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Georgia Enacts New Family Care Act That Broadens Permissible Uses Of Paid Sick Leave

Although Georgia still lags behind states that mandate paid sick leave, certain Georgia employees will now be able to use some of some of their paid sick leave to care for a qualifying family member without fear of reprisal.   Under Georgia’s new Family Care Act, which was signed into law on May 8, 2017 and goes into effect on July 1, 2017, employers with 25 or more employees that provide paid sick leave must allow employees who work at least 30 hours per week to use up to five days of their paid sick leave per calendar year to care for an immediate family member.  The Act defines immediate family members as an employee’s child, spouse, grandchild, grandparent, parent, or any dependent shown on the employee’s most recent tax return.

The Family Care Act does not mandate that employers provide paid sick leave nor does it require employers to allow employees to use sick leave until it has actually been earned.  In addition, an employer may still require employees to comply with the terms of its sick leave policy.  Although the State of Georgia and its political subdivisions are covered by this Act, employers that offer an employee stock ownership plan are excluded from coverage.  Only time will tell how effective the Family Care Act will be since it does not provide employees with a cause of action against employers, does not provide any enforcement provisions, and will be automatically repealed on July 1, 2020, unless the General Assembly chooses

Avoiding State Law Pitfalls (Part 4 of 4)

June 19, 2017


This is the fourth hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

Scenario #4

A manager of a Minneapolis, Minnesota restaurant calls you regarding an employee who showed up for work exhibiting bizarre behavior and with white powder under her nose.  The Company has a written policy prohibiting the use of illegal drugs and authorizing the Company to conduct probable cause testing of employees.  In accordance with Company policy, the employee undergoes testing which confirms that the employee is under the influence of cocaine.  The manager is calling for approval to terminate the employee.  You know that some states prohibit random drug testing, but you are not aware of any law that would prohibit an employer from discharging an employee who shows up for work under the influence of cocaine, especially when the employer has probable cause to test the employee and the testing confirms the employee’s use of an illegal drug.  You authorize the termination.


The employee sues the Company under the Minnesota Drug and Alcohol Testing in the Workplace Act, which prohibits employers from discharging an employee who tests positive for illegal drugs on only one occasion.  See Minn. Stat. §181.950, et seq.  Under these circumstances, the employer has a statutory obligation to offer the employee the opportunity to participate in a rehabilitation program at the employer’s expense.  The employee prevails and is reinstated to her former position.  In addition, the employee is awarded back pay, attorneys’ fees, and $500,000 in punitive

The Italian Data Protection Authority restricts the monitoring of employees’ internet access and e-mail use

The Italian Data Protection Authority (“IDPA”) issued its first decision interpreting the amended Section 4 of the “Workers’ Bill of Rights,” concerning the monitoring of employees’ internet access and e-mail use.

In particular, the employees of a University in Italy claimed their employer monitored their personal data, by recording their web-browsing file logs (specifically, the Media Access Control address, “MAC Address”, and the Internet Protocol address, “IP Address”) and other personal internet-access information, using hidden software operating “in the background”.

The IDPA inquired and found the employer had wrongly classified its employees’ MAC and IP address data as being subject to no “personal protection” rules. This classification, according to the IDPA’s decision, would run contrary to the principles established by the EU Council of Ministers in its Recommendation No. CM/Rec (2015) 5, dated 1 April 2015.  Therefore, the IDPA found the generic notice included in the University’s internal privacy policy, concerning its monitoring of internet access and e-mail use by employees, was insufficient under Section 13 of the Italian “Data Protection Code”.  The IDPA further declared the relevant principles of “actual need and proportionality” had been breached by the University in performing such invasive and indiscriminate monitoring.

In the decision, the IDPA found the following technical means of internet monitoring to be lawful, to the extent they are strictly connected with the employees’ work or the safety of the employers’ information network: (a) monitoring log-ins to verify the proper use by the employee of the e-mail system made available by

The California Supreme Court Provides Guidance on Day of Rest Requirements

June 14, 2017


The California Supreme Court clarified employer obligations under the state’s day of rest statutes, Cal. Labor Code §§ 550-558.1, which entitle employees to one day’s rest in seven.  In Mendoza v. Nordstrom, Inc., 2 Cal. 5th 1074 (2017), a case that was (mostly) good news for employers, the Court unanimously upheld interpretations of the requirement that largely preserved scheduling flexibility for employers and employees alike.

Three questions were certified to the Court for consideration:

  • Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?
  • The day of rest requirement is calculated by workweek.  After finding the plain language of sections 551 and 552 “manifestly ambiguous” and the legislative history irrelevant to the dispute, the Court held that the regulatory and statutory schemes of the day of rest laws required the day of rest requirement to apply during each workweek.  The Court looked to past iterations of Wage Orders related to day of rest requirements and to section 510 of the Labor Code, which governs overtime, in deciding that sections 551 and 552 require a day of rest per workweek, and not on a rolling basis.

    Importantly, the Court noted that the current wage order governing day of rest requirements only guarantees one day of rest per every seven days on average.  In other words, “rest days need not fall on every seventh day and can be spaced out differently in a calendar

    Employers May Substantially Reduce Their Potential Exposure for Employment-Related Lawsuits with a Simple Modification to Their Employment Applications

    June 12, 2017


    Employers go to great lengths and expense to reduce their potential exposure to employment-related claims.  Most employers implement employment policies to address the ever-growing myriad of federal, state, and local employment laws, regularly conduct employee EEO training, hire qualified human resources professionals and in-house attorneys with expertise in employment law, and regularly seek advice and assistance from outside counsel concerning these prophylactic measures.  The article addresses a fast, simple, and inexpensive way to substantially reduce exposure to certain types of employment-related claims through the inclusion of an express waiver (“Waiver”) in a form employment application or other document signed by applicants or employees.  The Waiver contractually reduces to six (6) months the time period within which certain types of employment-related claims must be filed and waives any statute of limitations to the contrary, thereby significantly reducing the number of timely-filed claims and, consequently, the employer’s potential exposure.  Although waivers can vary by jurisdiction, the following include example of things to bear in mind.

    Which Claims Should Be Included in the Waiver?

    The employment-related claims that subject employers to the most potential exposure are those that carry lengthy limitations periods and no damages caps.  For example, 42 U.S.C. § 1981 (“Section 1981”), which prohibits race discrimination and retaliation, has a four (4)-year statute of limitations and does not cap emotional distress or punitive damages.[1]  State common law also provides a source for employment-related breach of contract and tort claims, such as defamation, intentional infliction of emotional distress, negligent hiring /

    Macron’s Reforms

    Macron’s Reforms

    June 8, 2017

    Authored by: François Alambret

    Emmanuel Macron was elected one month ago promising to reform France’s employment regulations. It’s too early to determine if Mr. Macron will succeed in opening up the French labor market and much will depend on the result of parliamentary elections that will be held in mid-June 2017. However, what are the main reforms that have been proposed by Mr. Macron?

    Click here to read the Alert in full.

    Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess the French labor market. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Labor and Employment practice group.

    Mass Dismissal Filings in Germany – Be Aware

    June 8, 2017


    Successful restructuring measures in Germany, the more so if they result in RIF (reduction in force) proceedings, require very careful preparation, close observation of strict deadlines as well as very diligent processes with regard to works council information and consultation procedures.

    In the event that the number of affected staff exceeds the collective dismissal filing requirements, extra care is essential in particular for larger entities and globally operating employers: any formal mistakes by them will result in the terminations being null and void. To make things worse, by the end of last year the German Federal Employment Agency (Bundesagentur für Arbeit/ the Agency) introduced new forms and spreadsheets for German employers to fill in and file with the Agency prior to implementing any terminations in the course of mass dismissal.

    The relevant dismissal/ termination thresholds for notification of the Agency in the event of mass dismissals – within 30 calendar days – are:

    Number of staff                                Planned Layoffs

    21-59                                                   more than 5 employees

    60-499                                                more than 25 employees or 10%

    500 or more                                       at least 30 employees

    In RIF scenarios of the aforementioned size, the employer must notify the Agency prior to giving notice

    Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 3 of 3)

    Common Mistake No. 3: Poor Drafting of Termination Letters

    This post continues the discussion of common errors made by employers terminating employees which can be easily avoided.

    As a general rule, an employer may terminate an employee for a good reason, a bad reason, or no reason, just not for an illegal reason. Moreover, in most (but not all) states, an employer is not required to provide an employee with the reason for the employee’s termination. Although there are different schools of thought on the subject in light of the broad latitude given to employers in most states, I typically recommend including the reason(s) for the employee’s termination in the termination letter. In my experience, the termination of an employee without providing a reason usually strikes an employee as fundamentally unfair and increases the likelihood of the employee seeking advice from an attorney (which, in turn, increases the likelihood of a lawsuit being filed by the terminated employee).

    In drafting termination letters, the most common mistake that employers make is not including all of the reasons for the employee’s termination in the termination letter. This does not mean that the termination letter should be long and detailed. To the contrary, it should be short and use broad terms that encompass all of the reasons for the employee’s termination without including unnecessary detail. In order to understand the rationale behind this recommended approach, a brief discussion of the employee’s burden of proof in attempting to defeat an employer’s motion for summary

    Employers Should Accept Resignations As Soon As Possible

    Although an employee can claim constructive termination, it is always beneficial for an employer to accept, as soon as possible and in writing, an employee’s resignation.  By doing so, the employer creates a clear record that an employee was not fired and limits the potential claims which an employee can assert against the employer.

    This point was recently illustrated in Featherstone v. Southern California Permanente Medical Group.  In that case, the ultimate issue was whether a resignation is an “adverse action” under California’s anti-discrimination law, the Fair Employment and Housing Act.  In that case, Ms. Featherstone tendered her resignation on December 23, 2013, and it was immediately accepted.  The court recognized that general contract rules apply to resignations and that “a resignation is an offer which may be withdrawn prior to its acceptance.”  In that circumstance, however, though Ms. Featherstone subsequently tried to rescind her resignation, the court held that she was no longer able to rescind the resignation (which was an offer) because it had already been accepted.

    Of equal importance, the court held that the refusal of the company to allow Ms. Featherstone to rescind her resignation was not an “adverse employment action” and, therefore, she had no claim under the Fair Employment and Housing Act for discrimination and/or retaliation because both such claims require an adverse employment action.

    Take Aways:

    • An employer should accept an employee’s resignation as soon as possible and in writing;
    • Not every perceived wrong by an employee constitutes an adverse employment action

    Avoiding State Law Pitfalls (Part 3 of 4)

    May 29, 2017


    This is the third hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

    Scenario #3

    The manager of a restaurant in Hartford, Connecticut calls you regarding an outspoken cook who frequently expresses his views on controversial topics. All of the cooks discuss a broad range of topics while working, and these discussions do not interfere with their performance. Nevertheless, the manager has advised the cook that he should be careful about offending others with his views on sensitive topics. The cook responds that this is America, and he has a constitutional right to say whatever he wants. The manager asks you whether this is true. You correctly advise the manager that the First Amendment to the U.S. Constitution does not apply to private employers. Rather, federal constitutional rights only come into play if there is some form of “state action.” The next time the cook expresses his view on a controversial topic, the manager fires him.


    The employee files suit under Connecticut state law which prohibits the discipline or discharge of an employee for exercising his or her rights guaranteed by the First Amendment to the U.S. Constitution. See Conn. Gen. Stat. §31-51q. The employee prevails. In addition to reinstatement, the employee is awarded his attorneys fees, back pay, and $1 million in punitive damages by a jury that was offended by the Company’s attempt to suppress the cook’s right to free speech.

    If you have any questions about this state law or have any other

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