Category: Labor & Employment

Act Now: The Department of Labor may experience a shutdown on 10/1/2015

DOLAlthough Congress continues to discuss the Fiscal Year 2016 budget, if an agreement is not reached or continuing resolution passed, the Department of Labor (DOL) will experience a shut down as of October 1, 2015. Should this happen, both the iCERT and PERM online filing systems will not accept applications and users will no longer have access to the system.  This shutdown will impact immigration cases including: E-3, H-1B, H-2A, H-2B, and PERM applications. In addition, the DOL will not be able to receive or review any filings received by mail. Employers are urged to review their upcoming expiration dates and deadlines to ensure they submit all necessary applications and responses on or before September 30, 2015.

Article By Jennifer Blloshmi of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

HIPAA: Disclosing Exam Results to Employers

Physicians and other providers are often paid by employers to conduct drug tests, fitness-for-duty or return-to-work exams, or employment physicals for employees. In such circumstances, the physician may mistakenly assume that they may disclose the test and exam results to the employer without the patient’s authorization, but that is not correct.HIPAA

As with any other protected health information, physicians and other providers generally need the patient’s written, HIPAA-compliant authorization to disclose exam results to the employer. (45 CFR 164.508(a); see also 65 FR 82592 and 82640). However, unlike other treatment situations, a provider may condition the performance of an employee physical or test on the patient’s provision of an authorization, i.e., the provider may refuse to perform the exam unless the patient executes a valid authorization. (45 CFR 164.508(b)(4)(iii); 65 FR 82516 and 82658). In addition, the employer may condition the employee’s continued employment on the provision of the exam results (at least under HIPAA), thereby creating an incentive for the employee to execute the authorization. (65 FR 82592 and 82640). The foregoing rules also apply when the health care provider is the employer, e.g., when a hospital employee receives treatment or tests at the hospital. In those situations, the hospital/employer generally may not access or use the patient/employee’s health information for employment-related purposes without the patient’s written authorization. (67 FR 53191-92).

An employee who receives an unfavorable test or exam result may attempt to block disclosure by revoking their authorization. Although patients are generally entitled to revoke their authorization by submitting a written revocation, HIPAA contains an exception that limits revocation if and to the extent that the provider has taken action in reliance on the authorization. (45 CFR 164.508(b)(5)). That exception should apply when the provider has conditioned and provided the test or exam in reliance on the patient’s authorization.

There are very limited exceptions to the authorization requirement. As in other situations, a provider may disclose protected health information to an appropriate entity if necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public (45 CFR 164.512(j)), or if the disclosure is otherwise required by law. (Id. at 164.512(a)). HIPAA contains a specific exception that allows disclosures to employers if the exam was performed as part of a medical surveillance of the workplace and the employer needs the information to report work-related injuries as required by OSHA, MSHA, or similar state laws. (Id. at 164.512(b)(v)). Finally, HIPAA allows providers to disclose protected health information as authorized by and to the extent necessary to comply with workers compensation laws. (Id. at 164.512(l)).

The bottom line: if you are a physician or other provider who conducts employment physicals, tests, or exams, be sure you obtain the patient’s written, HIPAA-compliant authorization before conducting the exam and/or disclosing test or exam results to the employer.

Article By Kim C. Stanger, Pia Dean & William W. Mercer of Holland & Hart LLP

Copyright Holland & Hart LLP 1995-2015.

New Rules Provide Insights for Pregnancy Accommodations in Illinois

Since the start of the year, all employers in Illinois with one or more employees are required to provide accommodations for pregnant workers for conditions associated with pregnancy and childbirth.  Now the Illinois Department of Human Rights (IDHR) and the Illinois Human Rights Commission (IHRC) have issued a set of proposed joint rules to assist with interpretation and enforcement of the new law.

Under amendments to the Illinois Human Rights Act that went into effect on Jan. 1, 2015, employers and labor organizations must make reasonable accommodations for any medical or common condition related to pregnancy or childbirth, unless the employer or labor organization can demonstrate that the accommodation would impose an undue hardship on the ordinary operations of the business of the employer or labor organization.

Beyond the information already provided in the law itself, the rules go into further detail as to the types of accommodations that employers must consider and how an employer should engage in the interactive process when considering a request for an accommodation. The rules also provide detailed sections on consideration of job transfers and time off as reasonable accommodations.

Of particular interest is the guidance concerning when an employer can seek medical certification of an employee’s need for a reasonable accommodation. While the rules make clear that employers are entitled to obtain information in order to evaluate if a requested reasonable accommodation may be necessary, the request needs to be limited to:

  • The medical justification for the requested accommodation;

  • A description of the reasonable accommodation medically advisable;

  • The date the reasonable accommodation became medically advisable; and

  • The probable duration of the reasonable accommodation.

Moreover, employers may request documentation from the job applicant’s or employee’s health care provider concerning the need for the requested accommodation if:

  • The employer would request the same or similar documentation from a job applicant or employee regarding the need for reasonable accommodation for conditions related to disability;

  • The employer’s request for documentation is job-related and consistent with business necessity; and

  • The information sought is not known or readily apparent to the employer.

Under the rules as proposed by the IDHR and IHRC, the determination of whether an employer’s request for documentation from the employee’s healthcare provider concerning the need for a reasonable accommodation is job-related or consistent with business necessity will depend upon the totality of the circumstances, including  factors such as whether the need for reasonable accommodation is readily apparent;  whether the job applicant or employee is able to explain the relationship between the requested accommodation and her pregnancy condition;  the employer’s reasons for requesting the information; and  the degree to which the requested accommodation would impact the ordinary operations of the employer’s business if it were granted by the employer.

If an employee needs a reasonable accommodation beyond the probable duration identified by her healthcare provider, the employer may request additional information from the health care provider.

It is also important to note that, under the rules, medical conditions related to pregnancy or childbirth need not constitute a disability within the meaning of the Illinois Human Rights Act and may be transitory in nature.

The rules, which were published in the Illinois Register, are expected to go into effect sometime in October.  Once fully adopted, the rules will be found at 56 Ill. Admin. Code 2535.10 et seq. For now, they can be found in the Illinois Register. And if you are an employer in Illinois and you have not yet posted the notice required under the new law, you can print a copy from the Illinois Department of Human Rights website.

Article By Jennifer Cerven of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP

Department of Labor Glitch Prevents PERM Filings re: Immigration

A programming glitch, which occurred during a software update implemented by the Department of Labor (DOL) on September 1, 2015, prevented some employers from being able to file their PERM applications, the DOL announced today on its website. The DOL explained that the malfunction precluded employers from completing some of the ETA Form 9089 online.

The problem with the Permanent Labor Certification Case Management System (CMS) continues and the DOL has directed employers who are unable to complete and file an ETA Form 9089 online to mail in their PERM applications to the Atlanta National Processing Center. The DOL is authorizing those employers who tried and could not file a PERM application online between September 1, 2015 and September 11, 2015, only, to include documentation demonstrating that information in their ETA Form 9089 was affected by the programming glitch.

If your PERM application was affected last week, you must submit your ETA Form 9089 and supporting documentation before September 30, 2015. Please see the DOL’s Employment & Training Administration’s web page for filing instructions here.

Article By Rebecca B. Schechter of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

Be Careful What You Say During a Union Organizing Campaign

national labor relations boardAt the same time that the current National Labor Relations Board is giving employees what seems like the unfettered ability to engage in disparagement, profane outbursts, and racist comments that accompany protected union or other concerted activity, employers are having to become ever more careful about what they say. Even truthful and seemingly innocuous statements made during an organizing campaign can be viewed, in hindsight, as having an unlawful “chilling effect” that discourages employees from exercising their rights to support a union. A recent decision from a federal appeals court in Chicago provides a cautionary tale for employers who find out about organizing activity and want to keep their workplace union-free.

On September 4, the United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) upheld the Board’s determination that an Illinois auto dealership illegally discouraged workers from supporting a union and illegally terminated a worker after learning he failed to disclose the suspensions of driver’s license following a DUI charge. The court noted that the employer learned union activity was “afoot” after receiving an anonymous voicemail from a woman who called “on behalf of the spouse of one of your employees.” The anonymous caller said that a particular employee was trying to “stir up” the unionization effort and stated that he did not have a valid license, which the dealership required, because of his DUI. After receiving this voicemail, the employer interviewed the employee, who admitted his license was invalid, and then suspended and later terminated him.

Meanwhile, the dealership’s general manager and other top managers met with workers to discuss the union organizing effort. One of the employees present secretly recorded the meeting. During the meeting, the managers said that any bargaining with the union would “start from scratch,” warned (truthfully) that its Orlando dealership had not had any bargaining negotiations even though its workers elected a union nearly three years ago, advised that pay raises were “absolutely possible” in the event employees rejected the union as it considered pay adjustments every year, responded that they “don’t know” if some employees would be demoted under union rules, and suggested that support for the union could “follow” them when they seek other employment because other employers might be hesitant to hire them.

The Board determined that the managers’ statements all had a “tendency” to discourage employees from organizing, and were therefore illegal under federal labor law. The managers’ statements were unlawful in four respects: (1) they “threatened” that it would be “futile” for workers to organize by suggesting that bargaining would start from scratch and bringing up the Orlando dealership as an example of potential negative consequences; (2) they implied “promises” of wage increases by suggesting that employees might receive pay raises if they reject the union; (3) they “threatened” workers with demotions by saying they didn’t know what would happen under the union’s rules; and (4) they “threatened” blacklisting by suggesting that employees’ support for the union would follow them.

The Seventh Circuit upheld all of the Board’s findings, although it did not review the Board’s decision from scratch but rather decided only whether there was “substantial evidence” to support the decision. The most obvious violation to the appellate court was the threat of blacklisting. The court found the other statements could reasonably be interpreted as unlawfully discouraging employees from unionizing. For example, the managers told the truth about the failure of negotiations at the Orlando dealership, but bringing this up in the context of the other statements could have been viewed by the workers as a threat that it would be futile for them to elect the union. And the managers were not off the hook when they spoke in hypotheticals or said that they were unaware of what would happen – answering “maybe” when asked about future pay increases was still an illegal promise of benefit and saying “I don’t know” if workers will be demoted under union rules was still a threat.

As to the employee who was suspended (and later terminated) after the employer found out his license was suspended, the Board found that his termination was illegal because it was motivated, at least in part, by his support for the union. The court again upheld this finding, stressing that the employee’s support for the union did not need to be the sole or even primary reason for his termination – it only needed to be a “motivating factor.” Here, there was enough evidence to show an unlawful motivation because the caller who left a voicemail singled out the employee for his union activity and the employer had shown “hostility” toward the union during its meeting with employees.

The lesson from this case is that employers need to be very careful about what they tell employees during a union organizing campaign. Even one statement that crosses the line can put everything else that was said in a worse light and ultimately get the employer in trouble. The case shows that employers should not make the following statements:

  • Bargaining will start from scratch (viewed as a threat that workers will lose their current pay and/or benefits).

  • You will receive a pay increase and/or other benefits even without a union (viewed as a promise that workers will receive benefits if they reject the union).

  • We are going to bargain hard if you elect a union, so do not expect things to change (viewed as a threat that supporting a union would be futile).

Perhaps you are wondering, what can employers say? Here are some examples of permissible statements:

  • We oppose the union and urge you to do the same.

  • You enjoy good pay, benefits, and job security without a union.

  • You have a right to refuse to sign an authorization card or speak to union representatives, and may vote against the union in an election even if you previously signed a card.

  • If there is an economic strike, we may permanently replace all striking workers.

  • The union cannot guarantee better wages, benefits, and working conditions (as long as there is no threat that workers risk losing what they currently have by supporting the union).

In short, employers can express their opposition to the union and discuss the pros and cons of union membership, such as having to pay union dues (in non-right to work states). Employers can also provide factual information about the law, the union (dues, fees, rules, officials’ salaries, etc.), and how unionized companies compare against non-unionized companies in terms of wages and benefits, competitiveness, etc. in the industry.

It is often hard to tell when an employer’s statement opposing a union might cross the line and be viewed as unlawfully discouraging workers from exercising their rights. Even true statements can be viewed as illegally tending to discourage union activity. To stay in the clear, employers should obtain legal advice before speaking in opposition to a union organizing campaign.

Article By Scott T. Allen of Foley & Lardner LLP
© 2015 Foley & Lardner LLP

Colorado’s Parental Leave For Academic Activities Ended September 1

The school year is upon us and working parents will once again find themselves juggling job duties and school functions. The juggling may be a bit more difficult for some parents this year, as those that work for larger Colorado employers are no longer guaranteed time off to attend their kid’s school activities. As of September 1st, Colorado employers with 50 or more employees are no longer required by law to provide parents time off to attend academic activities for their school children. The Parental Involvement in K-12 Education Act (Academic Leave Act) automatically repealed on that date, relieving covered employers of providing that leave.colorado flag

 Colorado Senate Committee Shot Down Extension of Academic Leave Act

In effect since 2009, the Academic Leave Act required employers with 50 or more employees to provide its full-time employees up to 6 hours in any one-month period, and up to 18 hours per academic year, of unpaid leave from work to attend a child’s academic activities. C.R.S. §8-13.3-101 et seq. Part-time workers were entitled to pro-rated leave based on the amount of hours worked. Covered academic activities included attending parent-teacher conferences, and meetings related to special education needs, truancy, dropout prevention and disciplinary concerns.

The 2009 law specified that it would repeal on September 1, 2015. This past legislative session, Representatives John Buckner and Rhonda Fields introduced a bill that sought to extend the Academic Leave Act indefinitely. House Bill 1221 also attempted to expand the law to:

  • include pre-school activities, rather than just K-12;

  • add more covered activities to include attending meetings with a school counselor and attending academic achievement ceremonies; and

  • require school districts and charter schools to post on their websites and include in their district/school-wide communications information to parents and the community at large about the leave requirement.

The bill passed the House and was sent to the Senate. The Senate committee to which it was assigned voted 3-2 to kill the bill. By doing so, the bill never got to a vote in the full Senate and died. The result is that the Academic Leave Act was not extended and the original repeal date of September 1, 2015 remains.

Action Items

With the repeal of the Academic Leave Act and no federal law mandating this type of leave, Colorado employers with more than 50 employees no longer need to offer parents of school-age children leave to attend covered school functions. You may, of course, choose to voluntarily continue to offer parents time off to attend their child’s school functions. If you do, decide whether you will continue to offer it under the same terms as was mandated by law or if you wish to set your own parameters about eligibility, amount of leave, notice requirements, whether documentation of the activity is required, etc. Then, update your policies and let employees know about any changes.

If you choose not to offer parents time off to attend their child’s academic activities, update your policies and procedures to delete that type of leave. Revise your employee handbook and any intranet policies to reflect that academic leave is no longer available. Inform supervisors and managers so that they know how to handle any requests or questions. Importantly, communicate to employees that the academic leave provision was repealed and let them know about any other time off policies, if any, that may apply to allow them to attend school functions.

Article By Emily Hobbs-Wright of Holland & Hart LLP

Copyright Holland & Hart LLP 1995-2015.

Expanding Retaliation: Fourth Circuit Rejects “Manager Rule” in Title VII Cases

After helping an employee report a complaint of harassment, a manager expresses concern over the company’s handling of the situation and tells the employee the complaint is being mishandled. After the complaining employee files (and then settles) a Title VII against the company, the manager is fired for failing to take a “pro-employer” stance and act in the company’s “best interests.” Does the manager have a Title VII retaliation claim? That is the exact question recently decided by the United States Court of Appeal for the Fourth Circuit in DeMasters v. Carilion Clinic.

According to the complaint, which the court accepted as true for purposes of its review, J. Neil DeMasters began working as an employee assistance program consultant for Carilion in 2006. Two years later, DeMasters was consulted by an employee who complained that his supervisor was sexually harassing him. DeMasters relayed the substance of the complaint to human resources, which investigated the allegations and fired the supervisor. The employee was told the supervisor would never be back in the workplace, but a few days later the employee’s department manager allowed the supervisor to return to collect belongings. The employee complained to DeMasters that he felt uncomfortable at work and that he was facing increasing hostility from the supervisor’s allies and friends.

Upon learning this, DeMasters contacted HR to express his concern with how the situation was being handled, and HR confirmed it was aware the employee was being harassed by co-workers. DeMasters offered to coach the HR department on better ways to handle harassment complaints. HR declined, stating it would handle the situation. However, the employee reported to DeMasters that the harassment continued to get worse on a daily basis. DeMasters then opined to the employee that the complaints were being mishandled by HR. With that, DeMasters stopped having contact with the complaining employee.

Two years later, however, the employee filed a Title VII claim, which was settled. A few weeks after the settlement, DeMasters was called into a meeting with corporate counsel, the vice president of HR, and his own department director. DeMasters was told that by not taking the “pro-employer side,” he had put the company at risk of substantial liability. Two days later, DeMasters was fired for, among other reasons explained to him in writing, failing to act in the company’s best interests and failing to protect the company.

DeMasters filed a Title VII retaliation claim, which was dismissed by the federal district court for two reasons. First, the district court found that when DeMasters’ actions were examined individually, each action failed to constitute “protected activity” under Title VII. Second, even if he had engaged in protected activity, the “manager rule” prevented him from bringing a Title VII retaliation claim because he was acting within the scope of his job duties when reporting the complaints of the employee and discussing the matter with the company.

On appeal, the Fourth Circuit roundly rejected both aspects of the district court’s reasoning. The appellate court found the district court’s individualized assessment of DeMasters’ actions to be “myopic.” The correct approach, the appellate court counseled, was to examine the totality of the circumstances in a “holistic approach.” As the court put it, just as a play cannot be understood on the basis of some of its scenes, so a discrimination claim cannot be understood without looking at the overall scenario. With this in mind, the Fourth Circuit had no difficulty finding DeMasters engaged in protected activity by complaining to the company that he felt the complaining employee was still being subjected to unlawful conduct.

The court then turned to the “manager rule,” which finds its origin in the Fair Labor Standards Act (“FLSA”) and requires an employee to “step outside” his role of representing the company in order to engage in protected activity. Under this theory, DeMasters’ job duties required him to counsel the employee and relay complaints to HR, and therefore his actions were not protected activities.

The Fourth Circuit again roundly rejected the application of the “manager rule” to the Title VII context. The court first found that whatever statutory support the “manager rule” had in the FLSA context did not exist in the Title VII context because the statutory language of Title VII differs from the FLSA in important considerations.

The court then found that two separate Title VII concepts counseled against the “manager rule.” First, under Fourth Circuit case law, an employer can escape Title VII liability if an employee’s conduct at work is sufficiently insubordinate, disruptive, or nonproductive. If the “manager rule” requires an employee to step outside his job duties in order to engage in protected activities, then it would put an employee in the dilemma of needing to step outside their job duties to have Title VII’s protections but then risk those same protections because stepping outside job duties could be seen as sufficiently insubordinate. Second, because Title VII offers employers the affirmative defense in certain harassment claims that complaining employees failed to follow the company’s internal reporting procedures, implementing a “manager rule” that could discourage employees responsible for helping other employees, such as DeMasters, from reporting concerns of discrimination. Thus, the “manager rule” would prevent Title VII’s overall goal of preventing and eliminating discrimination and harassment in the workplace.

The Fourth Circuit became just the second appellate court to look at and decide the “manager rule” question in the Title VII context in a published opinion. The Sixth Circuit similarly decided that it did not apply, but the Tenth and Eleventh Circuits have non-precedential opinions adopting the “manager rule” in the Title VII context. Continued split among the federal courts on this issue increases the likelihood the Supreme Court may one day decide the issue.

For employers, the case serves as another reminder that concerns and complaints expressed by managers in harassment claims should be taken seriously and that great care needs to be taken to ensure employees are not retaliated against. Courts and the EEOC have been taking an increasingly expanded view of what constitutes protected activity and retaliation, and employers not mindful of these developments ignore them at their peril.

Article By Matthew J. Feery of Gonzalez Saggio & Harlan LLP
Gonzalez Saggio & Harlan LLP | Copyright (c) 2015

Expanding Retaliation: Fourth Circuit Rejects "Manager Rule" in Title VII Cases

After helping an employee report a complaint of harassment, a manager expresses concern over the company’s handling of the situation and tells the employee the complaint is being mishandled. After the complaining employee files (and then settles) a Title VII against the company, the manager is fired for failing to take a “pro-employer” stance and act in the company’s “best interests.” Does the manager have a Title VII retaliation claim? That is the exact question recently decided by the United States Court of Appeal for the Fourth Circuit in DeMasters v. Carilion Clinic.

According to the complaint, which the court accepted as true for purposes of its review, J. Neil DeMasters began working as an employee assistance program consultant for Carilion in 2006. Two years later, DeMasters was consulted by an employee who complained that his supervisor was sexually harassing him. DeMasters relayed the substance of the complaint to human resources, which investigated the allegations and fired the supervisor. The employee was told the supervisor would never be back in the workplace, but a few days later the employee’s department manager allowed the supervisor to return to collect belongings. The employee complained to DeMasters that he felt uncomfortable at work and that he was facing increasing hostility from the supervisor’s allies and friends.

Upon learning this, DeMasters contacted HR to express his concern with how the situation was being handled, and HR confirmed it was aware the employee was being harassed by co-workers. DeMasters offered to coach the HR department on better ways to handle harassment complaints. HR declined, stating it would handle the situation. However, the employee reported to DeMasters that the harassment continued to get worse on a daily basis. DeMasters then opined to the employee that the complaints were being mishandled by HR. With that, DeMasters stopped having contact with the complaining employee.

Two years later, however, the employee filed a Title VII claim, which was settled. A few weeks after the settlement, DeMasters was called into a meeting with corporate counsel, the vice president of HR, and his own department director. DeMasters was told that by not taking the “pro-employer side,” he had put the company at risk of substantial liability. Two days later, DeMasters was fired for, among other reasons explained to him in writing, failing to act in the company’s best interests and failing to protect the company.

DeMasters filed a Title VII retaliation claim, which was dismissed by the federal district court for two reasons. First, the district court found that when DeMasters’ actions were examined individually, each action failed to constitute “protected activity” under Title VII. Second, even if he had engaged in protected activity, the “manager rule” prevented him from bringing a Title VII retaliation claim because he was acting within the scope of his job duties when reporting the complaints of the employee and discussing the matter with the company.

On appeal, the Fourth Circuit roundly rejected both aspects of the district court’s reasoning. The appellate court found the district court’s individualized assessment of DeMasters’ actions to be “myopic.” The correct approach, the appellate court counseled, was to examine the totality of the circumstances in a “holistic approach.” As the court put it, just as a play cannot be understood on the basis of some of its scenes, so a discrimination claim cannot be understood without looking at the overall scenario. With this in mind, the Fourth Circuit had no difficulty finding DeMasters engaged in protected activity by complaining to the company that he felt the complaining employee was still being subjected to unlawful conduct.

The court then turned to the “manager rule,” which finds its origin in the Fair Labor Standards Act (“FLSA”) and requires an employee to “step outside” his role of representing the company in order to engage in protected activity. Under this theory, DeMasters’ job duties required him to counsel the employee and relay complaints to HR, and therefore his actions were not protected activities.

The Fourth Circuit again roundly rejected the application of the “manager rule” to the Title VII context. The court first found that whatever statutory support the “manager rule” had in the FLSA context did not exist in the Title VII context because the statutory language of Title VII differs from the FLSA in important considerations.

The court then found that two separate Title VII concepts counseled against the “manager rule.” First, under Fourth Circuit case law, an employer can escape Title VII liability if an employee’s conduct at work is sufficiently insubordinate, disruptive, or nonproductive. If the “manager rule” requires an employee to step outside his job duties in order to engage in protected activities, then it would put an employee in the dilemma of needing to step outside their job duties to have Title VII’s protections but then risk those same protections because stepping outside job duties could be seen as sufficiently insubordinate. Second, because Title VII offers employers the affirmative defense in certain harassment claims that complaining employees failed to follow the company’s internal reporting procedures, implementing a “manager rule” that could discourage employees responsible for helping other employees, such as DeMasters, from reporting concerns of discrimination. Thus, the “manager rule” would prevent Title VII’s overall goal of preventing and eliminating discrimination and harassment in the workplace.

The Fourth Circuit became just the second appellate court to look at and decide the “manager rule” question in the Title VII context in a published opinion. The Sixth Circuit similarly decided that it did not apply, but the Tenth and Eleventh Circuits have non-precedential opinions adopting the “manager rule” in the Title VII context. Continued split among the federal courts on this issue increases the likelihood the Supreme Court may one day decide the issue.

For employers, the case serves as another reminder that concerns and complaints expressed by managers in harassment claims should be taken seriously and that great care needs to be taken to ensure employees are not retaliated against. Courts and the EEOC have been taking an increasingly expanded view of what constitutes protected activity and retaliation, and employers not mindful of these developments ignore them at their peril.

Article By Matthew J. Feery of Gonzalez Saggio & Harlan LLP
Gonzalez Saggio & Harlan LLP | Copyright (c) 2015

Addressing and Preventing Workplace Violence

The subject of workplace violence has unfortunately made headlines once again after a news anchor and cameraman were killed by a former co-worker in Virginia last week. Employers are understandably concerned and have questions about what they can do to help prevent workplace violence.

workplace violence businessmen pointing gunsThe Occupational Safety and Health Act (OSHA) requires employers to maintain a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” While it might seem that workplace violence would be reduced by refusing to hire or retain individuals with a criminal record or propensity for violence, making employment decisions based on these considerations may pose other legal issues. Federal, state and city laws limit the ability to make employment decisions based on criminal history, and the Americans with Disabilities Act and similar state and local laws prohibit discrimination on the basis of a disability, whether actual or perceived. Making an employment decision based on an employee’s propensity for violence stemming from an actual or perceived mental illness can therefore trigger liability for disability discrimination.

So what can employers do to help prevent workplace violence?

  • Institute a workplace violence policy: Employers can develop a policy that clearly states that workplace violence will not be tolerated, and that employees who engage in threatening or violent behavior will be subject to disciplinary action, up to and including termination.

  • Develop a comprehensive violence prevention program: Educate employees on resources and procedures if they feel threatened at work, and train supervisors, human resources personnel and security officers to look for “warning signs” such as changes in behavior and/or job performance that may predict a violent incident.

  • Remind employees about your Employee Assistance Program (EAP) if you have one: EAPs can provide assistance to troubled employees, including access to counselors and medical professionals.

  • Deal with workplace issues before they escalate: Remind managers and supervisors to promptly report all claims of discrimination or harassment to Human Resources and assist in expediting a response to the employee in need of help.

  • Review your policy on criminal background checks: Although criminal background checks may reveal information about an individual’s propensity for violent behavior, their use in employment decisions is limited by federal, state and local laws.

Although, as recent events have shown, violent incidents may be difficult to predict, having the policies and resources to address workplace violence is the first step to preventing them.

Article By Katharine H Parker & Rachel S Fischer of Proskauer Rose LLP

2015 Proskauer Rose LLP.

Employers Who Permit After-Hours Work Should Exercise Caution in Light of an Anticipated Increase in Nonexempt Workers

Following the directive issued in March 2014 by President Obama, the U.S. Department of Labor published a proposed new rule in the Federal Register and is accepting comments through September 4, 2015. The new rule would extend overtime protections to nearly five million workers by raising the minimum salary threshold to $50,440 per year for employees to qualify for “white collar” exemptions in 2016, with automatic future adjustments. According to a 2013 report published by the Economic Policy Institute, in 2013 only 11 percent of salaried employees in the United States qualied for overtime pay.

If enacted, the Department of Labor’s proposed changes would raise the overtime salary ceiling for qualied employees to sweep millions of Americans into the overtime system.

Continue Reading.

Article By Stephen P. Brown & Tara A. Sheldon of Wilson Elser Moskowitz Edelman & Dicker LLP

© 2015 Wilson Elser