GOVERNMENT CONTRACTORS-“DISTRACTED DRIVING”-TEXTING AND CELL PHONES

Some states have laws against texting or talking on cell phones while driving, but the majority do not. President Obama recently issued an executive order that forbids federal employees from using text messaging while driving on official federal business or while using government supplied equipment. While the order only covers federal employees, it also directs federal agencies to “encourage” federal contractors to implement policies that ban contractor employees from texting while driving when working on federal contracts. NOTE: The executive order does not apply to law enforcement personnel who need to communicate by radio or cell phone as part of their normal duties.

Transportation Secretary Ray LaHood announced that his agency will be reviewing the entire subject of using cell phones or other electronic devices while working – so-called “distracted driving” – and may issue new regulations in the near future.

+There is no question that distracted driving is dangerous, but using cell phones while driving can be a productivity booster also. Every company should review the extent to which employees are using electronic devices while driving or operating other mobile equipment and determine whether those practices allow for real productivity gains and if so, whether working more safely outweighs those gains.

FMLA-CAN AN EMPLOYEE “MOONLIGHT” WHILE ON LEAVE?

A recent arbitration decision involving Ace Hardware Company and an injured forklift driver spotlight some key issues about just what kinds of activities an employee can and cannot legitimately engage in while on FMLA leave. Based on an anonymous tip, Ace Hardware hired a surveillance firm to follow the employee who was on FMLA leave for his own serious health condition – mental depression. The surveillance quickly revealed that the employee was hard at work purchasing construction materials and supervising deliveries to work sites where his personal roofing business was operating.

After collecting video evidence, Ace called the employee in, showed him the video, and asked, “Why are you too depressed to work here when you can moonlight for your roofing business?” The employee argued that his moonlighting activities did not occur during times when he would have been scheduled to work for Ace Hardware. Ace was unpersuaded and fired the employee for dishonesty.

An arbitrator upheld the discharge, noting first that the video evidence showed that the employee actually was moonlighting during his normal working hours but that even if such had not been the case, the employee would still have been dishonest about the medical need for FMLA leave in light of the employee’s extensive activities on behalf of his roofing company.

While this result may seem like plain old common sense, other arbitrators have ruled that:

• attending college courses during FMLA leave was not grounds for discharge;
• working another job (light appliance repair) that was within the physical limitations (left shoulder injury) that precluded an employee from working as a mechanic was not inconsistent with the FMLA.

These conflicting results show that it is always best to collect and weigh all the facts before making termination decisions.

CRIMINAL BACKGROUND CHECKS AND CREDIT HISTORIES-EEOC CONTINUES THE ATTACK

Past editions of the Tip Sheet have warned that the EEOC is becoming more and more hostile towards Companies that use “criminal justice history information” or “credit scores” as a basis for refusing to hire otherwise qualified applicants. The Commission has taken the position that using this type of information to screen applicants has an adverse impact on African Americans, Hispanics, and males and thus amounts to discrimination based on race, national origin, and gender.

Most recently, the EEOC has filed a federal court lawsuit in Maryland against Freeman Companies, a convention and corporate events planning company based in Dallas, Texas. The lawsuit, which was filed as a nationwide class action, accuses Freeman of using credit scores and certain criminal arrest and conviction records to screen out black, Hispanic and male applicants.

If your Company uses these screening devices, now would be a good time to review your exact practices with an MC&G lawyer to see whether your practices are having an adverse impact on any protected group and if so, whether the practices can be justified as a business necessity.

PRACTICE GROUP SPOTLIGHT

ENERGY AND NATURAL RESOURCES

Maynard’s Energy and Natural Resources group utilizes a multi-disciplinary approach that draws on the expertise of lawyers whose practices include handling general corporate matters, mergers and acquisitions, financing transactions, environmental regulatory issues, labor and employment matters, and natural resources litigation. The firm acts as counsel to coal companies that have both domestic and international operations in connection with a wide variety of matters. We also advise several of the largest independent power producers, electric and gas utilities, natural gas pipeline companies, governmental entities and others in virtually all aspects of the supply, transmission, and distribution of electricity, water and gas. Our work also includes environmental compliance work and assistance with tax planning and qualifying for available incentives. We have assisted in the acquisition, development, construction, operation, and financing of generating facilities and natural gas and crude oil pipelines.

No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.

Disclaimer regarding legal advice - The information in this newsletter should not be construed as legal advice. This information is not intended to create or constitute an attorney-client relationship. For more information or an explanation about the matters discussed in this newsletter, please contact an attorney in this practice group.

IRS Circular 230 Disclosure - To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.