Texas Association of Business

Answer:

An employee may be required to comply with the employer’s usual notice and procedural requirements for requesting leave, including contacting a specific individual to request leave.

On November 17, 2008, the Department of Labor published new final FMLA regulations which became effective on January 16, 2009. The 2009 regulations made a number of substantive changes to the original FMLA regulations issued in 1995. In particular, the new regulations state that “[a]n employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. §825.302(d); see also 29 C.F.R. §825.303(c). This includes requirements in “an employer’s policy to contact a specific individual.” Id. “Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protection leave may be delayed or denied.” Id.

It should be noted that prior to the new regulations, a number of employers believed that Wage and Hour Opinion Letter FMLA-101 prevented them from applying internal call-in policies, or disciplining employees under no call/no show policies, so long as the employees provided notice within two business days of returning to work to state that the leave was FMLA-qualifying. Wage and Hour Opinion Letter FMLA-101 was based on an interpretation of the 1995 FMLA regulations and has been superseded by the new regulations and opinion letter FMLA 2009-1-A.

Employers seeking to enforce their usual procedures for requesting leave should ensure employees are aware of such procedures by including them in the company’s employee handbook and/or by distributing them to all employees. Employers should also ensure these procedures are consistently enforced and applied in a non-discriminatory manner.

This Q&A addressed one of many significant changes in the FMLA. The expanded FMLA is already in effect. If your company has not done so already, please become familiar with the new regulations and ensure compliance.

Answer:

The last several years have seen an explosion in what are now known as “professional employer organizations” or “PEOs”. They may also be referred to as “employee leasing” or “staff leasing” companies. These are companies that specialize in management of human resources, employee benefits, payroll and workers’ compensation, as well as other strategic services such as recruiting, risk/safety management, and training and development. There are various ways in which this PEO relationship can exist, from limited counsel and resource-providing to the outright hiring and leasing back of your employees so as to take over virtually all employee responsibility.

The latter version has become quite popular, and for many companies has become a smart, cost-effective way to run their business, leaving time-consuming and specialized tasks to a professional HR organization. Working through a PEO may also allow the client company to offer a better overall package of benefits, and thus attract more skilled employees by tapping into the larger benefits pool afforded by a PEO. The PEO model is therefore often attractive to small and mid-sized businesses.

From an employment lawyer’s perspective, however, it is important to note that using a PEO does not necessarily absolve your company from potential liability for illegal discrimination. Indeed, whether you technically employ your employees or simply “lease” them from a PEO, the extent of your actual day-to-day control over them is what counts when determining your responsibility for illegal discrimination in hiring, firing, discipline, promotion, compensation, etc. More often than not, both your company and the PEO you are using will be exposed to liability in such a lawsuit.

So while using a PEO may offer many valuable advantages, depending upon your situation, do not assume that having your workers employed through a PEO will automatically prevent them from suing you. Continue to be smart and careful with your workplace practices whether you use a PEO or not.

Answer:

While an employer is not always technically required to investigate an employee’s complaint, there are many instances in which an employer is well advised to conduct an investigation. Furthermore, federal and state law impose a duty to promptly investigate allegations of sexual harassment and based on the results, take prompt remedial action to stop the harassment.

From a business perspective, investigations can be an integral part of policy enforcement and can assist in maintaining a professional environment. From a legal perspective, a prompt investigation and subsequent actions can provide an employer a solid affirmative defense in the later defense of an employee lawsuit. In other words, the exercise of reasonable care to prevent and protect harassing behavior requires a workplace investigation if the employer wants to rely on this affirmative defense created by the U.S. Supreme Court.

There are a variety of employee complaints that may warrant investigation. Examples include, but are not limited to, the following:

• Harassment
• Discrimination
• Violence or threats of violence
• Possession or use of drugs
• Theft
• Falsification of documents

To be effective, an employer’s investigation should be prompt, thorough and impartial. Additionally, an action should be taken in response to the investigation. Finally, try to maintain confidentiality throughout the investigation.

It is important to document all aspects of the investigation including interviews with employees. It is difficult to defend the thoroughness of an investigation, if there is no documentation. Be factual in your notes and do not express opinions or editorialize. Always remember that it is likely that the investigation notes will be discoverable and admissible in court.

Finally, remember that any retaliatory actions toward the complaining party violate the law. The U.S. Supreme Court recently held that Title VII’s anti-retaliation provision protects an employee who cooperates with an employer’s internal investigation of sexual harassment. Crawford v. Metro. Government of Nashville & Davidson County, 129 S.Ct. 846 (2009). Accordingly, employers must proceed with caution with respect to adverse actions against employees involved in an investigation.

Courts are increasingly requiring more from employer investigations. Accordingly, it is important to take prompt and remedial action in response to an employee complaint.

Answer:

An electronic signature by an employee acknowledging receipt of a policy should be sufficient to demonstrate the employee’s receipt and acknowledgment of the policy. There is no legal impediment under federal or Texas law for an employer to require an electronic signature to demonstrate receipt and acknowledgement of electronically delivered policies. However, it is recommended that employers provide employees with the option of acknowledging receipt of the policy in writing for employees who are unable to access the policy by computer or who require a reasonable accommodation under the Americans with Disabilities Act.

It should be noted that Texas has adopted a Uniform Electronic Transactions Act, which, like its federal counterpart, provides that a record or signature may not be denied legal effect or enforceability solely because it is in electronic form. See Tex. Bus. & Comm. C. § 43.007 and 15 U.S.C. § 7001. Although these statutes do not specifically address the employment relationship, they provide additional support for instituting electronic signatures of policies.

Moreover, the HIPAA regulations provide guidance as to what is considered taking “reasonable measures” to ensure that an electronic system results in actual receipt of transmitted documents, including: (i) using return-receipt electronic mail features or notice of undelivered mail, and (ii) conducting periodic reviews or surveys to confirm receipt of transmitted information.

Finally, challenges have been raised by employees in cases involving electronic distribution of arbitration agreements. Based on these challenges, employers should consider taking measures to ensure that an electronic signature can be attributable to the employee. Some suggested measures include: (i) providing employees with clear written and/or verbal notice of the electronic distribution of the policy; (ii) ensuring that employees utilize unique passwords to access the employer’s computer system; (iii) tracking the date and time an employee opens the e-mail containing the policy; and (iv) providing a box for employees to check confirming that they have received the policy. See Kerr v. Dillard Store Services, Inc. 105 F.E.P. cases 1298 (2009); Campbell v. General Dynamics Government Systems, 407 F 3d. 546 (1st Cir. 2005).

Answer:

Social networking websites like Facebook, Twitter, and MySpace are an unavoidable aspect of American social life. Without proper safeguards, they can also be a huge burden on businesses. Time spent by employees on such social networking sites can create a huge drain on productivity and divert valuable network bandwidth and computer resources.

Employees’ use of social networking sites in the workplace raises a number of potential legal risks for employers. For example, an employee’s posting of improper comments about his or her coworkers on such sites could give rise to state or federal law claims of discrimination, harassment, or retaliation, as well as defamation, intentional infliction of emotional distress, and other state law torts. An employee’s sharing of his employer’s non-publicly available financial or strategic information among Facebook friends or Twitter followers could give rise to liability for violation of insider trading laws, just as his unauthorized sharing or misuse of his employer’s (or its customers’) business information and intellectual property could result in lawsuits ranging from trademark or copyright infringement to trade secret misappropriation.

A few simple steps can help lessen these risks. Many companies are adopting, and requiring their employees to sign and acknowledge, “social networking policies” that restrict the time and manner in which employees can access such sites, remind employees of their responsibility to comply with other company rules and policies (including anti-discrimination/anti-harassment, confidential information, and privacy policies) when using social networking sites or personal blogs, and reaffirm the company’s expectations regarding non-work related use of company time and property. Others are utilizing internet “speed bumps,” which remind employees that when they are visiting web sites they must comply with company’s policies. Whether your business adopts such measures, or opts for the more extreme (and more risky from a legal perspective) measure of imposing a complete ban on such websites, it is very important to make sure that those limitations are applied equally to all employees. A private employer’s failure to ensure such equality can itself result in possible liability under labor and civil rights laws. Notwithstanding such policies, managers and human resources professionals may also incur liability by using improper or deceptive means in an attempt to monitor employees’ private accounts on social networking sites.

One final note: The spread of social networking sites like LinkedIn and Yammer, which are specifically aimed at businesses and employees, is a growing trend. Although such sites may yield benefits to workers and companies, it is important that employees using such sites be reminded of their general duty to follow all applicable laws and company policies.