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Date Published: 10/31/2013

Article Type: Legal Update

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Bubble, Bubble, Toil and Trouble! Are Mandatory Flu Vaccination Policies a Good Idea or a Recipe for a Legal Disaster? By Mary Cooper
Summer is over, and autumn has arrived. Football and fall leaves will soon usher in another dreaded flu season. For many employers, the arrival of flu season means more sick days and less production. The CDC reports that, on average, 5% to 20% of the U.S. population gets the flu virus each year with the peak from late November through early March. Those infected with the influenza virus can be ill for 5-7 days, which can mean major staffing problems for employers unlucky enough to have a facility-wide mini-epidemic on their hands. To prevent the flu virus from taking their workforces hostage, many employers have begun implementing mandatory vaccination requirements as a condition of employment. Generally in Arkansas, an at-will employment state, employers can require employees to get flu shots and terminate those employees that refuse vaccination. However, there are several exceptions and other issues employers should consider before implementing a policy requiring employees to get flu vaccinations. To read more, click here

A Zombie Apocalypse! Are Your Employees Arming Themselves at Work? By Greg Northen
With hit shows like AMC's "The Walking Dead" and recent movies like "World War Z," it seems the odds of a possible zombie apocalypse have never been higher. Regardless of your take on whether such an event could occur, the number of Arkansans applying for concealed carry licenses (CCLs) for firearms (for whatever reason) is similarly at an all-time high. In the first three months of 2013, applications for CCLs in Arkansas totaled more than half of the total number of 2012. As of May 2013, approximately 140,000 Arkansans had active CCLs.

The recent news involving Arkansas school districts arming and training staff for protection of students on school property has brought the issue of carrying handguns to the forefront in Arkansas. Notably, the Arkansas Legislature passed a new statute this year (effective July 4, 2013) that arguably allows for "open carry" in certain circumstances. (NOTE: there is much debate as to the interpretation of this statute, and the Arkansas Attorney General has narrowly construed the allowances of where an Arkansan can legally carry a handgun.) Some businesses are pushing back against State laws broadening citizens' rights to carry handguns. Starbucks, Caterpillar and FedEx are a few national companies pushing for corporate rights to prohibit firearms in the workplace. Basically, there are lots of questions as to when and where an Arkansan can lawfully carry a handgun. Click here to read more.

Trick or Treat? Checking an Employee's Facebook Page Can Be Scary! By Misty Wilson Borkowski and Joe Ramsey
On June 26, 2013, the United States Supreme Court issued a decision in United States v. Windsor that struck down a provision in the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex spouses. Following the decision, federal agencies immediately responded with policy and procedure changes to implement the change in the law.

The U.S. Department of Labor updated its policy on who can be considered a "spouse" for benefits under the Family Medical Leave Act (FMLA). Under the FMLA, eligible employees can receive unpaid, job-protected leave and continuation of group health insurance benefits for specified family and medical reasons. The Act includes coverage when an individual takes leave to care for a spouse with a serious health condition or activities related to a spouse's military deployment. Accordingly, the DOL issued an updated guidance to acknowledge that spousal leave for same-sex spouses may be available under the FMLA. Click here to read more.

Jeepers Creepers! Don’t Let the OFCCP Final Rules Spook You! By Abtin Mehdizadegan
Federal contractors and subcontractors are likely all-too familiar with this phone call from HR or your affirmative action plan (AAP) compliance specialist: "It is time to update the affirmative action plans!" Last year, when you received this call-with respect to the "women and minorities" plan-it is likely that you gathered applicant data, prepared spreadsheets and updated written materials to reflect new goals and changes in your recruiting sources. For the individuals with disabilities and veterans plans, the process likely required minimal updating. This year, the call will sound a lot different, reflecting two significant rule changes propounded by the Office of Federal Contract Compliance Programs (OFCCP) regarding hiring and employment of protected veterans and disabled individuals. Click here to read more.

CGWG Case Corner

Supreme Court Issues Employer-friendly Decisions with Respect to Harassment and Retaliation Cases

Recently, the U.S. Supreme Court issued decisions in two cases impacting the ability of employers to defend against Title VII claims: University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University. In Vance, the Court narrowed the definition of "supervisor" for purposes of Title VII harassment claims, specifically in cases where claims were made against supervisors in instances of vicarious liability. In Nassar, the Court heightened the burden of proof required of an employee in Title VII retaliation claims. As a result of both decisions, it may be more difficult for workers to sue employers over discrimination in the workplace. Click here to read more about Vance and click here to read more about Nassar.

Court Rules that Supervisor's Comments Provide Evidence of Age Discrimination

The Eighth Circuit Court of Appeals has ruled that a 76-year-old security guard who was the subject of repeated comments about his age by one of the supervisors who decided to discharge the worker can proceed with his Age Discrimination in Employment Act (ADEA) claim. Based on its review of his personnel file, the Court found that the guard, Carlyn Johnson, had met the company's legitimate expectations, and that the supervisor's comments about Johnson's age indicated an unlawful motive for firing the worker. While it is unlikely that management was aware of the supervisor's comments, the case nevertheless provides an important reminder to fully investigate every discharge, particularly those involving employees in a protected class. Click here to read more about the case.

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Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

As an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld
Partner 

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel

Sanmina-SCI

Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.

Starwood

We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel  

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