Using a cell phone while driving is dangerous – we all know that.  Texting while driving is (or will soon be) illegal in 39 states and the District of Columbia.  But are your company’s employees using their cell phones to call or text while driving?  Are they doing it in a company car, with a company phone?  Even if your employees are only handling company business on a personal phone in a personal vehicle, you may still be at risk for a distracted driving lawsuit should they be involved in an accident. 

Last week, the National Labor Relations Board  (“NLRB”) issued its latest guidance on employer social media policies.  Over the past few years, the NLRB has taken the position that “overbroad” social media policies unreasonably and unlawfully prohibit employees from engaging in protected activities under Section 7 of the National Labor Relations Act  (“NLRA”).  Importantly, Section 7 applies to both unionized and non-unionized workplaces.  So, if you are a non-unionized employer, read on — this applies to you, too!

Sometimes employment lawsuits are so “funny” they almost literally make steam come out of your ears.  In one recent case, the “employee’s” claim for unpaid overtime was particularly infuriating because she never worked for her alleged employer.

The Tampa Bay Times ran an article yesterday about a business in Pinellas Park, Florida that was sued for alleged unpaid overtime by two former employees.  The business owner didn’t believe he owed anyone any overtime or that he had violated the FLSA, so he hired an attorney to fight the lawsuit.  He was upset about having to spend money to defend himself, but he was even more concerned because he had never heard of one of the two plaintiffs suing him, even though he knew all of his current and former employees.

A previous post discussed a huge jury verdict for an employee who was harassed and mistreated at work due to her religion.  The lesson:  harassing an employee, subjecting her to a hostile work environment, and retaliating against her for complaining about harassment are all wrong, illegal and expensive.

A decision handed down yesterday by the federal appeals Court covering Georgia, Alabama and Florida has made that point again.  In doing so, it further explained that retaliating by creating a hostile work environment for employees who complain about discrimination also violates Title VII — and is also wrong, illegal and expensive.

We started HRLawMatters.com because we recognized how important the Labor & Employment laws that Human Resources professionals have to understand and contend with every day really are to their businesses’ success.  We think many of you agree, as do your companies.  I noticed recently one company that looks like it really gets that human resources and the law really matter, and what they did that signals that they “get it” is a bit unusual.

You may be familiar with the Computer Fraud and Abuse Act (CFAA) – a federal law that was intended to target hackers seeking access to protected computers (i.e., governmental or financial services industry computers) in order to access confidential information or to distribute worms or viruses.  Since its enactment, however, the CFAA has been repeatedly amended to add greater protection for privately-maintained computers, a private right of action for civil remedies, and to adapt the statute to the Internet age.  As it reads today, the CFAA provides that “[a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.”

Late last week, a jury in Missouri awarded $5 million in punitive damages to a woman who proved she was subjected to a hostile work environment because she converted to Islam.

According to published reports, the woman, who was a network technician for a telephone company, had been in her job for six years when she converted to Islam in 2005.  Soon after converting she was subjected to name-calling (such as “terrorist”) and being told she was “going to hell” by co-workers and managers.  A manager also pressured her to remove the hijab (head scarf) she wore to comply with her religion and even grabbed it off of her head one time.  This behavior went on for 3 years. 

You may have seen that the EEOC recently released new guidance on how employers should use criminal background checks.  Specifically, the EEOC expressed its concerns that use of background checks may, in some instances, violate Title VII of the Civil Rights Act of 1964 (“Title VII”).  Let’s examine the EEOC’s position and explain why this new guidance is a particularly aggressive move.

The EEOC’s guidance shows its concern over whether employer use of criminal background checks creates a “disparate impact” on race and national origin.  As you may know, employers can be liable for discrimination under a disparate impact theory when an otherwise neutral employment practice or policy has a disproportionately adverse effect on members of a protected class.  The EEOC’s position is that criminal background checks might unlawfully “screen out” members of a particular race or national origin.  However, there are at least three reasons why the EEOC’s position is particularly aggressive – and is troubling for employers.

If you think getting a federal agency like OSHA to approve your medical questionnaire form will protect you from violating the Americans with Disabilities Act, think again.  Whirlpool Corporation learned this lesson the hard way – but their hard lesson can be useful to you.

In a recent case in Ohio (Miller v. Whirlpool Corp.), Whirlpool had created a medical questionnaire in response to an accident that resulted in an OSHA safety violation.  It narrowly believed that satisfying OSHA’s requirements and protecting the safety and health of its employees were its only concerns.  However, the questionnaire included invasive medical questions such asking employees to identify specific mental or physical illnesses or accidents, the date of onset, and all medications the employees were taking.  The Ohio court had little trouble concluding that the questionnaire was an improper disability-related inquiry because it intends to reveal or necessitates revealing a disability.