hr consulting training hanDBooKs auDits surVEYs coMPEnsation laBor nEgotiations

OctOber 2009

>Megan’s Law Loophole Gives Predators An Advantage

>New HIPPA Notification Breach: Know Your responsibilities

>Proposed ADA Regulation Change

>target Stores Sued for Disability Discrimination

>Plus: Hr training Member Discounts & More...

cOntributOrSMichelle Peard, SPHRMike Daly, Esq.John D. Alessio, Esq.Sybil Hunt Instructional Writer and Training Facilitator

cOLuMniStSJennifer Jacobus, PHR, CA Jessica Zaldivar, PHR

SDeA bOArD OF DirectOrSRufino AutusAutus Financial Group

Terry Elrod

Juli JacobsonSan Diego Blood Bank

Stacey McKibbenActionCOACH

Melanie PotterWalter Anderson Nursery

Melinda RosasUSA Federal Credit Union

Mike ScaccoALSCO, Inc.

Gordon SchmidtPalomar Investigative Group

Andy SilvermanCRES Insurance

Diana TwadellBarney and Barney

Darby VorcePacific Safety Council

SDEA Counsel

Mike DalyDaly Law Firm

Honorary Life MemberTom Murch

DeSiGnDenialle M. Chabot

ADVertiSinG AnD ArticLe SubMiSSiOn inFO

This newsletter is published monthly by the San Diego Employers Association.

We welcome the submission of articles by our members on topics of interest related to HR. Date for submission of materials and advertising is the 15th of the month prior to publication.

If you are interested in submitting an article please email it to: jjacobus@sdea.com.

If you are interested in advertising rates please send an email to: dchabot@sdea.com.

SDEA is a not-for-profit employer’s association that pro-vides HR advice and consulting to its members in an ef-fort to promote and maintain employer/employee rela-tionships. We are not attorneys and do not render legal advice. Please contact your company’s legal counsel if you need legal advice on any issue. If you do not have an attorney with employment and/or labor relations ex-perience, we would be happy to provide you with refer-rals.

888.625.7332

www.sdea.com • 888.625.7332 • San Diego Employers Association • October 2009 1

in tHiS MOntH10.2009

>FeAtureS2 Megan’s law loophole gives Predators an advantage

4 Fair use: learn Before “lifting”

5 You May Want to think twice about ignoring the EEoc

6 Proposed aDa regulation changes

7 Proposed legislation on the Federal level that could affect ca Employers

FAir uSe LeArn beFOre “LiFtinG” pg. 4

7 Beware...Employer May Be liable for aDEa Violation by independent contractor

8 new hiPaa Breach notification rule: Know Your responsibilities

9 target stores sued For Disability Discrimination >DePArtMentS6 sDEa training10 sDEa Member Discounts11 hr strange But true

2 October 2009 • San Diego Employers Association • 888.625.7332 • www.sdea.com

>MeGAn’S LAw LOOPHOLe GiVeS PreDAtOrS AnADVAntAGeBy John D. Alessio, Esq.Procopio, Cory, Hargreaves & Savitch LLP

For more than 50 years, California has re-quired sex offenders to register with local law enforcement. In 1995, the implementa-tion of the Child Molester Identification Line made information on the whereabouts of sex offenders available to the public. How-ever, the information was only available in person at police stations and sheriff’s offices or by calling a 900 toll number. In 2004, California Megan’s Law was passed, provid-ing the public with access to detailed infor-mation on registered sex offenders through the Internet.

The Megan’s Law Web site (www.megan-slaw.ca.gov) is very informative and easy to navigate. In a matter of seconds, one can enter a person’s name and discover if that person is a registered sex offender. While en-tering the Web site, there is a Megan’s Law disclaimer that must be read and agreed to before accessing the information. Under the section describing “Legal and Illegal Uses” of the Web site, it warns “Anyone who uses this information to commit a crime or to harass a registered of-fender or his or her family is subject to criminal prosecution and civil liability.” What it fails to mention is that deep down inside this multi-paged, single-spaced statute, there is a prohi-bition of the use of this information by employers. Through an unfortunate loophole, Megan’s Law, enacted to protect the public, can actually be used by sexual predators to secure employment. In effect, this law provides a convicted child molester more rights than a non-molester employee.

The Law Specifically, Megan’s Law states, “use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited: ... [among other categories] Employment.” Penal Code Section 290.46(l)(2)(E), (emphasis added).

That is all it says - an all-encompassing prohibition of use of information found on the Megan’s Law Web site in “Employ-ment.”

Megan’s Law does have some exceptions. Information found

on the Web site can be used “to protect the public from risk” and “pursuant to Labor Code 432.7.” Labor Code 432.7 speaks mainly to what you can ask an “applicant.” It does reference that an employer can use the fact of a “conviction” in determining any condition of employment, including termi-nation. However, this Labor Code is worded in the negative and most cases and legal practice guides have interpreted this Labor Code to be applicable to the hiring process only. So what can employers do if they find out from the Megan’s Law Web site that their employee is a sexual predator months or years after they have already been hired? Per Megan’s Law, nothing.

Other Laws California is an at-will employment state. The California Labor Code allows employers to terminate employees for any rea-son or no reason at all. There are common law and statutory protections prohibiting employers from taking adverse actions against employees based on race, gender, age and other pro-tected categories. By virtue of Megan’s Law, sexual offenders have now seemed to take on a quasi-protected classification.Worse yet, employers in many respects are legally obligated to protect the public. Indeed, California recognizes a cause of action in tort for negligent hiring, training and supervision. If an employer fails to use reasonable care to discover an employ-

Through an unfortunate loophole, Megan’s Law can actually be used by sexual predators to secure employment.

Continued...

ee’s unfitness for employment in a particular job, they can be liable to third parties.

Pick Your Poison If an employer is in the unfortunate position of finding out a current employee is a registered sex offender by referencing the Megan’s Law Web site, they will be placed in a difficult position.

Under this situation, the employer is going to have to decide which lawsuit they would rather face: a claim by a sexual pred-ator over a technical statutory violation resulting in the loss of a job; or, a claim by an innocent young child or coworker who was physically abused and most likely mentally distraught for the rest of his/her life by the hands of their employee.

Normally, this is an easy decision but, unfortunately, one that has unavoidable legal exposure for the employer. The Courts Terminated sexual predators are filing claims for wrongful ter-mination against their employers, ironically using Megan’s Law as the legal grounds to secure employment. These claims are attractive to plaintiffs’ attorneys because attorney fees are stat-utorily available as an element of damages. In my experience, the courts simply cannot reconcile the Labor Code 432.7 ex-ception with the general proposition under Megan’s Law stat-ing use of the Web site information is “prohibited” with regard to “Employment.” The courts are reluctantly unable to dispose of these matters at the outset by way of motion and are instead forced to leave the decision for a jury to decide whether ter-mination was warranted to “protect the public from risk.” This means tens of thousands of dollars to the employer in defense costs, which normally translates into the disdainful nuisance value settlement. Hence, a windfall to the sexual predator that is not otherwise available to other employees.

What to Do At a minimum, the Megan’s Law Web site should warn employ-ers of this nuance in the law when it summarizes the “Illegal Uses.”

The statute should be changed. The prohibition of use of the Web site in “Employment” should be taken out of the statute al-together. If employers can legally gain this information through public records (i.e., physically checking the court files), then why shouldn’t they be allowed to simply check the Megan’s Law Web site? This Web site is nothing more than a quicker and easier way of obtaining the same information. Certainly, there is a balance that needs to be struck. Studies confirm that sexual offenders who maintain stable employment are less likely to commit another offense in the future. However, an all-encompassing prohibition of use of this information by employers is not the answer.

Protections for the PredatorsThe Web site is continuously updated and not all sex offenders

are posted on the Web site. The Web site is reserved only for those convicted of the most serious sexual offenses and/or re-peat offenders. There are multiple avenues for a sexual preda-tor to petition to be excluded from the Web site. As of Dec. 29, 2005, 3,696 registrants applied for and were granted exclu-sion, while 4,068 registrants had applied for and were de-nied exclusion, as required by the statute. In 2005, there were approximately 15 legal filings by registrants challenging the denial of their applications for exclusion from the Web site. All but one of them were resolved within a few months and in each case, the challenge was rejected and the denial of exclusion was found to be legal. The legal process is moving quickly and accurately for sexual offenders. There are plenty of protections for the sexual predators already built into the Megan’s Law statute. Not to mention, the burden of proof being “beyond a reasonable doubt” in the criminal charge against the sexual predator from the outset.

Government Assistance Among other assistance programs, the Center for Sex Offender Management was created by the U.S. Department of Justice. This organization’s purpose is to protect the public by helping sex offenders reintegrate into society. The center acknowledges that sex offenders should not hold jobs that give them authority over potential victims (including coworkers or subordinates), or work in service industry jobs that give them access to vul-nerable populations, or in settings that may be near a school or playground. They recommend open and candid discussions between the employer and employee about the employee’s status as a registered sex offender and accommodations there-fore, if necessary. The center will assist with the supervisory burdens and accommodations that may be necessary for such employment. There are financial incentives, such as tax cred-its and federal bonding authorized by the Small Business Job Protection Act available to employers whom hire sex offenders. The government assistance is in place for the employer and sexual offender employee. The problem lies with the person who enters into the workplace without disclosing his or her sta-tus as a registered sex offender. It is this sexual offender who is in denial, and most likely, the exact type of person who poses a high risk.

This statute needs to be reviewed by the Legislature. Based on the current language of Megan’s Law, the sexual offender is encouraged to hide his or her status as such from employers and later can use that status to secure employment in a man-ner other law-abiding citizens cannot. The Legislature should be promoting full disclosure up front by sexual offenders and an employer’s routine policing of the workforce with the desire to protect the public, not creating laws forbidding such con-duct.

John D. Alessio is senior counsel with the San Diego law firm of Procopio, Cory, Hargreaves & Savitch. He can be reached at jda@procopio.com or 619.525.3899.

www.sdea.com • 888.625.7332 • San Diego Employers Association • October 2009 3

“Megan’s Law” Continued...

4 October 2009 • San Diego Employers Association • 888.625.7332 • www.sdea.com

>FAIR USE: LEARN BEFORE “LIFTING”By Sybil Hunt, Instructional Writer and Training Facilitator

Just last month, a group of supervisors attended a wonderful training session. They returned to work re-energized and very excited about the possibility of sharing the things they’d learned with the rest of the company.

A couple of days after the training, they met as a group to brainstorm ways to do just that. One su-pervisor, whose department was small, suggested that they simply send individual emails to people in their own departments, offering helpful hints and tips from the course. Another suggested that each department hold a Lunch and Learn and “lift” a lit-tle of the content – but definitely use the worksheets, because they were clearly the best part of the whole course. The third supervisor, Dana, thought on a grander scale. “This is great stuff! We should hold a firmwide Lunch and Learn and share it with everyone!”

In the end, the little group agreed to sponsor the firmwide Lunch and Learn. During another meeting, they worked together to lift just the most relevant points from the material, copy the worksheets and create PowerPoint slides from the best diagrams in an effort to reduce the one-day ses-sion to a one-hour, more targeted meeting. They used Dana’s materials, which were pristine. (Dana had taken notes on sepa-rate paper – for just this reason!)

When they were done, Dana reached out to the HR Manager for help with the invitation memo. (They wanted to be sure that employees would be interested, but they also needed to be sure that employees understood that the session would be voluntary.) You can imagine the group’s surprise when the HR Manager called them in for a brainstorming meeting of a different sort.

The HR Manager, who had recently participated in extensive training and achieved certification as a Senior Professional in Human Resources (SPHR), shared information about a legal concept known as Fair Use.

After reviewing the original course materials – and the pro-posed Lunch and Learn materials – she said, “Fair Use re-quirements guide our use of copyrighted material. I see on the title page of this material that the author copyrighted it. Let’s analyze your proposed materials and balance them with what we know about Fair Use to determine what’s possible.” And, right then and there, she conducted a quick, basic training ses-sion on Fair Use.

Here’s what the supervisors learned: What is Fair Use? Fair Use is a doctrine in United States copy-right law that provides for the fair use of a copyrighted work (with proper acknowledgment), which does not require the per-mission of the copyright holder. The amount varies in propor-tion to the length of the original, with the governing theory being that the use should not decrease the market for the origi-nal.

What kinds of uses are considered? Use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for school class-room use), scholarship or research is not an infringement of the copyright.

There’s a Four Factor Analysis that can help. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educa-tional purposes;2. The nature of the copyrighted work;3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and4. The effect of the use upon the potential market for or value of the copyrighted work.

The HR Manager helped the group determine how much mate-rial they could use and how to give appropriate credit to the

Continued...

www.sdea.com • 888.625.7332 • San Diego Employers Association • October 2009 5

author. In the end, they created an engaging Lunch and Learn that shared important concepts, informed employees about ways that they could enroll in similar courses and upheld copy-right laws on behalf of both the author and the company.

(With thanks to Mark Riechenthal of Branfman Law ___ etc.)

For more information about training programs and materials, please contact mpeard@sdea.com.

>YOU MAY WANT TO THINK TWICE ABOUT iGnOrinG tHe eeOcBy: Jessica Zaldivar, PHR

You have probably been told in seminars or even by

your employment attorney never ignore a complaint

from a government agency. If you ever had any doubts

whether an employer had to comply with a U.S. Equal

Opportunity Commission (EEOC) request for informa-

tion regarding a discrimination complaint here is what

can happen to an employer if they decide to ignore the

complaint and not comply with the agency.

The EEOC issued two administrative subpoenas to a

health care provider to produce information and tes-

timony on a discrimination complaint and the health

provider failed to comply with the requests. The EEOC then

got a judge to issue a “writ of body attachment” for the busi-

ness owner after he failed to comply with the subpoenas and

then for not obeying a court order regarding the subpoenas.

The owner was then brought into custody by the United States

Marshals Service on September 10, 2009 where he had to

appear in front of a federal judge. The judge gave the owner

until September 24, 2009 to comply with the subpoenas or be

at risk of being in custody again.

The EEOC has the authority to issues subpoenas during its

administrative investigations and to obtain court enforcement

when necessary.

If you receive a subpoena from the EEOC or another govern-

ment agency here are some recommendations on how to ad-

dress the request for information:

• Have a procedure in place of how a request from the EEOC

or any other government agency should be handled.

• Ensure that the subpoena is given to the correct individual in

the organization. Your procedure could indicate to send a copy

to your employment attorney or given to a specific individual in

human resources.

• Ensure you look at the date that the information needs to be

submitted by to the EEOC. If it is not feasible then contact the

EEOC to see if you can receive an extension.

Receiving an agency claim can be time consuming, but it is

important that you address the claim to avoid any further issues

with the agency.

For more information or assistance please contact an SDEA HR

Consultant at 888-625-7332.

San Diego Employers Associationis now on Get HR tips & info on upcomingevents stay connected with theSan Diego Employers Association.Follow us at:www.twitter.com/SDEA_HR_Experts

“Lifting” Continued...

SDEA TrainingOCTOBER 2009

6 October 2009 • San Diego Employers Association • 888.625.7332 • www.sdea.com

>PrOPOSeD ADA reGuLAtiOn cHAnGeSBy Jennifer Jacobus, PHR-CA

In January of 2009, the ADA Amendments Act (ADAA) went into effect. Under these new amendments, the ADAA changes the way key terms under the definition of a dis-ability should be interpreted. The definition of a “disability” continues to be an impair-ment that substantially limits one or more major life activities, but the EEOC (Equal Employment Opportunity Commission) has revised and recently published new regula-tions that would make it easier for people to seek protection under the Americans with Disabilities Act (ADA)—again, these are proposed changes.

Some highlights of the new proposed regu-lations include:

The definition of “disability” be interpreted broadly;

The term “substantially limits” would no longer require that the limitation “significantly” or “severely” restrict a major life activ-ity;

The definition of “major life activity” would be expanded un-der the areas of “major life activities” and “major bodily func-tions”;

Individuals that are covered because they are “regarded as” are not entitled to reasonable accommodation;

Mitigating measure other than “ordinary eyeglasses or contact lenses” cannot be considered when determining whether an individual has a disability;

Impairments that are seen as episodic or in remission are con-sidered disabilities if they substantially limit a major life activity when “active”;

The definition of “regarded as” would change so that it no longer requires a showing that the employer perceived the in-dividual to be substantially limited in a major life activity;

Selection criteria such as qualification standards and employ-ment tests which are based on uncorrected vision, cannot be used unless job-related and a business necessity.

For a full brief of the proposed regulations, please go the fol-lowing link:http://edocket.access.gpo.gov/2009/E9-22840.htm

Oct. 7th Harassment Prevention Training WEBINAR!9am - 11:30am SDEA Members $89.00

Oct. 13th Conflict Management9am - 12pmSDEA Members $100.00

Oct. 14th Unemployment nsurance Claims9am - 12pmSDEA Members $100.00

Oct. 15th NEW! Advanced Supervisory Skills BEGINS!4pm - 7pm Every Thurs for 6 weeksSDEA Members $575.00

Oct. 16th HR Roundtable:IMAGE - ICE Agreement between Government and Employers11:30am - 1:30pmSDEA Members $40.00

Oct. 20th Harassment Prevention Training9am - 11:30amSDEA Members $100.00

Oct. 21st The Supervisor & The Law9am - 4pmSDEA Members $175.00

Oct. 22nd Skills For Working Leaders 19am - 4pmSDEA Members $175.00

Oct. 28th Employee Orientation9am - 12pmSDEA Members $100.00

Register online at:www.sdea.com

Or call us toll free:888.625.7332

www.sdea.com • 888.625.7332 • San Diego Employers Association • October 2009 7

>PrOPOSeD LeGiSLAtiOn On tHe FeDerAL LeVeL THAT COULD AFFECT CA EMPLOYERSBy Jennifer Jacobus, PHR-CA

Living in California, and even more specifically trying to run a business in California, can be challenging at times. It seems that for every federal law affecting employers, California has a stricter more “employee-friendly” version of the same law that is not always viewed as so “friendly” by employers. The following are some federal bills currently being proposed that SDEA feels you should be aware of and that could have some impact on your business. While California does have unique ways of required compliance, the federal side of things should not be forgotten as they too, can affect the way California businesses do business.

Similar to California’s Labor Code (section 1030 to 1033) H.R. 2819/S.1244,Breastfeeding Promotion Act of 2009 would amend Title VII (federal) to require employers who have 50 or more employ-ees to provide unpaid break time for nursing mothers to ex-press milk. Efforts are also required to provide a space that is private, other than a restroom. The California Labor Code already requires such provisions and should not be a change for most California employers. This bill is also proposing that employers would be entitled to a tax credit for expenses in-curred in providing an appropriate space and equipment for breastfeeding purposes—something that is not included in the California Labor Code or other California law.

If passed, H.R. 2981, Proposed Amendments to Title VII to Prevent Sexual Orientation Discrimination would amend Title VII to prohibit discrimination against employees based upon

their sexual orientation or gender identity, as well as prohibit retaliation against individuals who report unlawful discrimina-tion. Again, this is not new to California employers, but this bill also proposes that employers be required to provide rea-sonable access to adequate facilities consistent with an em-ployee’s gender identity. While this specific language is not part of California requirements, I think one might be able to put up a reasonable challenge if denied such access. The bill will not, however require employers to construct new or addi-tional facilities. If passed, this bill would not apply to religious organizations or to the Armed Forces.

H.R. 3024/S. 1374, FOREWARN Act Reintroduced, also known as the Federal Oversight, Reform and Enforcement of the WARN Act would make substantial amendments to the federal Worker Adjustment and Retraining Notification Act (WARN) by decreasing the threshold for notice purposes and increasing penalties for non-compliance. Again, while this is specific to federal law and California has its own version of the WARN act, the changes may definitely affect those employers who continue to struggle with the realities and innuendoes of layoffs. The amendments in this bill propose that the federal WARN would apply to employers with 75 employees (not the 100 that it is now) and require a 90-day notification of any plant closing or mass layoff, which is up from 60 days. Penal-ties for non-compliance would increase by authorizing double-back pay as well as interest.

SDEA will continue to follow these bills and more and keep you informed of any decisions that may directly impact your organization.

>BEWARE...EMPLOYER MAY BE LIABLE FOR ADEA VIOLATION BY INDEPENDENT CONTRACTORBy: Mike Daly, Esq. Daly Law Firm

The Age Discrimination in Employment Act (ADEA) makes it unlawful to discriminate in the workplace against an individual over the age of 40. The Act specifically includes a prohibition against refusing to hire an applicant based on his or her age. Recently, a federal court of appeals broadened that prohibition by holding that an employer may be held liable for discrimina-tion by third parties - including an independent contractor-- who are authorized by the employer to make hiring decisions for the company. Halpert v. Manhattan Apartments, Inc., 2d Cir., No. 07-4074-cv, September 10, 2009. An employer’s liability is predicated on whether the contractor was acting as the employer’s agent, with direct or ostensible authority to act on behalf of the employer.

This case could have a significant impact on companies who contract out various human resource functions to third party contractors, such as a PEO or staffing agencies.

Employers that use an independent contractor to conduct inter-views and assist in hiring should become familiar with this case, and must recognize that the ADEA’s reach extends to a com-pany that use independent intermediaries to conduct activities related to employees or applicants. Potential ADEA liability for an employer does not depend on whether the individual act-ing for the company is an actual employee or an independent contractor. An individual can act as an authorized agent of the employer regardless of his or her employment status.

Whether the Ninth Circuit Court of Appeals will follow the hold-ing in the Halpert case extending liability of an employer under the ADEA remains to be seen.

8 October 2009 • San Diego Employers Association • 888.625.7332 • www.sdea.com

>NEW HIPAA BREACH NOTIFICATION RULE: KNOW YOUR RESPONSIBILITIESby Elizabeth Callahan-Morris, J.D., Hall RenderCompliments of BLR

As part of the Recovery Act, President Obama signed into law the Health Information Tech-nology for Economic and Clinical Health Act (HITECH) on February 17, 2009. Among other provisions, HITECH makes several changes to the Privacy and Security Rules of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Previously, HIPAA did not require covered enti-ties to notify individuals or the Department of Health and Human Services (HHS) when their Protected Health Information (PHI) was improp-erly disclosed, although notification was some-times part of a covered entity’s effort to mitigate harm to an individual caused by a wrongful disclosure. HITECH significantly changes HIPAA in this regard because it will require notification of certain breaches to unsecured PHI. Effective Date The HHS interim final regulations are effective September 23, 2009. HHS, however, won’t impose penalties for failures to provide notification for breaches discovered before February 22, 2010.

New Breach Notification Rule Under the new rule, covered entities will be required to notify individuals of unsecured PHI that has been, or is reasonably believed to have been, accessed, acquired or disclosed due to a breach. Business associates will be required to notify the covered entity of such breaches. Vendors of personal health records will be required to notify individuals and the Federal Trade Commission of such breach-es.

Unsecured PHI HITECH defines the term “unsecured PHI” as PHI “that is not secured by a technology or methodology specified by” HHS through guidance that renders PHI to be “unusable, unread-able, or indecipherable to unauthorized individuals”. HHS on April 17, 2009 issued guidance that established the following technologies/methodologies: • Encryption of electronic data at rest per National Institute of Standards and Technology (NIST) standards • Encryption of electronic data in motion per NIST standards • Shredding or destruction of paper, film or other hard copy media • Destruction of electronic media per NIST standards

Breach Notification Methods The methods for breach notification depend in part on the size of the group of individuals affected: • Written notice through first class mail to individuals (or via email if specified as preferred by the individual), regardless of the size of the group affected. • Substitute notice to individuals whose contact information is out-of-date, regardless of the size of the group affected. For groups of 10 or more individuals, substitute notice means a posting on the covered entity’s website or a notice published in “major print or broadcast media.” It is expected HHS will in fu-ture guidance specify what substitute notice means for groups of less than 10 individuals. • Notice published in “prominent media outlets,” if 500 or more residents of a state are affected. • Notice to HHS, if 500 or more individuals are affected. • Annual log to HHS of all breaches involving less than 500 individuals.

When to Notify All notifications must be given without “unreasonable delay,” but no later than 60 days after discovery. Immediate notice to HHS must be given if 500 or more individuals are affected. Breach Notification - Exceptions The following instances will not be considered a breach requir-ing notification: • Unintentional access of PHI by a workforce member while performing his/her duties and the information was not further used or disclosed. • Inadvertent disclosure of PHI by one workforce member to another at the same facility and the PHI was not further used or disclosed.

Continued...

>TARGET STORES SUED FOR DISABILITY DiScriMinAtiOnCompliments of the EEOC

EEOC Says Retail Giant Failed to Reasonably Accommodate Employee With Intellectual Disability and Cerebral Palsy

LOS ANGELES – The U.S. Equal Employment Opportuni-ty Commission (EEOC) today filed a discrimination lawsuit against national retailer Target Stores, Inc. for unlawfully deny-ing a reasonable accommodation to an employee with mul-tiple disability-based impairments and substantially reducing his work hours due to the medical conditions. The disabled worker could not effectively communicate with others without the assistance of a job coach because of his cerebral palsy and limited intellectual functioning.

The EEOC charged in its lawsuit that Target subjected this em-ployee at Target’s store in Foothill Ranch in Southern Orange County to discriminatory practices on the basis of disability when it failed to notify his job coach and parents of any in-person meetings involving work issues and job performance, as requested. The disabled employee was compelled to at-tend these in-person meetings alone without the assistance of a job coach or parent, even though repeated requests had been made by both the job coaches and parents to be in at-tendance at the meetings. Target had hired this employee with full knowledge of his disabilities and need for a reasonable accommodation, according to the EEOC.

Such alleged conduct violates Title I of the Americans With Dis-abilities Act of 1990 (ADA) and Title I of the Civil Rights Act of 1991. The EEOC filed suit in U.S. District Court for the Central District of California after first attempting to reach voluntary settlement out of court (EEOC v. Target Stores, Inc., Case No. SACV 09-0963).

www.sdea.com • 888.625.7332 • San Diego Employers Association • October 2009 9

“What is particularly disturbing here is that Target already knew this employee was disabled and needed assistance with com-municating during in-person meetings,” said EEOC Regional Attorney Anna Y. Park of the agency’s Los Angeles District Of-fice. “Target’s failure to provide a reasonable accommoda-tion denied him equal benefits and privileges of employment. Despite his disabilities, the employee in this case was qualified and motivated to work, but Target denied him an equal oppor-tunity to succeed in the workplace.”

Minneapolis-based Target operates more than 1,700 stores in 49 states nationwide, including more than 240 Super Target stores, according to company information.The EEOC enforces federal laws prohibiting employment dis-crimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

Still Need to Comply with Other Rules Even if the new breach notification requirement is not triggered, organizations may still be required to take the following actions in the case of a breach or other wrongful use or disclosure: • Mitigate harm for improper use or disclosure. • Log the wrongful disclosure in the accounting. • Impose disciplinary sanctions. • If a business associate, report to the covered entity security incidents and uses and disclosures of PHI not permitted by the business associate agreement. • Notify individuals under state identify theft law or other simi-lar notification laws. Breach Notification Action Items To prepare for the expected effective date of September 23, 2009, organizations should undertake the following steps:

• Adopt new, or revise existing, policies and procedures re-garding identifying and responding to breaches. • Identify which types of PHI are unsecured. • Evaluate whether unsecured PHI can be made secure using approved technologies and methodologies. • Review e-security for all PHI. • Create a process for breach response to ensure all breaches are appropriately handled. Elizabeth Callahan-Morris is an attorney with the law firm of Hall Render specializing in privacy and security, corporate compliance and patient care issues. Liz is a graduate of The George Washington University Law School (J.D.) and Michigan State University (B.A.). She may be reached at ecallahan@hall-render.com or 248-740-7505.

“HIPPA” Continued...

10 October 2009 • San Diego Employers Association • 888.625.7332 • www.sdea.com

>SDeA MeMberDiScOuntSAs a member of SDEA you receive discounts on a variety of services from other membersvia our preferred providerprogram.

Want to be featured in anupcoming newsletter that is emailed out to thousands ofbusinesses all over San Diego?

Become a preferred provider!Email: info@sdea.com today!

Good business practices dictate that all employers must look for ways to cut costs in every aspect of business. HR Directors provide a critical management role that can positively affect the bottom line, particularly when the organization’s workforce is large (200+ employees).

The HR Department can realize cost savings in many ways without incurring layoffs, cutting benefits, or implementing major changes in processes or procedures.

How?

One way to help both the organization AND the workforce is to implement a Health and Wellness Program. With the right program, you will positively impact the employees’ ability to contribute to the organization’s goals. By having and maintaining a healthy workforce, the organization will be able to DECREASE HEALTHCARE COSTS; will be able to INCREASE their employees’ PRODUCTIVITY, and thus DECREASE THE COST OF GOODS SOLD by the organization.

Lifestyles INFOCUS can help you achieve these. Lifestyles works directly with you - the HR Director - to help you identify the types of health issues your workforce is experiencing. After that, we can develop a Health Fair in which we will bring in health and wellness professionals to inform your workforce about positive lifestyle changes that they can make to improve their own health. Additionally, we can help you develop an Employee Wellness Program and/or bring in professional speakers on a number of health and wellness related topics.

Each of these efforts will contribute to improving your organization’s health and Bottom Line.

Call Lifestyles INFOCUS today for yourFREE consultation 858-668-CARE (2273)

San Diego Employers Associationis now on Get HR tips & info on upcomingevents stay connected with theSan Diego Employers Association.Visit: www.sdea.comto become a fan today!

>OctOber’S PreFerreD PrOViDer

If an employee is thinking about making a “friend” re-quest to their boss on Facebook, or a boss is thinking of doing the same to an employee, they should probably read the results of this recent survey first.

For those unfamiliar with Facebook, accepting someone as a “friend” on the social networking site typically al-lows that person to keep tabs on you by reading your Facebook page, leaving comments (and reading others’ comments), viewing your photos, and following other updates.

Forty-eight percent of bosses say they would feel either very or somewhat uncomfortable if someone they man-aged wanted to be their friend on the social network-ing site, according to a survey by OfficeTeam. About the same portion of respondents said they’d feel just as uncomfortable if their boss asked to be their friends on Face-book.

Still, that leaves a sizeable portion of bosses who would feel comfortable with being “friended” by a subordinate (44 per-cent) or their superior (47 percent).

The survey included 150 randomly selected senior executives at the nation’s 1,000 largest companies.

“The line between personal and professional has grown in-creasingly blurred as more people use social networking web-sites for business purposes,” said Robert Hosking, executive director of OfficeTeam. “Although not everyone is comfortable using sites like Facebook to connect with professional contacts, it’s wise to be prepared for these types of requests.”

Hosking advises employees on Facebook to familiarize them-selves with privacy settings and create different friend lists to control how--and with whom--information is shared. “Individ-uals should classify their professional contacts into a ‘work’ list and limit what personal details this group can view,” said Hosking.

Hosking also has advice for employees if they encounter one the following Facebook situations:

You’re tagged in an embarrassing photo. Untag yourself and change your privacy settings so photos are viewable only by your close friends. You’re friended by someone you don’t want to connect with. It might be best to accept friend requests from colleagues to avoid slighting them, but add them to a “work” list and adjust your privacy settings so you can effectively separate your job from your personal life. You’re considering friending your boss. It may seem like a natu-ral extension of amiable office small talk, but think twice before proactively friending your boss. It could become awkward for both of you. You want to join various groups. You should join groups that interest you. But if you have colleagues in your network and don’t want them to see the groups you join, remember to adjust your application settings. You would like to be a fan of certain pages. Becoming a fan of pages on Facebook is visible to anyone who can view your profile, so you should avoid becoming a fan of any page you are uncomfortable sharing with coworkers or business contacts in your network. You love quizzes. Stop and think for a moment before taking online quizzes and posting the results to your Facebook page -- unless you want professional contacts to know which Gilligan’s Island character you most resemble.

>Hr StrAnGe but trueACCEPT OR REJECT: THE BOSS AS A FRIEND ON FACEBOOK?Source: HR. BLR.com via the SDEA.com Member Section

www.sdea.com • 888.625.7332 • San Diego Employers Association • October 2009 11