The Employer's Legal Resource - February 2010

SAVE THE DATE

The Employer's Legal Resource Workshop

Thursday, April 22 Doubletree at Warren Place, Tulsa

Details in next month's e-newsletter.

ADA

OVERHEARING MEDICAL INFORMATION CAN LEAD TO EMPLOYER LIABILITY

The Americans with Disabilities Act was enacted in order to end discrimination against individuals with disabilities.

As a means to end discrimination in employment, the ADA limits an employer's ability to ask questions that relate to an applicant's disability status throughout the three phases of the employment process: pre-offer, post offer but pre-employment, and employment. During the pre-offer stage, an employer may ask about the ability of an applicant to perform job-related functions, but may not ask any questions that are likely to provide information about a disability. Following a positive pre-offer drug test, however, an employer may ask about lawful drug use or other possible explanations for the positive result. But there are limits – disability related questions are still prohibited.

The fuzzy line between what is proper and what is not was addressed in a recent court decision. In that case, when the applicant's drug test came back positive for barbiturates, the man who would be the applicant's supervisor informed him of the test results and asked him to get his prescription if he had one. The supervisor then called the independent Medical Review Officer who was responsible for receiving and interpreting the results from the drug testing facility, and passed the phone to the applicant. When answering the MRO's questions about his use of barbiturates, the applicant stated that he had had epilepsy since he was two, took barbiturates to control it, and the amount of his dosage. Although the supervisor did not ask any questions, he stayed in the room during the phone call and heard the applicant's responses to the MRO's questions. The MRO later reported to the employer that the drug test had been cleared. The applicant, however, didn't get the job, and sued the employer for violation of the ADA. The court held that even though the supervisor had asked no questions, his presence in the room during the telephone conversation could be interpreted as an intentional attempt likely to elicit information about a disability.

This case teaches us that good business practices will provide the best protection from employee lawsuits. All communications with the applicant during the pre-offer and post offer but pre-employment phases should be controlled at all times by a professional trained in the requirements and limitations of the ADA. In addition, there should be one individual within your organization responsible for receiving and protecting the confidentiality of drug test results. The human resources professional should have been the contact with the MRO and would have known it was improper to stay in the room while an applicant was discussing his legal drug use.

This case is one of many that reminds us of the complexities in dealing with health or medical issues in the employment arena.

By Rebecca M. Fowler, rfowler@dsda.com

COBRA

DOL ISSUES REVISED MODEL NOTICES

As you may recall, in last month's Employer's Legal Resource, we told you that the COBRA subsidy had been substantially expanded. Click here to read more about the COBRA subsidy.

The Department of Labor has now published new model notices to be used when informing persons about their rights under COBRA. It is strongly recommended that you use these new forms. The forms along with explanations as to their use can be found at the DOL's website here.

By Kristen L. Brightmire, kbrightmire@dsda.com

Texting

DEPARTMENT OF LABOR BANS TEXTING FOR COMMERCIAL DRIVERS

The perils of distracted driving continues to gain attention. In December 2009, President Obama signed an Executive Order directing federal employees not to text while driving government vehicles. Then, on January 26, 2010, the Department of Transportation (DOT) announced regulations to be effective immediately banning texting while driving commercial motor vehicles (CMVs).

CMVs are "any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle (1) has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,563 kg (10,001 pounds) or more, whichever is greater; or (2) is designed or used to transport more than 8 passengers (including the driver) for compensation; or (3) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or (4) is used in transporting [hazardous material as defined by regulations]."

This rule does not affect the driver's ability to use a cell phone for phone calls or the driver's ability to use electronic dispatching tools or fleet management technology. However, the DOT is continuing its study of these other electronic medium.

If you employ drivers of CMVs, you will want to ensure that each of your drivers is well aware of this ban.

If you do not employ any CMV drivers, you should also heed this trend. More and more states and entities are considering whether it is safe to text and drive. You may want to consider whether your company should prohibit this if your employees are operating company vehicles or driving for company business.

By Kristen L. Brightmire, kbrightmire@dsda.com

Employee Benefits

DOL FINALIZES 7-BUSINESS-DAY SAFE HARBOR FOR DEPOSITING PARTICIPANT CONTRIBUTIONS AND LOAN REPAYMENTS IN SMALL EMPLOYEE BENEFIT PLANS

The U.S. Department of Labor (DOL) recently issued a final “safe harbor” rule that allows employers sponsoring pension and welfare benefit plans with fewer than 100 participants to take up to seven business days to deposit employee contributions to plan accounts. Under this new rule, employers are treated as having made a timely deposit if the contributions are deposited within seven business days after they (i) are received (if the contributions are paid to the employer) or (ii) would have been paid in cash (if the contributions are withheld from wages). The effective date for the new rule is January 14, 2010.

Previously, the general rule was that employers of all sizes were required to transmit employee contributions to retirement plans, such as 401(k)-style defined contribution plans, as soon as they could reasonably be segregated from the general assets of the employer, but no later than the 15th business day of the month following the month in which contributions were received or withheld by the employer. The latest date for forwarding participant contributions to health plans was 90 days from the date on which such amounts were received.

Currently, an employer that experiences problems with complying with the safe harbor will be subject to the general rule described above. In addition, the safe harbor is applied on a deposit-by-deposit basis. Therefore, the failure to comply with the safe harbor for a particular deposit will not effect other deposits. Further, it is noteworthy that the safe harbor applies to multiemployer and multiple employer plans. The safe harbor also extends to loan repayments made by plan participants.

In order to ensure compliance with the safe harbor, we recommend that employers take the following actions:

• Employers whose plans have less than 100 participants should ensure that their payroll vendor (if payroll is done externally) or their internal payroll department is aware of the new final rule, and that all employee contributions and plan loan repayments are made by no later than the seventh business day if they wish to use the safe harbor.
  
• Employers whose plans have 100 or more participants, or employers with small plans electing not to use the safe harbor, should ensure that all employee contributions and plan loan repayments are deposited by the earlier of the date those contributions and/or loan repayments can be segregated from employer assets or the 15th business day of the following month.

By Jeff Rambach, jrambach@dsda.com

What's New

AnnouncementS

Victory for Kmart

Doerner Saunders represented Kmart Corporation in a case brought by a former manager alleging race and age discrimination and retaliation. Recently, the trial court entered judgment in favor of Kmart on all claims.

Congratulations to McLaine DeWitt Herndon and Kristen Brightmire for their work on this case.

Corporate Counsel edition of Super Lawyers recognizes DSDA attorneys

Super Lawyers, Corporate Counsel Edition 2010, has named Kristen Brightmire (Employment Litigation) and Linda C. Martin (Environmental Litigation) as top Oklahoma attorneys in corporate litigation.

Doug Dodd recognized for his work in First Amendment Law

Urban Tulsa's Annual Hot 100 features our own Doug Dodd as one of "...the most influential trailblazers who are setting out to make their mark on the new decade" lauding Doug's "…expertise in First Amendment law…"

Way to go Doug!

Mike Wofford appointed to Vice Chair,

Mike Wofford was named Vice Chair of the Law-Related Education Committee of the Oklahoma Bar Association. The LRE committee sponsors and conducts educational forums and scholastic competitions on civics, our legal system, and the Constitution for elementary and secondary students and their teachers throughout Oklahoma.

Mike, we appreciate your service and dedication to this project.

Doerner Saunders launches another e-newsletter: Trusts & Estates Legal Resource

Doerner Saunders is committed to providing its clients with up-to-date and relevant information. We have invested significant resources in developing the ability to communicate to you, directly, and at no cost. Our first endeavor was The Employer's Legal Resource, which is emailed the first working day of each month to our subscribers. We also author and email the following e-newsletters:

The Healthcare Provider's Legal Resource
The Environment and Water Legal Resource
The Oklahoma Construction Law Resource
Trusts & Estates Legal Resource

To subscribe to one or all of these free e-newsletters, click here. Or, you can review past editions on our web site at http://www.dsda.com/.

Dates to Remember

Calendar of notable events

February 26, 2010

Elise D. Brennan will be a featured speaker at the 3rd Annual On-Site Employee Health Clinic Summit. Ms. Brennan will examine the legal aspects of onsite clinics, the relationship between medical clinics and wellness programs, confidentiality issues, licensing issues, as well as a discussion of ERISA and HIPAA implications. For more information, click here or email info@worldrg.com

March 4, 2010

The Business Succession Planning Seminar sponsored by Doerner Saunders. This one-day seminar will assist you in such areas as how to plan a smooth transition, ways to address a coming rise in capital gains rates, things you can do to boost market value, whether you are a good candidate for an ESOP, how to use insurance to reduce risk and maximize after tax cash, what buyers really pay and how deals are structured, and tips for those planning to sell to the highest bidder. Speakers include Doerner Saunders' attorneys Jeff Rambach, Harry Rouse, Wayne Cooper, and Sandy Taylor. Other speakers include Matt Henderson, President/CEO Henderson Financial Group, and David Perkins, Jr., Managing Director Acquisition Advisors.

The Business Succession Planning Seminar will be held at the Philbrook Museum of Art, from 10:00 – 4:30. Tuition is $100. To RSVP, please call Julee Thomas at (918) 591-5245