Monday, March 14, 2016

New EEOC Nationwide Procedures Threaten Confidentiality

by Carolyn B. Witherspoon 

Employers be warned—the Equal Employment Opportunity Commission (EEOC) just announced new procedures that could allow potentially disgruntled charging parties to get their hands on information that you intended to keep confidential. According to an announcement made by the EEOC on February 18, 2016, a charging party, upon request, will be provided with a copy of the respondent's position statement and non-confidential attachments.

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Monday, March 7, 2016

LGBT Rights, Benefits, and Protections in the Workplace

by P. Delanna Padilla, Esq.

People's attitudes toward same-sex relationships has changed dramatically in recent years. In 2015, the law caught up with those changes. The Supreme Court ruled in Obergefell v. Hodges that state laws could not ban same-sex marriages and that everyone has a constitutional right to marry. By extension, this ruling impacts employee benefits, such as FMLA, retirement plans, and medical insurance.

Employers need to consider revising their employee benefit plan documents to comply with current law.

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Thursday, February 25, 2016

Employers Feeling Good About Win in EEOC Wellness Case

by Jonathan T. Hyman, Esq.

Last year, the EEOC published proposed regulations detailing how and when employers can maintain wellness incentives for employees under group health plans without running afoul of the ADA's voluntariness requirements for medical exams.

In the closing minutes of 2015, a Wisconsin federal court issued an opinion in one of the first lawsuits filed by the EEOC that had challenged an employer wellness program as an ADA violation. The resulting victory for the employer may cause the EEOC to rethink its wellness-incentive strategy.

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Monday, December 21, 2015

You've Received a Discrimination Charge: Don't Throw It in the Trash!

by Dora Lane, Esq.

When asked about a discrimination charge sent to them months ago, a client once answered "I did not know what to do with it, so I threw it in the trash." Needless to say, that was a bad idea.

Unfortunately, many employers do not understand their obligations when faced with a discrimination charge and that can backfire if the charge is not informally resolved.

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Monday, November 9, 2015

Is Telecommuting a Reasonable Accommodation Under the ADA?

by Rhianna A. Kittrell, Esq.

As most companies and businesses are aware, the Americans with Disabilities Act (ADA) requires employers to provide employees who are considered qualified individuals with disabilities with reasonable accommodations that allow those employees to perform the essential functions of the job, provided that the reasonable accommodation does not create an undue hardship for the employer.

The ADA defines a "qualified individual" as a person who can perform the essential functions of his or her job with or without a reasonable accommodation. When employers are faced with questions from employees regarding accommodations, determining whether the employee is a qualified individual who must be accommodated can become a complex issue.

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Wednesday, November 4, 2015

Retaliation: Climbing the Charts or Not?

by Sarah L. Schreiber, Esq.

The number of charges filed in virtually all areas of discrimination, including retaliation, has increased dramatically over the past fifteen years.

In 1997, 80,680 charges of discrimination were filed with the EEOC. In the EEOC's annual Performance and Accountability Report, released November 17, 2014, the Commission reported 88,778 charges of employment discrimination filed in fiscal year (FY) 2014, a decrease of approximately 5,000 charges from the 93,727 filed in 2013.

In 2013, over 31,400 of the charges asserted claims of retaliation. This represents approximately twice the number of charges for retaliation filed in 1997.

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Wednesday, October 21, 2015

Conflict and Confusion Continue over Employee Wellness Programs

by Timothy Puin, Esq.

For every dollar a company spends on an employee wellness program—whether by offering free flu shots, a discounted salad bar, or T-shirts for tracking steps on a Fitbit device—the company may save as much as $4 in lost productivity and related costs. However, employers who get a little too enthusiastic in this regard about may find themselves on the wrong side of the laws protecting employee rights.

Employee wellness programs have come under renewed scrutiny by the U.S. Equal Employment Opportunity Commission (EEOC) since the Affordable Care Act (ACA) created new incentives for employers to maintain wellness programs as a way of controlling health care spending related to diabetes, hypertension, obesity, and tobacco use, in particular.

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Thursday, September 10, 2015

Expanding Title VII Protection to LGBTQ Workers

by Nicholas Michael Saleh, Esq.

On July 15, 2015, the U.S. Equal Employment Opportunity ("EEOC") ruled in a 3-2 decision that discrimination based on sexual orientation is covered by the prohibition on "sex"-based discrimination in the workplace contained in Title VII of the Civil Rights Act of 1964 ("Title VII"). See David Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

The decision follows three weeks after the Supreme Court's historic decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Currently, Title VII does not expressly prohibit discrimination on the basis of sexual orientation but, as foretold by Adair Buckner in her July 27, 2015 post Employers: Gear Up for Changes in Treatment of Same-Sex Spouses After Supreme Court Ruling, big changes in the law may be coming sooner than expected.

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Monday, August 24, 2015

Are Independent Contractors on the Endangered Species List?

by Daniel J. Burnick, Esq.

For years, even decades, there has been discussion and thought in the employment law community that the concept of Independent Contractors would become extinct. Somehow, they have survived, although I believe that they are on the endangered species list. Recently, the Department of Labor released Administrator's Interpretation No. 2015-1, "The Application of the Fair Labor Standards Act's 'Suffer or Permit' Standard in the Identification of Employees Who Are Misclassified as Independent Contractors".

This document is a sign of DOL's intent to vigorously pursue its interpretation of the FLSA, consistent with other governmental agencies, such as the EEOC, who are also ramping up their agendas.

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Monday, March 23, 2015

How to Treat Pregnancy-Related Disabilities

by Kathryn Morris Willis, Esq.

A pregnant employee walks into your office, says she has a lifting restriction of five pounds, and can't do her job. You reason, "Pregnancy isn't a disability. I don't have to treat it that way." Right?

Not so fast.

In July 2014, the EEOC issued a new Guidance (Enforcement Guidance on Pregnancy Discrimination and Related Issues) regarding pregnancy and pregnancy-related disabilities, presumably in response to a growing number of pregnant women in the workplace.

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