Tag Archives: policy

Follow up on Arizona S.B. 1070

You might remember the very controversial legislation against unauthorized aliens in Arizona.  Arizona Governor Jan Brewer was launched into the spotlight when she signed this bill.  The ruling of the 9th Circuit is important because it points to the exclusive control of the federal government of immigration.

In Valle Del Sol v. Whiting., No. 12-17152 (9th Cir. Oct. 8, 2013), the 9th Circuit Court of Appeals ruled that S.B. 1070 was void because it is vague and incomprehensible to a person of ordinary intelligence; and (2) it is preempted by federal law.

Setting aside the vagueness and incomprehensible nature of the law, the Court explained preemption.  The 9th Circuit focused on three main arguments: (1) federal government’s exclusive control over immigration policy; and (2) how Arizona’s law conflicted with federal’s laws.

The 9th Circuit first commented on why the federal government has this control.

Federal control over immigration policy is integral to the federal government’s ability to manage foreign relations:

“Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.  Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

Then, the Court explained why the federal government has exclusive control over immigration and not the states. The Court stated:

Congress did not, however, grant states the authority to prosecute [section] 1324 violations, but instead vested that power exclusively in the federal authorities.  Thus, “the inference from these enactments is that the role of the states is limited to arrest for violations of federal law.”

(citations omitted).

Lastly, the 9th Circuit pointed to the conflict of laws of Arizona and federal statutes as follows:

  1. First, Arizona’s statute provided “additional and different state penalties.”
  2. Second, Arizona “conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration priorities.”
  3. Third, Arizona “criminaliz[ed] conduct not covered by the federal harboring provision.” Arizona also “criminalizes encouraging or inducing an alien to come to or reside in Arizona.”

 

As a side note, if you are interested in standing and organizational standing, the 9th Circuit Court of Appeals discussed the standard and explained how plaintiffs had standing.

via Courthouse News Service.

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Cost-Saving Ideas for Lawyers and Law Firms

Lawyers and law firms will always run up to the question of cost-savings and administrative costs.  One of these areas is the overuse of email by employees.  This does not only raise costs of storage in the server/back up, but also raises costs of lawyer billing time lost.  With this said, lawyers and law firms need to be wary of the ways that these cost-savings approaches bring.  This article will discuss one of the cost-savings ideas and discuss the risk of this idea.

The Harvard Business Review had a very interesting article discussing the high prices when “calculating average typing speed, reading speed, response rate, volume of email, average salary, and total employees.”  Tom Cochran, the author of “Email Is Not Free,” revealed that in his case, they were looking at a 7 figure price tag.

If you think about the emails and the paid storage for documents and emails, the price that a lawyer/law firm pays can really start to drain their financial resources.  In fact, the overuse of email comes from a system where there is no perceived cost.  Emails will be sent out regarding lunch invitations, short status updates, confirmations of receipt of the prior email, and so on.

When a typical email contains an average of 140 words, or roughly 3 paragraphs, is there a better way to reduce these costs?  By the use of cloud computing, an organization can significantly reduce these costs.  The article discusses the use of cloud apps, such as Skype, GChat, Dropbox and so on.

So is this the way to go?  I think that in the balance of short emails (with no confidential information), it makes sense.  Instead of sending an email stating that you are ready to go to lunch or that you will have to change a meeting time, it makes sense.  The message has no confidential or attorney privileged information.

However, the law firm and lawyer must be wary of using these services for case-related confidential and privileged information.  These cloud computing applications are not secure.

Keeping in mind that cloud computing often stores messages in a number of systems, which you may not be aware of, there might be a breach of security.

Ask yourself the following questions:

  1. Do you know if the cloud computing app will save the messages in their cloud computing service?
  2. Do you know where is the cloud server located?
  3. Do you know what contract does the company offering cloud computing services (third party) has with the company that provides the server storage in the cloud (another third party)?
  4. Do you know where the company that provides the storage is located?
  5. Will these messages be stored in the computer or mobile/tablet device?
  6. If so, will the mobile/tablet carrier save these messages in their own cloud computing system?
  7. Do you know how safe is the cloud transfer of information?
  8. Do you know how safe is the cloud computing storage?

In other words:  Will it be cost-saving?  Yes.  Can you use it for all communications?  No.

So does using these cloud computing services worth it for information that is not privileged or confidential?  As a lawyer or law firm, you must evaluate the situation.

First of all, you must provide adequate training and warn your employees of any misuse of these apps.

Second, you must think of the risk that employees will breach this policy.  Will adequate and regular training reduce this risk?

Third, you must balance the cost-saving costs with this risk.

via Email Is Not Free – Tom Cochran – Harvard Business Review.

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ERISA: Is risk of relapse a disability?

This ERISA long-term disability case brings an interesting question.  Is an individual still disabled even though the disabling event has already passed – just because of the possible risk of relapse?  In other words, if person A had a disability event in 2000, is person A still considered disabled just because of what might or might happen in the future?

In Colby v. Union Sec. Ins. Co., 11-2270, the First Circuit Court of Appeals decided just that.  In this case, the issue was whether the future risk of relapse by an anesthesiologist who had been diagnosed with addition rendered the anesthesiologist disabled for purposes of a long-term disability policy.

The First Circuit Court of Appeals decided this case based on the language of the policy.  Under the policy language, covered “sickness” including mental health issues, including substance abuse, dependence, and addiction.  While in treatment, plaintiff’s doctors consistently held that the risk of relapse was “high” and recommended plaintiff not return to work for a period of 6 months.  Shortly thereafter, plaintiff relapsed.  After the relapse and due to the continuing high risk of relapse, plaintiff’s doctors agreed plaintiff should remain disabled for some period of time after plaintiff’s discharge.

This case arose because the the insurance company maintained that the risk of relapse (regardless of the degree) did not constitute as a disability under the plan.

After looking at the policy language, the First Circuit Court of Appeals disagreed.  There was nothing in the policy that stated that risk of relapse should not be covered as a disability.  The court stated,

To begin, the language of the plan admits of no such categorial bar.  It does not mention risk of relapse, let alone exclude risk of relapse as a potential basis for a finding of disability.

In the words of the Boston ERISA Law Blog:

So there you have it: if you don’t want to cover the currently rehabilitated participant whose risk of relapse means he can’t go back to work, you better write that down somewhere in the plan or the policy.

via Is the Risk of Relapse a Disabling Condition for Purposes of an LTD Policy? : Boston ERISA Law Blog.

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What NOT to include in your social media policy

HR.BLR has a good list to keep in mind when drafting your social media policy.  Please read this very carefully.

Social Media Policies: What NOT To Do

When creating your social media policies, here’s what NOT to do:

  • Don’t screen applicants on social media and/or ask for passwords to such sites. “Increasingly [such practices] will be prohibited by both federal and state law,” Scott explained. Additionally, screening on social media opens the risk for discrimination claims based on protected class status that may be discovered in social media postings.
  • “Don’t adopt social media policies which are overbroad, or which unreasonably chill the exercise of protected concerted activity rights under the NLRA.” Scott continued.
  • Don’t fire or discipline employees for social media content without first reviewing with counsel to ensure you are not crossing the line. Remember that the line is moving quickly as technology changes!
  • Don’t use third-party apps that are overbroad in their access to applicant and employee information.
  • Don’t refuse to hire applicants (or fire or discipline employees) based on information culled from social media without checking with experienced legal counsel.

Social Media Policies: What TO Do

Here are some “dos” for social media policies

  • Create a current, effective and enforceable social media policy.
  • Instruct employees not to use vulgar, obscene, threatening, intimidating or harassing language; attack people based on protected status (e.g., union status or activity, disability, national origin, etc.); disparage company products and services; or disclose confidential or proprietary company information.
  • Create a companion privacy policy, establishing guidelines to prevent the disclosure of confidential employee or company information. Confidential employee information may include things such as home addresses, birthdays, employee personal data (including medical data), and protected status information. Company proprietary information could be financial, trade secrets, or other business information deemed confidential. (These lists contain examples, but are not comprehensive.)
  • Train employees about social media policies.
  • “Use a non-decision-maker to filter the contents of the social media page” if you do use social media as part of applicant screening, Semler advised. This is so you don’t get charged with the knowledge of protected status.
  • Monitor ongoing legal developments and conform your practices to those changes. For example, monitor the constantly changing laws, regulations and rules established and implemented by federal and state legislatures, agencies and courts.

via What NOT to include in your social media policy.

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EEOC Guidance Emphasizes Possible Bias in Blanket Bans of Job Applicants with Criminal Pasts

From ABA:

The Equal Employment Opportunity Commission has published new guidance that illustrates why a blanket ban on hiring employees with criminal records could violate discrimination laws.The guidance uses statistics to show how a blanket ban could have a disparate impact based on race and national origin. Such bans would violate Title VII, absent a showing by the employer that the exclusions are “job related and consistent with business necessity,” the guidance says.

The Enforcement Guidance can be found here.

via EEOC Guidance Emphasizes Possible Bias in Blanket Bans of Job Applicants with Criminal Pasts – News – ABA Journal.

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Computer Use At Work

Employers usually have computer usage policies, which detail that employees can only use computers for work-related purposes.  In other words, employees cannot access social networking websites or other unrelated websites.  In my practice, I have observed employers monitor and track employees’ computer usage.

A new wrinkle to the computer usage scenario has popped into the Circuit courts.  United States v. Nosal, 10-cv-10038 (9th Cir. 2012), examined the issue of criminalization of improper computer usage by an employee.  The issues presented at the court where as follows:

Does an employee who violates such a policy commit a federal crime?  How about someone who violates the terms of service of a social networking website?

In summary, the Ninth Circuit held that under a strict scrutiny read of the Computer Fraud and Abuse Act, 18 USC 1030, Congress did not intend to criminalize computer use exceeding authorized access.  The Ninth Circuit agreed with the district court that “[t]here is simply no way to read [the definition of ‘exceeds authorized access’] to incorporate corporate policies governing the use of information.”  In other words, the CFAA, the anti-hacking statute, is not an expansive misappropriation statute.

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No Fault Attendance Policies

A nationwide class disability lawsuit against telecommunications giant Verizon Communications has been settled for $20 million and significant equitable relief, the U.S. Equal Employment Opportunity Commission (EEOC) was no doubt happy to announce today – it’s the largest single disability bias settlement in the agency’s history. The EEOC filed suit against 24 named subsidiaries of Verizon Communications, alleging the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans.

via Verizon will pay $20 million to settle EEOC nationwide disability bias suit over inflexible attendance policy | Employment Law Daily.

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