Do you know what a company’s top 5 risks are, from a labor-employment law standpoint? Our speaker, Ben Banta with The Kullman Law Firm will discuss those risks, which include the recently expanded federal disability law (ADA), cutting-edge workplace privacy issues, state laws that you may not know about, and much more.

1. Top 5 Risks For Employers In Labor-Employment Law Presented by Mr. Benjamin H. Banta August 25, 2010

3. Wage-Hour Laws

4. Retaliation

5. State Laws You Don’t Know About

7. Expanded ADA (cont.) Result: more disabled employees Result: more accommodations to consider or make Result: more ADA charges and lawsuits Result: decreased summary judgment chances

8. Wage-Hour Laws Meal breaks “Off the clock” work Misclassifying workers as exempt Ruining “salary basis” requirement

9. Retaliation Alleged in 36% of all charges in EEOC’s FY 2009 Alleged in 15% of all charges in EEOC’s FY 1992 Virtually all aspects of job may become an issue White standard: “materially adverse action or conduct” “could well dissuade a reasonable worker from making . . . charge”

10. State Laws You Don’t Know About Firearm possession Fines against workers Non-competition provisions you’re not complying with Jury duty (pay/discharge) Voting leave

11. State Laws You Don’t Know About (cont.) Smoking Access to personnel records WARN-type statutes Breastfeeding time What else?

12. Privacy Issues Evolution Searches on employer premises or parking lot Video surveillance E-mails and Internet usage GPS tracking Planting chips in employees

13. Privacy Issues Case 2010 Supreme Court case involving public employer City of Ontario, Calif. v. Quon (No. 08-1332)

14. Privacy Issues Facts Employees exceed character limits on text messages (pager) Employer investigates; many messages not work-related Some text messages are sexually explicit Employee disciplined Employee sues for violation of privacy rights

15. Privacy Issues Legal Analysis Review of text messages on pager was reasonable Legitimate interest in, and reason for, the search (work-related) Search not excessive in scope or “excessively intrusive” Employee had only limited privacy expectation Lessened risk of intrusion on highly private details of personal life

16. Privacy Issues “To Do” Have an explicit policy in place Work with HR, IT, Legal on policy Update it annually, keeping up with technology and your equipment State business need/interest Right (not a duty) to monitor/inspect at will

17. Privacy Issues “To Do” (cont.) Address social media? Create no expectation of privacy Have employees acknowledge receipt annually (consent) If inspecting, start small and narrow with search Be consistent and reasonable; how would you feel?

18. Privacy Issues Possible Claims Invasion of privacy (state law) Fair Credit Reporting Act (FCRA) Stored Communications Act (SCA) Electronic Communications Privacy Act (ECPA) Computer Fraud and Abuse Act (CFAA) Traditional labor (NLRA), employment (Title VII), tort laws (defamation)

19. Privacy Issues Think About Mixed-use (work and personal) Blackberries or laptops Employer reimburses only fraction of monthly bill Getting into personal e-mail accounts or the like Nexus to job performance Consistent enforcement Knowing too much