Archive | April 2012

NLRB Poster Requirement On Hold

A federal court in Washington has issued an injunction delaying the date on which employers must post a notice of employee rights under the NLRA.  The final rule requiring the posting was slated to take effect on April 30, 2012, but has now been postponed indefinitely pending briefing and argument, with argument expected in September.  Due to conflicting federal court opinions regarding the final rule, the court issued the injunction.  The NLRB has instructed its regional offices to comply with the injunction.

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Getting Employee Information Can Implicate FCRA

When an employer obtains a “consumer report” or an “investigative consumer report” from a third party that qualifies as a consumer reporting agency for use in making an employment decision, it must comply with the Fair Credit Reporting Act (FCRA), 15 U.S.C. Sect. 1681 et seq.  FCRA limits the purposes for which a report may be obtained to a limited field of uses, including for employment purposes.  A consumer report can include driving reports, medical reports, and credit history; it is defined as any communication that provides information about creditworthiness, credit capacity, credit standing, reputation, character, or personal characteristics.  An investigative consumer report may include the same types of information—character, general reputation, mode of living.  This type of information is obtained through interviews or discussions with co-workers, associates, relatives, or others who know the individual personally.  FCRA does not apply if the employer conducts its own investigation, such as interviews of references.

Having a Healthy Workplace

The part can never be well unless the whole is well.  ~Plato

Whether you have any formal programs in place to promote healthy living for your employees, establishing a culture that values a healthy lifestyle is a useful goal for any employer.  As the saying goes, just because you’re not sick does not mean you’re healthy.  The American Heart Association has provided some staggering information for employers to ponder.  Healthcare issues cost American business in excess of $225 billion each year in productivity losses.  That’s not to mention escalating healthcare costs.  Those numbers are sobering because approximately 80% of cardiovascular disease is preventable, and other types of diseases likely have some similar statistics.   For the first time in American history, the life expectancy of this generation of children is expected to be lower than that of its parents.  Making small changes can help individuals stave off some of these problems, and employers can take a few steps to help.  If you provide food in the workplace, offer lighter, healthier items.  For workplace events, offer better choices.  Promote use of stairs, and taking stress-relieving breaks.  Encourage small active activities, like a walk around the building.  Statistics show that an hour of exercise adds approximately two hours of life expectancy.  It also makes employees more focused, and limits time out of work.

New Wilson Worley Newsletter Available: “Court Pulls Teeth From NLRB Posting Rule, But Employers Still Required To Comply”

As we have previously discussed, the National Labor Relations Board now requires that most private employers post a notice of employees’ rights given by the National Labor Relations Act.  The requirement goes into effect on April 30th.  A copy of the poster may be found here (note that the poster must be at least 11” x 17”).  .  .  .

For the complete newsletter by attorney Aaron Duffy, visit the Wilson Worley website by clicking here.

Tennessee AG Renders Opinion on Travel Compensation for Jury Duty

The Tennessee Attorney General issued an Opinion in October 2011 confirming that Tenn. Code Ann. § 22-4-106(b) requires an employer to pay an employee for travel time to and from jury duty if the employee does not receive compensation for travel as part of the employee’s usual duties.  According to the Opinion, an employer must compensate for that travel time, as well as for the service on the jury, subject to limitations in the statute.  This does not apply to employers who have fewer than five regular employees or to temporary employees who have worked less than six months.  The Opinion may be viewed here.

The statute provides:

Notwithstanding the excused absence as herein provided in subsection (a), the employee shall be entitled to the employee’s usual compensation received from such employment; however, the employer has the discretion to deduct the amount of the fee or compensation the employee receives for serving as a juror.  Moreover, no employer shall be required to compensate an employee for more time than was actually spent serving and traveling to and from jury duty.  If an employer employs less than five (5) people on a regular basis or if the juror has been employed by an employer on a temporary basis for less than six (6) months the employer is not required to compensate the juror during the period of jury service pursuant to this section.

The FLSA does not require employers to compensate for travel to the regular place of work.  Therefore, an employee who commutes to work and then works regular shift is only compensated at the regular rate for the shift.  As the Opinion clarifies, a Tennessee employer must pay “usual compensation,” for time “actually spent serving and traveling to and from jury duty” according to Tennessee law.  “Usual compensation” is the regular rate of pay.  Thus, an employee who travels half an hour from home to court and serves eight hours on jury duty should be paid for 9 hours—one hour for travel plus eight hours for jury duty.

The AG does not specifically address salaried employees, but opines that legislative history is consistent with paying a salaried employee on a pro-rated basis if jury duty is less than a regular work day.