President Obama announces “ban the box” executive orders

Many employment applications include a question pertaining to the applicant’s past criminal behavior and whether they have been convicted of any crimes. More often than not, checking the yes box immediately removes the applicant from the pool of potential candidates, regardless of the crime committed or factors involved in the applicant’s conviction. For the 600,000 individuals that are released from federal or state prison on an annual basis, getting a job is a key step in putting their lives back on track.

The Obama administration believes that by delaying the revelation regarding an applicant’s criminal background, many applicant’s will have a better opportunity to be hired. It will allow the applicant to proceed in the interview process and have an opportunity to explain the criminal background. President Obama cited this barrier as one of the most challenging aspects of a criminal re-entering society.

In the short term, President Obama issued executive orders that will eliminate the question from applications for many federal positions. However, for private employers to be subject to a similar rule, Congressional action will be required. Therefore the announcement by the Obama administration will only immediately impact those applying for federal positions.

© 2015 Houghton Vandenack Williams
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Workers’ Comp in Assault Cases

By Sarah E. Cavanagh.

The Nebraska Court of Appeals recently held that an employee is not entitled to collect workers’ compensation for an assault perpetrated by another employee if the assault is personal in nature and unrelated to the employment.

McDaniel v. Western Sugar Co-op, the employee, McDaniel, appealed a workers’ compensation court decision to deny benefits. McDaniel was working at Western Sugar Co-op when another employee harassed and assaulted him based on his past criminal history. McDaniel claimed that his injuries should be compensable by workers’ compensation because the injury took place at the workplace and he would not have interacted with the other employee had it not been for the job.

Whether a workers’ compensation claim will be granted depends on whether the injury “arises out of the employment.” This phrase is used to describe the accident – its origin, cause and character. The Court places risks into three categories for purposes of worker’s compensation: (1) Risks associated with employment, (2) personal risks, and (3) neutral risks. In order for an injury of a personal nature to have arisen out of the employment, “the employment must somehow exacerbate the animosity or dispute or facilitate an assault which would not otherwise be made.”

While the injury occurred at the workplace and likely would not have occurred had the parties not worked together, the reason for the incident was personal and not work-related. The assault stemmed from McDaniel’s criminal history, and was wholly disconnected from the place of employment or the parties’ relationship as co-workers. Therefore the Court found that workers’ compensation benefits were properly denied.

© 2015 Houghton Vandenack Williams
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Nebraska Voters Approve Minimum Wage Increase

By Eric W. Tiritilli.

The 2014 midterm elections saw a number of significant races and ballot measures across the country.  One of particular importance to Nebraska employers is Initiative Measure 425 which sought to raise the minimum wage in Nebraska.  This measure passed by a large margin.

As a result, beginning on January 1, 2015, the minimum wage in Nebraska will rise from $7.25 per hour to $8.00 per hour.  Then, beginning on January 1, 2016, the minimum wage will raise to $9.00 per hour.  Nebraska was one of four states in the 2014 elections that passed measures to raise their state’s minimum wage.

© 2014 Parsonage Vandenack Williams LLC

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Federal Contractors Take Note – The Minimum Wage Will Rise to $10.10 in 2015

By Eric W. Tiritilli.

The Department of Labor recently issued a final rule raising the minimum wage for employees working on new covered federal contracts to $10.10 beginning on January 1, 2015.  A “new” contract is one that results from a solicitation issued on or after January 1, 2015, or that is awarded outside of the solicitation process after January 1, 2015.  On January 1, 2016, and annually after that, the minimum wage will be increased in an amount determined by the Secretary of Labor.

Violation of the new Department of Labor rules on minimum wage for covered federal contractors can lead to serious penalties including the withholding of payments due to the contractor to pay wages due to employees and, potentially, debarment.  The Department of Labor notes that the new minimum wage requirements will affect approximately 200,000 workers in the United States.

© 2014 Parsonage Vandenack Williams LLC

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What Is the Difference Between an Employee and an Independent Contractor?

A Business FAQ with Mark A. Williams.

An employee is somebody that you pay wages to, you withhold taxes from them, and you provide them benefits. An independent contractor is one where you pay them a set amount of money and they have to withhold their own wages.

In a business, it is important to be able to recognize when can I pay someone as an employee versus when can I pay them as an independent contractor. There are a lot of different tests depending on certain questions:

• Do I have to provide workers comp?
• Do I have to pay unemployment?
• Do I have to withhold taxes from them?

Generally, I say to people that if you control what they do and tell them you have to be in my office and use my computer, you have to be here at 8 o’clock, you have to leave at noon, that sounds like an employee. And generally if you say to them, “Go get this done sometime over the next couple of weeks,” that sounds like an independent contractor. But really, you have to look at the facts and circumstances to make that determination every time.

© 2014 Parsonage Vandenack Williams LLC

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Pregnancy Discrimination: The EEOC Provides Employers With Updated Guidance

By Eric W. Tiritilli.

An employee announces she is pregnant, but after the congratulations and good wishes are shared, the questions becomes what, if anything, must an employer do to comply with the Pregnancy Discrimination Act (“PDA”)?  Unfortunately, it had been over 30 years since the EEOC last updated its guidance to employers regarding their obligations under the PDA.  Recently, the EEOC issued new enforcement guidance, an employer Q&A and a fact sheet to aid employers.

As the EEOC noted in its press release – the basic law of the PDA hasn’t changed – as an employer may not discriminate against an employee because they are pregnant and a pregnant employee “must be treated the same as other persons similar in their ability or inability to work”; however, the updated guidance for employers provides important information regarding the EEOC’s interpretation of the law including how the PDA interacts with the Americans with Disabilities Act and provides examples of “best practices” to follow to avoid discrimination.

© 2014 Parsonage Vandenack Williams LLC

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Facebook and the Workplace: Employee Rights and the Law

By Eric W. Tiritilli.

More and more employees use social media, including Facebook, to discuss work – sometimes in fairly unflattering terms.  This has caused stress for employers who want to maintain their good name, but also don’t want to violate the National Labor Relations Act (“NLRA”) by punishing employees who vent their spleen on social media.  Employers’ concerns are well placed. One recent example involves an employer who discharged an employee after he “liked” a negative comment on Facebook concerning an alleged tax withholding issue involving the employer.  The employer was found to have violated the NRLA.

In Three D, LLC, the National Labor Relations Board explained that because the Facebook discussion involved employees “looking toward group action to encourage the employer to address problems in terms or conditions of employment [and] not to disparage its product or services or undermine its reputation, the communications [were] protected.” The employee who “liked” the post was expressing agreement with the post and was protected by the NLRA. The discharge was, therefore, impermissible.

The law in this area is always evolving, but employers should be aware of the requirements and protections of the NLRA when making disciplinary decisions related to employees’ social media activities.

© 2014 Parsonage Vandenack Williams LLC

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When Does an Employer Have to Make Accommodations Under ADA?

An Employee Benefits FAQ with M. Thomas Langan II.

The ADA applies to state and local governments, as well as private employers with 15 or more employees. The ADA generally prohibits employers from discriminating against qualified individuals with disabilities.

One of the main requirements of the ADA is for employers to make reasonable accommodations for the known disabilities of qualified individuals. The disability must be known; therefore, this requires the employee to notify the employer.

Once known, the employer has to make reasonable accommodations, which is defined as adjustments or modifications to the job that would allow the individual to perform essential work functions.

Employers are not obligated to make an accommodation if it gives rise to an undue hardship, which is defined as an accommodation requiring significant difficulty or expense.

Overall, the ADA requires most employers to provide for reasonable accommodations to allow qualified individuals with disabilities to perform essential work functions.

© 2014 Parsonage Vandenack Williams LLC

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Are All Employers Covered Under the Occupational Safety and Health Act (OSHA)?

A Video FAQ with Mark A. Williams.

OSHA is a law that is there to protect the safety of employees. If you are going to be on a roof working, we want to make sure that you don’t fall off, and that the employer is out there providing some reasonable level of safeguard. Because of that, OSHA applies to almost every single employer. There are some exceptions for certain types of industries, but what I would say to you as a small business person–you have to go into your business expecting that OSHA is going to apply to you unless you find a very specific reason why it doesn’t.

© 2014 Parsonage Vandenack Williams LLC

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Can Employers Monitor Their Employees’ Internet Usage or Read Their Emails?

A Video FAQ with M. Thomas Langan II.

Whether an employer can monitor their employees’ internet usage and emails depends on several factors:

• The first factor is the type of employer. Employees of private companies generally have little to no expectation of privacy; however, employees of government agencies have certain constitutional protections.
• The second factor is state law. Many states have enacted or have proposed legislation that would require employers to post notices or otherwise inform employees prior to monitoring their computer usage.
• A third factor is a company’s internal policies and procedures. If the policies prohibit employers from monitoring computer usage, then employees have an increased expectation of privacy; however, if these policies allow employers to monitor, which most do, then an employee’s expectation of privacy decreases.
• A final factor is the particular purpose for monitoring employees’ usage. If an employer has a legitimate purpose, for example they are monitoring customer satisfaction with emails, then employers are generally able to monitor computer usage.

Overall, most private employers are able to monitor their employees’ internet usage and emails. The best practice is that employers should check state laws, their internal policies and make sure they have a legitimate use prior to monitoring.

© 2014 Parsonage Vandenack Williams LLC

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