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A New Frontier -- Breastfeeding

The EEOC's position on the subject is clear and spelled out in its Enforcement Guidance on Pregnancy Discrimination and Related Issues dated June 25, 2015: "An employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions."  

These filings serve as a good reminder to employers that the EEOC reads the Pregnancy Discrimination Act to include reasonable accommodation obligations similar to those in the ADA. Various state laws, including one in Kansas, also provide certain protections for breastfeeding and/or expressing breast milk. Employers should carefully consider any request made by an employee to allow for this type of activity.  In addition, not only do employers need to consider Title VII, the Affordable Care Act amended the FLSA to require employers to provide break time and private locations for pumping activity.  

It will be interesting to see how Frontier Airlines responds to these charges.  Stay tuned.   



EEOC Issues Final Wellness Regulations

The EEOC has issued final regulations under the ADA and GINA that address the extent to which employers may use incentives to encourage employees and their spouses to participate in wellness programs that involve disability-related inquiries or medical examinations. Although the regulations allow limited incentives, there are a number of conditions and restrictions. And there are some important differences between the EEOC's rules and other rules governing wellness programs, such as guidance under HIPAA and the ACA. Here are the highlights.

What Wellness Plans Are Covered?

These regulations apply to any wellness plan that involves a disability-related inquiry or medical examination. This will include most wellness plans that require completion of a health risk assessment or biometric screening. It also includes tobacco-related wellness plans that involve any type of medical test to screen for the presence of nicotine, but it does not include tobacco-related programs that merely ask an employee to certify whether they use tobacco (and do not require any other medical examinations).

In an important change from the proposed regulations, the final regulations apply to a wellness program without regard to whether the program is offered in connection with a group health plan. For example, an employer that offers a cash reward to employees for completing a health risk assessment or biometric screening may be subject to the limitations under the final regulations.

What Limits Apply to Wellness Incentives?

For a wellness plan covered by these regulations, the incentive offered to any employee may not exceed 30% of the full cost      Continue Reading...

DOL Finally Issues New FLSA Regulations

On May 18, the Department of Labor issued the long-awaited regulatory amendments to the white collar exemptions under the Fair Labor Standards Act.  Proposed changes were published last summer, and after a period of public comment (and more DOL thought and analysis) the regulations in their final form (known as the Final Rule) are now on the street.  

In general, the regulatory changes are as expected and will go into effect on December 1, 2016.  The focal point of the changes was to increase the minimum salary for exempt status.  Although the proposed changes suggested the new salary could be at or above $50,000 per year, the Final Rule adopts a more conservative figure (in DOL’s eyes) of $913 per week ($47,476 annually).  While certainly less than what it could have been, this still represents a more than 100% increase over the current minimum salary of $455 per week ($23,660 annually). 
Similarly, for employers who utilize the exemption for highly compensated employees, the minimum compensation figure will increase from its current annual amount of $100,000 to $134,004. 
Also as expected, the new regulations will incorporate an automatic salary update, but instead of the annual updates that the proposed regulations suggested, the Final Rule adopts an update schedule of every three years.  Thus, after the new salary amounts go into effect on December 1st, they’ll remain in place until January 1, 2020, and will update every three years after that.
A small silver lining to the new rules is that employers will now be able      Continue Reading...
NLRB Strikes Down Employer’s “Positivity Policy”

“Come to work with a positive attitude, and promote a positive work environment.”  Most employers would look at that statement and think “that makes sense.”  But if employers incorporate this type of broad statement into their employee handbooks, they might run afoul of the National Labor Relations Act (“NLRA”).  Or so says the National Labor Relations Board (“NLRB”) in its recent decision striking down yet another handbook policy as a violation of an employee’s right to engage in “concerted protected activity” under the NLRA.

T-Mobile’s “Positivity Policy” 

The General Counsel of the NLRB filed several complaints against T-Mobile, alleging that many of the company’s handbook policies violated the NLRA because they were overbroad and thus, employees could “reasonably construe the language [of the policy] to prohibit Section 7 rights” under the NLRA.  That section of the NLRA guarantees employees the right to engage in “concerted protected activity;” which is activity by two or more employees that addresses and is intended to improve workplace terms and conditions.  So, any workplace rule or policy that interferes with that right violates the NLRA.
Among the several policies the General Counsel took issue with was T-Mobile’s “positivity policy” under the “Workplace Conduct” provision of the company’s handbook.  That policy stated:
"The Company expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation.  Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management."
In opposing      Continue Reading...
OSHA Record-Keeping Rule Modified

On May 11, OSHA issued a final rule modifying the record-keeping regulations.  The final rule takes effect in August of 2016.  The highlights of the final rule include:

  • Requires all employers with 250 or more employees to submit OSHA Form 300A electronically.
  • Requires all employers with more than 20 employees in high-hazard industries to submit OSHA Form 300A electronically (these can be found by NAICS code in an appendix to the final rule).
  • The submission deadline for the prior year data in 2017 and 2018 is July 1.
  • The submission deadline for the prior year data after 2019 is March 2.

Above and beyond the procedural changes, the final rule includes strong anti-retaliation language.  For example, the final rule includes a requirement that injury/illness reporting procedures are not reasonable if they deter or discourage employees from reporting.   This language may interfere with employer incentive programs designed to reward employees for preventing work-related injuries or illnesses under the theory that such an incentive plan discourages reporting. The final rule also contains a requirement for employers to provide notice to employees of their right to report work-related injuries and illnesses along with notification that the employer will not take negative action against an employee for such reporting.   

The purpose of the electronic submission process seems to be driven towards OSHA posting employer specific data on its website as an education/outreach tool.  In addition, it will allow OSHA easier access to injury/illness data for its own analysis purposes internally.  It is likely this more readily accessible information will      Continue Reading...

Have Gun, Will Travel

This week Kansas lawmakers passed, and governor Brownback signed into law, a bill that says public employers, such as cities and counties, cannot forbid their employees from carrying concealed firearms while on duty. Public employees already have the right to carry concealed firearms while in the workplace, and the new law extends this right to when they travel into the community while on the job. Property owners would be able prevent municipal employees from carrying firearms onto their property only by posting the familiar “no gun” sign.

Supporters said that public employers should not be able to endanger their employees by restricting them from carrying a firearm for protection while on the job. Opponents warned that municipal employees, such as city inspectors and firefighters, can now come to your home carrying concealed weapons without any training. 
Taxi Job Applicant Drives Drunk to Interview

To say the job interview did not go well would be an understatement. This week Ryan Dickson arrived for his interview at Trans Iowa, a taxi and shuttle company, with the hope of landing a job. Instead, he landed in jail. 

While trying to park, Dickson backed into another car. He then pulled forward, crashing into the car in front of him. From there he staggered into the building for his interview. An employee on her smoke break saw it all and called the cops.
Dickson blew a .273 on his breath test, three times the legal limit, according to the police report. At first he said he hadn’t been drinking. But later he fessed up. He told police he had been drinking until 2 o’clock that morning, when he went to the hospital because of his alcohol intake. After being released at 8 a.m., he drank a fifth of vodka and then headed to the interview, he reported. Presumably he did not get the job.  
While this case is an extreme example, it’s a good reminder than you can learn a lot about a job candidate beyond what he or she says during the interview with the hiring manager. More and more, companies are making a point to solicit feedback from every employee who meets a potential new hire, including the receptionist and administrative support staff. You can learn a lot about a job seeker based on how he or she treats the receptionist. If the candidate is rude, condescending, or      Continue Reading...
Protecting Your Workforce from the Zika Virus

Last week OSHA issued a fact sheet to assist employers with the prevention of occupational exposure to the Zika virus.  While the United States has not seen a Zika virus outbreak, the mosquito types capable of carrying the virus exist in large parts of the United States.  With the summer season approaching, employers are more likely to have employees exposed to mosquito bites and thus potentially exposed to Zika and/or other mosquito-borne illnesses.

If you have employees working outdoors, following this guidance will be a good idea.  To see the OSHA fact sheet click here.

HHS Announces Opening of Phase 2 HIPAA Audit Program

The HHS Office of Civil Rights (OCR) has announced the opening of its "Phase 2" HIPAA audit program. We have been anticipating this program for some time. It potentially affects all HIPAA covered entities, including employer-sponsored group health plans, as well as business associates of those covered entities, such as third-party administrators for self-insured health plans.

The purpose of the audit program is to "assess compliance" with the HIPAA privacy, security, and breach notification rules. Accordingly, these audits will be directed at a cross-section of HIPAA covered entities and business associates, rather than based on specific complaints or news reports.

Covered entities and business associates that are potential candidates for audit will be contacted by email (check your spam filter!) and asked to complete a pre-audit questionnaire. Not all covered entities and business associates that go through the pre-audit process will be selected for audit. But those who fail to respond to the pre-audit questionnaire will still be included in the potential audit pool, and it seems fair to assume that a failure to respond may increase OCR's interest in conducting a full-scope audit. 

Based on the updated audit protocol that OCR is using to train its auditors, we have a good idea what OCR will be looking for if it conducts an audit. In the case of an employer-sponsored group health plan, the audit is likely to include a review of the following:

  • The plan document (to determine whether the proper HIPAA plan language has been adopted)
  •      Continue Reading...
E-Verify Expansion

The trend of states requiring the use of E-Verify continues as Tennessee will require private employers with 50 or more employees to utilize E-Verify after January 1, 2017.  While of not much consequence for Kansas employers (unless you have Tennessee employees), it is notable that the march of states mandating the use of E-Verify continues. It is also likely that any immigration reform at the federal level (whenever that occurs) will require employers to utilize E-Verify.  With the trends heading in the direction of mandatory participation down the road, employers should consider the pros and cons of voluntarily opting into the system in advance of any mandates. 

EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part IV

What should HR be doing now? 

Given the rapid pace of changing and polarizing political, legislative, and individual viewpoints on LGBT rights, it’s reasonable to conclude that the EEOC has chosen now as the right time to test the courts on whether Title VII includes sexual orientation discrimination.  And, if the federal legislature does not pass a law specifically addressing sexual orientation discrimination, it’s equally reasonable to anticipate the Baxley, Boone, or a similar case will reach the U.S. Supreme Court in the near future for a definitive decision on the issue.   
So what should you be doing in the meantime?  First, check your company’s equal employment opportunity policy.  Many private employers have voluntarily included sexual orientation and gender identity as protected categories within anti-discrimination and harassment policies.  If your own policies and procedures prohibit discrimination against LGBT employees, they should be enforced in the same manner as other protected categories. 
Second, keep track of developments in the law so that you know how different states and cities (where your company might operate) approach sexual orientation discrimination.  For example, though the Kansas Act Against Discrimination does not include sexual orientation as among the protected categories, two cities, Lawrence and Roeland Park, have passed ordinances prohibiting discrimination on the basis of sexual orientation and gender identity.  Moreover, 22 states and the District of Columbia have specifically included sexual orientation within their state anti-discrimination laws; 19 of those states and D.C. include gender identity as well. 
Third, regardless of whether any policy or law specifically prohibits      Continue Reading...
OSHA Addresses Unique Recordkeeping Scenarios

For those employers who fall under OSHA’s recordkeeping requirements, it’s usually relatively easy to determine whether a workplace injury must be recorded. Sometimes, however, as a couple of recent cases highlight, the facts are a bit more tricky. 

Take the employee at a West Virginia window manufacturer. He sustained a small cut (more like a scratch) to his index finger while working. When the cut began to bleed, the employee asked a co-worker to help him put a Band-Aid on the cut. This sounds like a clear case of basic first aid, which is not recordable. But as the late Paul Harvey would say, there’s more to the story. As the co-worker was applying the Band-Aid, the employee saw some of his blood and fainted. He briefly lost consciousness, but did not suffer any additional injury from the fainting. 
Does this change the recordability of the events? OSHA’s Technical Support Division said “yes.” While the scratch was not recordable because it only required basic first aid for treatment, the employee’s fainting was a separate event that met one of OSHA’s express general recording criteria (i.e., loss of consciousness). The fact that the fainting was caused by an otherwise non-recordable event did not impact the decision. 
Another recent case that presented unique facts occurred when the employee of a commercial construction contractor hurt himself on the job, but subsequently tested positive pursuant to the employer’s post-accident drug and alcohol test. Turns out the employee was drunk and the alcohol likely contributed, if not outright      Continue Reading...
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part III

So what’s different about the 2016 lawsuits? 

In the recent lawsuits, the EEOC seeks to extend its reasoning in Baldwin (which was limited to the federal employment context) to the realm of private employment.  In other words, the EEOC is trying to get courts to reverse their prior decisions and agree with the agency that Title VII prohibits sexual orientation discrimination.
In EEOC v. Scott Medical Health Center, a case filed in the District Court for the Western District of Pennsylvania, the EEOC claims the employer allowed a heterosexual male manager to subject a gale male employee, Dale Baxley, to a sexually hostile work environment.  The lawsuit alleges that the manager used anti-gay epithets to refer to Baxley, and, upon learning that Baxley was married, made further derogatory comments about Baxley’s sex life with his husband.
In EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc., filed in the District of Maryland, the EEOC made similar allegations on behalf of a lesbian employee, Yolanda Boone.  Boone alleged that her manager made frequent derogatory comments directed at her sexual orientation, including saying, “I want to turn you back into a woman,” “I want you to like men again,” and quoting biblical passages that a woman should not be with a woman. 
According to both lawsuits, the employees filed internal complaints but nothing was done to correct the managers’ behavior.  Baxley quit rather than endure the continued harassment and claimed constructive discharge, while Boone was fired shortly after making a complaint.
In both cases, the EEOC makes an allegation mirroring the      Continue Reading...
New STEM OPT Regulations Take Effect in May

The new STEM (Science, Technology, Engineering, & Math) OPT regulations issued in March create a new set of requirements and benefits for students and employers seeking to participate in the program.  For those not familiar with STEM and OPT, these concepts relate to foreign students and work authorization which typically applies after the student completes a degree program.  The traditional OPT, which stands for optional practical training, program allows the foreign student up to twelve months of work authorization per program of study (degree level) to obtain practical on-the-job type experience before returning home.  There are special rules for foreign students within the STEM degree fields that allow the OPT time to extend out an additional 24 months.  This extra OPT time comes with some strings attached for the employer.

The primary addition in the new rule relates to training plans and evaluative processes.  Foreign students must now have a training plan that sets out goals for the STEM practical training period.  The plan requires a description of the skills, techniques and knowledge the student will obtain through the opportunity with the employer as well as an evaluation process and a description of how the student will be supervised.  These new requirements take effect for STEM extensions filed by students after May 10th. 

For more information on the new STEM program click here

EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part II

What is the EEOC’s position on sexual orientation? 

Since at least 2013, the EEOC has taken the position that Title VII’s prohibition against discrimination “based on sex” includes discrimination based on sexual orientation.  Starting that year, the agency began accepting and investigating charges filed against private employers alleging sexual orientation discrimination.   In 2015, the agency received 1,181 charges alleging sexual orientation discrimination, and was able to resolve some of those charges via voluntary agreements yielding approximately $3 million in monetary relief for employees. 
The EEOC made its position abundantly clear this past summer in an administrative decision issued about one month after the U.S. Supreme Court made same-sex marriage legal in the landmark Obergefell v. Hodges decision.  In July 2015, the EEOC decided Baldwin v. Foxx, an administrative case, and concluded that a federal employer violates Title VII by discriminating against gay employees because of their sexual orientation.  That case involved a federal employee who brought a sex discrimination claim against the Department of Transportation.  Baldwin claimed he was not selected for a position because he is gay.  To support his claim, Baldwin presented evidence that a decision-maker in the selection process made several negative comments about Baldwin’s sexual orientation.
Title VII’s mandates regarding federal employment are parallel to the law’s requirements for private employers in that sex discrimination is prohibited, but sexual orientation is not mentioned as among the protected classes.  But the EEOC found that the existing Title VII protections against sex discrimination extended to sexual orientation discrimination.  The EEOC stated, “[s]exual orientation discrimination      Continue Reading...

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