POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 19, 2013

Although the form does not reflect a substantive change, employers should use this opportunity to review their compliance obligations under the FCRA. The FCRA applies to "consumer reports," which are defined as any communication from a consumer reporting agency about an individual which is used in whole or in part as a factor in establishing eligibility for employment.  A good summary of employer obligations under the FCRA is here (Appendix N).

In summary, before an employer requests a consumer report, it must:

1. Notify the applicant or employee that it may use the information in his/her consumer report for decisions related to employment. This notice must be in a stand-alone written document. The notice cannot be included in an employment application.

2. Obtain written permission from the applicant or employee to obtain the consumer report. This permission may be contained in the same document that is used to notify the applicant or employee that the employer will get a consumer report. If an employer wants the authorization to allow it to receive consumer reports throughout an employee’s employment, the written authorization must state this clearly and conspicuously.

3. Give the company that will provide the consumer report a written certification that the employer: (1) notified the applicant or employee and obtained their permission to get a consumer report, as required by §604(b) (2) of the FCRA; (2) will give the applicant or employee a copy of the consumer report and a summary of his/her rights under the FCRA before taking adverse action based on the contents of the consumer report, as required by §604(b)(3) of the FCRA; and (3) will not discriminate against the applicant or employee or otherwise misuse the information in the consumer report, as provided by any applicable federal or state equal opportunity laws or regulations.

After receiving the consumer report, if the employer may take adverse action based on the contents of the report, before actually taking the adverse action, the employer must: 

1. Give the applicant or employee notice that includes a copy of the consumer report; and

2. Give the applicant or employee a copy of the summary of rights under the Fair Credit Reporting Agency.

POSTED BY ASHLEIGH BHOLE ON DECEMBER 20, 2012

Below are a few specific questions to ask while reviewing your company's vacation policy.  If your policy does not provide an answer to any one of these questions, it may be time for you to consider adding or revising language in the policy so that these benefits may be implemented in a seamless manner without unnecessary confusion, stress and potential liability.

• Who gets vacation time?  It is not unusual to see policies in which higher level executives, full-time employees and/or employees with more years of service are afforded more vacation days. However, an employer must decide in advance who will be included in the vacation policy.  Regardless of the employer's decision, it is important to make sure that similarly-situated employees are provided the same amount of vacation time, and the impact of the policy does not discriminate against members of a protected class. 

• How much vacation time do employees get?  An employer may give employees vacation time based on an escalated method - one week off for the first year, two weeks off for the second year and three weeks off after five years of service.  On the other hand, an employer may give two weeks paid vacation for all employees regardless of years of service.  The amount of vacation time afforded employees should be laid out in detail in the policy.

• Does Vacation Time Accrue?  If so, how and when does vacation time start to accrue?  Some employers provide vacation time, or "paid time off," that accrues on a bi-monthly or monthly basis. There could also be an accrual system in place based on the number of hours worked.  Additionally, vacation time can start to accrue immediately upon employment or it may begin after an employee has worked for the company for a prescribed period of time.  Make sure that the policy is very clear regarding how and when the vacation time accrues and any circumstances that may affect the accrual.    

•  How is accrued vacation time paid?  For administrative ease, many employers choose to pay out accrued vacation leave at the employee’s current rate of pay.  However, other employers may choose to pay out vacation leave at the earned rate of pay (i.e. the rate of pay at the time the vacation time accrued).  The policy should detail how the employee will be paid.

• What do employees do with unused vacation time? Employees may forfeit vacation time at the end of the year or may carry a balance of vacation days to the next year, with or without  a cap on the amount of time that can rollover.  If vacation days do not rollover, be sure to include a specific date on which any accrued vacation time will be forfeited.

• Is approval required for employees to use vacation time? Most employers require that vacation requests be approved in advance.

• By who, and how far in advance must employees obtain approval?  It is important that the policy detail the process for the submission and approval of vacation requests - Who must approve vacation requests? Is it a department head (e.g. someone in management who is not the employee's direct supervisor)? How far in advance must an employee request approval?  Be clear and concise on how requests are handled once they are received.  For example, are requests approved on a "first come-first serve" basis or are request forms processed in a random drawing based on years of service?  Understandably, employers cannot grant all employee vacation requests and still efficiently run a business.  

• How can the vacation time be used?  Some policies describe vacation time in days, while others describe the time in hours.  Either way, a policy should include the minimum increment of time that can be used at once.  For example, a policy may not allow an employee to take less than 30 minutes vacation time at once.  Similarly, an employer may require vacation time to be taken in full-day intervals.

• Are there blackout dates? It is advisable that a vacation policy reiterate that a company's needs take priority.  Therefore, if the business is seasonal, the vacation policy may require employees to schedule time off in non-peak months. Likewise, if there are certain days of the year on which your company requires more staff than usual because of a significant influx of business (e.g. Black Friday, Christmas Eve, Cyber Monday), it may be advisable to include these days as "blackout" dates in the policy.

Certainly there are enormous benefits to implementing a fair and solid vacation policy. Not only will such policies boost employee morale but they will also keep your company competitive in a diverse marketplace vying for the top employees.  The list of issues provided above is important to establishing a good policy, but is by no means exhaustive of the issues that may need to be addressed.  If you should have any questions or concerns regarding your specific vacation policies, please contact legal counsel for assistance.

POSTED BY RICHARD D. TUSCHMAN ON APRIL 16, 2012

Do employers have a right to demand access to their employees’ Facebook pages to ensure employees’ posts do not reflect poorly on their employers? A Miami-Dade firefighter’s race-baiting rant about the Trayvon Martin case - posted on his personal Facebook page - is sparking new interest in this question.

Captain Brian Beckmann’s post, published on the website theGrio.com, criticizes the prosecutor in the George Zimmerman case for political posturing and states that “urban youth” are the products of “failed, sh*tbag, ignorant, pathetic, welfare dependent excuses for parents.” Beckmann’s post goes on to say that urban youth are “just misunderstood little church going angels and the ghetto hoodie look doesn't have anything to do with why people wonder if they're about to get jacked by a thug.”

The source of the story apparently had access to Beckmann’s Facebook page and sent a screen shot of his post to theGrio.com. The source expressed concern that the comments reflected "the thoughts of someone who responds to the homes of the very people" being denigrated in the post. The Miami-Dade Fire Rescue Department is investigating the matter.

For public sector employers like Miami-Dade County, the question of whether employers can demand access to their employees’ Facebook pages is complicated by civil service rules, collective bargaining agreements, and First Amendment rights. But for private sector employers in Florida, no law currently restricts an employers’ right to demand access to their employees’ Facebook pages.

That is not to say that requiring employees to disclose their Facebook passwords is a good idea. An employer’s routine demands to view employees’ Facebook pages would undoubtedly be viewed as heavy-handed and smack of “Big Brother.”

But where an employer has knowledge of discriminatory posts or other online behavior by an employee that reflects badly on their business, demanding access to the employee’s Facebook page may be prudent, and perhaps even necessary, to prevent liability or reputational injury to the employer.

Legislation may change the legal landscape on this issue. Maryland recently passed a bill that prohibits employers from asking applicants and employees for social media account log-ins and passwords. Several other states are considering similar legislation. Florida is not among them, for now, but federal legislation may be on the horizon. We will keep an eye on this fast-moving issue and report on new developments.

POSTED BY JENNIFER WILLIAMS ON MARCH 28, 2012

The more things change, the more they stay the same. As labor and employment lawyers, in-house counsel, and human resources professionals, we are thrown into a whirlwind of complex workplace legal issues on a daily basis. No matter what the issue, though, I find that these fundamental questions pop up on a consistent basis: 

• Is this employee eligible for FMLA leave?
• Does this medical condition count as a "disability"?
• How many employees in a layoff trigger WARN Act notice?
• Do we have to accommodate employees’ religious beliefs?
• What are "protected characteristics" under Title VII?
• How do I notify employees of their COBRA rights?

At the annual Akerman Labor & Employment Seminar, we will address these questions and much more during the ABC's of Labor & Employment Laws session. We will cover basic knowledge of several labor and employment laws we encounter every day: Title VII, ADEA, FMLA, ADAAA, WARN, Florida's Whistleblower Act, OSHA, and USERRA.

Even the most experienced human resources professionals and legal experts will find something new to add to their knowledge base, making them a better resource for their respective organizations. Join me for this interactive session as we get back to basics. To learn more about the Akerman Labor & Employment Law Seminar, please visit http://www.akerman.com/events/LELS12/overview.asp

POSTED BY RICHARD D. TUSCHMAN ON FEBRUARY 24, 2012

A former Orlando-based employee of a national trucking company has filed a lawsuit claiming that she was terminated for serving on a federal jury, according to a recent article in the Orlando Sentinel.    In an unusual move, the court has appointed a lawyer to represent the former employee.

Whether or not the employee’s allegations are true, employers should remember that both federal and state laws make it illegal to terminate an employee for serving on a jury -- regardless of the length of service.

Under federal law, employers held liable are responsible for reinstating the employee, paying the employee’s lost wages and attorney’s fees, and paying a fine of up to $5,000. Under Florida law, employers held liable are responsible for paying the employee compensatory damages, attorney’s fees, and punitive damages.

Neither federal nor Florida law requires employers to pay jurors while they are serving on a jury. However, some county ordinances in Florida, and some states’ laws, do require employers to pay their employees while serving. 

If you have employees who have been called to serve on a jury, congratulate them for fulfilling their civic duty, hold their jobs open, and hope that it’s a short trial.  And ask an employment lawyer for advice if you are uncertain about your legal obligations.

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 2, 2012

The U.S. Equal Employment Opportunity Commission (EEOC) launched an internal task force that will focus on expanding and improving outreach and technical assistance to small businesses. The task force will seek to find avenues in which the agency may better collaborate with the small business community.

The internal task force includes EEOC District Directors from the Birmingham, Charlotte and San Francisco offices; program analysts responsible for outreach from the San Antonio, Los Angeles, and Philadelphia offices; and representatives from the Offices of Field Programs, General Counsel, Legal Counsel, and Communications and Legislative Affairs.

The task force will try to make it easier for owners of small businesses to quickly access the information they need to understand their legal obligations so they are able to comply with those obligations.

The Task Force will work during 2012 to develop recommendations to the Commission, which will be presented in a public Commission meeting.

POSTED BY KAREN M. BUESING ON SEPTEMBER 23, 2011

The workplace poster on employee rights under the National Labor Relations Act is now available as a free download from the NLRB website.

Most private-sector employers, both union and non-union, must display the poster where other workplace notices are posted as of November 14, 2011. Employers who customarily post personnel rules or policies on an internet or intranet site must also provide a link to the rights poster from those sites.

In addition, copies of the Notice will soon be available without charge from any NLRB regional office.

Employers are encouraged to be fully prepared to begin posting on November 14, 2011.

POSTED BY SCOTT T. SILVERMAN ON AUGUST 29, 2011

On August 25, 2011, the National Labor Relations Board (the “Board”) issued a final rule requiring employers subject to the National Labor Relations Act (the “NLRA”), which is the overwhelming majority of businesses, to post a notice in conspicuous places, informing their employees of rights under the NLRA, together with NLRB contact information and basic enforcement procedure information. The final rule is scheduled to be included in the Federal Register on August 30, 2011, taking effect 75 days later.

Therefore, Employers, both union and non-union, must begin posting the required notice on November 14, 2011. Federal contractors will be deemed to have complied with this requirement by posting the notice of employee NLRA rights that is already required by the Department of Labor under 29 CFR Part 471.

The notice to employees must be at least 11 inches by 17 inches in size. The notice must be posted in all places where notices to employees concerning personnel rules or policies are customarily posted. Copies of the notice will be available on the NLRB website and from NLRB regional offices by November 1.

Translated versions will be available in the same manner and must be posted in another language at workplaces where at least 20% of employees are not proficient in English and speak the other language. Helpful questions and answers on the Rule may be found here.

The final rule largely tracks the language of the proposal, with some changes suggested by commenters. The most significant change in the final rule is the deletion of the requirement that employers distribute the notice via email, voice mail, text messaging or related electronic communications if they customarily communicate with their employees in that manner. Other significant changes include: clarifications of the employee notice detailing employee rights protected by the NLRA and unlawful conduct on the part of unions; clarification of the rule’s requirements for posting notices in foreign languages; and allowing employers to post notices in black and white as well as in color.

All employers subject to the rule, who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site, will be required to post the Board’s notice on those sites, as well as physically posting the required notice. The employer must also post the notice on internet or intranet sites in a language other than English for each group of employees constituting 20 percent or more of the employer’s workforce who speak another language.

The required notice represents the latest move in response to the apparent legislative defeat of the Employee Free Choice Act. In June 2011, the Board issued another Proposed Rule that would significantly shorten the time between union petitions and elections. Because unions typically lose support during an election campaign, this rule would most likely increase the percentage of union victories. Also in June 2011, the Department of Labor issued a Proposed Rule that would expand employer and consultant reporting requirements for so-called “persuader activity.”

It is certainly time for employers to take action to implement effective union avoidance strategies. Waiting to react until a union enters the scene should no longer be an option.

POSTED BY SCOTT W. ATHERTON ON APRIL 29, 2011

Although the workforce’s heavy reliance on email and other electronic resources is not new, many employers are still grappling with how to address the ever changing ways in which employees utilize the company’s computer systems for personal purposes. One of the primary challenges created by employees’ personal use of company systems is exposure to invasion of privacy claims. These claims can arise in the event the company intercepts, monitors, or attempts to use personal information or communications that employees have transmitted using the company system.

A Florida federal court recently addressed this increasingly complicated area and provided a road map for employers to follow in protecting themselves from employee privacy claims. In Leor Exploration & Production, LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009), the Court addressed whether a company’s CEO had a reasonable expectation of privacy in email communications that were sent to his personal attorney through the company’s email system. The company had an employee handbook which included a general warning that, “[e]mployees should have no expectation of privacy in communications made over [the company's] systems.” Although the CEO did not dispute the existence of that provision, he argued that it did not apply to him because, among other reasons, a company representative had authorized an exception to this policy for the CEO.

In confronting these issues, the Court noted that the mere existence of a no-privacy provision in an employee handbook is generally not determinative of an employee privacy claim. Instead, the Court adopted the following four factor test to determine whether an employee has a reasonable expectation of privacy in computer files or email:

1. Does the corporation maintain a policy banning personal or other objectionable use?
2. Does the company monitor the use of the employee’s computer or email?
3. Do third parties have a right of access to the computer or emails?
4. Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Id. at *4 (quotation omitted).

Applying those factors, the Court in Leor concluded that the CEO had no expectation of privacy. In addition to the general privacy disclaimer language above, the company’s policy further stated that the company “may access and monitor the use of its systems and equipment from time to time” and that “employees should not use [the company's] communications systems to communicate, receive, or store information that they wish to keep personal or private.” The Court found this sufficient to satisfy the factors above, and held that the CEO had no expectation of privacy. As a result, the Court held that even emails sent to the CEO’s attorney using the company system were fair game for the company to access, review, and use.

The Court also rejected the CEO’s argument that the company had agreed to exempt the CEO from this policy. The Court found that there was no evidence that the company made any “assurances” that the CEO could disregard the company’s policy. Although the CEO’s exception argument was rejected in this case, the Court’s analysis suggests that it may be possible for executives or employees to oppose “no privacy” policies by establishing that they were assured the policy would not apply to them.

The Leor case provides several important lessons for employers. First, for those employers who do not have a “no privacy” policy, this case makes it clear that it will be difficult for employers to defend against certain invasion of privacy claims. Second, for those employees who only have a general “no privacy” policy, the Court’s reasoning strongly suggests their policies should be updated to clearly state that the company has the right to monitor and access all employee files and communications, similar to the language employed by Leor. Third, the CEO’s claim of purported “assurances” that the policy did not apply to him, even though unsuccessful in the Leor case, suggests that employers should further state that there shall be no exceptions to said policies unless they are written, clearly define the scope of the exception, and are signed by an appropriate company representative (such as the head of Human Resources) with corporate authority to grant such exceptions.

Although these measures may not completely avoid employee privacy claims, they should substantially limit employer’s exposure in this regard.

POSTED BY SCOTT W. ATHERTON ON JANUARY 31, 2011

Unfortunately, many employers have learned the hard way that failing to properly preserve emails and other files after receiving notice of a potential employee claim can result in severe sanctions against the company. One well known example is Zubulake v. USB Warburg. Although Zubulake started out as a fairly “vanilla” gender discrimination case, the employer made a series of mistakes which ultimately cost the company in excess of twenty million dollars in damages and sanctions. Among those mistakes was failing to properly instruct the people involved not to delete emails relating to the case—an obligation which federal law now imposes on both individuals and companies who are involved in federal lawsuits.

To reduce these exposures, proactive employers have begun implementing written policies and training programs to educate employees about their obligation to preserve evidence. This new trend follows recommendations by The Sedona Conference, which is generally regarded as a leading authority on e-discovery preservation issues. Among other things, Sedona has announced its official position that “adoption and consistent implementation of a policy defining a document retention decision-making process” and “[t]he use of established procedures for the reporting of information relating to a potential threat of litigation to a responsible decision maker” are among the factors Courts should consider in determining whether to impose sanctions when information is lost. See The Sedona Conference Commentary on Litigation Holds, The Trigger & the Process (Aug. 2007)

With those factors in mind, many companies are now implementing written legal hold policies as part of their Employee Handbooks. Those policies often have the following features:

• A statement concerning the company’s policy of complying with all laws requiring the preservation of evidence
• An explanation of what employees should do if they receive notice of a claim, such as (1) promptly reporting the claim to HR/the Legal Department; and (2) preserving all potentially relevant files as soon as reasonably possible
• An outline of potential disciplinary measures that may result from noncompliance with the policy (and an organized method for reporting non-compliance)
• A method of confirming all employees’ acknowledgement of the policy

While a company-wide legal hold policy is not a substitute for a case-specific legal hold notice (which is now mandatory under federal law), many employers have implemented such policies to help raise employee awareness, avoid data loss issues before they become a problem, and ensure that legal issues are promptly reported up the chain of command. Moreover, if mistakes do occur, the existence of an organized legal hold policy should help establish that the company acted in good faith—a factor Courts should consider prior to imposing sanctions pursuant to Sedona.

As is the case with the company’s anti-discrimination and other policies, this is yet another area of exposure where an ounce of prevention is worth a pound of cure.