February 23, 2012

GINA recordkeeping requirements set by EEOC

Posted in Discrimination, Genetic Information Non-discriminaton Act (GINA), Personnel Records, Record Retention tagged , , , , at 10:49 am by Tom Jacobson

The Equal Employment Opportunity Commission (EEOC) has extended the existing record-keeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) to employers covered by Title II of the Genetic Information Non-Disclosure Act (GINA).  The GINA requirements will go into effect on April 3, 2012.

The impact on employers should be minimal because, as noted by the EEOC in the Federal Register, “The final rule does not require the creation of any documents or impose any reporting requirements. It imposes the same record retention requirements under GINA that apply under Title VII and the ADA, i.e., any records made or kept must be retained for the period of time specified in the Title VII and ADA regulations.”  Private-sector employees with 15 or more employees and governmental employers are subject to Title VII, the ADA, and GINA.

What you need to know: Employers must be familiar with the myriad of recordkeeping requirements that apply in the workplace.  For a summary of the record retention requirements that exist under Title VII, the ADA, and now GINA, see the EEOC’s publication, Summary of Selected Recordkeeping Obligations in 29 CFR Part 1602. However, employers must also be aware that many other laws, including, but not limited to, the Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), Occupational Safety and Health Act (OSHA), and state personnel record laws have other recordkeeping requirements that must be followed.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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July 27, 2011

When it quacks like a duck, it’s a duck: why independent contractor titles don’t matter much

Posted in Discrimination, Fair Labor Standards Act, Independent Contractors, Independent Contractors, Leaves of Absence, Personnel Records, Unemployment Benefits tagged , , at 10:29 am by Tom Jacobson

I often hear employers and employees describe their relationship as an “independent contractor” arrangement, as opposed to an employer/employee relationship.  When I ask why they believe that, a typical response is that they have agreed to call it that.  A recent Minnesota Court of Appeals decision re-affirms that when it comes to independent contractor status, titles don’t matter much.

The case is Haugtvedt v. FJF Enterprises of Ramsey, Inc.  FJF is a tax preparation and accounting services firm, and Cara Haugtvedt was a CPA for the firm from 2005 until 2009.  At the beginning of their relationship Haugtvedt and FJF agreed that she would be considered an independent contractor.  Haugtvedt was terminated when negotiations for her to buy the business failed.  Haugtvedt applied for unemployment benefits.  The Minnesota Department of Employment and Economic Development (DEED) then performed and audit of FJF and concluded that despite her “independent contractor” title, Haugtvedt was an employee of FJF, and an unemployment law judge (ULJ) ultimately awarded unemployment benefits to Haugtvedt.

FJF appealed the ULJ’s decision to the Minnesota Court of Appeals, which affirmed the ULJ’s decision.  In its review of the ULJ’s decision, the appellate court went through a detailed analysis of the actual working relationship between FJF and Haugtvedt.  The court specifically reiterated that “The nature of the relationship of the parties is to be determined from the consequences which the law attaches to their arrangement and conduct rather than the label they might place on it.”  The court then applied the following five factors to the FJF/Haugtvedt relationship:  (1) FJF’s right to control the means and manner of Haugtvedt’s performance; (2) the mode of payment; (3) FJF’s furnishing of materials or tools; (4) FJF’s control over the premises where Haugtvedt’s work was done; and (5) FJF’s right to discharge Haugtvedt.  The court also applied a laundry list of other criteria found in the Minnesota rules for unemployment claims.  After applying all of these factors, the court agreed that despite her independent contractor title, Haugtvedt was indeed an employee of FJF.

This problem is not limited to claims for unemployment.  A misclassification of an employee as an independent contractor can also result in claims for unpaid wages, overtime, and taxes.  It can also mean that the worker is protected by other laws such as the multitude of laws that provide for leaves of absence, reasonable accommodations for disabilities, maintaining of personnel records, etc.

The Haugtvedt case is another reminder that when it comes to employer/employee relationships, if it quacks like a duck, it’s a duck, even if you call it a goose.  So, make sure you know your ducks from your geese.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

October 13, 2010

The spy who nagged me

Posted in Employee Handbooks, Employee Privacy, Personnel Records, Social Media in the Workplace tagged , , , , , at 11:13 am by Tom Jacobson

Dr. Evil nagged Austin Powers.  The FBI seems to have nagged Yassir Afifi.

When 20 year old Afifi went in for a recent oil change, he noticed an antenna protruding from under his car.  His mechanic yanked on it and pulled out a magnetically mounted GPS tracking unit, battery pack and radio transmitter.  After Afifi posted pictures of the device on the internet, the FBI paid him a visit to retrieve their gear.  Afifi denies doing anything to merit such attention from the authorities.  For more detail on Afifi’s story, read FBI Busted Tracking Student, Demands GPS Spy Gear Return, MSNBC.com http://bit.ly/atOxaL.

Whether the FBI acted properly or somehow invaded Afifi’s privacy is a nagging question in some legal circles.  It reminds me of the nagging questions asked by many employers:  What privacy rights to employees have?  To what extent can an employer “spy” on employees and applicants?

The questions arise at many levels.  “Work” is now conducted via e-mail, text, Facebook, Twitter and practically every other social media that exists.  Can an employer monitor those communications?  Does it matter if the communications are work-related but are conducted on the employee’s personal computer or cell phone?  Is it permissible to use cell phones, GPS units, and other devices to track an employee’s whereabouts?  How can an employer make sure that its confidential trade secrets are not published on the web with just a click of someone’s mouse or downloaded onto the thumb drive of a departing employee?  Can an employer use Facebook, MySpace or other social media to gather information about employees or applicants?

There are no easy answers to these questions.  Generally speaking, employees have a limited right of privacy with respect to information such as their work-related medical records.  Yet, employers need to retain the right to make sure the workers they employ are actually working and not using company resources improperly.  While social media and other on-line resources can provide a wealth of information about employees and applicants, the misuse of that information by an employer can subject the employer  to legal claims.

As with so many HR issues, the solutions lie in developing policies that clearly spell out employees’ privacy rights  (or lack thereof) while on the job.  By doing so, employers will help define the limits of work-related privacy and will reduce their risk of liability for privacy-based employment claims.

Should such lawsuits really be a serious concern?  Just ask the Lower Merion School District (PA).  They just paid $610,000.00 to settle two lawsuits centering around thousands of webcam photos secretly taken of students via their school-issued laptops (Pa. school settles 2 webcam spy lawsuits for $610K,  http://yhoo.it/bmFigL).  Although that case involved public school students and not employees, the core lesson is the same — failure to proactivelyaddress these issues will be extremely costly for employers.

August 20, 2010

Tick tock, we’re on the clock; Qwest employees’ FLSA claims allowed to proceed

Posted in Fair Labor Standards Act, Hours Worked, Hours Worked, Overtime, Personnel Records, Record Keeping tagged , , , , , at 9:29 am by Tom Jacobson

A July 20, 2010 decision by the United States District Court for the District of Minnesota stresses how important it is for employers to understand when their employees are “on the clock” and are, therefore, entitled to be paid.  The case also stresses every employer’s responsibility to maintain accurate records of their employees’ work time.

At issue in the case were two Qwest policies designed to gauge its technicians’ performance.  According to the technicians, in order for them to succeed under the policies, they had to work outside their regularly scheduled work day (for example, by coming in early in order to do the things required by the policies).   Therefore, they argued that under the Fair Labor Standards Act (FLSA), they should have been paid for that time, including any  overtime.

Qwest argued that because the technicians chose to work the extra hours in order to meet the company’s performance standards, the company did not have to pay them for that extra time.  The Court disagreed, saying “[t]he reason an employee continues to work beyond his shift is immaterial; if the employer knows or has reason to believe that the employee continues to work, the additional hours must be counted.'”

Qwest also argued that it should not be liable for the extra time worked because the employees failed to report it on their time sheets.  The Court rejected this argument as well, noting that it is the employer’s burden to maintain accurate time records even when employees are responsible for recording their own hours on a time sheet.

A few extra minutes of  unpaid work time may not seem like a big deal.  However, when those few minutes are added to the work-days of multiple employees over time, the consequences of the resulting FLSA violations are enormous.  Therefore, employers must understand when their employees are “on the clock,” and they must maintain accurate records of that work time.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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