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Legislation designed to ensure disability access to telecommunications technology re-introduced

July 31st, 2009  |  Deborah Hammonds

>In an attempt to make sure people with disabilities are not left behind as changes in technology race ahead, U.S. Representative Edward Markey (D-Mass) has re-introduced the Twenty-First Century Communications and Video Accessibility Act (H.R. 3101) (Act). According to a summary posted on the website THOMAS (http://thomas.loc.gov/), the Act’s goal is “to establish new safeguards for disability access to ensure that people with disabilities are not left behind as technology changes and the United States migrates to the next generation of Internet-based and digital communication technologies.”

Such legislation would no doubt impact litigation such as the lawsuit filed against Arizona State University (ASU) regarding a pilot program’s use of Amazon’s Kindle DX electronic reading device as a means of distributing electronic textbooks. Several institutions of higher education are deploying the Kindle DX as part of a pilot project to assess the role of electronic textbooks and reading devices in the classroom. The lawsuit, filed by the National Federation of the Blind (NFB) and the American Council of the Blind (ACB), alleges violations of the Americans with Disabilities Act and the Rehabilitation Act of 1973 because the Kindle DX cannot be used by blind students.

Although the Kindle DX features text-to-speech technology that can read textbooks aloud to blind students, the menus of the device are not accessible to the blind, making it impossible for a blind user to purchase books from Amazon’s Kindle store, select a book to read, activate the text-to-speech feature, and use the advanced reading functions available on the Kindle DX.

In addition to their ASU lawsuit, NFB and ACB also filed complaints with the Office for Civil Rights of the U.S. Department of Education and the Civil Rights Division of the U.S. Department of Justice, asking for investigations of the following five institutions: Case Western Reserve University, the Darden School of Business at the University of Virginia, Pace University, Princeton University and Reed College.

“Given the highly-advanced technology involved, there is no good reason that Amazon’s Kindle DX device should be inaccessible to blind students. Amazon could have used the same text-to-speech technology that reads e-books on the device aloud to make its menus accessible to the blind, but it chose not to do so. Worse yet, six American higher education institutions that are subject to federal laws requiring that they not discriminate against students with disabilities plan to deploy this device, even though they know that it cannot be used by blind students,” said NFB President Dr. Marc Maurer. He also said he hoped the matter could be resolved “in a manner that allows this exciting new reading technology to be made available to blind and sighted students alike.”

The objectives of the Twenty-First Century Communications and Video Accessibility Act include:

  • requiring mobile and other Internet-based telecommunications devices have accessible user interfaces, and offer people with disabilities use of a full range of text messaging and other popular services that are currently largely inaccessible;
  • providing people who are deaf-blind with vital but costly technologies they need to communicate electronically; and
  • ensuring video programming offered via the Internet will be described, and call for all devices that receive and playback video programming to employ accessible user interfaces and allow ready access to description.

The Act, co-sponsored by U.S. Representatives Barbara Lee (Calif) and Linda T. Sanchez (Calif), was re-introduced on June 26, 2009.

It’s 9:00 AM: do you know where your employee records are?

July 29th, 2009  |  Connie Eyer

>Earlier this month, Connecticut Governor M. Jodi Rell signed into law An Act Concerning Consumer Privacy and Identity Theft (P.A. 09-239 (S.B. 838), L. 2009, effective Oct. 1, 2009), which is sure to have repercussions for employers in that state. Broadening the definitions of identity theft and “personal identifying information,” the legislation requires private employers to strengthen the security of job applications. In accordance with Section 10, each employer shall obtain and retain employment applications in a secure manner and shall employ reasonable measures to destroy or make unreadable such employment applications upon disposal. Such measures shall, at a minimum, include the shredding or other means of permanent destruction of such employment applications in a secure setting. Employers violating these provisions will be subject to a civil penalty of at least $500, not to exceed $500,000 for any single violation.

Do you know the record-retention laws that apply to your company? For starters, different state laws or operational requirements may have varying record-retention guidelines. Complicating the issue are questions like: How does an employer define an “applicant?” What exactly constitutes personnel records? Also, do the rules differ for unsolicited resumes or Internet applicants?

Many states have laws that require employers to retain particular records for a specified period of time; however, unsolicited resume retention is not specifically addressed in the laws of each individual state. For example, in Illinois, employers are required to maintain, among other things, resumes for one year from the date of application. Pennsylvania law requires all documents relating to employment including the applications of both successful and unsuccessful applicants must be preserved for 120 days following the filing of the forms. Wisconsin requires even longer retention: five years for all records relating to an applicants employment, including the original application.

Who is considered an “applicant?” The concept of an applicant is that of a person who has indicated an interest in being considered, through submission of a resume or otherwise, for hiring, promotion, or other employment opportunities. In an effort to address the difficulties federal contractors face in dealing with the often overwhelming amount of expressions of interest submitted via the Internet or related electronic data technologies in the context of OFCCP compliance, the OFCCP developed the Internet Applicant Rule, which employs the following criteria: (1) the job seeker has submitted an expression of interest in employment through the Internet or related electronic data technologies; (2) the employer considers the job seeker for employment in a particular position; (3) the job seeker’s expression of interest indicates the individual possesses the basic qualifications for the position; and, (4) the job seeker does not remove himself or herself from further consideration or indicate that he or she is no longer interested in the position (41 C.F.R. §60-1.3). For paper submissions, however, the traditional applicant rule applies.

Disposal of employee records. Before complying with identity theft legislation, many questions should be resolved concerning the destruction of employee records. Can you be certain that data has been rendered unreadable before recycling or disposal? What really happens to your company’s old computer hard drives? If you used a vendor to shred documents, do you know details of their security?

Obviously, these are all complicated issues that cannot be easily addressed, so it is imperative that employers take a thorough look at their compliance with both state and federal laws to adequately define both their record-retention and disposal requirements. In cases where federal and state requirements overlap, the employer is expected to adhere to the stricter requirement.

An employee by any other name…

July 28th, 2009  |  Lisa Milam-Perez

>Many employers utilize independent contractors to meet short-term business needs or to carry out non-core functions. Some employers, however, adopt the independent contractor distinction for more unsavory reasons, such as evading payroll tax obligations, employee benefit costs and union organizing campaigns, or to avoid wage-hour suits or other employment claims. In either case, and regardless of an employer’s intentions, merely calling a worker an independent contractor does not make it so.

This truism is hardly new, nor are the murky and varied criteria that go into determining how to classify individual workers. What has changed, though, is the heightened liability that can befall unwary employers that get it wrong. Employers that improperly classify their workers have been targeted from all angles of late.

Consider FedEx. Perhaps no employer has been more under siege due to its use of independent contractors. In a closely watched case, a California appellate court found the company’s driver-operators were indeed “employees,” notwithstanding the terms of their Delivery Contractor Operating Agreement, and thus were entitled to reimbursement for work-related expenses under the California Labor Code (Estrada v FedEx Ground Package System, CalAppCt 2007, 154 LC ¶60,485). Soon thereafter, a plaintiff’s firm sent out more than 27,000 notices to past and current FedEx Ground/Home Delivery drivers across the country in multi-district litigation challenging the company’s independent contractor model. In all, more than 45 class-action suits have been filed against FedEx in state and federal courts over its classification practices. In addition, the IRS tentatively determined FedEx Ground drivers should be reclassified as employees—and that the company owed more than $319 million in back taxes and penalties for 2002 alone. Most recently, in June, eight state attorneys general announced they were teaming up to ensure the FedEx Ground division adheres to state employee classification laws.

FedEx won one key skirmish, however: earlier this year, a federal appeals court reversed a NLRB finding that FedEx delivery drivers were employees, concluding instead that they were indeed independent contactors and therefore did not fall within the Board’s jurisdiction (FedEx Home Delivery v NLRB, DCCir 2009, 157 LC ¶11,217). The ruling foiled a Teamsters effort to gain recognition as FedEx drivers’ bargaining rep.

Independent contractor misclassification isn’t just an employee rights issue, though. It’s estimated that more than $4.7 billion in federal income is lost due to misclassification. And for every 1 percent of workers misclassified, states lose an average of $198 million each year in unemployment insurance funds.

It’s no surprise, then, that cash-strapped states are pursuing the cause. To cite just two examples from last month alone: Colorado passed a bill allowing any individual to file a state agency complaint alleging an employer is misclassifying an employee as an independent contractor. The statute imposes a fine of up to $5,000 per misclassified employee for the first instance of misclassification made with willful disregard of the law; subsequent violations carry fines of up to $25,000 per misclassified employee. And Maryland enacted the “Workplace Fraud Act of 2009,” specifically targeting construction and landscaping employers that misclassify workers as independent contractors. State governors have also entered the fray, issuing executive orders that create state commissions or task forces expressly geared to addressing worker misclassification, and state agencies are beefing up their audit and enforcement activities in this area.

In some instances, states have created a private right of action for workers improperly deemed independent contractors. Here’s where it gets even pricklier: Some statutes allow any “interested party” to sue. In June, a federal district court in Illinois denied an employer’s motion to strike a union as a party plaintiff in a suit filed under the Illinois Employee Classification Act (Chicago Reg’l Council of Carpenters v Sciamanna, NDIll 2009, 157 LC ¶60,814). The court concluded the union was an “interested party” under the state law, enacted in 2008, which provides a cause of action for the improper classification of construction workers as independent contractors. The statute broadly defines an interested party as “a person with an interest in compliance with the Act.” The union has an economic interest in requiring employers to comply: it represents workers who perform construction work for the defendant employer and in the industry generally, and there is more than a “speculative possibility” that the union itself is entitled to relief under the statute, the court reasoned. The strategic value of such legislation to labor unions is clear.

At the federal level, the “Employee Misclassification Prevention Act” (H.R. 6111) was introduced in the 110th Congress. It would have amended the Fair Labor Standards Act to provide a penalty for employers who misclassify employees as non-employees. The bill has not yet been introduced in the current Congress. Give it time.

Minimum wage increase still pretty “minimal,” but impact on businesses may be great

July 23rd, 2009  |  Lucas Otto


On Friday, July 24, 2009, the federal minimum wage increases to $7.25 per hour, and with that increase, millions of citizens will see a boost in their weekly pay. That’s the good news. The bad news is that this increase does not even begin to raise working families above the poverty threshold, and many businesses may view this as just another cost that will inevitably eat away at their already struggling profit levels.

No one will ever turn a blind eye toward more money; in fact, while this increase is federally mandated, many businesses already offer higher minimum wages to their employees. Yet, it is impossible to ignore the fact that if an employee works 40 hours a week at $7.25 an hour, they will make $290.00 a week, or $15,080 a year (before taxes). Factor in higher gas prices and other bills, and a family of three is still well below the federal poverty guideline of $18,310, so any expectation of an “up tick” in the economy due to this increase seems more wishful thinking rather than reality.

But it isn’t just workers who will be feeling this increase. Employers, both big and small, will either have to bump those employees making less up to the minimum, or they will have to give small increases to those already making more, because they can’t pay existing employees the same as those just beginning their employment. The problem is, with decreased revenues due to the current economic downturn, this increase could not come at a worse time. Since the increase is so minimal, employers probably aren’t figuring that it will lead to greater consumer spending by the very employees getting the increase, which is the hope of many employers as wages increase.

To many employers, the math adds up as follows:

Hourly wages raised + continued economic downturn + continued downward trend in consumer spending = potentially less money coming in while more money goes out.

No one generally knows what this means for business, but if one could speculate, it could mean the loss will be passed on to consumers in the form of higher-priced products. In addition, it could mean fewer workers hired, or more workers fired, or an across-the-board reduction in hours. The fact is, an increase in the minimum wage was needed, but the amount will do little to change many families’ fortunes, whereas it may do a great deal to change how businesses hire and deal with employees and hours.

It remains to be seen what the trickle-down effect of this increase will mean to employees, businesses and consumers. Those who feel that the increase is bad for the economy and those who feel it is positive have both stated their cases (see video below). However, with the economy in a condition of instability, the road to economic recovery might get a little bumpier.

Video Discussing Pros and Cons of Minimum Wage Increase
(Opinions expressed in video are not those of CCH Workday)

For further analysis, read Don’t believe the hike, say opponents of minimum wage increase.

Gunfight at the OK Stripmall

July 22nd, 2009  |  Matt Pavich

>Arizona is the latest in a growing number of states that have restricted an employer’s right to maintain a firearm-free place of business. In enacting the new law, S. 1168, the Grand Canyon State legislature is the latest such body to put gun rights ahead of both the property rights of employers and the safety rights of just about anyone who happens near those establishments.

But the Arizona law, which forbids Arizona property owners, tenants, public and private employers and business entities from prohibiting firearms in vehicles that enter their property, is not even the most egregious example of the gun lobby’s power.

An Oklahoma law makes it unlawful for employers, private or public, to even ask employee applicants whether they own or have guns. A Florida law allows employees, including those at daycare centers, to have their guns in their car during the workday. In the battle between the business lobby and the gun lobby, it’s the National Rifle Association that is number one with a bullet.

The NRA has, in recent years, made these laws a priority and this trend should concern employers. This isn’t a case of a legislature rightly informing employers that they cannot discriminate in their hiring practices or mandating certain accommodations for persons with disabilities. These laws tell employers that they cannot enact safety measures that might step on the tender toes of the all-powerful American gun lobby.

And, have no doubt, keeping businesses gun-free is a real and serious safety issue. A 2005 survey in the American Journal of Public Health found that gun-friendly workplaces were five to seven times more likely to host workplace homicides than safety-friendly workplaces. The same survey found that 60% of major employers stated that disgruntled employees had threatened senior managers with serious physical harm. One doesn’t have to take a giant leap to imagine the potential disasters that could arise, should an unstable employee with a pistol in his trunk be given his walking papers.

Don’t these laws implicate the OSHA-mandated responsibility of employers to maintain a safe workplace? Of course they do, but in upholding a different Oklahoma law that prohibited employer gun bans, the Tenth Circuit found insufficient evidence that guns on company property constituted a real threat. In Ramsey Winch v Henry, 555 F.3d 1199 (10thCir. 2009), the court found that OSHA only requires employers to keep their workplaces free of “recognized hazards.” Because OSHA hasn’t promulgated standards prohibiting guns in the workplace, reasoned the court, guns in the workplace must not constitute a “recognized hazard.”

It’s the judicial-ese equivalent of “guns don’t kill people, people kill people.” And it completely ignores the political reality facing OSHA, a government agency, accountable to politicians who, more often than not, face intense pressure from the NRA.

So if OSHA won’t act and state legislatures insist upon allowing guns into every inch of the American fabric and the courts refuse to intervene, what can employers do? The answer is, currently, not much. Employers need to ensure that their HR policies reflect the current, dismal reality. Don’t prohibit or ask about guns in these states. And consider stocking up on Kevlar.