On September 8, 2011, OSHA issued a compliance directive establishing general enforcement policies and procedures for field officers trying to assess whether workplace violence inspections should be conducted or citations should be issued. OSHA will continue its established practice of conducting an inspection when there is a fatality or when three or more employees are hospitalized due to workplace violence, yet the the new directive instructs investigators to analyze two other issues when making this decision: 1) whether the employer and/or industry recognized or should have recognized the potential risk; and 2) whether feasible methods exist for the employer to eliminate or minimize the risk.  To decrease chances of OSHA investigations and citations in light of this new directive, Nilan Johnson Lewis attorneys Sheila Kerwin and Lisa Schmid, experienced in handing and advising around OSHA-related legalities, recommend employers conduct their own internal workplace violence analyses by taking into account employer-known and industry-known risks, complaints, threats and incidents.  Among other practices, they advise that organizations document and maintain clear and written records of all workplace violence incidents.  To review Kerwin and Schmid’s memorandum on this workplace violence directive, click here.  To reach them directly, contact skerwin@nilanjohnson.com / (612) 305-7515 and lschmid@nilanjohnson.com / (612) 305-7549.

The rise of social media and networking has undoubtedly increased employer concern about what employees say about their workplace online, but according to Nilan Johnson Lewis labor and employment defense attorney Joe Schmitt, employers should be cautious about acting on that concern. Recently, an employee in Connecticut was fired for engaging in an unfavorable discussion about a supervisor on Facebook when her company’s social media policy restricted negative comments being made about the company in any way throughout the Internet.  However, the National Labor Relations Board later contended that termination violated U.S. labor law, on the grounds that the comments were “concerted activity” of employees banding together and thus protected under Section 7 of the National Labor Relations Act (NLRA). Schmitt says that, “most employers are familiar with the regulations that protect employees based on race, gender and religion; however, there are also protections for employees regarding concerted activity and the company policy must not infringe upon those.” Organizations can legally restrict any communication that discloses confidential information, but Schmitt warns companies that, “certain social networking discussions with other employees are protected by the NLRA and policies should be updated accordingly.” Joe Schmitt can be reached at (612) 305-7577 or jschmitt@nilanjohnson.com

Background checks have become commonplace for companies, big and small. They have been used as a gauge of responsibility and credentials for potential candidates by looking into education, previous employment, salary history, criminal judgments and fiscal responsibility. In 1970, the Fair Credit Reporting Act (FCRA) was passed to referee this tool by requiring written notification and a signature of consent, yet newly pending legislation poses the question “how fair is credit?” Though the nation’s record long-term unemployment numbers are starting to rebound, personal credit scores are worse today than at the recession’s start in 2007 – possibly taking the results out of context. What’s more, the Equal Employment Opportunity Commission (EEOC) questions credit checks’ appropriateness because the results could pose an undue hardship on minorities, unintentionally disclosing an applicant’s race and potentially leading to discrimination when screening for employment. Nilan Johnson Lewis attorney Katie Connolly says, “every company wants to know that they are making the right hiring decision; however, privacy concerns have caused numerous states to impose restrictions on the use of credit checks. It has become the employer’s responsibility to know what results are within the legal limits.” Contact Katie Connolly at (612) 305-7546 or kconnolly@nilanjohnson.com

Corporate decisions to classify workers as independent contractors rather than employees are undergoing increased scrutiny in 2011 and beyond.  According to Nilan Johnson Lewis attorney, David James, the US Department of Labor is allocating increased investigatory funds to this issue, and the IRS is set to conduct 6,000 business audits into worker classifications over the next few years.  James advises employers to take inventory of their workers’ status, and audit their practices regarding independent contractors.  James cautions that misclassifications can have severe tax consequences for employers.  “The employer is not only responsible for missed income tax withholdings from misclassified workers, but also for back taxes not paid into the unemployment and workers’ compensation funds,” says James. Contact David James at (612) 305-7573 or djames@nilanjohnson.com

Employment agreements, which include non-competes, non-solicitation and non-disclosures, have become standard, “look-alike” paperwork for employees to sign prior to beginning new positions – but how legal are they if challenged? Karna Berg, attorney at Nilan Johnson Lewis, states that employers should not treat the restrictive covenants as a “one-size-fits-all” document, as using a broad scope and vague wording may be the quickest way for these documents to be found unreasonable and unenforceable. She says that this matter is especially complex and nuanced due to the fact that many companies have national and even global reach through their products, services and vendors, yet it’s state law which governs the legitimacy of employee agreements, thus making it difficult to protect everywhere and under every notion of the business. According to Berg, while these documents are indeed restrictive by nature and used to protect trade secrets, confidential materials and current business, if wording is used that is unnecessary or construed as being only a deterrent of competition, the complaint may fall on deaf ears. Berg recommends specifically addressing where an employee is restricted from future employment, how long the restriction is valid and what areas are included, as these clarifications go far in lessening the likelihood of any undue hardship on the previous employee.  Contact Karna Berg at (612) 305-7548 or kberg@nilanjohnson.com

Like something from the script of the Hollywood movie Gattaca, the federal Genetic Information Nondiscrimination Act (GINA) took effect in January 2009 to prevent the use of genetic information in employment decision-making. On January 10, 2011, the Equal Opportunity Employment Commission issued new regulations that clarify an employer’s expanded duties under GINA.  Specifically, GINA now bars employers from seeking out employee or applicant genetic information, including an employee or applicant’s family medical history or the results of that individual’s family member’s genetic tests.  With this new development in mind, Nilan Johnson Lewis’ Anna Hickman points to a location that is fraught with potential GINA issues– the Internet.  “So much information on almost every aspect of our lives is easily available through the Internet, but that doesn’t mean employers have the right to obtain it. Employers risk a discrimination lawsuit anytime they perform an Internet search – no matter if it is through social media or public news reports, or if it relates to an employee, applicant, or one of the individual’s relatives – that can be construed as having intent of acquiring employee or applicant genetic information.” She recommends employers not only understand the basis of GINA, but also train HR staff and other members of management on the GINA regulations that protect all employees and applicants yet pose major liability risks to their organizations. Hickman reminds employers, “A simple Google search could be construed as seeking genetic information on employees or applicants; therefore, precautions should be taken to assure that violations do not occur.” Contact Anna Hickman at                  (612) 305-7672 or ahickman@nilanjohnson.com

According to U.S. Department of Defense data, nearly 18 percent of Operation Iraqi Freedom and Operation Enduring Freedom veterans have suffered from PTSD and 20 percent have been impacted with traumatic brain injuries. While employers are generally familiar with the reasonable accommodation requirements of the American’s with Disabilities Act (ADA), few understand that another federal law, the Uniformed Services Employment and Reemployment Rights Act (USERRA), guarantees veterans and members of the uniformed services the right to reemployment and accommodation, even if they are no longer qualified to perform their former job due to a service-related injury.  According to Mark Girouard, labor and employment attorney with Nilan Johnson Lewis, the U.S. is entering a new era of employment expectations as tens of thousands of service members return from overseas deployments, often with profound and enduring injuries.  At the same time, Congress continues to expand the federal Family and MedicaLeave Act (FMLA) to allow employees whose family members are injured during military deployments additional time off to care for their family members.  As U.S. military involvement in Iraq and Afghanistan winds down, employers must stand ready to assist their employees in dealing with the lasting impacts of those engagements. Contact Mark Girouard at (612) 305-7579 or mgirouard@nilanjohnson.com

One of the economy’s hardest hit sectors has been the construction industry, which according to the Associated General Contractors of America (AGC) has suffered an astounding unemployment rate of nearly 22 percent. This strain on business has been so severe that some construction companies have submitted extra low bids in an attempt to gain a competitive edge, a move that Jacqueline Mrachek and Megan Kelley of Nilan Johnson Lewis caution should be reviewed carefully when it pertains to government or municipal projects. “Even though companies have control over what they charge a client, there are some amounts that are simply not negotiable,” Mrachek says. “Each person working on a federal, state, county, or municipal-funded project must be paid under the applicable prevailing wage laws, which dictate precise hourly rates and benefits according to pre-set labor classifications. To the surprise – and potential liability – of some contractors, worker pay cannot be sacrificed to under-bid the competitor, and many workers have been unintentionally underpaid and misclassified by the contractor.” Backer adds that close attention should be paid to record keeping, rates of pay, benefits, labor classifications, and reporting requirements, as the penalty for being out of compliance is steep – sometimes in the hundreds of thousands of dollars on large projects. Contact Jacqueline Mrachek at (612) 305-7576 or jmrachek@nilanjohnson.com, or Megan Backer at (612) 305-7578 or mkelley@nilanjohnson.com

A new web service claims it offers employees a “safe” venue for exchanging gripes about working conditions, co-workers and bosses – but does it?  Minneapolis-based startup OfficeLeaks, a workplace take on the controversial WikiLeaks site, touts itself as an anonymous online forum where employees can engage in virtual water cooler gossip, and employers can monitor employees’ online chatter for a fee. Two Nilan Johnson Lewis lawyers, also based in Minneapolis, say the site may be giving a false sense of security. In fact, they suggest employers and employees both stand to lose, with OfficeLeaks remaining the only party left risk-free. Employment defense attorney, Sandra Jezierski, notes that regardless of any social media site’s privacy policy and commitment to protect the identities of its users, employers have had success in obtaining employees’ social media evidence during litigation. Jezierski’s colleague, Christy Mennen, Litigation Shareholder, agrees that documentation from a web site is “fair game” during litigation, pointing to legal precedence from recent cases like EEOC v. Simply Storage Mgmt., LLC and Bass v. Miss Porter’s School where courts compelled plaintiffs to produce their online social media data.  Moreover, employees are not relieved of their obligations to comply with company policies or employment agreements simply because they’re posting anonymously.  The fact that OfficeLeaks users must open their accounts by registering with a viable, corporate email account is also problematic, Jezierski adds.  Employers generally reserve the right to monitor and inspect employees’ corporate email.  By creating an OfficeLeaks account using corporate email, the employee has essentially created a direct link between him or her and OfficeLeaks. Sandra Jezierski can be reached at (612) 305-7547 or sjezierski@nilanjohnson.com and Christy Mennen can be reached at (612) 305-7520 or cmennen@nilanjohnson.com.