New Year, New Wellness Program Rules

Employers with established wellness programs that collect health information and/or require a medical exam can no longer rely on the EEOC regulations to justify that incentives provided under their wellness programs are voluntary. On December 20, the EEOC published a final rule (83 Fed. Reg. 65296) vacating the rules that allowed employers to offer those financial incentives to workers who participated in those wellness programs.

The EEOC entered the wellness program regulation arena in 2016 with rules under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The ADA and GINA Wellness Program Rules required employers sponsoring wellness programs that collect health information (such as through a health risk assessment) and/or require a medical exam (for example, a biometric screening) to satisfy certain requirements. One such requirement involved limiting incentives under the wellness program to 30% of the cost of health coverage so that the wellness program would qualify as a “voluntary” employee health program. Continue Reading

Changes Coming Soon to H-1B Work Visa Program?

By Rachel L. Perez on December 18, 2018 Posted in Immigration Planning & Compliance

Employers are facing a crackdown on the H-1B visa program with a long-awaited immigration reform in the pipeline. On November 30, 2018, Department of Homeland Security (DHS) announced a notice of proposed rulemaking that seeks to (1) increase the number of H-1B visa recipients who have master’s degrees or higher from U.S. academic institutions; (2) ensure “a more meritorious selection” of H-1B visa beneficiaries; and (3) create a modernized online registration process for employers from which the lottery selection process would be conducted.

Employers are alerted that the proposal could result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B visa recipients with a master’s degree or higher from U.S. academic institutions. After the public comment period ends on January 2, 2019, the federal agency plans to have the changes in place by April 1, 2019.

The H-1B visa program allows U.S. employers to temporarily employ highly skilled foreign workers for a maximum of six years. Typically, after the six-year period ends, the H-1B worker must change to another temporary status, seek lawful permanent residence in the United States, or depart the United States. Continue Reading

Arbitration Agreements: Tips for Enforceability

By Steven P. Gallagher on December 11, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

Arbitration agreements can be an effective tool to avoid costly litigation, and, in particular, to prevent class and collective actions. But, will your arbitration agreement withstand scrutiny? Here are some tips on what to do—and not do—when drafting arbitration agreements for new hires.

First, consider whether and for what kinds of employment disputes you might want arbitration. Arbitration has some advantages. It is typically quicker and more cost-effective than litigation. It allows a trained legal professional (often a retired judge) to dictate the results of the case, rather than risking an adverse outcome with a jury. Because arbitrations are private, the proceedings, claims, and ultimate outcomes are ordinarily confidential. Most interesting to employers is that arbitrators tend to award lower damages than juries.

Of course, arbitration has some disadvantages, too. Sometimes it is neither quicker nor less expensive than litigation, and arbitrators are sometimes inclined to “split the baby,” even if the law is clearly on your side. Unfortunately, there is essentially no meaningful appeal if the arbitrator gets is wrong. But arbitrations remain an important tool for avoiding class and collective actions that could otherwise put a company out of business, especially in the wage and hour arena. Continue Reading

Avoiding Office Holiday Party Headaches

By Tiffany D. Hendricks on December 3, 2018 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

The annual holiday party is a great time of the year to celebrate employees and business successes, but it can be fraught with peril. Wise employers will plan holiday celebrations carefully.

Consider the timing.

Some employees would rather limit their time with work colleagues to workplace hours. Others may stress over childcare, transportation or other commitments, but feel obligated to attend. Would workers enjoy a celebration more during daytime hours, or would they welcome an evening event? Would they enjoy dressing in festive attire or does that represent another hassle? If you want enthusiastic participation, nothing beats asking your employees how they would like to celebrate.

Don’t require attendance.

Attendance should be optional. If you anticipate grumbling and want to encourage employees to attend an after-hours party, consider inviting spouses and/or family members. But don’t pressure employees to attend. Employers should be mindful that employees have diverse religious and cultural backgrounds that may impact whether and how they choose to celebrate holidays. An employee may have a legally protected reason for not attending, such as practicing a religion that does not celebrate the occasion. Be mindful of your messaging and try to be inclusive and respectful of all employees, regardless of which faith they follow, if any.

If an employer does require attendance, that time is compensable under federal and state wage laws. Employers should also steer clear of requiring employees who do not attend a company holiday party to use their vacation time. While many states permit employers to implement their own vacation leave policies, an employer may be in violation of state wage and hour laws if it requires employees to use discretionary vacation benefits in lieu of attending a company-sponsored event.

Beware of the role of alcohol.

A Tip from the Department of Labor: The 80/20 Rule Has Been Rescinded

By Megan M. Kokontis on November 27, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

Employers are no longer barred from taking the tip credit for tipped employees who spend more than 20% of their time doing non-tipped activities, according to a new U.S. Department of Labor opinion letter doing away with the so-called “80/20 rule.” As restaurant and hospitality employers are aware, the tip credit provision in the Fair Labor Standards Act permits an employer to pay a tipped employee $2.13 per hour in wages and take a “tip credit” equal to the difference between the cash wages and the federal minimum wage, which is currently $7.25 per hour. The regulations recognize though that tipped employees may spend some of their time doing non-tipped work.

If the work is sufficiently different – like a waiter who sometimes works as a maintenance man – the employee will be considered to have dual jobs and the employer cannot take the tip credit for the second job. But if the other duties are related – like a waiter spending part of his time cleaning, setting tables and making coffee – the DOL now advises that there is no limit to the amount of the related duties that can be performed while taking the tip credit. As long as these duties are performed at the same time as direct customer-service duties and other requirements of the FLSA are met, the employer can still take the tip credit, according to this new opinion letter. Continue Reading

Avoiding Age Discrimination Claims During Succession Planning

By Christopher J. Eby on November 15, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

As “baby boomers” come of retirement age, employers may find themselves between a rock and a hard place: they can either ask employees about their retirement plans and risk being accused of age discrimination, or they can avoid those conversations and risk being woefully underprepared for the retirements of key employees.

When done right, succession planning affords employers an opportunity to train the next generation of company leaders, ensure continuity in key roles, and manage all aspects of the transition. However, when done wrong, succession planning can expose employers to significant liability under federal and state age discrimination laws.

The federal Age Discrimination in Employment Act applies to employers with 20 or more employees and prohibits discrimination against workers 40 years of age or older. The Older Workers Benefits Protections Act imposes procedural safeguards for releases that waive rights protected by the ADEA. Additionally, state laws in many jurisdictions provide further protection.

Courts have consistently held that merely asking employees about their retirement plans does not constitute age discrimination. However, insulating your company from liability during the succession planning process involves careful consideration of the succession plan itself. Employers can reduce the risk of violating federal and state discrimination laws by avoiding the following: Continue Reading

English-Only Workplace Rules: Risky in a Diversifying Workplace

By Dana N. Berber on November 7, 2018 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Litigation, Uncategorized

A manufacturer has “subjected its employees to an ugly mix of sexism, racism, and xenophobia and violated federal law prohibiting harassment and retaliation” the Equal Employment Opportunity Commission alleged in a lawsuit recently filed in New York. What led to such an inflammatory charge from the EEOC? Among other things, the employer’s implementation of an English-only rule in the workplace.

As the modern workforce in the United States becomes more diverse, an increasing number of employees speak languages other than, or in addition to, English. In response, some employers, like the one facing suit by the EEOC in New York, have enacted English-only workplace policies, mandating that their employees speak English, rather than any other language, while at work. Even if well-intentioned, these policies may serve as the basis for discrimination claims against employers.

In general, rules requiring employees to speak English in the workplace do not violate Title VII or other anti-discrimination laws if the employer has a legitimate, non-discriminatory reason for the rule and employees can practically comply with its restrictions. Non-discriminatory reasons for English-only rules may include maintaining employee morale or preventing alienation of employees, assisting management in supervising employees, and maintaining safety in hazardous environments. Proficiency in the English language may also be a permissible job requirement so long as it is a key component of the job position. Continue Reading

DOJ Contradicts EEOC over Title VII’s Applicability to Transgender Employees

By Vincent Avery on October 30, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

The Department of Justice is now squarely at odds with the Equal Employment Opportunities Commission over whether Title VII’s prohibition on sex discrimination also applies to discrimination against transgender employees. Specifically, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the EEOC had filed suit against a funeral home for terminating a transgender funeral director (who was born a male) after she informed the owner that she intended to transition from male to female, and would thus proceed to dress as a woman at work. The funeral home’s basis for terminating the employee was that her decision to dress as a woman at work violated its dress code policy, which required male employees to wear suits and ties, and female employees to wear skirts and business jackets. The EEOC asserted that the funeral home’s decision violated Title VII’s prohibition against discrimination on the basis of “sex,” because its decision was based on her failure to conform to sex stereotypes or, alternatively, that terminating someone for being transgender or “transitioning from male to female,” itself, qualifies as sex discrimination under Title VII. Ultimately, the Sixth Circuit Court of Appeals agreed, and on March 7, 2018, held that discrimination on the basis of transgender or transitioning status amounts to unlawful sex discrimination under Title VII. Continue Reading

Reducing Risks Associated With Temporary Staffing Agencies

By Zoe Bekas on October 25, 2018 Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Litigation, Uncategorized

Staffing agencies may provide the solution to a company’s short-term staffing needs. However, clients should not assume they can avoid liability for workplace issues by using a staffing agency; indeed, in some cases, a client is exposed to liability as a result of using a staffing agency. Engaging a staffing agency provides no protection against employment liability and, in some circumstances, the temporary worker may seek to hold the client liable as if it had hired the temporary worker directly, under a “joint employer” theory.

Joint employer liability arises in a number of contexts, including wage and hour, harassment, discrimination, and retaliation. Tests for determining joint employment vary by statute and jurisdiction and are often in flux. Various federal agencies use differing tests, and even those are in play.

For example, the Trump Administration published its fall regulatory agenda indicating that, among other things, it intends to update the Department of Labor’s policy on when staffing agencies and their clients, and franchisors and their franchisees, share legal responsibility for wage and hour violations with one another. Further, the National Labor Relations Board has published a Notice of Proposed Rulemaking that would narrow the existing joint-employer standard under the National Labor Relations Act. Under the Proposed Rule, “an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.” Comments regarding the NLRB’s proposed rule must be received by the Board on or before November 13, 2018. Continue Reading