Business leaders and human resources and employee benefits professionals are well aware of potential minefields for employer group health plan sponsors under the Affordable Care Act (ACA). Large employer plan sponsors are careful to invest significant time and resources to avoid triggering any number of employer tax penalties. Continue Reading
An Unsolved Problem? Claims of Post-Employment Retaliation by the (Formerly) Problem Employee
Posted in Employment Discrimination Harassment & RetaliationMost employers know that various employment laws prohibit retaliation against employees who engage in protected activity, such as those who complain of discrimination, report purportedly unlawful conduct, or support fellow employees’ charges of similar conduct. What fewer employers may realize is that legal prohibitions on retaliation may, in some circumstances, extend beyond employees’ actual employment. Some of the post-employment conduct courts have considered to be retaliatory includes: providing poor recommendations (or refusing to furnish the same), blacklisting, making threats to future employers, opposing applications for unemployment benefits, filing false criminal charges, and filing unfounded counterclaims. As such, before taking action against former employees, employers should consider whether a court might consider such conduct to be in direct retaliation for a former employee’s opposition to an unlawful employment practice. Continue Reading
Input Sought on New Rules to Extend Overtime to More Workers
Posted in Labor RelationsEmployers and other stakeholders have just a few weeks in which to provide input on proposed regulations which would raise the salary threshold for workers exempt from overtime to $50,440 a year. On July 6, 2015 the Department of Labor proposed new regulations which would result in extending overtime pay to an estimated five million workers. The regulations would tie the annual salary threshold to inflation or wage growth over time. The DOL has requested input specifically on the current duties tests employees must meet to be exempt from overtime, and on whether non-discretionary bonuses should be considered to satisfy a portion of the salary requirement. You can read the proposal in its entirety on the DOL site. Employers are invited to submit written comments on the proposed rule through September 4 on regulations.gov.
EEOC: Sexual Orientation Discrimination Illegal Under Title VII
Posted in Employment Discrimination Harassment & RetaliationThe EEOC has found that workplace discrimination against lesbian, gay, and bisexual workers violates Title VII of the Civil Rights Act of 1964. On July 15, 2015, the EEOC reversed the dismissal of a sex discrimination complaint filed by an air traffic controller against the U.S. Department of Transportation’s Federal Aviation Administration. The complainant claimed that he was not selected for a permanent managerial position because he is gay. Continue Reading
Department of Labor: Most Workers Classified As Independent Contractors Are Employees
Posted in Labor RelationsOn July 15, 2015, the Wage and Hour Division of the Department of Labor declared that most workers who are classified as independent contractors are actually employees and cited the erroneous designation of employees as independent contractors to be “one of the most serious problems” at workplaces in the United States. The DOL issued an “Administrator’s Interpretation” that it will utilize to combat this issue. In support, DOL emphasized that problems and complaints involving minimum wage, overtime compensation, unemployment insurance, and workers’ compensation have increased significantly in light of the misclassification of workers. Continue Reading
Texas Federal Court Rules in Favor of NLRB’s “Quickie” Election Rules
Posted in Labor RelationsA federal judge in Texas recently rejected a challenge to the NLRB’s “quickie” election rules that went into effect on April 14, 2015. One of the significant changes resulting from the enactment of the new rules is the shortening of the timeline for union elections, which the NLRB asserts “modernize[s] the representation case process and fulfill[s] the promise of the National Labor Relations Act.” In Associated Builders & Contractors of Texas, Inc. et al. v. N.L.R.B., the plaintiffs, a trade association and a small business advocacy organization, filed suit against the NLRB, arguing that the election rules are invalid under the Administrative Procedures Act because they: (1) exceed the NLRB’s statutory authority by impermissibly restricting an employer’s ability to fairly litigate issues in a union election; (2) violate the NLRA by compelling the invasion of employee privacy rights; (3) violate the NLRA by interfering with protected speech during union election campaigns; and (4) are arbitrary and capricious and an abuse of agency discretion. Continue Reading
EEOC Updates Guidance on Accommodating Pregnant Workers
Posted in Disability, Employee Benefits, Employee Handbooks & Policies, Employment Counseling & Workplace Claims PreventionThe Equal Employment Opportunity Commission has issued revised pregnancy discrimination guidance setting forth a framework for assessing how far employers must go in accommodating pregnant employees, following the Supreme Court’s ruling earlier this year in Young v. United Parcel Serv., Inc. In that case, the Court held that, although a policy of providing light duty only to certain workers was facially neutral, it could still violate the Pregnancy Discrimination Act in some circumstances when the employer does not provide the same accommodations to pregnant workers as to other similarly situated employees. Continue Reading
Even Planned Surgery May Be “Unforeseeable” Under the FMLA
Posted in Employment Litigation, Medical & Other LeavesEmployees seeking leave under the Family and Medical Leave Act are supposed to give 30 days’ notice if the need for leave is “foreseeable,” but what does “foreseeable” mean? Based on a recent 11th Circuit Court of Appeals decision, even elective surgery which could be planned far in advance, if “relatively urgent,” would not be foreseeable and thus not require 30 days’ advance notice of the need for leave. Continue Reading
EEOC Encouraged to Address Social Media and “But-for” Causation in Revising Guidance on Retaliation
Posted in Employment Discrimination Harassment & RetaliationAt a meeting of the U.S. Equal Employment Opportunity Commission, convened to address the explosive growth of retaliation charges last week, witnesses made a variety of recommendations, including that the agency revise its retaliation guidance in its Compliance Manual to embrace the Supreme Court’s “but-for” causation standard and to address the impact of social media in the workplace. Continue Reading
Pregnancy Discrimination Prohibition To Be Included in Florida Civil Rights Act
Posted in Employment Discrimination Harassment & RetaliationIn April 2014, the Florida Supreme Court held in Delva v. The Continental Group, Inc. that pregnancy discrimination was encompassed within “sex” discrimination as protected in the then-enacted version of the Florida Civil Rights Act (the “FCRA”), even though it was not explicitly mentioned in the FCRA. In response to this holding, the Florida legislature has now passed Senate Bill 982, which expressly makes pregnancy a protected class under the Florida Civil Rights Act. The bill was approved by the governor on May 21, 2015, and it becomes effective on July 1, 2015. Continue Reading
