Preti Flaherty's Laura Rideout, an attorney practicing with the firm's Litigation and Environmental Groups, has written a year-end overview of several noteworthy OSHA-related developments in the past year. These developments included issuance of final rules setting forth new compliance obligations, previously issued rules with compliance deadlines that came into effect this year, as well as updated guidance.
Read the full overview on Preti Flaherty's website: http://www.preti.com/environmental/publications/2016-osha-year-in-review/.
Legal updates, news and commentary from Preti Flaherty's Employment Law Attorneys
End of the Year News from the EEOC
Friday, December 30, 2016
The EEOC closed out 2016 with several reports that provide interesting reading for employers heading into the new year.
The first is the EEOC’s annual performance report, which provides a snapshot of how the EEOC views its accomplishments over the last year. These accomplishments, according to the EEOC, include measured gains in three areas of its strategic plan, including strategic law enforcement where the agency claims it secured $347.9 for employees in the private sector through mediation, conciliation, or settlements, and another $52.2 million through agency litigation. Although the report shows the agency well in stride of its goals, it remains to be seen how the incoming administration will affect the EEOC’s agenda.
The second report from the EEOC is its updated enforcement guidance on national origin discrimination, which was last revised in 2002. In announcing the new guidance, the EEOC noted that, in fiscal year 2015, approximately 11 percent of the private sector charges filed with the agency alleged national origin discrimination. As with the old guidance, the new guidance provides information on prohibited employment practices as well as “promising practices” that may minimize the risk of national origin discrimination claims.
Finally, the EEOC issued a resource document that provides information on the rights of job applicants and employees with mental health conditions. Again, in announcing the resource document, the EEOC noted that discrimination claims based on mental health conditions are on the rise and that, in 2016, it resolved almost 5,000 charges based on such conditions. Although the user-friendly resource document is undoubtedly geared toward employees, employers may nonetheless find the information helpful as a reminder of the tricky issues they must navigate in this area of disability discrimination law.
The first is the EEOC’s annual performance report, which provides a snapshot of how the EEOC views its accomplishments over the last year. These accomplishments, according to the EEOC, include measured gains in three areas of its strategic plan, including strategic law enforcement where the agency claims it secured $347.9 for employees in the private sector through mediation, conciliation, or settlements, and another $52.2 million through agency litigation. Although the report shows the agency well in stride of its goals, it remains to be seen how the incoming administration will affect the EEOC’s agenda.
The second report from the EEOC is its updated enforcement guidance on national origin discrimination, which was last revised in 2002. In announcing the new guidance, the EEOC noted that, in fiscal year 2015, approximately 11 percent of the private sector charges filed with the agency alleged national origin discrimination. As with the old guidance, the new guidance provides information on prohibited employment practices as well as “promising practices” that may minimize the risk of national origin discrimination claims.
Finally, the EEOC issued a resource document that provides information on the rights of job applicants and employees with mental health conditions. Again, in announcing the resource document, the EEOC noted that discrimination claims based on mental health conditions are on the rise and that, in 2016, it resolved almost 5,000 charges based on such conditions. Although the user-friendly resource document is undoubtedly geared toward employees, employers may nonetheless find the information helpful as a reminder of the tricky issues they must navigate in this area of disability discrimination law.
Some Thoughts for Maine Employers on Marijuana Legalization
Thursday, December 8, 2016
[The following comments were originally delivered at a breakfast briefing on December 7 in Portland sponsored by Clark Insurance and KMA Human Resources Consulting.]
If we assume that the Question 1 referendum recount does not change the outcome, Maine’s 128th Legislature will begin the process of hammering out a new statutory regime to accompany legalization in 2017.
If we assume that the Question 1 referendum recount does not change the outcome, Maine’s 128th Legislature will begin the process of hammering out a new statutory regime to accompany legalization in 2017.
At the present time, no one can reasonably predict how the post-referendum statute is going to read and whether it is going to provide clear guidance so Maine employers can navigate risk management issues and adequately address legal compliance questions.
It’s a trap to think that here in Maine we can look at how things are being handled in Colorado, for example, and use employers’ experiences there for determining how best to proceed.
It’s a trap to think that here in Maine we can look at how things are being handled in Colorado, for example, and use employers’ experiences there for determining how best to proceed.
Court Finds Airport Cannot Fly Under the Radar on Employee’s Email Privacy Claims
Friday, November 4, 2016
A federal district court in Virginia recently grounded an airport’s attempt to escape liability for accessing an employee’s email account. (Hoofnagle v. Smyth-Wythe Airport Commission.) The decision, which delivered a mixed result for the airport, provides important guidance for both public and private sector employers.
The employee was the airport’s operations manager and was responsible for its day-to-day operations, including responding to email from the public. To this end, the manager created a Yahoo! email account, which he used for both airport and personal business. Although the account became the airport’s official email contact, the airport did not have an email policy or any other technology policy that governed how the account was to be used.
Events came to a head when the manager, an NRA member, used the account to send a strongly worded email to U.S. Senator Tim Kaine regarding gun control. The manager signed the email using his official airport title. After learning of the email, the airport terminated the manager based not on the email’s content, but on the manager’s decision to sign it in his official capacity. The airport then used a password provided by the airport’s secretary to gain access to the account to search for business records. The manager sued and claimed that the airport’s access of the email account without his authorization violated the Fourth Amendment’s protection against unreasonable governmental searches, as well as the Stored Communications Act.
Dealing with the Fourth Amendment claim first, the court applied a two-part test used by the U.S. Supreme Court in another case involving the scope of employee privacy in electronic communications. That test looks first at the “operational realities” of a workplace to determine whether a reasonable expectation of privacy exists, and then examines whether the search was reasonable under all the circumstances.
In this case, the court found that the manager did have a reasonable expectation of privacy in the email account – primarily because the account was not clearly owned by the airport, and because the airport did not have an electronic communications policy that would have limited the manager’s expectation of privacy. Nonetheless, because the airport’s search of the account related to a non-investigatory work-related purpose, and because it was limited in scope, the search was reasonable and therefore did not violate the Fourth Amendment.
Turning to the Stored Communications Act, however, the court found that the airport could not escape liability. The SCA is a federal law that prohibits the unauthorized access to stored email and other electronic communications. But the SCA exempts “providers” of electronic communications services and end “users” of those services – and it was under these two exemptions that the airport sought refuge, arguing that the exemptions applied because the airport had provided the computer through which the manager had used the Yahoo! account. The court found neither exemption applied, though, because it was Yahoo! that provided the electronic communications service where the emails were stored, and it was the manager, who had created the account, that was the “user” of the service.
So – what guidance does this case provide for employers? First, it demonstrates that employers must be careful when using, or allowing employees to use, a third-party email provider (e.g., Yahoo!, Gmail, etc.) for company business. In those situations, employers must be sure to have clear policies in place that address the scope of employee privacy in electronic communications and the monitoring of email on workplace computers, and the policies should also clarify who it is – employer or employee – that owns the account and is authorized to access it. Had the airport in this case maintained such a policy, it would have been in a far better position. Second, this case demonstrates that an employee’s use of a work computer does not entitle an employer to access virtually any account used by the employee on the computer – even if the account is used for work purposes. Finally, the case serves as an important reminder for employers to keep abreast of changes in technology and how that technology is used in the workplace.
The employee was the airport’s operations manager and was responsible for its day-to-day operations, including responding to email from the public. To this end, the manager created a Yahoo! email account, which he used for both airport and personal business. Although the account became the airport’s official email contact, the airport did not have an email policy or any other technology policy that governed how the account was to be used.
Events came to a head when the manager, an NRA member, used the account to send a strongly worded email to U.S. Senator Tim Kaine regarding gun control. The manager signed the email using his official airport title. After learning of the email, the airport terminated the manager based not on the email’s content, but on the manager’s decision to sign it in his official capacity. The airport then used a password provided by the airport’s secretary to gain access to the account to search for business records. The manager sued and claimed that the airport’s access of the email account without his authorization violated the Fourth Amendment’s protection against unreasonable governmental searches, as well as the Stored Communications Act.
Dealing with the Fourth Amendment claim first, the court applied a two-part test used by the U.S. Supreme Court in another case involving the scope of employee privacy in electronic communications. That test looks first at the “operational realities” of a workplace to determine whether a reasonable expectation of privacy exists, and then examines whether the search was reasonable under all the circumstances.
In this case, the court found that the manager did have a reasonable expectation of privacy in the email account – primarily because the account was not clearly owned by the airport, and because the airport did not have an electronic communications policy that would have limited the manager’s expectation of privacy. Nonetheless, because the airport’s search of the account related to a non-investigatory work-related purpose, and because it was limited in scope, the search was reasonable and therefore did not violate the Fourth Amendment.
Turning to the Stored Communications Act, however, the court found that the airport could not escape liability. The SCA is a federal law that prohibits the unauthorized access to stored email and other electronic communications. But the SCA exempts “providers” of electronic communications services and end “users” of those services – and it was under these two exemptions that the airport sought refuge, arguing that the exemptions applied because the airport had provided the computer through which the manager had used the Yahoo! account. The court found neither exemption applied, though, because it was Yahoo! that provided the electronic communications service where the emails were stored, and it was the manager, who had created the account, that was the “user” of the service.
So – what guidance does this case provide for employers? First, it demonstrates that employers must be careful when using, or allowing employees to use, a third-party email provider (e.g., Yahoo!, Gmail, etc.) for company business. In those situations, employers must be sure to have clear policies in place that address the scope of employee privacy in electronic communications and the monitoring of email on workplace computers, and the policies should also clarify who it is – employer or employee – that owns the account and is authorized to access it. Had the airport in this case maintained such a policy, it would have been in a far better position. Second, this case demonstrates that an employee’s use of a work computer does not entitle an employer to access virtually any account used by the employee on the computer – even if the account is used for work purposes. Finally, the case serves as an important reminder for employers to keep abreast of changes in technology and how that technology is used in the workplace.
Maine DOL Proposes Rulemaking to Incorporate New Federal Overtime Rule
Monday, October 24, 2016
Earlier this month, the Maine Department of Labor announced proposed changes to its regulations that would align them to be consistent with changes being made to federal overtime regulations. The new federal overtime rule, which goes into effect on December 1, 2016, updates the salary threshold needed to qualify for the so-called “white collar” exemption under the federal Fair Labor Standards Act. That exemption applies to employees employed in a bona fide executive, administrative, or professional capacity.
In its notice of rulemaking, Maine DOL proposes to incorporate the changes in the federal overtime rule into its own rules so as to make them consistent with each other. The Maine DOL notes that these changes would include increasing the salary threshold to $913.00 a week for qualifying executive, administrative and professional exempt employees. The current salary threshold is $455 a week.
A public hearing on the proposed changes is scheduled for November 3, 2016, and the public may submit comments until noon on November 14, 2016.
As noted in Maine DOL’s announcement, the new federal overtime rule will apply to employers throughout Maine beginning on December 1. Consequently, employers should not take Maine DOL’s recent rulemaking notice as a reason to delay implementing changes that may be required as a result of the new federal overtime rule.
Governor’s Panel Supports Maine Human Rights Commission
Tuesday, October 4, 2016
In response to concerns about the Human Rights Commission, Governor LePage, by Executive Order, established the Maine Human Rights Commission Review Panel on October 14, 2015. The Panel issued its Findings on September 27, 2016. The Review Panel consisted of eight members including an attorney who represents respondents before the MHRC, an attorney who represents complainants before the MHRC, a person recommended by the National Federation of Independent Businesses, a person recommended by the Maine Apartment Owners and Managers, a person recommended by Pine Tree Legal, a person with working knowledge of and familiarity with best administrative investigative practices and one person recommended by the Maine Human Rights Commission. The purpose of the Review Panel was to conduct a review of the structure and operation of the Maine Human Rights Commission to identify factors which may cause the perception of prejudice against respondents and bias in favor of complainants and to identify rules and practices that are unduly burdensome or unfair and to issue a report with recommendations.
After the Review Panel met thirteen times and did an extensive review of the Commission itself, its rules and regulations and interviewed Commissioners and staff, the Panel “unanimously agreed that the MHRC, its Commissioners and its staff are not actually prejudiced, biased or unfair towards respondents of complainants”. It went on to find that the vast majority of cases were heard or decided in favor of respondents and that there is no evidence that there is a bias or prejudice against either complainants or respondents. The Panel found that the MHRC was “devoted to its mission and desired to be fair and unbiased to all its parties”. The Panel agreed that the powers and duties of the Maine Human Rights Commission under the Maine Human Rights Act should be sufficient, well-staffed, well-funded and well-trained. The Panel made a series of recommendations including:
- Hire a management consultant/efficiency expert.
- Hire more investigators to investigate.
- Use intake specialists.
- Increase education and training for MHRC staff and Commissioners.
- Increase number of administrative staff.
- Modernize computer and technology systems.
- Expand mediation program.
- Establish a dual track system and consider changing state law to require 180 days before right to sue letter issued.
- Improve and streamline requests from the MHRC for information, discovery and document requests.
- Increase and improve public relations and outreach.
- Commissioners should be appointed in a timely fashion.
- Filing fees.
- Increase the MHRC’s budget.
Supreme Court Begins New Term with Few Employment Cases
Friday, September 30, 2016
The Supreme Court of the United States will begin its new term on October 3rd with a quiet slate of cases for employers. Among the few employment-related cases set for review include one involving whether the acting general counsel of the NLRB was validly appointed by President Obama under a federal vacancy statute (NLRB v. SW General, Inc.) and another involving the judicial standard of review for enforcing EEOC investigative subpoenas (McLane v. EEOC). Although these cases are not likely to set employers’ hearts afire, it is possible that the Court will add to its docket as it considers other pending petitions for review.
In terms of its composition, the Supreme Court will begin its new term as it ended its last one: with a vacancy. Although President Obama nominated Judge Merrick Garland from the D.C. Circuit Court of Appeals last March to replace Justice Scalia, the Senate has not acted on the nomination. As a result, the eight-member Court continues to risk deadlocking in some cases, as it did last term when considering the constitutionality of compulsory union dues in Friedrichs v. California Teachers Association. In that case – just as it does whenever it deadlocks – the Court affirmed the judgment below, which had held that mandatory “fair share” fees did not violate public employees’ First Amendment rights.
Whether the Court’s composition has played a role in its selection of cases this term is an open question. In this election year, it is also a question that is likely to persist until after November.
In terms of its composition, the Supreme Court will begin its new term as it ended its last one: with a vacancy. Although President Obama nominated Judge Merrick Garland from the D.C. Circuit Court of Appeals last March to replace Justice Scalia, the Senate has not acted on the nomination. As a result, the eight-member Court continues to risk deadlocking in some cases, as it did last term when considering the constitutionality of compulsory union dues in Friedrichs v. California Teachers Association. In that case – just as it does whenever it deadlocks – the Court affirmed the judgment below, which had held that mandatory “fair share” fees did not violate public employees’ First Amendment rights.
Whether the Court’s composition has played a role in its selection of cases this term is an open question. In this election year, it is also a question that is likely to persist until after November.
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