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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...
Employment Law Seminar

Foulston Siefkin LLP will host its twenty-first annual employment law seminar on May 10 in Wichita and May 17 in Kansas City. This informative and entertaining full-day seminar provides the latest information you need to help your organization comply with the ever-changing employment and labor law landscape. Breakout sessions allow you to create your own schedule. 

The keynote speaker is Professor Clark Freshman, an international expert on lie detection and negotiation. His interactive presentation, titled Lies and the Employees Who Tell Them: Four Scientific Ways for Employers to Get the Truth, features video clips Professor Freshman developed at the Harvard Business School and teaches scientifically proven methods to decipher nonverbal communication, see concealed emotion, detect lies, and uncover truth.
The seminar also features experienced Foulston Siefkin lawyers leading the following presentations:
  • Employment Law Update: What’s New … and What’s Ahead
  • “Dig Two Graves”—Avoiding Retaliation in the Workplace
  • “WWED?” (What Would the EEOC Do?): The Interplay between Religious Accommodation and LGBT Rights in the Workplace
  • Hot Wage & Hour Issues
  • Workplace Privacy and Social Media Issues that Leave Employers “SMH”
  • Protect and Defend: Cybersecurity for the HR Professional
  • Affordable Care Act Ch-Ch-Changes
  • HR 101: The Employee Handbook – Guidebook for Your Workplace
The full schedule, details, and registration form are available here.
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part I

Does Title VII cover sexual orientation? 

Title VII of the Civil Rights Act of 1964 (which applies employers with 15 or more employees) prohibits discrimination on the basis of an employee’s sex.  The law doesn’t mention sexual orientation as among the protected categories and many courts, including the 10th Circuit Court of Appeals (which covers Kansas employers), have concluded that Title VII does not in fact protect employees from discrimination on the basis of their sexual orientation.  That said, courts have concluded discrimination “based on sex” includes harassment and adverse actions based on sex-stereotyping.  In other words, discrimination against a woman because she does not conform to feminine or female-specific norms or stereotypes; or against a man because he does not conform to masculine or male-specific norms or stereotypes. 
This interpretation of Title VII has yielded legal success for some transgender employees.  For example, in Smith v. City of Salem, the plaintiff, a transgender firefighter, alleged that a disciplinary suspension was discrimination “based on sex” after coworkers made comments that Smith’s appearance and mannerisms weren’t masculine enough.  The City of Salem tried to get the lawsuit thrown out under the argument that Title VII doesn’t cover discrimination based on an employee’s transgender status.  The lower court agreed with the employer.  But the 6th Circuit Court of Appeals (which covers Kentucky, Michigan, Ohio and Tennessee) reversed, holding that Title VII applied if Smith was discriminated against based on gender non-conforming conduct. 
Transgender employees have seen similar outcomes in lawsuits brought in many states.  The key      Continue Reading...
Beware: Phishing Emails Requesting W-2

On March 1, the IRS posted an alert to all HR and Payroll Professionals of an email phishing scheme where an email is sent by cyber-criminals impersonating a company executive and requesting employee W-2 forms https://www.irs.gov/uac/Newsroom/IRS-Alerts-Payroll-and-HR-Professionals-to-Phishing-Scheme-Involving-W2s. Since it is not uncommon to have a request for W-2’s during tax season, many companies have fallen victims to this scheme and have mistakenly emailed payroll data, including W-2 forms.  

It is important you remain diligent and carefully examine any email requesting this type of information. Some samples of the emails sent include:
  • Kindly send me the individual 2015 W-2 (PDF) and earnings summary of all W-2 of our company staff for a quick review.
  • Can you send me the updated list of employees with full details (name, social security number, date of birth, home address, salary).
  • I want you to send me a list of W-2 employees wage and tax statements for 2015, I need them in PDF file type, you can send it as an attachment. Kindly prepare the lists and email them to me asap. 
Before providing W-2 or payroll data in response to an email, verify that a company employee authorized to view the information has requested it. This should not be done by sending a reply email because the address may be appearing similar to the valid email address. Instead, send a separate email, or verify the request by talking to the person on the phone or in person. If      Continue Reading...
March Forth!
Now that we’re well into 2016, many of us may have forgotten our New Year’s resolutions and returned to our normal routines. But not to worry. If you’ve ignored your resolutions (or never made any to begin with), there’s still hope. March 4th (sounds like “march forth” - get it?) is national “Do Something Day.” So today, take some time to map out a plan for doing the following things before you let the rest of the year get away from you: 
  • Review your policy materials, and make sure they are current and up to date. You should review your policies to ensure they’re in compliance with all legal requirements, but your review should be practical as well. Are your current policies working as intended, or are there some that would benefit from a different approach? A little reflection and reworking now can help you avoid any issues you had in the past. As Winston Churchill observed, “Those that fail to learn from history are doomed to repeat it.” 
  • Take time to clean up employee files. Is the required documentation in the file? Conversely, are there any prohibited materials that need to be taken out? Remember that      Continue Reading...
EEOC Proposes Changes to EEO-1 Report to Collect Pay Data

Last week the U.S. Equal Employment Opportunity Commission announced a proposed revision to the Employer Information Report (EEO-1) to include collecting pay data from employers. EEOC says this new data will assist the agency in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces. Symbolically, the announcement came on the seventh anniversary of the Lilly Ledbetter Fair Pay Act.

The EEO-1 is a well-established, annual report. Every year by September 30, private employers with at least 100 employees (or 50 employees for covered government contractors) must tally and report their employee numbers by job category and then by sex, race, and ethnicity. There are ten job categories and seven race and ethnicity groups. The new proposal would build on the existing structure to also require employers to collect and report aggregate pay data, based on 12 specified pay bands, beginning with the September 2017 report. Thus, employers would have to tabulate and report on the number of employees whose W-2 wages for the prior 12 months fell within each of the 12 pay bands, within each of the 10 job categories, broken down by sex and race/ethnicity, as well as the total number of hours worked by the employees within each sex and race/ethnicity group within each pay band within each job group. That adds up to 3,600 data fields! And to make matters more complicated, the W-2 wages and total hours worked are not calendar year totals, but are for the 12 month-period prior to      Continue Reading...
IRS Provides Favorable New Guidance on Safe-Harbor 401(k) Plans

The IRS has provided much-anticipated (and welcome) guidance on mid-year amendments to safe-harbor 401(k) plans. This is favorable guidance that provides greater flexibility to employers that sponsor safe-harbor plans.

Brief Background

Safe-harbor 401(k) plans are excused from performing some nondiscrimination tests in exchange for meeting specified criteria, including providing a minimum employer contribution (either a matching contribution or nonelective contribution) and providing eligible employees with a notice each year. Prior guidance from the IRS (mostly informal) has indicated that employers generally could not make mid-year amendments to safe-harbor plans (unless expressly authorized by the IRS) or would risk losing safe-harbor status for that year. This presumption against mid-year amendments appeared to include amendments to plan provisions that did not relate specifically to safe-harbor status.

A Change in the Presumption

New guidance from the IRS reverses the prior presumption that any mid-year amendment to a safe-harbor plan was prohibited unless expressly permitted. Instead the guidance says that most mid-year amendments are permissible, so long as notice and election requirements are met in cases where the change affects the required content of the safe-harbor notice. Specifically, the guidance provides:

“A change made to a safe harbor plan or to a plan’s required safe harbor notice content does not violate the requirements of [the safe-harbor rules] merely because the change is a mid-year change, provided that (i) if it is a mid-year change to a plan’s required safe harbor notice content, the notice and election opportunity conditions [described in the guidance] are satisfied, and (ii) the mid-year change      Continue Reading...

KHRC on Twitter

The Kansas Human Rights Commission announced today that it has joined Twitter.  The Commission says it intends to provide helpful information, resources,  links, and tweets. You can follow KHRC at @KansasHRC. 


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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