The Federal Motor Carrier Safety Administration and the Pipeline and Hazardous Materials Safety Administration—both part of the Department of Transportation—issued a new rule effective January 3, 2012 restricting the use of hand-held mobile telephones and devices by drivers of commercial motor vehicles (CMV). The rule amends Federal Motor Carrier Safety regulations and Hazardous Materials regulations. It restricts CMV drivers from reaching for or holding mobile telephones while operating their vehicles, or pushing more than one button to operate the
device.

Commercial motor vehicle drivers are still permitted to use mobile telephones and other mobile devices as long as their use complies with the new regulation. Essentially, drivers may initiate, answer or terminate a call if they can do so: 1) with the push of a single button; 2) on a device within their reach; and 3) without holding it in their hand.

So the device must be either mounted or otherwise secured and within reach at the vehicle control panel.  Further restrictions are: 1) the mobile device cannot be located on the passenger seat, sleeper berth, or floor of the vehicle; 2) the driver must use the device without holding it by hand—thus requiring either a speaker phone, one-wire, or wireless ear set; and 3) the
operation of the device may only be performed by pushing a single button.

The new regulation prohibits the popular Push-To-Talk (PTT) feature used by many CMV drivers.  Functionally, the PTT feature is similar to the use of a CB or two-way radio.  Both
of these devices are still permissible, since they are not prohibited by the new rule.  The new rule prohibits PTT since a “PPT” device falls squarely within the definition of a mobile telephone.  It also requires the driver to hold it and push a button more than once. So its use while driving a CMV is the same as a hand-held mobile telephone, which is prohibited.

Employers of CMV drivers are encouraged to: 1) implement a policy consistent with the new regulation, and 2) train their CMV drivers about the policy; and 3) require that CMV drivers comply with the policy.  The new policy should set forth: 1) what is prohibited; 2) what is still permitted; 3) the consequences of violating the new rule; and 4) a contact person for questions about the rule.

Author: Michael Cork (bio)
Phone: 317.464.1594
email: mcork@bamberger.com

Last week, the United States Supreme Court announced its unanimous decision in Hosanna-Tabor v. EEOC.  This case concerns the “ministerial exception” to an employment discrimination claim.  Here, a teacher at a Lutheran school was terminated and then filed a discrimination complaint under the Americans with Disabilities Act.  The church and its affiliated school defended the claim by arguing, in part, that the teachers’ duties were “ministerial” and that the First Amendment prohibited the Court from hearing a suit by a minster against her church claiming a violation of employment
discrimination laws.  The Supreme Court had not previously addressed the existence of this “ministerial exception.”  But this ruling holds that the First Amendment prohibits such claims.  The decision does not provide a “bright-line test” concerning the limitations of who is to be considered a “minister.”  But it found that this teacher (with her formal title, the substance of that title, her own use of the title, and the important religious functions she performed for the Church) was within the meaning of a “minister.” Accordingly, the church and school were protected from suit by the First Amendment.

The Court said in part:

“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment  Clause, which prohibits government involvement in such ecclesiastical decisions.”

Please contact a Bamberger attorney for more information.

Author: Michael Cork (bio)
Phone: 317.464.1594
email: mcork@bamberger.com

The U.S. Department of Labor (“DOL”) has developed a new application for employees.  It’s a free application for smartphones—currently it’s only available for iPhone® and iPod Touch®—but DOL
may expand it to other platforms such as Android® and BlackBerry®.  The app is free and enables employees to record their own work hours.  Employees without smartphones can print time sheets from the DOL site.

Both the app and the time sheets can be downloaded from www.do.gov/whd or from traditional app servers like iTunes.  The employee is able to enter the employer’s name, the employee’s hourly rate, and the day the employee’s workweek begins.  Once saved, that data will allow the employee to tap in the employer’s name for a prompt to “Start Work,” “Stop Work,” “Start Break,” etc.  DOL claims it is preparing upgrades that will allow employees to track tips, commissions, bonuses, deductions, holiday pay, weekend pay, shift differentials, and more.  The app will flash a warning if—based on the information the employee inputs—it appears the employee is not being paid the federal minimum wage.

The app and the printable versions contain a glossary of terms defining breaks, gross pay, and the workweek.  The app provides contact information for the DOL Wage and Hour Division.
And it is the DOL’s hope that the app will aid in wage and hour investigations.  (BEWARE—DOL has a larger budget and more investigators.)

The new app was developed, at least partially, as a result of the ease with which employees can work outside of the employers’ facilities.  DOL is concerned that some of that work may be done unwillingly and without adequate compensation.  And DOL has made it clear that if there is any reason to believe that an employer’s time records are inaccurate, DOL will rely on the employee’s records.  So employers should ensure that their timekeeping and payroll mechanisms are reliable, and prepare to address any conflicting employee records.

Please contact Bamberger’s employment law attorneys for advice about what employers should do, now that the DOL app is here.

Author: Michael Cork (bio)
Phone: 317.464.1594
email: mcork@bamberger.com

Back by popular demand, join the attorneys at Bamberger for the 3rd Annual Employment Law Horror Stories seminar presentation.  This complimentary seminar will be held on Wednesday, October 26th from 7:45-9:00 am.

We’ll celebrate the Halloween season by telling gory tales of liability dilemmas like wrongful termination suits, data breach, sexual discrimination and harassment, holiday parties gone wrong and more.  These tales may be juicy and scandalous, but these serious and all-too-common violations can cost companies like yours thousands of dollars in lawsuits.  We’ll also offer easy solutions that you can implement to prevent these problems!

The complimentary seminar will be held at the Bamberger Conference Center on the 10th floor in the Hulman Building. Breakfast will be provided.  If you’d like to attend this informative seminar, please RSVP by Wednesday, October 19, 2011 by calling 812.452.3567 or email us at rsvp@bamberger.com.

Author: Kim Jewell (bio)
Phone: 812.452.3588
email: kjewell@bamberger.com

A new law in Indiana may open opportunity for job applicants with past indiscretions, while at the same time limiting information available to employers.  Individuals who have been convicted of a misdemeanor or class D felony that did not result in injury to a person may petition a court to seal records of the conviction.  If eight (8) years have passed since a person has satisfied the obligations of their sentence for the misdemeanor or class D felony and they have not been convicted of another felony during those eight years, a court shall order the record of the conviction sealed from access by a noncriminal justice agency.  Law enforcement may still access the records for criminal justice purposes.  However, a non-law enforcement request for a background check will not reveal the past records.

It should be noted that a class D felony is the lowest level of felony offenses in Indiana and the opportunity to seal records is not afforded to sexual or violent offenders.  Additionally, even if records are sealed the new law does not change federal law in prohibiting a felon from possessing a firearm.

If a record is sealed, the new law specifically states “a person may legally state on an application for employment or any other document that the person has not been arrested for or convicted of the felony or misdemeanor… “  Thus, the impact of the new law may depend upon one’s perspective.  Is someone limited in their employment advancement because of perceived past mistakes or indiscretions now able to better secure advancement?  Or is an employer not getting a full picture of a job applicant because access to information about the prior conviction no longer allowed?  Regardless of your perspective, Indiana has taken a new view of those who have entered our criminal courts and then stayed away for at least eight years.

Given the prevalence of social media sites in many of our lives today, it is easy to forget that people might seek to use social media postings for purposes beyond those originally intended. 

There may, however, be a new use of social media posts that reach back as far as seven years.  Recently, it has been reported that a company, Social Intelligence Corp., was given approval by the Federal Trade Commission (“FTC”) to hold, for up to seven years, information gleaned from social media sites including, without limitation, pictures, “likes,” and other information for background checking purposes.  The FTC concluded that holding information for seven years did not, on a preliminary basis, violate the Fair Credit Reporting Act (“FCRA”).

Thus, flippant remarks or “liking” a group (even political or religious) groups that someone might find offensive could have negative ramifications long after the original post was made.  Pictures of your 21^st birthday could haunt you as you apply for a job years later. Employers are required to comply with the FCRA for all background searches and not discriminate in their hiring, but do you really want a prospective employer seeing those pictures?

Another way that social media is being used is by bankruptcy trustees to search for undeclared assets.  When a person files a bankruptcy petition, they must list all of their assets.  If their social media postings show a brand new television, boat or trips to luxury destinations that are not declared, trustees can seek to impose penalties upon the debtors.

Finally, my colleagues in family law would say I was remiss if I did not mention that evidence of infidelity and other less than savory behavior often shows up in social network postings and chats. This information is discoverable and often winds up as evidence in divorce and custody proceedings. 

If you have any questions or legal issues that arise from social media, contact your Bamberger attorney.

Author: Andrew C. Ozete (bio)
Phone: 812.452.3582
email: aozete@bamberger.com

Do you Tweet? Are you on Facebook?  How about Linkedin or a host of other social media websites?  These sites, and most of  the dozen or so others, are the subject of much activity by Internet users, including employees who may access them from work, home or anywhere they can get on the Internet. They provide a wealth of information about those who post on them, some of it better left to the imagination, but are frequently now accessed as a part of the hiring decision by management as well as reviewed for employee misconduct and potential termination.  The use of them is now so widespread that many courts instruct jurors not to post on, or read, them during a jury trial.

Some fairly simply rules should be implemented to help forestall litigation if management plans to review these sites with surveillance of an employee in mind,  Foremost among those rules is notification of the workforce that misuse of social media by an employee may be the basis for discipline. Such misuse may include disclosure of the employer’s trade secrets or proprietary information, statements about the company, its management or other employees that are derogatory that impugn another employee’s integrity. Some well known companies that have policies dealing with social media web site surveillance include Dell, IBM, Intel, Wells Fargo and Cisco.

A simple review of any of the social media sites will demonstrate the length to which some who post on them will go to get attention, or say whatever has come to mind, without reference to the consequence of broadcasting such information or opinion.

Because there is potential involvement with state and federal labor laws, and if you are a governmental unit potential constitutional issues as well, the decision to conduct surveillance should only be made after consultation with counsel, the development of a specific policy regarding both surveillance of, and use by employees of, such sites, a clear statement of what is prohibited and what the consequences of violation of the policy will be.  Do not, under any circumstance, simply Google© “surveillance of social media web sites” and copy someone else’s policy!

Author: R. Thomas Bodkin (bio)
Phone: 812.452.3562
email: tbodkin@bamberger.com

Yesterday, May 24, 2011, the National Labor Relations Board (NLRB) announced that it filed a complaint against Knauz BMW, a Chicago area BMW dealership.   The NLRB alleges that Knauz unlawfully terminated a salesman for posting photos and comments on Facebook that were critical of the dealer.

The luxury car salesman—as well as his coworkers—were unhappy with the quality of food and beverages Knauz provided at an event promoting a new BMW model.  The salesmen complained that their sales commissions might suffer as a result.  And following the event, the former salesman posted photos and commentary on his Facebook page criticizing his employer’s choice of hot dogs and bottled water.  Other employees had access to the Facebook page.

The next week, Knauz’s management asked the salesman to remove the posts, and he immediately complied. Nevertheless, shortly after a meeting with managers on June 16, the salesman was terminated for posting the images and comments.

The NLRB complaint alleges that the salesman’s Facebook posts are “protected concerted activity” under Section 7 of the National Labor Relations Act.  “Protected concerted activity” involves a discussion among employees about the terms and conditions of their employment.  Not all employee complaints rise to the level of “protected concerted activity.”  And in some cases, employees’ comments may lose their protected status under the NLRA based on their nature.  But here the NLRB has alleged a violation of the salesman’s right to engage in protected concerted activity—even if it only concerned hot dogs and bottled water.  And unless the case is settled, it will be heard by an administrative law judge on July 21, 2011, in the Chicago Regional office of the NLRB.

Author: Michael Cork (bio)
Phone: 317.464.1594
email: mcork@bamberger.com

Back by popular demand, join the attorneys at Bamberger for the 2nd Annual Employment Law Horror Stories seminar presentation.  The seminar will be held on Tuesday, October 26, 2010 from 7:45-9:00 a.m.

We’ll celebrate the Halloween season by telling gory tales of liability dilemmas like employees driving while texting on company phones, appalling social networking website violations (Facebook, Twitter, etc.), guns and violence in the workplace and more.  These tales may be juicy and scandalous, but these serious and all-too-common violations can cost companies like yours thousands of dollars in lawsuits.  We’ll also offer easy solutions that you can implement to prevent these problems!

The seminar will be held at the Bamberger Conference Center on the 10th floor in the Hulman Building. Breakfast will be provided.  If you’d like to attend this informative seminar, please RSVP by Tuesday, October 19, 2010 by calling 812.452.3567 or email us at rsvp@bamberger.com.

Author: Kim Jewell (bio)
Phone: 812.452.3588
email: kjewell@bamberger.com

A recent article in the Indianapolis Business Journal noted a shocking decline in the number of notaries in Indiana in the last few years.  In years past, a notary public stamp on a document seemed to be ever present and often was the distinguishing characteristic of a document with high importance.  However, in 2007, the Indiana Secretary of State’s office noted almost 23,000 expirations, but only approximately 17,000 renewals or applications for new notaries.  This marked a 22% decline for 2007.  In 2009 the decline accelerated to 30%.  This year the decline to-date is 41%.  The chief legal counsel for the Indiana Secretary of State indicates that he believes the decline reflects that the type of authentication notaries do is falling out of fashion.  Many companies now accept photo I.D. or confirm over the telephone or Internet.  He indicated that notary publics were more popular in the days when companies and people relied heavily on postal mail.  However with the increase in multiple forms of personal communication being available, the mail is not the exclusive source to authenticate the identity of someone’s signature on a document.  If you have questions about notaries in Indiana, contact a Bamberger attorney.

Author: Laura A. Scott (bio)
Phone: 812.452.3557
email: lscott@bamberger.com