Voting Rights
NOVEMBER 4 - EMPLOYErS MUST GIVE EMPLOYEES TIME OFF TO VOTE
Oklahoma employees are entitled to paid time off work to vote. Here is what you need to know.
November 4, 2008, is Election Day across the United States, and in Oklahoma, like many other states, that means employers must allow employees time off to exercise their right to vote. Oklahoma's time off to vote law ensures that employees have an opportunity to exercise their constitutional right to vote without loss of compensation or the fear of being penalized. The law requires employers give employees at least two (2) hours off work to vote. If the employee works far enough away from his voting place that more than two (2) hours will be needed, you must give them "sufficient time" in which to cast a ballot.
All that the employee must do to get this time off to vote is to give the employer written or verbal notice of his need to be absent to vote at least one day before the election. Once the employer receives notice, it should select the hours the employee is allowed to take off to vote and let the employee know when he is to work. In lieu of giving the employee two hours off, the law specifically allows employers to re-arrange the employee's schedule on election day to allow three hours off after polls open or before they close. In Oklahoma, the polling places will be open from 7:00 a.m. until 7:00 p.m.
It is unlawful for employers to deny employees sufficient time off to vote if the employee has made the required request to be absent to vote. The employee cannot be disciplined in any way for the time missed to go vote. That means the employee's time off to vote must be compensated and cannot count against vacation time, PTO, or the like. Any employer who fails to comply with the law may be guilty of a misdemeanor and can be fined $50.00 to $100.00 per occurrence. It is also possible an employer could face civil liability if it retaliates against an employee who takes time off to vote in compliance with the statute.
Come Election Day, be sure you are complying with the time off to vote law and any voting policies in your employee handbook or other personnel policies.
To summarize, an employer must give an employee time off to vote with no penalty, unless: (i) the employee is not registered to vote, (ii) the employee does not give you written or verbal notice of her intention to be absent to vote by at least the day before the election, or (iii) if the employee's work day begins three (3) or more hours after the polls open or ends three (3) or more hours prior to the polls closing.
By N. Lance Bryan, lbryan@dsda.com
Privacy Issues
PRIVACY IN THE WORKPLACE: EMAILS, TEXT MESSAGES, AND SNAIL MAIL
Now that we all have computers in our offices, we are able to quickly and easily communicate among ourselves and with business partners. That efficiency, however, does not come without a price. Most employees believe they can use that business equipment you make available to them to send personal electronic messages. More importantly, some of those employees believe they have a right to keep those messages private. Can an employer monitor those emails or text messages? Generally, yes, if you lay the groundwork for doing so.
Email and Text Messages. There is no Oklahoma law addressing electronic message monitoring. But under federal law, email and text message monitoring is governed by the Electronic Communications Privacy Act of 1986 (ECPA). Although this law was an amendment to the federal wiretap law, it has been interpreted to apply to email and text messages as well. The law prohibits the "interception of electronic communication" and "access to stored electronic communications." Courts interpreting these provisions have determined that interception of an electronic communication can only occur while the email or text is in transmission. Because email and text are transmitted so quickly, it is virtually impossible to "intercept" them. Accessing stored messages, however, is another issue. Some courts have gotten caught up in trying to define storage and its various stages. One appellate court found a simpler answer. It held that the ECPA specifically allows communications service providers to access communications in electronic storage, and when the communication is stored on the employer's computer system, the employer is the service provider.
There is an easy way to make sure you may safely monitor your employees' emails and text messages without having to determine if an email or text is in transmission or storage. The ECPA allows an employer to monitor electronic communication when the employee gives consent. According to courts that have addressed this issue, however, the employee must consent to monitoring personal as well as business communications.
How do you prove your employees consent? Well, first you tell them that the equipment you give them is for business use only and should not be used for personal reasons. This should leave them with no expectation of privacy in connection with any messages sent or received on that equipment. Then, tell them in crystal clear language that you will be monitoring the use of your equipment and their continued use of that equipment is consent to monitoring. Even if you are one of those employers that allows employees to use their business email account for personal use, you can still protect your right to monitor it by clearly advising the employees that the email account is the property of the company and subject to being monitored. Then, if your employee chooses to use the email for inappropriate purposes, business or personal, he has done so with full knowledge that your IT and HR departments might be reading it.
With regard to electronic communications and your right to access and review them, remember to advise your employees often that it belongs to the employer and that they have no expectation of privacy.
Snail Mail. Are there privacy concerns about old fashioned paper mail received by employees at your office? Even though federal law prohibits interference with the delivery of mail, mail is considered delivered when it is left at your office. So, just opening personal mail addressed to an employee is not a problem. But, if you open a letter and it is clear that it is personal, and not related to your business in any way, stop reading. Furthermore, keep what you have read to yourself. Try to eliminate these issues before they become a problem by advising your employees that they should not have personal mail sent to the office.
As always, your personnel policies are your best defense. Review your policies on emails, text messages, and snail mail. If they need updating, do it now. If you need help, call us.
Next month we'll look at computer searches, telephone monitoring, and video surveillance.
By Rebecca M. Fowler, rfowler@dsda.com
Immigration
EMPLOYERS, PREPARE FOR MORE ICE AUDITS AND RAIDS
Immigration and Customs Enforcement ("ICE") is the enforcement component of the U.S. Department of Homeland Security. Since 2006, ICE has been increasing employment enforcement. This includes performing more worksite audits and raids and imposing harsher penalties on human resource employees, managers, and owners. The penalties for employment violation can include fines, imprisonment, or both. ICE targets both large and small companies for raids. Traditional targets include industries with a high level of unskilled workers, such as food processing plants, janitorial services, and construction. Employers should be prepared for an ICE visit by both ensuring compliance with immigration laws and implementing proper policies to ensure a proper response when ICE requests to enter your worksite.
A. Preparing for ICE I-9 Audits
Often, an employer's first contact with ICE will be a notice of an I-9 audit. Regulations require ICE provide three day's notice before conducting an I-9 audit. Upon receiving an I-9 audit notice, employers should immediately contact an attorney to assist in preparation, which will involve gathering I-9 policies and reviewing existing I-9s. Employers should not refuse or delay production of I-9s as this may violate federal I-9 retention requirements and pique ICE's interest.
An employer can prepare for I-9 audits by ensuring it has the proper policies in place. Every employer should have and enforce a written I-9 policy setting forth the procedure for completing and storing I-9s. Not only does a written policy provide clear guidance to HR and management when completing the I-9s, it also demonstrates good faith and helps protect an employer from allegations of "patterns or practice" of non-compliance. If your I-9s contain a few errors, the penalties will significantly increase if it appears that the errors were part of a pattern or practice of non-compliance.
Unlike most other documents completed by new hires, I-9s should not be placed in an employee's personnel file. Because you have only three days to accumulate and review the I-9s once ICE has contacted you, the better practice is to keep all I-9s in a separate secure location.
The I-9 policy should also include guidelines to ensure proper verification procedures to avoid allegations of discrimination. Employers cannot designate which documents on the I-9 list a employee provides. Employers should accept documents that appear genuine on their face. Also, employers cannot refuse to hire someone based on the future expiration date of a work authorization. Consult with legal counsel familiar with the immigration laws before making the decision to hire or fire someone with an immigration issue.
Employers should implement a tickler system to ensure proper purging and re-verification of I-9s. Employers must retain I-9s for three years after the date of hire or one year after the end of employment, whichever is later. Employers also must re-verify I-9 information when work authorizations expire.
Employers should regularly perform self audits to ensure proper I-9 practices. The auditor should not be the same person who regularly processes I-9s. The auditor should review existing I-9s for errors that may require re-verification. The auditor should educate staff regarding errors found.
B. Preparing for ICE Raids
If ICE decides to raid a worksite, an employer will be in a significantly better position if it already has the proper management plan in place. Train employees that greet visitors, such as receptionists and security guards, on who to contact and what information to request if ICE agents arrive. The employer should confirm the identity of the agents and the scope of their investigation. Employers may request copies of search warrants, inventories of items removed from the facility, and the name of the agent in charge of the raid. Employers may request to have legal counsel present during a raid; however, a request for legal counsel will not stop the raid.
C. Conclusion
Ever-increasing enforcement makes it more likely that your worksite will be subject to an ICE audit or raid. Taking the time now to ensure the proper policies are in place will help avoid serious consequences that may otherwise arise when ICE knocks on your door.
By Hilary L. Velandia, hvelandia@dsda.com
Veterans' Rights
HEROES EARNINGS ASSISTANCE AND RELIEF TAX ACT OF 2008 AND BENEFIT PLANS
This past June, the President signed into law the HEROES Act that provides men and women who have left employment to serve our country additional rights under their employer-sponsored benefit plans. Below is a summary of the changes and the applicable effective dates.
Effective (retroactively to) January 1, 2007: The 401(k) plan (or any similar defined contribution plan) must ensure that a survivor of a plan participant who dies while in military service will be entitled to any survivor benefits provided under a 401(k) plan.
January 1, 2009: While employers are not required to provide differential pay to an employee on military leave, if they do, such pay is the difference between what the employer normally pays the employee and what the employee receives while on military service. In the past the IRS required differential pay to be reported on a 1099 instead as W-2 wages; therefore, such pay could not be treated as compensation under the 401(k) plan. Now differential pay must be treated as W-2 wages and such wages must be treated as compensation under the 401(k) plan. Therefore, military personnel have the right to receive any employer contributions (such as matching or employer discretionary contributions) relating to the differential pay while away on service.
January 1, 2009: Two of the most significant changes made under the HEROES Act relate to withdrawals from a 401(k) plan. Under USERRA, there has been some confusion as to whether an employee called up to military service is treated as having terminated employment (whether because the employee receives differential pay or simply has the right to reemployment at the end of his or her service under ERISA). Now, under the HEROES Act, the employee will be treated as having terminated employment for the specific purpose of allowing the person on military leave to withdraw employee contributions made to the 401(k) plan. This change allows the employee to withdraw amounts contributed to the 401(k) plan, even though otherwise such withdrawals generally could not be made until the employee reached age 59½. Additionally, Congress extend a provision that, although the employee wou ld still have to pay the normal income tax on the withdrawal, he or she would not have to pay the 10% tax penalty that is assessed if a withdrawal is made before age 59½.
Finally, while optional, most employers who sponsor health care spending accounts will now allow employees leaving for military service to withdraw any balance remaining in their spending account. The employee will not be subject to any tax on this withdrawal. This change may be made at any time. Once made, any employee called up to military service will be able to take advantage of this benefit.
By Anita K. Chancey, achancey@dsda.com
Fiduciary Responsibility for Investment Decisions
PROTECTING YOUR EMPLOYEES' RETIREMENT PLAN IN A TIME OF FINANCIAL UNCERTAINTY
Are employees coming to you with worries about the decreasing value in their 401(k) accounts? With the current economic crisis fueling these worries, it is important that the fiduciaries of your company's retirement plan(s) review the investment selections. Fiduciaries should make it a high priority to review these investment choices. By doing so, you will have shown that the fiduciaries have considered the impact of the economic crises on the 401(k) plan and that the fiduciaries' actions have provided your employees the best choices reasonably available. If you follow litigation brought under employee benefits laws, you will undoubtedly note that breach of fiduciary duty claims are on the rise. Taking the time to review your investment options now will help minimize any exposure you may have to such claims in the future.
By Anita K. Chancey, achancey@dsda.com
What's New at DSDA
Upcoming Events
November 2, 2008.
Daylight Savings Time ends. Be sure to set your clocks back one hour. If your company uses an electronic means of recording hours worked (e.g., time clock, hand-scanner), be sure they change accordingly so your workers continue to be properly paid.
November 4, 2008.
Kristen L. Brightmire will be addressing the ADA Amendments Act of 2008 at the Tulsa County Bar Center for the Employment Law Seminar beginning at 9:00 a.m. For registration and information about continuing legal education credit, go to http://www.tulsabar.com/.
Election Day. Get out to vote!
November 5, 2008.
McLaine DeWitt Herndon will prepare materials and a presentation concerning the new ADA Amendments Act of 2008 for the Tulsa EEOC Association (TEEOCA). The function will be held at Baxter's Interurban on 7th and Houston beginning at 11:30am.
November 6, 2008.
Courtney L. Bru, Michael C. Redman, and Kristen L. Brightmire will be hosting attorney break-out sessions at TAHRA's Annual Employment Law and Practices Seminar to be held at the Tulsa Renaissance Hotel. Courtney will be speaking on recordkeeping requirements. Mike will be speaking on garnishments and other payroll issues. Kristen will be speaking on drug and alcohol testing.
November 14, 2008.
The Environmental Law Practice Group is teaching a seminar entitled "Environmental Compliance for Oklahoma Design Professionals" sponsored by Half Moon LLC at the Hilton Garden Inn Tulsa South. This is a one day program for architects, engineers, and contractors where you'll examine environmental issues in construction siting and project design. Learn how to accommodate existing site contamination in design and construction. Learn to comply with laws on air quality and the management of construction and demolition waste; and more. For registration or more information, contact Half Moon Seminars, (715) 835-5900, or DSDA attorney Linda C. Martin at lmartin@dsda.com or (918) 591-5307.
December 5, 2008.
Sharolyn C. Whiting will be presenting "Recent Developments in Occupational Safety and Health Law" at the Oklahoma Bar Association Employment Law 2008 seminar in Oklahoma City. For registration and more information, go to http://www.okbar.org/.
December 8, 2008
Leonard I. Pataki and Sharolyn C. Whiting will be presenting a seminar on OSHA Basics and Recent Developments 2008 at the Tulsa County Bar Association. For registration and information about continuing legal education, go to http://www.tulsabar.com/.
ANNOUNCEMENTS
United Way.
Doerner, Saunders, Daniel & Anderson, LLP has long been a supporter of the United Way and its important charitable work in Tulsa and the surrounding communities. During this year's United Way Campaign, attorneys and staff at DSDA pitched in to make the campaign a success, helping with auctions, a chili lunch, a pancake breakfast, and even bingo. The campaign this year met and exceeded the fundraising goal set by the United Way committee.
Environmental Law Group.
Linda C. Martin was recently inducted as a fellow in the American College of Environmental Lawyers. Click here for more information.
Alicia J. Edwards was recently appointed as Committee Vice Chair for the American Bar Association's Section of Environment, Energy, and Resources Pesticides, Chemical Regulation, and Right-to-Know Committee. She will also be responsible for editing the Committee's contribution to Environment, Energy, and Resources Law: The Year in Review.
Kassandra M. Bentley was selected to participate in Regional Input Meetings as part of the Oklahoma Comprehensive Water Plan. Ms. Bentley participated in the Tulsa region. The Oklahoma Comprehensive Water Plan is a strategic guide for managing Oklahoma's water resources over the next fifty years. The Plan was first published in 1980 and updated in 1997. The Oklahoma Water Resources Board is currently engaged in a five-year study designed to update the Plan.
Identity Theft Red Flag program postponed.
You may have heard that creditors and financial institutions with "covered accounts" must implement Identity Theft Red Flag programs by November 1. However, the FTC announced on October 23 that it would be suspending those rules until May 1, 2009. For more information, see the FTC article here.
