Roundup: Legal Developments You Should Know

Note: This article is not intended as legal advice. In all instances the reader is cautioned to consult with legal counsel when utilizing this information.

A part of the professional obligation of every person engaged in the staffing industry is to try to be current in the happenings of the legal world as it affects staffing industry activity. Here are some of the recent highlights. I welcome all comments and questions, and will try to reply promptly.

California’s Commission Contract Law

Effective January 1, 2013 a new California law requires that employees entering into employment agreements which involve compensation, even in part, on a commission basis must be provided a written contract detailing how the commission is computed and paid. Employers must provide the employee with a signed copy of the commission agreement, and obtain a signed acknowledgement of receipt of the copy. Not all commission and bonus arrangements are covered and it is not clear if the new law requires employers to implement written agreements with present employees having unwritten or verbal commission agreements. Best advice is to consult an attorney to get the answer.

A Busy EEOC in 2012

The most frequently filed charges were for retaliation (37,836), race (33,512) and sex discrimination, which includes allegations of sexual harassment and pregnancy, respectively. With the new Strategic Enforcement Plan for 2013-2016 it will be investigating and enforcing in six areas, including eliminating barriers in recruitment and hiring. To minimize exposure to claims brought through the EEOC it is recommended that companies review the law, company policies, handbooks, internal procedures and practices, to keep within the law.

Love in the Workplace

Office romances often lead to potential claims of sexual harassment as a result of the breakup of a romance between two employees, particularly where one is a manager. Although a company may have a policy that discourages such relationships, they happen nonetheless. A tool that an employer may want to consider is a “love contract.” This is a written document that confirms that two employees’ romantic relationship is completely voluntary. While not a legal document they do acknowledge that the relationship is entirely consensual and without coercion. In the event of a claim of sexual harassment it will assist in its defense.

Job Hazards Worse for Temp Workers

A study published last year of nearly 4,000 amputations among workers in Illinois found that five of the 10 employers with the highest number of incidents were temp agencies. Each of the ten employers had between six and twelve amputations from 2000 through 2007. Most of the victims lost fingertips, but some lost legs, arms or hands. The researchers were from the University of Illinois at Chicago School of Public Health. Another study, published in 2010, found that temp workers in Washington State had higher injury rates than permanent workers, based on a review of workers’ compensation claims.

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Experts say that there is little incentive for host employers to rigorously train and supervise temp workers because staffing services carry their own workers ‘compensation insurance. On the other hand OSHA could crack down on temp services to assure that temp workers are being protected at the same level as permanent employees.

EEOC on the Use of Criminal Records                   

Last year, the EEOC issued guidance on the use of arrest and criminal records, which states that an arrest record alone does not establish criminal conduct. However, an arrest may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. The guidance contrasts this with a conviction, which will usually serve as sufficient evidence that a person engaged in a particular conduct. The EEOC recommends that the inquiry be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.

But the EEOC guidance does allow for an employer to make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. Reviewing arrest records is a very tricky undertaking and should not be done without strict legal supervision. In some states even this is illegal under state law. So great care has to be exercised and the better practice is to not to engage in that activity and where it is appropriate so advise the client.

One Free Slap on the Buttocks?                           

In the case of Sandra Williams v. Ocean Beach Club, Inc. (USDC Eastern Dist. VA) the court concluded that a slap on the buttocks of a female employee by a male supervisor during a celebration of the employee closing a difficult sale was found not to be sexual harassment. Important to the decision were the surrounding circumstances of no prior difficulties with the supervisor, no prior inappropriate touching, and the female employee did not believe the slap was sexual in nature. In discussing the result the court found that while the company’s own investigation determined that the conduct, while inappropriate, was not actionable. But that does not give a onetime free ride.

A. Bernard Frechtman, Esq. is the author of Staffing Industry Law, A Guide for the Personnel Professional. He may be reached at (212) 580-7402 or via e-mail at abflaw@att.net or on his web page: www.frechtman.com.

This article, the many others that he has written and the contents of his book, are based on his 50 plus years as an active litigator and transactional lawyer, predominately practicing nationwide in the staffing industry. Bernie maintains an active office in New York City while residing in Indianapolis, Indiana, from where he commutes whenever court appearances require it. His representation has included public companies, nationally franchised staffing companies, both state and national staffing industry trade associations, and litigation from the basic fee controversy to the more sophisticated and complicated trade secret, restrictive covenant and contract litigation. He has also served as an expert witness.

Among his many accomplishments is being named by NAPS as its first Hall of Fame Honoree. A graduate of Brown University and St. John's University Law School, where he was a member of the Law Review, Bernie is admitted to practice in the States of New York and Indiana, various Federal District and Circuit Courts and the U.S. Supreme Court.

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