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SHRM Newsletter: Don't Combine Personal/Occupational Health E-Records

08/01/2011

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August 1, 2011

This is Utah SHRM Legal-mail no. 2011-12 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-   DON’T COMBINE PERSONAL/OCCUPATIONAL HEALTH E-RECORDS

-   CALIFORNIA LABOR CODE CAN EXTEND BEYOND CALIFORNIA RESIDENTS

-   NEW CREDIT SCORES RULE NOW IN EFFECT

-   HR LESSONS FROM RECENT SUPREME CASES

-   DOES IT PASS THE SMELLS TEST?

-   LABOR SECRETARY SUGGESTS INCREASED DOL FOCUS ON CLASS ISSUES

-   MORE BIG DOLLAR SETTLEMENTS

DON’T COMBINE PERSONAL/OCCUPATIONAL HEALTH E-RECORDS:  The Equal Employment Opportunity Commission (EEOC) has warned that employers should not retain an employee’s personal and occupation health information in a combined electronic medical record (EMR).  In an opinion letter issued recently, the EEOC expressed concern that use of a single file would allow someone using it for occupation health reasons to inappropriately obtain other medical information, or that it might inadvertently provide an employer with access to genetic information which it should not possess. According to the EEOC, personal health information is “information obtained in the course of diagnosis or treatment,” while occupational health information “concern[s] an employee’s ability to work.”  The EEOC’s letter recommends that an employer distinguish between occupational or personal health information and that it put in place appropriate safeguards to prevent unauthorized access to or disclosure of either category of information.  You can read the full letter at: http://www.eeoc.gov/eeoc/foia/letters/2011/ada_gina_confidentrequre.html

CALIFORNIA LABOR CODE CAN EXTEND BEYOND CALIFORNIA RESIDENTS:  The California Supreme Court recently decided that the state’s labor code applies to three nonresident employees of a California-based company who worked primarily in their home states (Colorado and Arizona) but who also were required to travel to and perform work in California.  The California court stated that it would be unfair to deny nonresidents the benefits of its extensive laws protecting employees from excessive overtime work without compensation.  As a result, the involved employer was required to comply with California’s daily (over eight hours) overtime pay requirement and other provisions.  California-based employers now must ensure that nonresident employees are paid according to California rules when they are working within California. The Court was careful to note that it was not opining as to whether other provisions of the Labor Code apply to non-residents who work in California; and further commented that “California law might not apply to non-resident employees of out-of-state businesses who enter California temporarily during the course of a work day.”

NEW CREDIT SCORES RULE NOW IN EFFECT:  The financial reform package passed by Congress last year contains an amendment to the Fair Credit Reporting Act that will impact employers and that took effect in July of 2011.  Specifically, the new law includes a provision regarding the adverse use of credit scores.  The new provision states that anyone who uses a third party provided consumer report including a credit score to deny employment must disclose: (1) that a credit score was used; (2) the score; (3) up to four key adverse factors in the score and the agency that provided it so the applicant can correct any errors.  As with other adverse uses of information covered by the FCRA, the employer must provide this information along with a written description of the applicant’s rights under the FCRA, prior to taking adverse action (such as denying employment).

HR LESSONS FROM RECENT SUPREME COURT CASES:  A recent article from national SHRM highlights some useful guidance for HR reps from the recently-decided Supreme Court cases, including the one denying class action status to a group of women suing Wal-Mart for alleged gender discrimination.  These lessons include: (1) discretionary decisions should be based on clear corporate guidelines or standards and be as objective as possible, even when not based on numbers; (2) the Supreme Court is very big on protecting employees from possible retaliation and employers should be equally vigilant, including on how to handle verbal complaints of possible harassment; (3) ADR (e.g. arbitration) agreements should contain a clear, written waiver of an employee’s class action rights; (4) HR should conduct meaningful reviews of supervisor employment decisions to ensure that they are not influenced by discrimination and that decisions are well-supported by the record.  National SHRM members can read the full article at: http://www.shrm.org/LegalIssues/EmploymentLawAreas/Pages/RecentSupremeCourtTermProvides.aspx

DOES IT PASS THE SMELLS TEST?  National SHRM also recently published an interesting article on accommodating employees with fragrance sensitivities.  The articles discusses strategies for determining if such a sensitivity is covered by applicable laws, such as the Americans With Disabilities Act (ADA) (and remember it now is easier to prove one has a disability due to recent amendments to the ADA).  The article also suggests possible accommodations.  You can read the full article at: http://www.shrm.org/LegalIssues/FederalResources/Pages/FragranceSensitivities.aspx

LABOR SECRETARY SUGGESTS INCREASED DOL FOCUS ON CLASS ISSUES:  In a recent speech to a convention of plaintiff-side employment lawyers, Labor Secretary Hilda Solis indicated that federal agencies like the United States Department of Labor (DOL) and the Office of Federal Contract Compliance Programs (OFCCP) may be able to assist in class-wide relief even though the United States Supreme Court has cast doubt on the availability of such relief in a recent decision.  Secretary Solis noted that agencies do not always face the same limits as do court litigants on obtaining class-wide relief.

MORE BIG DOLLAR SETTLEMENTS:  There are more news reports of big dollar settlements in employment cases.  A large national bank has agreed to pay $32 million to settle a federal court case involving allegations of gender bias against women.  This settlement also included non-financial terms such as revising employment ranking factors and increased training.  The EEOC also has announced a $1 million settlement with a telephone company accused of age bias for seeking “recent college graduates” for sales positions.  The settlement also requires the employer to (1) use an applicant tracking system for persons hired and for any person who submits an application; (2) provide specific information about its hiring of applicants by age; (3) provide training to staff; (4) post a notice about its commitment to equal opportunity and a diverse work force; (5) report compliance to the EEOC; and (6) provide jobs to qualified applicants age 40 or older who were denied hire because of the alleged discriminatory hiring practices.

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.