent compensation committees, and requires new federal regulations regarding incentive compensation. A new bill introduced in the Senate (S. 1488) temporarily will extend COBRA health care continuation periods. Bills introduced in both the House (H.R. 3403) and Senate (S. 1543) will expand Family and Medical Leave (FMLA) rights for military families by allowing greater time periods in which to exercise leave and by allowing the exercise of “exigency” leave rights to more service members. Finally, House and Senate members seem poised to compromise on health-care reform. Watch for various proposals to possibly come out of various committees in September for further debate by the full legislative bodies.

Lawsuit Defense Made Difficult by Unthinking CEO

A federal court in Idaho recently refused to dismiss an age discrimination lawsuit filed by an applicant for employment, in part because of an e-mail message sent by the employer's CEO. Shortly before the applicant was denied employment, the CEO was going through e-mails and responded to a request for employment by the applicant. The CEO thought he was sending the message to someone within the company. Instead the CEO accidentally sent it to the applicant. The message said, “Damn. I'm here late trying to get through e-mails. I just saw this one I missed somehow and it is a week old. Check it out. I don't know what I think. He must be old and just looking for something to do.”

Three or four quick lessons from this case on how you can minimize age discrimination claims: (1) try not to do things late at night; (2) check “recipients” before you hit the “send” button; (3) think; and (4) don't be stupid. With employment lawsuits more common today than even Michael Jackson news stories, it is simply foolish and even suicidal to put employment decisions into the context of age, race, gender, religion, etc. with careless comments. Employment lawsuits are hard enough to win as it is without this type of unforced error and self-inflicted wound.

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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