Updted ADA Passes Senate

So reports workforce.com and it appears President Bush will not veto the law.

Senate Approves Legislation to Expand Workplace Disability Law:

"A bill that would expand workplace protections for disabled Americans gained unanimous Senate approval on Thursday, September 11.

The legislation, which was co-sponsored by 77 senators, sailed through on a voice vote. Both presidential nominees, Sens. John McCain, R-Arizona, and Barack Obama, D-Illinois, came out in support of the bill weeks ago.

The measure clarifies that Congress meant for the Americans with Disabilities Act to be broadly interpreted. The original measure, which became law in the early 1990s, required employers to make accommodations for disabled employees.

The new bill, the ADA Amendments Act, addresses Supreme Court decisions that critics say restricted the law. The court ruled in several cases that mitigating measures—such as medication or prosthesis—make a person ineligible for coverage."

***

As is the case with any compromise, no one was completely satisfied. The business community accepted a bill that could increase litigation. But the final language was less expansive than that contained in the original bill.

The lack of a specific definition of “substantially limits,” however, could require courts to step in again.

“At the center of the continuum, the question [of who is disabled] is probably straightforward,” said Neil Abramson, a partner at the law firm Proskauer Rose in New York.

“At the margins, it’s more difficult. That will probably generate, at least in the beginning, litigation,” he said.

Employers - Are you enforcing your computer and e-mail policies?

The moral of Employers Need To Be Careful To Avoid Waiving The Protections Of Written Computer And Email Policies from The Labor & Employment Blog is that you had better:

The plaintiffs sued both Arch Wireless and The City of Ontario, as well as some individual defendants. In pertinent part, the Court held that in light of the lieutenant's informal policy that he would not audit a pager if the user paid the overage charges, the plaintiffs had a reasonable expectation of privacy in their text messages as a matter of law – notwithstanding the City's written policies to the contrary.

This case cautions employers that it is possible to lose the benefits of their written computer and email policies. Employers wishing to maintain their rights should ensure that managers and supervisors do not inadvertently undermine the policies by adopting inconsistent practices or making inconsistent promises to employees.

For those without these kind of policies should also read the full post. I think the post gives a good idea of how such a policy should read.

Employment Law: Proper Response From Employer Helps

Employers, please read Prompt Response After Harassment Complaint Gets Chili's Off Hook.

Chili's Grill & Bar responded promptly and appropriately to an employee's sexual harassment complaints and therefore is not liable even though the worker established a prima facie case of harassment in her lawsuit, the 1st Circuit has ruled.

The appeals court said there was ample evidence that Allison Forrest was subjected to sexual harassment since the actions she alleged occurred because of her sex.

However, because Chili's responded promptly to Forrest's complaints it was entitled to assert an affirmative defense to her allegations, the court said.

Having a harassment policy is not enough. Having a that policy in an employee handbook is not enough. Having the policy and enforcing the policy is the key to success.

Businesses - Do you have a blogging policy?

If you do not, then I suggest reading Blogging consequences. Allot some time to do so, the post is not short. The article points out cases where a blog created liability on the grounds of defamation and cases where employees lost their jobs because of their blog posts.

(I also find it interesting that this blog, Quality System, comes to us from India, and is loaded with references to American law. Any sign of the world's flatness?)

Employee handbooks - a good overview

From the Matthies Law P.C. website Some good reasons why your Company should create its own Employee Handbook.

Employee blogging - problems

Terrible title for this post but bear with me.

I am reading Kevin O'Keefe's Real Lawyers Have Blogs when I reach the post How to stop a disgruntled ex-employee blogger. Kevin O'Keefe comments on a post, How do you stop a disgruntled employee blogger?, from Itbusiness.ca. Frankly, I found Kevin's comment a bit more important than the points of the earlier article.

One thing Vawn doesn't mention is the necessity of an effective Internet presence. An effective corporate Internet presence is not a Web site or press releases issued across the net. It means having a trusted and reliable voice or, better yet, multiple voices on the blogosphere. An effective Internet presence requires corporate employees to be blogging.

Without an Internet presence, I am not sure that a disgruntled employee's badmouthing of the company will mean much. I may be a bit more sensitive about this as I continue to blog about legal issues. I will admit that my marketing of this blog is probably cack-handed at best but I draw very little attention from my local area or even Indiana. Yet, I am online and I do keep an eye out on what, if anything, is said about me out here on the Net. I still skeptical how much the Internet has penetrated some parts of this country (like, say, Indiana).

I am also interested because I see the possibility of problems that fall under the more standard headings of trade secrets and non-disclosure. Without proper preventive measures in place, the business may face more than mere bad publicity. One may be looking at losing one's business.

I think tow types of businesses need to read these posts:

1. Those without an Internet presence; and
2. Those with an Internet presence.
   

The first group needs to decide on an employee policy which takes into account the Internet. Yes, talk to your lawyer about this. The second group needs to consider whether their current policy is sufficient.

Again, from Kevin O'Keefe:

A blog, as a means of handling disgruntled employees on the net, may be a bit frightening for corporate heads and PR/communications professionals. But times are changing. Practicality requires doing things differently than they've been done in the past.

Indiana Wage Claims Statute and Paid Time Off

I think we are seeing more cases involving Wage Claims Statute, Ind. Code § 22-2-9 (2004). The latest is Reel v. Clarian Health Partners, Inc. (PDF format)

Clarian relied on its employee manual on when to pay Paid Time Off wages (PTO wages). The Court of Appeals relied on the Indiana Supreme Court's decision in Naugle v. Beech Grove City Schools, 864 N.E.2d 1058 (Ind. 2007). The Court of Appeals held that the statute controlled:

Here, the Wage Claims Statute, Ind. Code § 22-2-9-2(a), provides that “[w]henever any employer separates any employee from the pay-roll, the unpaid wages or compensation of such employee shall become due and payable at regular pay day for pay period in which separation occurred[.]” The Wage Claims Statute by its terms mandates compliance. See Naugle, 864 N.E.2d at 1065 (holding that the Wage Payment Statute “by its terms mandates compliance”). The PTO compensation vested when the Named Plaintiffs rendered their services. See Die & Mold, Inc. v. Western, 448 N.E.2d 44, 47-48 (Ind. Ct. App. 1983) (Quotation omitted). Thus, the Wage Claims Statute and not Clarian’s policy governs the payment of the PTO wages....

Employers need to double check their policies and employees need to know that wages are due ten (10) days after termination.

Employee Handbooks

Thanks to the HR Lawyer Blog for a link to this article from the Monterey Herald. HR Lawyer quoted the following and I am too as it makes a very good point that even small businesses ought to have an employee handbook:

An employer that does not have written guidelines in place is much more likely to encounter problems arising from ignorance of its policies, inconsistent or unfair application of those policies, conflicting policies, and resulting confusion among its employees. This can lead to internal problems such as employee dissatisfaction and discrimination charges filed by employees who feel they have been treated unfairly.

While the article mentions California law (the newspaper is a California newspaper), the following should not be ignored because of its California roots:

Assuming that you do decide to develop an employee handbook, it is important that the handbook be kept up-to-date and current with the law. Because of the frequent changes in California employment law, and because of the complexity of those laws, an employee handbook should be thoroughly reviewed and updated every two to three years. You may also want to consider translating your handbook into languages other than English, depending on the languages spoken by your employees. Employers are required to provide certain policies in a language other than English if 10 percent or more of their employees' primary language is not English. Those policies include those regarding the Family Medical Leave Act, and Pregnancy Disability Leave.

If it were writing the above-paragraph, I would include Indiana's Wage Payment Statute and our rather strange Age Discrimination Act. Translating handbooks into Spanish makes sense with our increasing Hispanic population. When I saw that I thought - oh, yeah, we need to start thinking about that. I am sure that few of the smaller businesses who do have employee handbooks have a Spanish version.