Trust the Leaders

Issue 17 / WInter 2006

• Employer Liability for Child Pornography Not so long ago, “forward-thinking” employers began to embrace the Internet as one of the best work-related tools since the fax machine. They viewed the Internet as an effective means for increasing productivity by providing quick access to readily available resources and information. Early on, employer concerns with Internet usage were limited to relatively innocuous issues — employees shopping online or visiting their favorite sports or news Web sites. Times have changed, and, in recent years, employers are learning the hard way that employee use or abuse of a company’s Internet system can lead to significant liability.
• Sex Discrimination, Gender Identity and Title VII: No Limits, or New Boundaries? Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment “because of … sex.”1 Webster’s Dictionary defines “sex” as “either of two divisions of organisms distinguished respectively as male or female.” Likewise, courts have interpreted Title VII’s prohibition against sex discrimination to mean discrimination against men because they are men and women because they are women. That relatively straightforward idea typically has conjured up some traditional and distinctive images when discussing sex discrimination: a male manager subjecting a female employee to some type of unwanted sexual advance; a woman forced to endure sexual jokes and jeers from male co-workers; a woman denied a position or promotion because she is female.
• Expanding Rights under the “Retaliation” Provision of Title VII Title VII of the Civil Rights Act of 1964 (the “Act”) prohibits an employer from retaliating against an employee who has “made a charge, testified, assisted or participated in” any charge of unlawful discrimination under the Act.1 To prove retaliation, a plaintiff has to show, among other elements, that he or she suffered an “adverse employment action.” Until recently, federal courts were split as to the definition of that term. Some courts held, for example, that it had to be an “ultimate employment decision” such as hiring, terminating, promoting or compensating,2 while others held that it was any “materially adverse change in the terms and conditions of employment,” such as suspension without pay or demotion.3
• Today’s Employee, Tomorrow’s Defendant? Well, maybe that’s an exaggeration, but virtually every employer doing business in America today faces the threat of its employees walking out the door and taking the company’s confidential information, business leads, clients and other core business assets with them. Some may take this information and use it to start a competing company. Some may seek to exploit it by going to work for an established competitor. A few may want to take, or delete, your company’s important information for nothing more than spite or revenge.
• Union Organizing Tactics Union membership has been in decline for years. Fifty years ago, approximately 35 percent of the American work force belonged to a union. Today, unions represent less than eight percent of American workers in the private sector and 12.5 percent of all workers. To reverse this trend, unions are engaging in increasingly aggressive efforts to boost their membership. Two union-organizing tactics that pose a potential threat to employers are card checks and salting.
• Coming Home: The DOL’s New Regulations More than 500,000 members of the National Guard and Reserve have been called to active duty since the September 11, 2001 terrorist attacks, the most since World War II. Of these individuals, approximately 400,000 have completed their duty and either have returned, or are attempting to return, to civilian employment.
• Audit-Proof Your Tip Reporting Food and beverage employers and employees will soon have the option to participate in a streamlined program that will permit them to become “audit-proof” with respect to the amount of tips they report as wages. Beginning January 1, 2007, the Internal Revenue Service (IRS) will implement a new voluntary tip-reporting program for food and beverage establishments, to be called the Attributed Tip Income Program (ATIP). ATIP will continue for a pilot period of three calendar years and will terminate on December 31, 2009, unless the IRS issues guidance extending the term.