Greater Miami SHRM / Greater Miami Society for Human Resource Management

Ask Andy: New Employment Law Column
Do you have an employment law question that you would like to have answered but have not found the time to research or discuss with colleagues? Well, just "Ask Andy," a labor and employment law attorney.

The rapidly changing workforce and the promulgation of new or revised federal, state, and local laws often present challenging issues for Human Resource professionals. It is often necessary for Human Resource professionals to research such issues, or to discuss the issues with colleagues. Unfortunately, your days are only so long, and questions often go unanswered.

Here is your opportunity to ask your employment law question to Andy Rodman, a labor and employment law attorney at the firm Stearns Weaver, and our Legislative Affairs Director. Click on the following link to submit an anonymous question to Ask Andy. He will pick one or more questions to post and answer on this webpage. If your question is chosen, Andy will not disclose on the webpage your name, your company's name, or any other identifying information. Once your question and Andy's answer are posted, other GMSHRM members will be able to "chime-in" and comment. The idea is to provide a forum for a dialogue among Human Resource professionals. Give it a try today.

On Social Media
NLRB Acting General Counsel’s Report
The NLRB has been increasingly focusing on social media cases. Attached is the NLRB Acting General Counsel’s Report, released today, on the agency’s handling of 14 cases involving employers’ social media policies and their application in specific situations. In a press release, the Board’s Acting General Counsel Lafe Solomon said, "I hope that this report will be of assistance to practitioners and human resource professionals." According to the Board, each case was submitted by regional offices to the NLRB’s Division of Advice in Washington, DC. In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected. In one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page. In five cases, some provisions of employers’ social media policies were found to be unlawfully overbroad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.

For a copy of the complete report, click here.

EEOC’S Regulations Governing Genetic Information Have Taken Effect - Are You Prepared?
The Equal Opportunity Commission (EEOC) has issued its final implementing regulations for the Genetic Information Nondiscrimination Act of 2008 (GINA). The regulations took effect January 10, 2011. Are you familiar with the regulations? Are you ready to implement them for your business?

Federal Legislative Alert!
The U.S. Department of Labor (DOL) issued a final rule to update the Family and Medical Leave Act (FMLA) regulations. The final rule addresses various issues raised in court cases interpreting the FMLA, as well as implementation of the new military leave law. The text of the final FMLA rule is available at this link http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

The rule marks the first significant overhaul of FMLA regulations and implementation since its enactment over 15 years ago. Additionally, the regulation provides guidance on implementation of the new military leave benefit that was enacted as part of the 2008 National Defense Authorization Act. As Chair of the National Coalition to Protect Family Leave, SHRM has led the employer community's efforts to update and clarify the FMLA regulations. This final regulation incorporates many of the modifications that SHRM has advocated over the years.

Examples of these changes include: Employee Notice - The new regulation requires employees to follow the employer's usual and customary call-in procedures for reporting an absence, absent unusual circumstances. Medical Certification Process - The final rule recognizes the applicability of the Health Insurance Portability and Accountability Act privacy rule to communication between employers and employees' health care providers. The new rule specifically allows HR professionals to contact an employee's health care provider for the sole purpose of clarifying a medical certification. Employer Notice Requirement - The final rule extends the time for employers to provide various notices under the Act from two business days to five business days.

SHRM has reviewed the final rule and produced a summary and other documents to help you understand the changes to FMLA implementation. In addition, SHRM featured a webcast that covered these changes on December 3, 2008. Visit http://www.shrm.org/login.asp?http://www.shrm.org/webcast/08december/fmla.asp and register to view this webcast.