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2010 Legal News

Health/Employment Law, Labor Law, National Labor Relations Board (“NLRB”) decision, Federal Harassment Case, Employee Use of Company Supplied Email/Text-Messaging Accounts, Corporate Law, Employment Law, Tax/Pension Law, “Social Media Policy:”

  1. Health/Employment Law – The federal Genetic Information Non-discrimination Act (“GINA”) is now in effect. This new federal law generally prohibits 1) health insurers or health plan administrators from requesting or requiring genetic information of an individual or the individualтАЩs family members, or using it for decisions regarding coverage, rates, or preexisting conditions, and prohibits 2) most employers having 15 or more employees from using genetic information for hiring, firing, promotion decisions, or for any other decision regarding terms of employment. “Genetic information” includes not just genetic test results and services data, but also family health history. (Company “cafeteria posters” ought to be updated for terms of this new law.)
  2.  Labor Law – The federal Family & Medical Leave Act (FMLA) – medical certification process -significant changes to the FMLA (presently still applicable only if 50 or more employees) which took effect earlier this year, and to which we made reference prior, contain several provisions related to employer requests for medical certifications. For instance, the regulations increase the number of days an employer has to request certification after receiving notice of a worker’s need for leave. The regulations also provide employers with greater leeway in authenticating medical certifications and allow them additional opportunities to request certain information from a medical provider. However, this added leeway comes with some increased compliance requirements. Also, the “standard forms” available for FMLA leave have been updated to reflect changes in the law.
  3. National Labor Relations Board (“NLRB”) decision – Whether your workforce is unionized or non-unionized, be aware that the NLRB recently issued a decision involving an individual doctor and her employer, that highlights that certain protections found in the National Labor Relations Act (“NLRA”) can extend to professional, non-union employees who have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. In this case the NLRB determined that a health care employer violated a portion of the NLRA by terminating a doctor who challenged management and certain new contractual terms the employer had offered to her and her fellow non-union physicians. This decision is an important reminder that NLRA protections can sometimes apply not just to union personnel, but also to both professional employees and to other non-union workers.
  4. Federal Harassment Case – a “pro-business” decision (!) — The federal 3rd Circuit court (covering, among other places, PA & NJ federal claims) ruled recently, in a sexual harassment case, that a company generally has “knowledge” of a harassment complaint only if it was brought to the attention of a) a manager who is either “sufficiently senior” in the company’s management hierarchy, or b) an employee whose job duties include dealing with sexual harassment claims. This is important because a company’s “knowledge” of the circumstances impacts whether or not the company will have liability.
  5. Employee Use of Company Supplied Email/Text-Messaging Accounts – Several recent federal court decisions have put in some flux the issue of an employee’s potential “privacy right” when using company-supplied email or text messaging accounts for personal use. The U.S. Supreme Court may clarify soon, but, very generally speaking, if an employer creates a reasonable expectation of privacy in the use of such accounts, that “expectation” may serve to cut against the employer.
  6. Corporate Law – Pennsylvania’s once-a-decade (“decennial”) filing requirement is coming soon for all affected entities. Generally speaking, this is a required report of a business entity’s continued existence or the use of certain marks. All domestic profit and nonprofit corporations, certain foreign corporations, limited liability companies, limited partnerships, many (not all) limited liability partnerships, business trusts, insignias and “marks used with articles and supplies” are “affected entities” BUT only if they have not made a new or amended filing with the PA Corporations Bureau from 1/1/02 through 12/31/11. PA should be sending all affected entities notice of this filing requirement, together with the appropriate form for filing (and, of course, notice of the required fee, but failure to receive such mailing from PA is not an excuse for non-filing. The filing period runs from 1/2/11 through 12/31/11, so there is no big rush to file. But if you have an “affected entity” and fail to file, you LOSE the exclusive right to your entity name as of 1/2/12 (or, in the case of registered marks or insignias, you lose their PA registration). (Note too: mere fictitious names are not required to make this PA Decennial Filing, but, on the other hand, fictitious name filings, as well name PA name reservations, names searches, and the like are not qualifying “new or amended” filings for affected entities.)
  7. Employment Law – Be on the lookout in 2011 for likely new Federal law meant to clarify who is and isn’t an employee versus an independent contractor. This is a “hot topic” because some businesses have misclassified employees as independents (whether knowingly or not) and, so, have, for example, deprived a now cash-starved Federal government of certain payroll tax dollars. Two bills introduced, one in April 2010 and one in September 2010, are meant to address this somewhat “muddy” topic. Recall that there is existing guidance (such as the IRS “20 factor” test and relevant case law, etc.), but these 2 bills seem to have significant congressional support (see: “cash-starved” as above…). So, a company review, both “now” and when new legislation might pass Congress next year might be a wise business course of action.
  8. Tax/Pension Law – Increased litigation is also being seen, and more is likely, in the area of employee benefits, governed in large part under the Employee Retirement Income Security Act (ERISA). A bad economy also often brings out the litigants (such as terminated/demoted personnel); furthermore, recent tightening of laws permitting securities lawsuits has caused some class-action attorneys to transfer their attention from securities law to employee pension and other employee benefits law. And a company’s size (number of employees, etc) is often not at all determinative as to whether suit is brought (as is: small companies are at risk for benefits lawsuits often as much as large firms). Therefore, companies offering employee benefit plans, as well as their individual fiduciaries, ought to keep abreast of current law to help protect against legal claims by plan participants. (A check with your company insurance agent as to types of related insurance coverages might also be worthwhile.)
  9. Social Media Policy- With the advent of so many new media avenues for company employees (Facebook, Linked-In, blogging, etc.), and related easy access to same (both during and after work), many companies are creating “social media policies” so as to put some important parameters on these practices. Be aware that a company policy that simply prohibits an employee from writing/saying/blogging “anything negative” about his/her company will likely violate applicable law, so that approach won’t work. Some elements of a solid policy that may work (depending on particular company needs) would likely include: a) limiting on-line activity at work to business purposes only, b) advising that employees may not use company trademarks or logos without prior consent and may not disclose company confidential or proprietary information, c) employees should have no privacy expectation when using any company supplied equipment or systems (whether to access company, or personal, sites), d) all usage is subject to company monitoring and/or review, and e) all employees are expected to use good judgment and responsibility when using either “new” or “old” media. (Certain important terms/conditions may apply, again, depending on circumstances such as your particular business needs, as well as the State(s) in which your business is located.)

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