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Employment Law News Letters
IS THERE COMPUTER PRIVACY AT WORK?
By Kim K. Steffan, Attorney
Copyright 2006
If an employee uses an employer’s computer for personal tasks, is that private? Does the employer have the right to monitor the employees’
computer use?
A 2005 survey by the American Management Association found that three-fourths of employers monitor employees’ internet visits; 65% used software
to block visits to inappropriate websites; and over half reviewed and kept at least some email messages. Most employers explained their policy
or practice to their employees.
Federal and state laws provide privacy protection for computer use. However, these laws do not apply to employers who monitor computer equipment
the employer owns.
Lawsuits have challenged employer monitoring of workplace computer use. Courts have consistently found in favor of employers, ruling that employees
do not have a “reasonable expectation of privacy” in the computer equipment owned by the employer, even when the employees have password-protected
accounts.
Employers have good reasons to monitor computer use, apart from any desire to be “Big Brother.”
These reasons include:
- Backing up data and email files in case of a system failure
- Preventing viruses from employees installing software on their own
- Protecting the confidentiality of trade secrets
- Preventing situations where co-workers can hold the company liable for sexual harassment or discrimination
- Tracking system capacity and correcting network problems
- Making sure an employee isn’t spending all day surfing the web
Employers have been sued by employees for claims like sexual harassment and hostile environment. For example, if an employee visits websites of
pornography or hate groups at work, it can offend co-workers. In one case, an employee viewed pornography at work, thinking his screen could not
be seen since it faced away from other desks, but at a certain time of day his screen reflected clearly in a nearby window. A co-worker may feel
the employer knew or should have known about the offending use, but didn’t stop it. Monitoring can deter inappropriate website visits, and can
allow the employer to discipline the offending employee and solve the problem quickly.
Many employers have policies about computer use in an employee handbook. An employer must follow whatever written policies it has. Some handbooks
forbid any personal use of workplace computers; others permit limited personal use of work computers.
Unless a written policy says otherwise, employers do not have to tell employees when their activities are being monitored, and there is no way to
tell from looking at the employee’s computer. Although some software programs claim to alert the employee when their activities are being monitored,
they can give a false sense of security since tech-savvy employers can get around these programs.
Some employers only review individual employees’ files and web visits when there is an indication of a problem. Other employers check employees’
computer use randomly. Still others actually review everything. Keep in mind that deleted email messages and files may still be in the system,
although they appear to be gone.
Reasonableness is often the key to whether an employee’s personal use of the employer’s computer causes a problem. Most employers don’t mind if
an employee occasionally checks the sales at a department store, or sends an email confirming carpool arrangements. Most employers mind if an
employee visits offensive websites or sends threatening emails. Most employers mind if the employee spends an inordinate amount of time surfing
the net, or working on personal projects or side businesses.
In short, employees should not assume that their personal use of their employer’s computer is in any way private. Assume that whatever you write,
surf or store can be viewed by your employer, because legally it can.
JOB PROTECTIONS FOR RETURNING MILITARY PERSONNEL
By Kim K. Steffan, Attorney
Copyright 2003
Q: What job protections exist for military reserve and National Guard personnel returning from active duty?
A:
With recent events in the Middle East, many reservists and National Guard personnel have been called to active duty. Fortunately, some are
beginning to return home. A federal law called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides job
protection and prescribes rules that all employers and all reservists and National Guard personnel must follow.
USERRA applies to all employers, regardless of size. It applies to all military personnel who have served and been honorably discharged from
the uniformed services and those who currently serve in the Reserves or National Guard. The Act prohibits discrimination by employers because
of past, current or future military obligations. Its protection extends to hiring, promotion, reemployment, termination and benefits.
An employee is entitled to reemployment after active duty if (1) the employee has given advance written or verbal notice to the employer,
(2) the cumulative absences for military service do not exceed 5 years, and (3) the employee reports back to the employer within a set time
after returning from active service. The employer can require reasonable documentation of the employee’s military orders as active duty begins.
After military service, the time to report back to the employer depends on the length of active service, varying from 8 hours (when returning
from active duty of less than 31 days) to 90 days (when returning from active duty of more than 180 days). If the employee is prevented from
reporting to the employer within the required time through no fault of his/her own, the time will be extended.
In general, the employee must be returned to the job position and seniority he/she would have held had the employment not been interrupted
by active service. USERRA protects employee benefits. For shorter military absences, employers must continue health insurance on the same
terms it does for other employees. For military absences between 31 days and 18 months, the employer may require the employee to pay up to 102%
of the full premium under the plan. Pension plan rights and contributions under ERISA plans must continue as if the employee had not been absent
for military service. An employee on military leave does not continue to accrue additional vacation or sick time while on leave, unless the employer
allows employees on other types of leave to accrue vacation or sick time.
USERRA does not require employers to provide paid leave during military absences. If an employee wishes to use his/her earned vacation or personal
time off during his/her military leave, the employer must allow it. However, an employer cannot require the employee to use his/her earned vacation
or personal time during military absences.
The spirit of USERRA is to treat the employee engaged in and returning from active military service fairly and to prevent discrimination. The rules
of USERRA help both employers and employees know what to do and what to expect.
NEW LEGAL PROTECTIONS FOR MILITARY SERVICEMEMBERS
By Kim K. Steffan, Attorney
Copyright 2004
In December, 2003, the Servicemembers Civil Relief Act (SCRA) was enacted to update the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) of 1940.
The new act clarifies the old law, updates it to reflect changes in American life since 1940 (e.g., the existence of car leases), and includes
judicial interpretations handed down in the meantime.
The SCRA improves upon and broadens the legal protections given to military servicemembers. Like its predecessor, the SCRA is intended to allow
active duty military personnel to perform their duties without undue interference or distraction from legal or financial difficulties.
Here are the highlights of the SCRA:
- Upon a servicemember’s request, a court must grant a stay of all hearings, for at least 90 days. Additional stays are in the judge’s discretion.
- Interest rates (including fees and service charges) are capped at 6% per year. Interest above that rate must be forgiven, not merely deferred.
To receive this benefit, the servicemember must request the reduction in writing, including a copy of his/her orders, no later than 180 days after returning
from service. On a case-by-case basis, a court may allow a creditor to charge more than 6% per year interest if the court finds that the servicemember’s
ability to pay more than that rate is not materially affected by reason of military service.
- Vehicle leases entered before service can be terminated by the servicemember if he/she is called to active duty for a period of 180 days or more.
- Residential leases can be terminated by active duty soldiers who receive permanent change of station orders or who are ordered deployed for at least
90 days.
- Eviction protection for military families is extended. Under SCRA, evictions from rental housing are prohibited when the monthly rent does not exceed
$2,400 per month, unless a court finds that the military service does not materially interfere with the servicemember’s ability to pay this obligation.
- Mortgage foreclosures shall be stayed upon application by a servicemember. A foreclosure, sale or seizure of the property shall not be valid if made
during, or within 90 days after, the period of military service, except by court order or by agreement. Anyone who knowingly causes a foreclosure, sale or
seizure of property to be made in violation of SCRA is guilty of a misdemeanor.
- Real or personal property owned by a servicemember (individually or with a spouse) may not be sold to collect property taxes, unless a court determines
that military service does not materially affect the servicemember’s ability to pay the tax.
- If a servicemember is personally liable for a debt for his/her business, his/her personal assets that are not related to the business are off-limits
to the creditor during the military service.
- A servicemember can waive SCRA’s protections in writing during or after the period of military service (but not before).
- SCRA makes clear that its provisions extend to National Guard members who are called to active duty for 30 days or more pursuant to a contingency mission
specified by the President or Secretary of Defense.
The SCRA reflects a renewed appreciation for what our military servicemembers do for all of us. In recognition of the many sacrifices made by the servicemembers who
protect and defend our nation, the SCRA removes some of the financial and legal worries they would otherwise face back home.
WHAT IS THE “FAMILY AND MEDICAL LEAVE ACT”?
By Kim K. Steffan, Attorney
Copyright 2003
This article is a Q&A on the Family and Medical Leave Act. While space does not permit explaining all of the details of the Act, the column explains
general answers to some common questions.
What is the Family and Medical Leave Act? The Family and Medical Leave Act (FMLA) is a federal law, enacted in 1993. Its purpose is to allow employees
reasonable unpaid leave to care for a new child or for a serious health condition affecting the employee or his family, while accommodating employers’
reasonable needs.
Who is covered by the FMLA? It applies to employers with 50 or more employees, so many smaller businesses are not covered.
Which employees are eligible? To be eligible, the employee must have worked for the employer for at least 12 months (but not necessarily 12 consecutive
months), AND the employee must have worked at least 1,250 hours during the year prior to the start of the leave (which is more than half-time but less
than full-time).
What type of leave is allowed? An employee can have up to 12 weeks of unpaid leave during a year. An employer can require that an employee take all
of his paid leave (vacation or sick time) first, as a part of the 12 weeks, and then provide the remainder of the 12 weeks as unpaid leave. This means
that an employee cannot tack vacation or sick leave onto the twelve-week unpaid FMLA leave. With an employer’s consent, an employee can take leave
intermittently or by having a reduced work schedule.
What events qualify for FMLA leave? Any of the following: (1) birth of a child, (2) adoption or foster care placement of a child, (3) caring for a
spouse, son, daughter, or parent with a serious health condition, or (4) the employee’s own serious health condition that makes the employee unable
to perform his job functions. There are rules defining a “serious health condition.” Examples of conditions that are usually “serious health conditions”
are cancer, stroke, asthma, diabetes, incapacity due to pregnancy, and injuries or illnesses requiring inpatient care. Common routine conditions like
colds, flu, injuries requiring only emergency room care, and minor ulcers would not qualify.
What happens to an employee’s health insurance while on leave? The employer must maintain the same health insurance benefits as if the employee were not
on leave. The employee must continue to pay his usual share of the premium, and the employer must continue to pay its usual share, if any.
Is the employee’s job protected? Except in unusual circumstances, like key executives or serious hardship for the employer, the employee has the right
to return to the same or equivalent position. Upon return, the employee must receive equivalent pay, benefits, and working conditions he had at the
start of the leave. Employees do not usually accrue seniority while on leave.
What kind of notice and documentation can the employer require? If possible, the employee must give the employer 30 days’ advance notice of a request
for leave. If advance notice is not possible (e.g., injury, sudden illness), the employee should notify the employer as soon as possible. The employer
can require a certification from the doctor about the need for the leave. To return from leave, if the leave is due to the employee’s own incapacity,
the employer can require the doctor to certify (as to that condition only) that the employee can return to his duties.
These are the general rules on basic FMLA requirements. There are many exceptions and details that may make a difference on how FMLA applies in any
given case. If you have questions about the particulars of FMLA, contact an attorney or call the Department of Labor.
NEW OVERTIME RULES
By Kim K. Steffan, Attorney
Copyright 2004
On August 23, 2004, the U.S. Department of Labor’s new overtime regulations took effect. The new rules change who is entitled to overtime pay, giving new
overtime status to some employees and taking it away from others. In a further development, last week the U.S. House voted not to fund enforcement of the
new rules, trying to limit their being put into effect.
Lower-paid salaried employees who previously did not get overtime receive good news under the new rules. If an employee does not make more than $455
per week ($23,660 per year), he will now be entitled to overtime pay even if he is salaried. The rules increased the earnings cutoff, which before was so
low ($155 per week) that it included few full-time workers. The new rules also explicitly make eligible for overtime “blue collar” workers, including
carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, construction workers, laborers and non-management production-line
employees.
In manufacturing, “team leaders” or “working supervisors” who perform mostly production work with some advising and supervising will be eligible for
overtime, but teams leaders who supervise employees on a “major project” will not be. This distinction has raised concerns about interpretation.
There is bad news for computer programmers. In the past, the Labor Department categorized most computer programmers (those who were paid hourly and
who did not supervise other employees) as nonexempt, making them eligible for overtime pay. The new rule provides that these employees, even if paid hourly,
will be exempt, and thus not entitled to overtime pay.
Financial company workers and insurance adjusters are the types of employees more likely to fit within the expanded “administrative” exemption. Such a
change would make them ineligible for overtime.
The new rules describe the various duties performed by police, fire fighters and other first responders so as to ensure that workers performing such duties
are entitled to overtime. This is true even for police and fire fighters who job or rank also involves supervising others.
Remember that the flip side of getting overtime pay is having pay docked when the employee does not work. Many employers have worried about the consequences
of “guessing wrong” in docking pay of an employee they believe is nonexempt, if the Department of Labor decides she is exempt. The new rules provide that the
employer will not face an enforcement action if the employer has a policy prohibiting illegal deductions from employees’ pay, and then docks an employee’s pay
for time not worked believing in good faith that she is a nonexempt employee, if the Department finds she is exempt and entitled to the docked pay, and the
employer promptly reimburses the employee for the illegal deductions.
On September 9, 2004, 22 U.S. House Republicans voted with Democrats to deny funding to the Department to enforce the new rules, since they perceived that
the new rules would amount to a net loss of persons eligible for overtime. The vote amended a large spending bill, which previously passed the U.S. Senate
without the provision. A conference committee must try to reconcile the two versions of the spending bill. President Bush says he will veto the entire spending
bill if it contains the denial of funding for enforcing the new rules. This standoff should be interesting to watch. In the meantime, the Department is enforcing
the new rules.
CHANGES TO THE FAMILY AND MEDICAL LEAVE ACT AS OF JANUARY, 2009
By Kim K. Steffan, Attorney
Copyright 2009
Some important changes took effect in January, 2009 to the Family and Medical Leave Act (FMLA) by new U.S. Department of Labor rules. The rules clarify what is required
for the new military FMLA leave, and try to end areas of conflict or confusion.
You may remember that the FMLA, which is now 15 years old, applies to employers who have 50 or more employees, and to all government employers.
The FMLA has always allowed employees up to 12 weeks of unpaid leave in a 12-month period for medical needs like (1) the birth or adoption of a child, (2) caring for
a spouse, child, or parent with a serious health condition, or (3) the employee’s own serious disabling health condition. The leave may sometimes be taken intermittently,
or by working a reduced schedule.
The new Military Caregiver Leave (also known as Covered Servicemember Leave) extends 12 weeks of unpaid leave to 26 weeks for certain military-related purposes.
Leave can be taken by a next of kin to care for a servicemember who suffered a serious illness or injury in the line of duty on active duty. Another new military-related
leave is the Qualifying Exigency Leave. This is 12 weeks of unpaid leave available to families of National Guard and Reserves members while on active duty, or when preparing
to deploy on short notice. This leave is for several categories of needs, such as childcare and school activities, financial and legal arrangements, counseling, rest, and
military-related events and activities.
The new rules clarify employer and employee rights and responsibilities under the Act. The new rules try to fix
some “sore spots” under the old law that led to conflicts.
Some of these highlights are:
- One of the worst “sore spots” for employers was when an employee waited up to 2 business days’ absence before notifying an employer that he/she needed FMLA leave,
even when notice could have been given sooner. The old law allowed this. Lack of prompt notice for unscheduled absences caused problems for employers. Under the new rule,
employees must follow the employer’s customary call-in procedures for reporting an absence, except in case of emergency.
- An employee who is working “light duty” but is not missing any time is not using his FMLA leave time.
- An employer is liable when an employee suffers individualized harm as a result of the employer failing to follow notification rules, but employers are not assessed
categorical penalties for not following notification rules.
- Another source of problems for employers and employees was being unsure what medical certification could be required, how, and when. To protect employee privacy,
new rules clarify that an employee’s direct supervisor shall not be the person from the employer who contacts the doctor for information; it must be another manager,
an HR official, or leave administrator. If the employer believes a form is incomplete or insufficient, the employer must notify the employee and give him/her 7 calendar
days to remedy the problem. A new certification can be required every 6 months for ongoing health conditions.
- The old law seemed to require that employees on FMLA leave still be eligible for “perfect attendance” awards even though they were out on leave. Co-workers and
employers felt this was unfair to employees who were not out on leave. The new rule is that an employer can deny perfect attendance awards to an employee who is out on
FMLA leave as long as the employer treats employees taking non-FMLA leave in an identical way.
- There are new rules for how and when an employer must notify employees of their FMLA rights. The new law puts all the notice requirements in one place, making them
easier to follow.
Employers will find the notification poster and forms on the U.S. Department of Labor website, at www.wagehour.dol.gov or by calling 1-866-4USWAGE.
Both employers and employees will find these sources helpful in providing more information about the new rules. An employment law attorney can also provide you with guidance.
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