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Employers Cannot Delay In Seeking Arbitration of Employment Disputes

Many employers today have implemented arbitration programs mandating that workplace-related disputes brought by or against their employees be decided by an arbitrator. Arbitration can provide for efficient resolution of disputes in a confidential setting.  It is also possible through the use of a carefully worded agreement to limit disputes to just one employee’s claims and prevent an employee from bringing claims on behalf of others in a class action. [Read more →]

July 25, 2016   No Comments

EEOC Confirms Fighting “Systemic Discrimination” Remains Top Priority

The U.S. Equal Employment Opportunity Commission (EEOC) defines systemic discrimination as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” In 2005, the EEOC examined the state of its systemic discrimination program and issued numerous recommendations for changes in strategy, all of which resulted in the adoption of the Systemic Task Force (STF).   The STF has been a game changer for EEOC enforcement, setting priorities that have shaped the EEOC’s agenda and strategic vision over the last decade.  Among the STF’s primary recommendations was to make combating systemic discrimination a top priority. To do so, the STF advocated for the use of a national law firm model in litigating systemic cases by staffing systemic suits based on the needs of the suit, independent of the office where the case was developed. [Read more →]

July 19, 2016   No Comments

NLRB Continues Focus on Unionization of Temp Workers, Joint Employers

Yesterday, the National Labor Relations Board issued yet another decision that makes it easier to unionize workers deemed “joint employees” of a staffing agency and its business customer.  In its July 11, 2016 decision in a case called Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board overturned a 2004 ruling known as Oakwood Care Center that required a business customer and a staffing agency to consent before a union election covering both jointly employed temporary workers and solely employed regular employees of the customer can occur.  Yesterday’s ruling reverses the consent requirement and takes us back to a prior ruling where consent was not required.  Now (as before 2004) a union election by regular and temporary workers together can occur simply where the Board finds that an employer’s workers and staffing agency employees working with it have an adequate “community of interest” to be part of one unit for unionization.

National_Labor_Relations_Board_logo_-_colorThe case involved a sheet metal workers union that sought to represent construction workers, including those employed both directly by Miller & Anderson Inc. and those supplied to provide temporary labor to it by Tradesman International.  Under the existing standard at the time the petition was filed, both the employer and the staffing agency needed to consent to the unit, and they did not.  The union challenged this requirement and the NLRB, in its continuing goal to include more “jointly employed” workers in unionization efforts, overturned its existing standard from Oakwood Care Center that required the employers’ consent.

The Board held that the only consideration is whether the direct employees and the jointly-employed workers who work just for that same employer share a “community of interests” under the traditional factors used in that analysis.  Consent of the employers is no longer required.  In announcing the ruling, the Board stated that where a unit such as this elects union representation, a “user employer will be required to bargain regarding all terms and conditions of employment for unit employees it solely employs. . . .  However, [a user employer] will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”

This case follows on the heels of another recent Board case, known as Browning-Ferris, that opened up the standard for determining a staffing agency worker is a “joint employee” of the business customer, which makes it easier for unions to bring both staffing agencies and their user employers to the bargaining table.  This has been a clear trend of the Board under the Obama Administration.  A member of the Board who dissented in yesterday’s decision noted that precise goal and its real consequences.  Board Member Philip Miscimarra’s dissent said the decision “substantially enlarge[s]” the already expanded joint employer world created in the Browning-Ferris decision, and he believes that this most recent Board decision will only contribute to further confusion for parties about whether a proposed unit such as the one in this case will be certified and how bargaining will occur with such a unit if it elects union representation.  From his perspective, and that of most employers, this confusion benefits no one — not the employers, not the workers, and not even the unions who hope to represent such workers.

July 12, 2016   No Comments

Enforceability of Class and Collective Action Waivers In Mandatory Arbitration Agreements: The Circuits Are Now Split

Estimates are that nearly 1 in 4 non-union employers require their employees to sign mandatory arbitration agreements as a condition of employment.  These agreements are designed to keep workplace disputes out of courthouses and avoid expensive and protracted litigation.  More and more, these arbitration agreements include clauses that bar employees from pursuing class or collective claims.  Among other perceived benefits, these waivers eliminate the risk associated with high exposure aggregate litigation that plagues many industries.  The enforceability of these agreements is governed by the Federal Arbitration Act (FAA).  Generally speaking, under the FAA, an arbitration agreement can mandate the waiver of a procedural right but not a substantive one.  Until recently, federal courts have largely held that these waivers of class or collective actions were lawful because the right to pursue aggregate litigation under the Fair Labor Standards Act (FLSA) and Federal Rule of Civil Procedure 23 was procedural, not substantive. [Read more →]

July 6, 2016   No Comments

The Importance of a Proper Email Policy

Now more than ever employers must have a clear and concise policy regarding work email accounts.  While it is commonly understood that an employee’s work email is property of the employer and subject to search at any time, it is important to inform employees of this.  A recent case, Hoofnagle v. Smyth-Wythe Airport Commission out of the Western District of Virginia, demonstrates the importance of a clear policy on email accounts.

employee at computer screenHoofnagel was the manager of a small, local airport who was fired for his use of an email account he used both personally and for business to write an impassioned and volatile email to U.S. Senator Tim Kaine.  The manager’s email came in the wake of the Newtown school shooting tragedy and vehemently defended gun rights.  The airport did not have its own email system, or a written policy addressing the use of email and accompanying expectations.  The manager created the email account when he started there and the airport published the address as an official point of contact.  Further complicating the matter, the manager signed the email with his name and position.  Shortly thereafter, the airport commission voted to terminate the manager and he filed suit.  After the airport terminated the manager, it began going through his emails to check for airport business. [Read more →]

June 29, 2016   No Comments

Persuader Rule Update: Agreements before July 1 Not Subject to Disclosure; Ruling on Lawfulness of Persuader Rule Issued

The Labor-Management Reporting and Disclosure Act requires labor organizations, consultants, and employers to file reports and disclose expenditures on labor-management activities. For over fifty years, the DOL has interpreted the provisions of the Act to require reporting only for what are known as “direct” persuasive activities, such as when employers hire consultants or attorneys to personally and directly deliver counter-union messages to employees. Under the Act, mere “advice” pertaining to persuasive activities is not reportable. The advice exemption permitted law firms and employers to avoid the reporting obligations since the law firms were not actually engaged in direct persuasion, but only in advice. However, in March of this year, the DOL set forth a Final Rule significantly broadening what is reportable by employers and consultants in an effort to require reporting on activities that have been viewed as “advice.” Significantly, the Northern District of Texas today issued an order preliminary enjoining the Department of Labor from enforcing its Final Rule until a lawsuit challenging the Final Rule can be fully litigated. Unless that preliminary ruling or other pending challenges to the Final Rule are successful and upheld on appeal, the Final Rule will apply to agreements entered into on or after July 1, 2016. Two important updates concerning the Final Rule are covered in this alert, one of which necessitates an employer taking action before July 1, 2016. [Read more →]

June 28, 2016   No Comments

Qualification is Key under the ADA

Since the Americans with Disabilities Act (ADA) was amended a few years ago to expand on what is considered a “disability,” almost any medical condition of any consequence may now be enough for an employee to be considered “disabled.”  While many past ADA claims were defended by arguing that the employee was not truly disabled, that defense is practically gone now (unless the employee really has no cognizable medical condition).

The key question today in many ADA cases is whether the employee is a “qualified individual with a disability.”  A “qualified individual” is someone with an actual disability who, with or without reasonable accommodation, can perform the essential functions of the job.  It is an employee who can carry out the fundamental duties of the position that the person is actually required to perform.  Those essential functions may be about doing the job correctly, safely, as required by rules, policy or law, and within an employer’s expectations.  If the employee can do those tasks — either without assistance or through an employer providing a reasonable accommodation — then the employee cannot be discharged or prevented from doing the job due to his or her disability.


Many times cases turn on whether a job duty is essential.  Courts consider whether a job function is “essential” on a case-by-case basis, considering factors such as any job description, the employee’s actual experience (and that of similarly situated co-workers) in the position, and the practical realities of the job based on testimony by employees and supervisors.  Thankfully, courts have recognized that the employer’s judgment and discretion is key; what the employer defines as important and essential matters a whole lot in making that determination.  However, the employer’s judgment does not go unchecked.  Courts will consider the real experience of the employee (and others) in the job, so just because an employer says a job duty is essential does not make it so.  If the employee never had to carry out that duty, or it is not really what the employee was hired to do, whether that duty is essential may end up being a question for a jury to decide. [Read more →]

June 23, 2016   No Comments

Don’t Let An Employee Wellness Program Make You Sick

Last month the EEOC issued its Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employers from obtaining medical information from employees unless those inquiries are part of a voluntary employee health program. Under the ADA an employee wellness program must also offer reasonable accommodations to individuals with disabilities so they have equal access to program fringe benefits.

Heathcare Screening Image

The EEOC’s Final Rule is intended to clarify and provide consistency with HIPAA and the Affordable Care Act (“ACA”) while also ensuring that employer wellness programs remain voluntary.  Employer wellness programs subject to the Final Rule include both participatory and health-contingent wellness plans which ask employees to answer disability-related inquiries by completing, for example, a health risk assessment (HRA) or undergo biometric screenings.  Examples of such wellness programs may include tobacco cessation and weight-loss programs, onsite exercise facilities, and nutrition classes.

The Final Rule, which takes effect on January 1, 2017, focuses on three requirements:

  1. Ensuring the wellness program is reasonably designed to promote health or prevent disease.  To meet this requirement a wellness program may not require an overly burdensome time commitment, involve unreasonably intrusive procedures, be a subterfuge for violating the ADA or other employment discrimination, and it may not shift significant costs to employees.  So, under the Final Rule an employee wellness program is not reasonably designed to promote health or prevent disease if it asks employees to provide medical information but does not provide any feedback based on this information or does not use the information to design or assist with specific health conditions.
  2. Confirming that the wellness program is voluntary.  A wellness program may not require employee participation, may not deny employees who refuse to participate access to health coverage or restrict which health plan an employee may choose, and an employer may not take any adverse action, or coerce, intimidate or threaten any employee who does not participate.  Employers must provide notice to employees that states what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.
  3. Prescribing limitations on the financial incentives a wellness program may offer.  To ensure employer wellness programs are not financially coercive — essentially rendering participation involuntary — financial incentives are limited to a maximum of 30% of the total cost of self-only coverage.

The Final Rule differs slightly from HIPAA and the ACA which allow a 50% financial incentive for tobacco cessation programs. Tobacco cessation programs which merely inquire whether employees are tobacco users would not fall within the ADA Final Rule because the program does not involve disability related inquiries, so a 50% incentive may be utilized.  If, however, the tobacco cessation program requires biometric screenings or other medical or health information, then it would likely be subject to the ADA and the 30% incentive limitation in the Final Rule.

The EEOC also at the same time issued a Final Rule regarding employee wellness programs and GINA which protects employees from discrimination based on genetic information. Under that GINA Final Rule, employee wellness programs cannot condition financial incentives on the provision of genetic information, but may offer incentives for completing an HRA that makes genetic inquiries.   However, the incentive must still be offered even if the employee does not provide genetic information on the HRA.   The employee wellness program may also offer an incentive to an employee whose spouse provides genetic information.  Like the ADA Final Rule, any financial incentive is limited to 30% of the total cost of self-only coverage.

Those critical of the EEOC’s Final Rule believe that it still allows employers to provide financially coercive incentives in exchange for receiving medical information which can be used in a discriminatory fashion. The AARP, in particular, contends the Final Rule does not do enough to protect older employees who are more likely to have health problems such as diabetes and heart conditions. Consequently, even with the guidance of this Final Rule, employers should exercise extreme caution when evaluating medical information received from a wellness program to avoid becoming subject to an ADA (or an ADEA lawsuit).  Employee wellness programs are designed to benefit employers and their employees.  But if implemented or managed improperly, they are likely to cause an unpleasant and painful outbreak — of litigation.

June 13, 2016   No Comments

Conducting an Internal Audit of Your Company’s I-9 Forms

If you work in Human Resources, you are surely familiar with the Employment Eligibility Verification Form I-9 (“Form I-9”), and depending on the size of your company’s workforce, you might complete new I-9s on a regular basis.  But have you ever gone back to do an internal audit of the already completed Forms I-9?  Do you know the most common mistakes found on I-9s? [Read more →]

June 6, 2016   No Comments

New OSHA Accident Reporting Rules Rule Out Mandatory Post-Accident Drug Screening

Many employers have policies and procedures that mandate drug and alcohol testing in the wake of a workplace accident, regardless of whether there is any suspicion that the employee involved was impaired. However, effective August 10, 2016, OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury.  Though the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing, OSHA’s May 12, 2016 commentary accompanying the final rules specifies that the agency views mandatory post-accident testing as deterring the reporting of workplace safety incidents and employers who continue to operate under such policies will face penalties and enforcement scrutiny. [Read more →]

May 31, 2016   No Comments