Employment Law Updates

TWITTER, FACEBOOK, YOU-TUBE, OH MY!

These days it seems like everyone from grade schoolers to presidential candidates have a presence on a social networking site like Twitter, Facebook, or LinkedIn.  For businesses, these Internet tools are transforming the way they conduct business, allowing them to connect quickly and efficiently with customers and potential employees.  However, some companies are finding that social networking sites have serious pitfalls. 

 

For instance, the news is littered with stories about employees divulging confidential information, company secrets and personal information about themselves on social networking websites.  Not only can such actions embarrass an employer, but they put the company at risk of being sued if the employee used company tools to make discriminatory or harassing remarks.  Similarly, companies can be severely damaged if their employees leak sensitive information. 

 

To help avoid the pitfalls of social networking, employers should devise a policy that outlines the company’s expectations about employees’ use of its computers, cell phones and other tools both in and outside the workplace.  It is important that this type of policy balances the employee’s privacy with the employer’s interests, so it is highly recommended that employers work closely with an experienced employment attorney when drafting their policy.

 

FTC POSTPONES ENFORCEMENT DATE FOR RED FLAG PROGRAMS

As an update to a previous article regarding the “Red Flags” Rule, the Federal Trade Commission has postponed the enforcement date to November 1, 2009.  The reason for the postponement is the large number of businesses who are still unaware that they are covered by the “Red Flags” Rule. 

 

Under the “Red Flags” Rule, any “creditor” with any “covered accounts” must have a “Red Flags” program.  Because this rule is intended to help stop identity theft, it is intentionally broad.  The definition of “creditor” includes any person or company that regularly extends, renews, or continues credit or arranges for credit or accounts.  A “covered account” is an account for goods or services used primarily for personal, family or household use; or any account for which there is a reasonably foreseeable risk to customers of identity theft.   Essentially, any company that sends out bills, invoices or statements may be considered a “creditor” under this rule and should determine whether it needs to have a “Red Flags” program.

 

If you have any questions about the “Red Flags” Rule, including whether you or your business would be considered a “creditor” or what a “Red Flags” Program should include, be sure to contact an attorney knowledgeable in this area of the law.

OREGON ADOPTS A MILITARY LEAVE LAW – MORE ALPHABET SOUP

The Oregon legislature recently passed the Oregon Military Family Leave Act (“OMFLA”).  This law allows the spouse of a member of the Armed Forces, National Guard, or military reserves to take up to 14 days of protected unpaid time away from work for each military deployment for reasons related to the deployment.  This leave is very similar to the recent addition to the federal Family Medical Leave Act (“FMLA”), which allows certain family members to take protected leave to address a qualifying exigency.

 

In many ways, the OMFLA is similar to the Oregon Family Leave Act (“OFLA”).  For example, only employers with at least 25 employees are subject to the OMFLA.  Further, employees taking leave under the OMFLA are entitled to be restored to their original position.  And, any leave used under the OMFLA will count against the employee’s allotted leave allowance under OFLA.

 

Employers who have employees asking for time away from work need to be mindful of the various state and federal leave laws that provide such leave and protect employees who have exercised their leave rights.  Denying a request for protected leave or disciplining the employee for missing work due to a protected reason is considered interference with an employee’s leave rights.  When in doubt, be sure to check with your employment attorney regarding a request for leave from work.

RED FLAGS PROGRAM – DO YOU NEED ONE?

As identity theft continues to increase, the government is looking to private businesses to help stop the problem.   The “Red Flags” Rule, enforced by the Federal Trade Commission, requires certain businesses and organizations to develop, implement and administer an identity theft prevention program.  The program must list the relevant indicators of identity theft that might occur for that type of business, identify how the company will detect those red flags, what it will do if the red flags occur, and how the company will re-evaluate its program over time.  Examples of red flags include customers asking about services they were charged for but did not receive, identification that appears to be fake or altered, and a customer who reports that his or her identity has been stolen.

 

All financial institutions and creditors must have a “Red Flags” program in place by August 1, 2009.  Because the spirit of the law is to hopefully stop the spread of identity theft, the definition of “creditor” is quite broad; a “creditor” is any business or organization that allows customers to defer payment for goods and services that are primarily for personal, family or household use.  This includes health care providers, mortgage brokers, retailers and any other business that allows consumers to purchase things on an account or with credit.  Although the deadline for having a “Red Flags” program has already been extended, it is expected that the FCC will enforce to the upcoming deadline. 

 

If your business falls within the broad definition of “creditor” and you do not yet have a “Red Flags” program, you should talk with your attorney to determine your options.  Remember, August 1, 2009, is the deadline to have the “Red Flags” program in place.

UNEMPLOYMENT BENEFITS EXTENDED

Under a law recently enacted by the state legislature, eligible employees are now able to collect unemployment benefits for up to 52 weeks.  Previously, those eligible for unemployment benefits were only entitled to receive benefits for up to 26 weeks.  This bill went into effect immediately upon passage.

NUMEROUS NEW LAWS IMPACT OREGON EMPLOYERS

Every business owner and human resource director should be aware of the seemingly infinite number of laws that impact the workplace.  Well, add a few more to that list.  The 2009 Oregon legislative session saw the introduction of a large number of employment-related bills, many of which have or will become law.  Among the highlights are the following laws, which take effect on January 1, 2010 unless otherwise noted:

 

·         HB 2059 and HB 2118:  These laws require a broad range of health care licensees to report conduct by any other licensee that the reporting licensee reasonably believes constitutes grounds for discipline, including reporting professionals who may be impaired by alcohol or drugs.  Coupled with HB 3162, below, reporting licensees will likely receive whistleblower protection.

·         HB 2377:  This law prohibits drivers from using cell phones and text messaging devices for any non-emergency purpose while operating a motor vehicle, unless the device is in hands-free mode.  Many employers have a cell phone policy (and if they don’t, they should consider adopting one) to minimize liability to third parties in the case of an accident, and those policies should be reviewed in light of this law.

·         HB 2744:  This law, which has already taken effect, requires employers to provide 14 days of unpaid leave to employees who are spouses of members of the Armed Forces (including the National Guard) who are on active duty during periods of military conflict.    The leave is available if the employee faces an “impending call or order to active duty,” or if she or he is on leave from deployment.  The employee is entitled to restoration of her or his job without loss of benefits. 

·         HB 3162:  This law prohibits an employer from discharging or otherwise discriminating or retaliating against an employee if the employee in good faith reported information that the employee believes is evidence of a violation of state or federal law.  Expect employers to face more state Bureau of Labor and Industry claims and lawsuits arising out of their termination decisions.

·         HB 3256:  This law prohibits employers from discriminating against employees because of the employee’s service in the military.

·         SB 277:  This bill requires merchants to permit customers to use employee toilet facilities if the customer has a medical condition that can cause a person to require access to a toilet facility.  The law is subject to certain qualifications and carries a maximum fine of $90 against any merchant who denies a customer with a qualified medical condition use of an employee bathroom.

·         SB 373:  This law will penalize employers who withhold wages from the employee but then fail to pay those withheld wages to the beneficiary listed in the order within the timeframe specified in the order.  It also prohibits employers from discriminating against employees who are subject to child support orders.

·         SB 519:  This law prohibits employers from requiring employees to attend religious or political meetings, including meetings that address unionization issues. 

·         SB 786:  Known as the “Oregon Workplace Religious Freedom Act”, this law makes it more difficult to establish that accommodating a religious practice would constitute an undue hardship on the employer.

·         SB 874:  This law essentially adopts the recent changes to the Americans with Disabilities Act, creating a more uniform standard for compliance with state and federal disability laws.

·         SB 928:  This law prohibits employers from discriminating against applicants and employees who are victims of domestic violence, sexual assault or stalking, and requires employers to implement reasonable safety accommodations.

 

Of course, not every new law affecting the workplace is addressed in this column.  For a more comprehensive summary of recent legislation, visit www.hershnerhunter.comand download the Oregon Legislative Update. 

2009 OREGON LEGISLATURE SESSION IS IN FULL SWING

The 2009 Legislature has been in session for several months now, and after quickly introducing dozens of employment related bills, your legislators are now separating the wheat from the chaff.  As part of that process, the Legislature established April 28, 2009 as the deadline for pushing bills out of committee; if a bill is still in committee after that date, it is effectively dead.  Visit the Hershner Hunter, LLP website to see the latest legislative session update.

UPDATE ON THE COBRA SUBSIDY PROGRAM

As you have probably heard by now, on February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 (routinely referred to as the “stimulus bill” or “ARRA”).  Since ARRA was enacted, the Department of Labor, the Internal Revenue Service, and the State of Oregon have been busy filling in the gaps regarding the COBRA premium subsidy programs.  Here are some highlights:

 

1.         What is an involuntary termination?    

An involuntary termination occurs when employment is severed by the employer and the termination was not due to the employee’s implicit or explicit request.  An involuntary termination also occurs if there was a temporary layoff with recall rights and during the layoff, the employee’s hours were reduced to zero and the employee suffered a loss of health coverage.  However, if an employee’s hours are reduced but are still greater than zero, the mere reduction in hours does not create an involuntary termination, even if the employee loses health coverage because of the reduction in hours.

 

2.         Is the entire COBRA premium subject to the subsidy?        

That depends.  Some employers provide continuation coverage to persons not entitled to it under COBRA.  For example, pursuant to COBRA, only the employee, spouse and dependent children are entitled to COBRA continuation coverage.  However, many employers also offer continuation coverage to same-sex domestic partners and others who live in the employee’s household.  In that case, the COBRA premium subsidy only applies to the premiums for coverage for the employee, spouse and dependent children.  For example, assume the premium to continue coverage for a former employee, her dependent child and her same-sex domestic partner totals $1,000 per month.  Only that portion of the $1,000 premium attributed to the employee and the employee’s dependent child is eligible to the COBRA premium subsidy.  The balance of the premium (that attributed to the same-sex domestic partner) will need to be paid entirely by the former employee.

 

3.         If an assistance eligible individual is eligible for other group health plan coverage but does not enroll in the other plan, can the individual still receive the COBRA premium subsidy? 

No.  For traditional COBRA purposes, once the person is eligible for and enrolls in another group health plan coverage, he/she is no longer eligible for COBRA continuation coverage.  However, for purposes of the COBRA premium subsidy, once the individual is merely eligible to enroll in another group health plan, the person is disqualified from receiving the subsidy.

OREGON LAW UPDATED IN RESPONSE TO THE COBRA SUBSIDY PROVIDED IN THE ARRA

For those employees working for smaller employers not subject to COBRA, Oregon has recently updated its insurance continuation laws to be more aligned with the recent federal COBRA subsidy program.  On April 28, 2009, Governor Kulongoski signed into law a bill that (1) extends the amount of time former employees can continue coverage through the state continuation program from six months to nine months; (2) gives some Oregonians a second opportunity to decide to continue coverage; and (3) requires insurers to notify all employer groups and individuals whose jobs ended between Sept. 1, 2008 and Dec. 31, 2009 of the possibility that they qualify for this program.  Oregonians who worked for small employers and lost their jobs on or after Sept. 1, 2008, should receive a notice in the mail no later than June 1, 2009, that further describes the subsidy and gives instructions on how to sign up. 

COBRA PREMIUM SUBSIDY – WHAT EMPLOYERS NEED TO KNOW

As you may have heard, the stimulus bill signed by President Obama on February 17, 2009 provides up to a nine-month COBRA subsidy for eligible employees who are involuntarily terminated between September 1, 2008 and December 31, 2009.  During the subsidy period, eligible individuals will be required to pay only 35% of the COBRA premium.  The remaining 65% of the COBRA premium is initially borne by the employer, but will be reimbursed by the federal government when the employer seeks a credit on employment taxes or requests direct reimbursement. 

 

Only employees who have been involuntarily terminated are eligible for the COBRA premium subsidy – so employees who have resigned or have retired are not eligible for the subsidy.  For employees who were previously involuntarily terminated and originally declined COBRA coverage, the former employer must provide them with a written notice of their right to elect coverage by April 17, 2009, along with any forms necessary for them to establish their eligibility for the premium subsidy.  The employees will have 60 days after receiving the notice to elect COBRA coverage.  Should someone in that group elect COBRA coverage, the coverage will be effective retroactive to March 1, 2009.  The COBRA premium subsidy applies to all premiums due from the former employee – even that portion of the premium related to coverage for family members.  Also, the COBRA premium subsidy is available to qualified beneficiaries who elect COBRA as a result of the involuntary termination.

 

The COBRA premium subsidy is also required for state-mandated continuation coverage.  That means small employers who are not subject to COBRA may still be required to make the subsidy available.  The Department of Labor will be publishing the required notices no later than mid-March 2009.  Employers with questions regarding the COBRA premium subsidy should consult with their employment law attorney to make sure their practices comply with this new law.