May, 2013

May 30, 2013

Proposed Federal Law to Protect Employee Social Media Passwords

by Salvatore Gangemi of Murtha Cullina LLP

In recent years, employers have scrutinized employee or prospective employee postings on social media sites like Facebook, Twitter, Instagram, and other sites, as part of their screening process for employment, promotion or termination decisions. This may come to an end if The Password Protection Act of 2013 (H.R. 2077) becomes law. The Password Protection Act would amend federal law to make it unlawful if an employer

‘(A) for the purposes of employing, promoting, or terminating employment, compels or coerces any person to authorize access, such as by providing a password or similar information through which a computer may be accessed, to a protected computer that is not the employer’s protected computer, and thereby obtains information from such protected computer; or
‘(B) discharges, disciplines, discriminates against in any manner, or threatens to take any such action against, any person–
‘(I) for failing to authorize access described in subparagraph (A) to a protected computer that is not the employer’s protected computer; or
‘(ii) who has filed any complaint or instituted or caused to be instituted any proceeding under or related to this paragraph, or has testified or is about to testify in any such proceeding;’.

The bill contains certain exceptions, which would permit courts to require the disclosure of such passwords if there are reasonable grounds to believe that the information sought “is relevant and material to protecting the intellectual property, a trade secret, or confidential business information” of the employer.

May 22, 2013

U.S. House of Representatives Passes Compensatory Time Amendment to Fair Labor Standards Act

by Salvatore Gangemi of Murtha Cullina LLP

The U.S. House of Representatives has taken a major step toward a significant amendment to the 75 year old Fair Labor Standards Act (FLSA). On May 8, 2013, the U.S. House of Representatives passed the “Working Families Flexibility Act of 2013” (H.R. 1406). The bill, which is now in the Senate, proposes that employers be permitted to provide compensatory time instead of overtime pay of 1-1/2 times an employee’s regular hourly rate for hours worked in excess of 40 in a workweek.
Employers would be permitted to provide compensatory time only if authorized by a collective bargaining agreement, or, for nonunion employees, if the employer and employee enter into a clear written agreement providing for compensatory time. An employee could not be forced to enter into such an agreement. The bill contains other requirements and limitations. Nevertheless, the bill provides employees with an option other than receiving overtime pay for hours worked in excess of 40.
The bill is backed by business groups, while other groups see it as an attack on workers’ rights. Much of the objection stems from the fact that the bill does not permit an employee to unilaterally decide when to take any compensatory time off. At the same time, employers would still be able to mandate that the employee work extra hours, without having to pay overtime.

May 16, 2013

EEOC Issues Revised Guidance on Specific Disabilities

by Salvatore Gangemi of Murtha Cullina LLP

The ADA Amendments Act of 2008 (“ADAAA”) amended the Americans with Disabilities Act to expand the definition of “disability,” which had been limited over the years by court decisions. In enacting the ADAAA, Congress specifically rejected United States Supreme Court interpretations of the meaning of the term “disability.” The result of the ADAAA was to make it easier for individuals with impairments to demonstrate that they satisfy the definition of “disability.”
On May 15, 2013, the Equal Employment Opportunity Commission (“EEOC”) revised its guidance as it relates to several types of impairments, namely, cancer, disability, epilepsy, and intellectual disabilities. As stated by the EEOC Chair, Jacqueline A. Berrien, “Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability. Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”

May 2, 2013

Do Employee Wellness Programs Violate Federal Law?

by Salvatore Gangemi of Murtha Cullina LLP

The U.S. Equal Employment Opportunity Commission (EEOC) has scheduled a meeting for May 8, 2013 at its main headquarters in Washington, D.C., to address whether employer wellness programs may implicate, among other things, the confidentiality and permissible inquiry provisions of the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GENDA), and other statutes enforced by the EEOC.

May 1, 2013

U.S. Second Circuit Court of Appeals Upholds Dismissal of Retaliation Claim Made in Connection with “Paramour Preference” Claim

by Salvatore Gangemi of Murtha Cullina LLP

In Gail Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., et al., 12-3489-cv, April 26, 2013, the plaintiff filed claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, alleging that an affair that one of her brothers had with another worker in their family business created a sexually hostile work environment, and that following her complaints, both of her brothers retaliated against her. The lower court dismissed both claims, and the plaintiff appealed only the dismissal of her retaliation claims.