July 20, 2020
Find all current FMLA forms on the Department of Labor website. https://www.dol.gov/agencies/whd/fmla/forms
We know how important it is to stay on top of all the latest happenings in the HR profession. That's why NOARK News is dedicated to keeping you up to date and informed on all local HR and association news, as well as highlighting member accomplishments and general announcements.
Find all current FMLA forms on the Department of Labor website. https://www.dol.gov/agencies/whd/fmla/forms
Information courtesy of Cross, Gunter, Witherspoon & Galchus, P.C.
The Internal Revenue Service today issued the 2019 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.
On Thursday, the Arkansas Supreme Court reversed and dismissed a lower court's ruling that prevented State officials from issuing cultivation licenses to businesses, which would allow these businesses to grow marijuana.
President Trump's Revised Executive Order on Travel Ban Remains Blocked
On June 12, 2017, the Ninth Circuit issued its ruling in Hawaii v. Trump, upholding the majority of the district court's preliminary injunction prohibiting the government from implementing the "travel ban" and refugee cap provisions within the March 6, 2017 Executive Order, entitled "Protecting the Nation From Foreign Terrorist Entry into the United States" (the "Order").
On June 7, 2017, the Secretary of Labor announced that the Department of Labor is withdrawing its Obama-era Wage and Hour Administrator's Administrative Interpretations addressing joint employment and independent contractors. The abandonment of those interpretations, which were aimed at extending protections to workers, marks a significant shift in favor of businesses.
On June 7, 2017, the U.S. Secretary of Labor announced its plans to be more pro-active in pursuing entities committing visa program fraud abuse. The Secretary has ensured that the Department of Labor is focused on applying all laws governing the administration and enforcement of non-immigrant visa programs.
On June 5, 2017, the U.S. Supreme Court issued an 8-0 decision (with new Justice Gorsuch not participating as this case was argued and decided prior to his joining the Court) holding that qualified retirement plans maintained by church-affiliated organizations are considered "church plans," even if the plan was originally established by a non-church entity. The decision in Advocate Health Care Network v. Stapleton reversed the decisions of several lower courts, including the appellate courts of the Third, Seventh and Ninth Circuits.
Executive Order 11246. These obligations include ensuring nondiscrimination in employment on the basis of sex, taking affirmative action to employ diverse applicants, and ensuring all employees are treated without regard to their sex.
WASHINGTON — The Internal Revenue Service today issued the 2016 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.
On March 24, the Department of Labor (DOL) published the “persuader” final rule in the Federal Register. The rule will require employers to report consultant — or “persuader” agreements — to complement the information that unions already report on their organizing expenditures. The DOL says this allows for better information for workers making decisions on whether or not to form a union or bargain collectively.
Employers should be aware that numerous states across the country have enacted minimum wage increases that will go into effect in January 2017.
On Aug. 1, E-Verify will begin deactivating user IDs that have not been accessed for 270 days (approximately every 9 months).
IRS Taketh and Giveth: Plan Determination Letter Program Scaled Back, Remedial Amendment Period Extended
On June 27, 2016, the United States District Court for the Northern District of Texas enjoined the Department of Labor (DOL) from enforcing its new persuader rule (Rule) which was scheduled to go into effect on July 1, 2016. National Federation of Independent Business, et al v Perez, et al, Civil Action No. 5:16-cv-00066-C. The injunction enjoined the DOL enforcement of the Rule nationwide.
Today, the Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule that sets forth the requirements that covered contractors must meet under the provisions of Executive Order 11246 that prohibit sex discrimination in employment.
Employment agreements containing arbitration clauses that restrict the rights of employees to initiate class arbitration, and instead confine them to seeking individual relief, have become more popular in the last decade, and with good reason. Using them has benefits for employers and, because arbitration is generally favored in the eyes of the law as a way of resolving disputes, these clauses tend to be upheld more often than not.
This week, President Obama signed into law the Defend Trade Secrets Act of 2016. This new law does not replace current state laws on trade secrets; instead, it merely gives parties a potential new venue to pursue trade secret claims. Remedies include injunctive relief, actual damages, “exemplary damages” in cases in which a trade secret is “willfully and maliciously misappropriated,” attorney’s fees to the prevailing party in certain situations, and even ex parte seizure of “property necessary to prevent the propagation or dissemination of...trade secrets” in very limited circumstances.
On May 18, 2016, the Department of Labor ("DOL") issued its long-awaited Final Rule for overtime exemptions, focusing on the "white collar" exemptions (executive, administrative, professional and certain computer employees). The Final Rule comes after the DOL processed 270,000 public comments on its proposed rule about which we wrote you, from late last summer. The Final Rule will take effect December 1, 2016.
OSHA's final rule to 'nudge' employers to prevent workplace injuries, illnesses
New federal requirements take effect August 10, 2016
For more info or to get a copy of the new poster:
DHS Releases Published F-1 Visa STEM OPT Regulation
Yesterday, Cross, Gunter, Witherspoon & Galchus, P.C., joined by Associated Builders and Contractors of Arkansas and its national organization, the Arkansas State Chamber of Commerce/Associated Industries of Arkansas, the Arkansas Hospitality Association, the Coalition for a Democratic Workplace, and the National Association of Manufacturers, filed suit against the U.S. Department of Labor (DOL) to prevent enforcement of the new "Persuader Rule" regulations that were issued on March 24, 2016.
The U.S. Equal Employment Opportunity Commission ("EEOC") recently announced its adoption of new nationwide procedures that the allow release of respondent position statements and non-confidential attachments to charging parties upon request. Importantly, the procedures retroactively apply to all EEOC requests for position statements made on or after January 1, 2016. Although the EEOC staff may redact confidential information as necessary before releasing the position statement, there is no guarantee the information will be redacted. Therefore, if a position statement includes confidential information, the respondent should take great care to segregate that information in separate attachments and clearly label such as "Confidential". Respondents should also be prepared to justify the need to shield such information as the EEOC states it will not accept unsupported assertions of confidentiality. Finally, if the charging party requests a copy of the position statement, the EEOC affords the charging party with the opportunity to respond within 20 days. Significantly, however, the charging party's response will not be provided to respondent during the investigation. Employers should keep these new procedures in mind when responding to EEOC charges.
In connection with last week's Administrator's Interpretation 2016-1 regarding Joint Employment (under the Fair Labor Standards Act) the Department of Labor (DOL) Wage and Hour Division (WHD) issued a new fact sheet regarding "Joint Employment and Primary and Secondary Employer Responsibilities Under the Family and Medical Leave Act (FMLA)." This Fact Sheet sets forth the DOL's position that "[e]mployees who are jointly employed by two employers must be counted by both employers in determining employer coverage and employee eligibility under the FMLA, regardless of whether the employee is maintained on one or both of the employers' payrolls."
In its latest case examining the scope of employee benefit plan subrogation rights, the U.S. Supreme Court held that a benefit plan cannot enforce its claim for reimbursement of expenses from a participant's settlement proceeds where the participant spends all of the proceeds and, as a result, there is no specific, identifiable fund against which the plan can enforce its claim. The case, Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Trust, generally follows, and reaffirms, the Court's prior decisions in this area. However, the practical effect may force benefit plans to be more aggressive in enforcing subrogation rights before participants have an opportunity to spend settlement funds.
Despite fun and inviting cartoons atop its news release early Wednesday morning, the Department of Labor ("DOL") Wage and Hour Division ("WHD") is making life neither fun nor inviting for companies who share or lease workers, or use workers from staffing companies.
On December 24, 2015, in Whole Foods Market, Inc., 363 NLRB No. 87 (2015) (Whole Foods), the National Labor Relations Board (Board) invalidated two Whole Foods Market policies that prohibited employees' use of recording devices in the workplace to record events, conversations, etc., without company authorization. The Board reasoned that such a blanket prohibition requiring management approval to record could prevent employees from engaging together in workplace activities protected by the National Labor Relations Act (Act).
The Patient Protection and Affordable Care Act ("ACA") imposes reporting requirements on providers of minimum essential coverage (including insurers and employers that self-insure health benefits) about the coverage provided. In addition, large employers (generally those with 50 or more full-time and full-time equivalent employees in the prior year) must report about the health coverage offered by the employer to its full-time employees. The reporting requirements are effective for 2015, with the first reports due in 2016 for 2015 coverage.
Have you been using E-Verify more than 10 years?
On November 12, 2015, the IRS released a Tax Tip to help employers and insurers understand the electronic filing requirements for information returns required by the Affordable Care Act (ACA). For the 2015 year, as required by the ACA, the IRS will receive and process information returns reporting on individual’s health insurance coverage from insurance companies, self-insured companies, and businesses that provide health insurance to their employees.
On December 3, 2015, the Equal Employment Opportunity Commission (EEOC) released two documents explaining the workplace rights of individuals with HIV infection under the Americans with Disabilities Act (ADA), including the right to be free from employment discrimination and harassment, and the right to reasonable accommodations in the workplace.
This year has seen an increase in incidents involving workplace shootings, including the Paris and San Bernardino attacks. According to a Fact Sheet published by the Bureau of Labor Statistics, shootings have accounted for seventy-eight percent of all workplace homicides. Eighty-three percent of these shootings occurred in the private sector. The National Institute for Occupational Safety and Health estimates that the overall cost related to violence in the workplace is more than $120 billion.
Pursuant to recent Federal court litigation (discussed previously in TSA emails), USCIS has proposed a new rule for STEM (science, technology, engineering and math) optional practical training (OPT). Basically the new rule will allow for a 24 month extension for STEM graduates to the basic 12 months of OPT provided to most F-1 student graduates. This would give qualifying F-1 students a total of 36 months of OPT.
The IRS recently created an online Affordable Care Act Information Center for large employers. This new online resource includes a variety of information for large employers, including information on determining large employer status, employer shared responsibility requirements and the new Affordable Care Act reporting requirements. The website also provides links to related documents and websites, including forms, questions and answers, publications and videos.
On September 25, 2015, the Department of State (DOS) and United States Immigration and Citizenship Services (USCIS) dramatically changed their September 9, 2015 announcement calling for revised procedures for individuals waiting to file for Adjustment of Status (AOS). In the revised announcement, the DOS and USCIS significantly adjusted Family-Based and Employment-Based preference timelines and released a new October Visa Bulletin, superseding the Visa Bulletin released on September 9th.
Proper evidence must be presented to the National Labor Relations Board ("NLRB") to demonstrate a sufficient "showing of interest" in order to establish there is necessary support as required by the National Labor Relations Act (the "Act") to proceed with a representation election. The purpose of the demonstration of an adequate showing of interest is to determine whether the conduct of an election will serve a useful purpose under the Act, i.e., whether there is sufficient employee interest to warrant the expenditure of the time, effort and resources of the NLRB in conducting an election for union representation. This requirement has been called an important safeguard against the potential for abuse of election procedures.
On September 10, 2015, the Office of Federal Contract Compliance Programs (OFCCP), a division of the Department of Labor (DOL), issued a Final Rule protecting employees who "inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant" from adverse employment actions in the workplace. The so-called "pay secrecy ban" applies to almost all federal contractors that enter into new, or modify existing, federal contract(s) in excess of $10,000 after January 1, 2016.
The Department of State (DOS) and the United States Citizenship and Immigration Services (USCIS) announced yesterday revised procedures for individuals waiting to file for Adjustment of Status (AOS).
The U.S. Department of Labor (DOL) yesterday refused requests from certain lawmakers, nonprofits and employer groups to extend its comment period on its proposed overtime rule. The comment deadline therefore is still this Friday, September 4, 2015. As you will recall, the DOL gave notice in July of its proposed rule, and invited comment over a 60-day period.
The Occupational Safety and Health Administration (OSHA) issued a Notice of Proposed Rulemaking July 29, 2015, that seeks to clarify that the duty to record work-related injuries and illnesses is an ongoing obligation throughout the five-year period during which employers are required to keep the records.
EBP ADVISORY – REMINDER TO SELF-INSURED PLAN SPONSORS FORM 720 TO PAY PCORI FEES DUE JULY 31ST
Misclassification of employees as independent contractors is found in an increasing number of workplaces in the United States, in part reflecting larger restructuring of business organizations. When employers improperly classify employees as independent contractors, the employees may not receive important workplace protections such as the minimum wage, overtime compensation, unemployment insurance, and workers' compensation. Misclassification also results in lower tax revenues for government and an uneven playing field for employers who properly classify their workers. Although independent contracting relationships can be advantageous for workers and businesses, some employees may be intentionally misclassified as a means to cut costs and avoid compliance with labor laws.
The Trade Preferences Extension Act, which became law on June 29, 2015, included a provision having nothing to do with extending trade preferences. Flying under the radar of many, the law has doubled per-employee penalties on applicable large employers for failing to file Affordable Care Act (ACA) information returns with the IRS starting in 2016, or failing to furnish employees with payee statements, as required by the ACA, regarding their health care coverage.
Today the U.S. Department of Labor (DOL) released a much-anticipated proposed rule change that would increase employer overtime obligations for an estimated 5 million employees. The proposed rule seeks to change the minimum salary threshold to $970 per week (the equivalent of $50,440 annually). Currently, to be exempt from the overtime and minimum wage requirements of the Fair Labor Standards Act (FLSA), employees classified under the so-called "white collar" exemptions must satisfy the "salary basis" test, which requires employees to be paid a salary of at least $455 per week (the equivalent of $23,660 annually). The proposed rule concerns "white collar" exemptions under the FLSA for executive, administrative, professional and computer employees. The proposed rule would also increase the threshold total yearly compensation amount for highly compensated employees from $100,000 to $122,148 per year.
Bureau of Consular Affairs Currently Experiencing Passport / Visa Systems Errors
On June 15, 2015, the U.S. Department of State issued an alert stating:
The Occupational Safety and Health Administration (OSHA), which requires that all employers under its jurisdiction provide employees with sanitary and accessible toilet facilities, has issued guidelines regarding restroom access for transgender employees. OSHA advises that all employees should be permitted to use restroom facilities that correspond with the employee's gender identity. According to OSHA, each employee should determine the most appropriate and safest option for himself or herself.
On June 1, 2015, a Texas federal court ruled against the Associated Builders and Contractors of Texas and other plaintiffs who were challenging the National Labor Relations Board's ambush election rule, which significantly shortens the period of time that employers and employees have to prepare for a union election after receiving an election petition. The business group-plaintiffs claimed that the NLRB's rule violated the Administrative Procedure and National Labor Relations Acts, but the Texas Court ruled that the plaintiffs failed to show how the rule violated either Act.
U.S. Supreme Court held that employment decisions cannot be motivated by an applicant's religious practice, regardless of whether an employer had actual knowledge of an applicant's need for an accommodation for the religious practice.
Hazard Communication Standard in 2012 with the global standard for chemical product labeling. The provisions for labeling offer workers better protection from chemical hazards, while also reducing trade barriers and improving productivity for American businesses that regularly handle, store, and use hazardous chemicals
USCIS Temporarily Suspends Premium Processing for H-1B Extensions
OSHA unveils new version of "It's the Law" poster to help prevent injuries and protect workers' rights
Recent landmark decisions and heightened activity at the National Labor Relations Board create an unprecedented union-friendly environment for employers to navigate. (If this is where you would normally stop reading, because your company is not unionized so none of this "labor stuff" applies to your workplace - think again!). These decisions and activity include:
The Equal Employment Opportunity Commission (EEOC) has announced that it will publish a Notice of Proposed Rulemaking (NPRM) today, April 20, 2015, describing how the Americans with Disabilities Act (ADA) applies to wellness programs. Many employers offer incentivized workplace wellness programs designed to promote health and disease prevention, some of which incorporate biometric screenings and health risk assessments. The proposed rule will provide guidance on the use of financial incentives to encourage participation in wellness programs-without violating federal law.
The United States Sixth Circuit Court of Appeals Holds Regular And Predictable On-Site Job Attendance Is An Essential Function Of Former Employee's Job With Ford.
After numerous fits and starts, and some awkward backtracking, the Department of Labor (DOL) proposed its new revised fiduciary definition rule on April 14, 2015. Labor Secretary Thomas Perez stated that the new rule is intended to force advisers and consultants working with retirement plan sponsors, plan participants or other fiduciaries and IRA owners to put their clients' best interest ahead of their personal interest and curb the "corrosive power of fine print and high fees." The proposed rule has the potential to significantly increase the scope of who would qualify as a "fiduciary" under the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code), and consequently would be subject to the duties and obligations, not to mention the liabilities, of a fiduciary (including being subject to lawsuits) under those laws.
Current Department of Labor (DOL) regulations require 401(k) plan administrators to provide fee and expense disclosures regarding plan investment options where participants have the ability to direct some or all of their investments. These disclosures must be initially provided to participants on or before the date the participants become eligible to direct their investments in the plan and "at least annually thereafter." Additional guidance from the DOL clarified that "at least annually thereafter" means at least once in any 12-month period after the prior disclosure was provided.
The National Labor Relations Board's (NLRB) General Counsel issued a long-awaited, 30-page memorandum on Wednesday offering employers guidance on crafting policies and rules that will not be deemed unlawful by the NLRB. This memo is applicable to all employers subject to the National Labor Relations Act (NLRA), regardless of whether they have union-represented employees.
On March 9, 2015, the U.S. Supreme Court ruled in favor of the U.S. Department of Labor (DOL), holding that the Department validly rescinded its own rules regarding mortgage loan officers. This ruling is significant for businesses in the financial services industry: the DOL does not consider mortgage loan officers to be exempt under the administrative exemption.
On March 8, 2015, E-Verify published the new Supplemental Guide for E-Verify Employer Agents . This new guide replaces the E-Verify User Manual for E-Verify Employer Agents and the E-Verify Quick Reference Guide for E-Verify Employer Agents. These two documents are now retired.
Arkansas will be increasing the minimum wage over the next few years.
Move is Win for Unions' Effort to Hold Franchisers Liable for Labor violations by Store Owners
The Equal Employment Opportunity Commission (EEOC) filed lawsuits in 2014 against three employers, claiming that wellness programs sponsored by the employers violate the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), primarily because the programs are not "voluntary" and impose penalties for employees who refuse or are unable to participate. However, the merits of these claims are difficult to evaluate because the EEOC has not issued guidance on what constitutes a "voluntary" wellness or health program. In addition, the EEOC's claims may conflict with wellness plan guidance issued by other federal agencies under the Affordable Care Act (ACA) and the Health Insurance Portability and Affordability Act (HIPAA).
Holding: The time spent by warehouse workers waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.
The National Labor Relations Board (Board) held that an employer must "presumptively" permit employees' use of the employer's email for statutorily protected communications on nonworking time, if the employer gives employees access to the employer's email systems. Purple Communications, 361 NLRB No. 126 (2014).
Today, December 12, the National Labor Relations Board (NLRB) issued a final rule designed to speed up the union election process. While SHRM is still reviewing the final rule, it appears to be virtually identical to the rule as proposed.
The Final Rule implements an Executive Order signed by President Barack Obama on July 21, 2014, making it illegal for federal contractors to discriminate against employees and applicants on the basis of sexual orientation or gender identity, which protects lesbian, gay, bisexual and transgender (LGBT) employees from such discrimination. This Executive Order amended Executive Order 11246, signed by President Lyndon B. Johnson in 1965, to add sexual orientation and gender identity to the list of protected categories covering federal contractors.
The implementation of the rule means that covered federal contractors are now required to have Equal Employment Opportunity policies and/or procedures in place to protect employees from discrimination on the basis of sexual orientation and gender identity. In addition to the new protections for federal contractors, federal employees, who are already protected on the basis of sexual orientation, will be protected from gender identity discrimination, which has not been previously protected.
Time Sensitive Reminder: E-VERIFY RECORD DISPOSAL
To be clear, on the employment based immigration changes, nothing is different today. All of the proposed changes will require regulations or agency action, which is expected to take several months. Regulations have to be drafted, finalized, sent out to the public for review and comment, and then the comments are compiled and responded to, all before the regulations are effective. The list below is not comprehensive, as much of what is being proposed is still being developed.
The IRS issued a notice on November 4, 2014 concluding that a health plan that does not provide substantial coverage for inpatient hospitalization and/or physician services will not qualify as a "minimum value" plan under the Affordable Care Act. Therefore, large employers that adopt such plans are subject to penalties under the Affordable Care Act for failure to offer a plan that provides minimum value. The IRS expects to issue additional guidance on this issue next year.
Simultaneously, additional FAQs were issued to clarify that employers may not offer employees with high claims risk a choice between enrollment in its standard group health plan and cash, as well as prohibiting the use of vendor sponsored Section 105 reimbursement plans as a way to assist eligible employees in accessing premium tax credits on the Marketplace.
Employers that sponsor health flexible spending accounts should consider whether they wish to adopt this higher limit for 2015. If so, the increased amount should be communicated to employees in open enrollment or other materials. In addition, the cafeteria plan document may require an amendment.
An I-94 is a record of arrivals for foreign nationals (not U.S. citizens or lawful permanent residents, also called green card holders) coming into the U.S. on a temporary status. The I-94 is issued by a U.S. Customs and Border Protection (CBP) officer upon the arrival of the foreign national into the U.S.
On January 1, 2015, E-Verify must dispose of transaction records that are over ten years old - those dated on or before December 31, 2004. E-Verify employers have until December 31, 2014, to download case data from the new “Historic Records Report” if they want to retain transaction data that is more than ten years old. For more information and guidance on downloading the Historic Records Report, see the Fact Sheet and Instructions for Downloading.
"Excepted benefits" are exempt from various group health plan requirements under the Patient Protection and Affordable Care Act ("PPACA") and the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"). The U.S. Departments of Treasury, Labor and Health and Human Services have issued final regulations which provide guidance about when certain dental, vision and long-term care and Employee Assistance Program ("EAP") benefits are considered excepted benefits. The final regulations do not address issues related to "limited wraparound coverage" which was a source of confusion and criticism under the proposed regulations.
On October 6th, USCIS announced the launch of myE-Verify, the new website that specializes in information and tools that serve the needs of workers and job seekers. Its features include the capability to create a unique, secure and personal myE-Verify account that gives access to the new Self Lock service. Self Lock lets users protect their identities by locking their social security numbers to prevent unauthorized or fraudulent use within E-Verify. The new website also includes Self Check and multi-media resources for workers and jobseekers to learn about employee rights and employment eligibility verification from their perspective.
In February 2014, the EEOC filed an action against CVS Pharmacy claiming several standard provisions contained in CVS' separation agreement violated Title VII. CVS' five page single spaced separation agreement contained many standard provisions which the EEOC alleged violate Title VII, including:
The Department of Labor (DOL), through its office of OFCCP, issued a proposed rule yesterday to amend Executive Order 11246, which prohibits discrimination and other employment practices by federal contractors. The DOL issued the rule in response to an order by President Obama back in April calling for new regulations designed to close the pay gap among men and women, as well as minorities. Generally, the proposed Rule will require that any entity with a federal contract in excess of $10,000 must incorporate a mandatory non-discrimination provision informing employees that the company does not "discriminate against employees and applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant." The Rule will require modifying existing contracts that do not already contain such provisions.
On August 22, 2014, the National Labor Relations Board (NLRB or the Board) issued a much-anticipated ruling with respect to social media in the workplace. In a case involving the termination of two employees for their participation in a Facebook discussion about claims that employees unexpectedly owed additional State income taxes because of the employer's withholding mistakes, the Board ruled that clicking the "Like" button on Facebook was protected, concerted activity shielded by the National Labor Relations Act (NLRA or the Act). Specifically, although the Board recognized that a "like" may be ambiguous, it takes the position that such conduct expresses agreement with the subject of the target posting and therefore can be considered protected, concerted activity. The "like" does not, however, reach subsequent comments unless each comment is individually "liked" as well.
The plaintiff, Emily Kroll, worked as an EMT for the White Lake Ambulance Authority (WLAA). Although her supervisors initially considered her to be a good employee, her workplace behavior became problematic following an affair with a married co-worker. WLAA became concerned over Kroll's emotional well-being after she was observed by employees crying in the parking lot, called her Office Manager in tears after finishing a shift, and it was reported she failed to administer oxygen to a patient because she was arguing with a female co-worker during an ambulance run. Another co-worker also reported that Kroll had screamed at a male acquaintance on a cell phone while driving an ambulance loaded with a patient.
The WLAA Director, Brian Binns, advised Kroll that she could continue her employment with WLAA only if she agreed to undergo psychological counseling. Binns admitted at trial that he decided to compel counseling because Kroll's "life was a mess and he thought he could help her." He also explained that he was concerned about Kroll's personal life and sexual relationships. Kroll testified that Binns told her she "needed counseling because of [her] immoral personal behavior." WLAA did not consult with a psychologist or mental health professional before deciding to force Kroll to attend counseling. Kroll refused counseling because she could not afford to pay for it and never returned to work.
Kroll sued WLAA claiming she was constructively discharged because the requirement that she attend counseling violated the ADA. The ADA states: "A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."
In August 2010, a U.S. District Court dismissed Kroll's lawsuit holding that the psychological counseling at issue did not constitute a medical examination. The District Court also found that Kroll posed a "direct threat" to her own safety and others because of the potential danger of her unsafe driving.
In Hollis Press Inc., 343 NLRB 301 (2004), the National Labor Relations Board held that an employee who filed a sexual harassment complaint with a state agency was not engaged in protected concerted activity when she solicited co-workers to be witnesses. In Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12 (2014), the National Labor Relations Board reversed the holding in Hollis Press. The Board majority held that "an employee seeking the assistance or support of his or her coworkers in raising a sexual harassment complaint is acting for the purpose of mutual aid or protection. This decision applies equally to cases where. . . an employee seeks to raise that complaint directly to the employer, or . . . to an outside entity." Id. at 7.
The NLRB's Office of the General Counsel has issued an important statement authorizing complaints for unlawful labor practices against McDonald's, USA, LLC and their franchisees. In it, the General Counsel may have taken a new approach in how the NLRB will handle employee charges against franchisors and franchisees, by treating the franchisor and the franchisee as joint employers.
On July 31, 2014, President Barack Obama signed the Fair Pay and Safe Workplace Executive Order which will require prospective federal contractors report violations of 14 Federal laws and as yet unspecified state laws when bidding on service and supply contracts.
"Today's summer temperatures make the severe storms of the winter season hard to remember," said U.S. Secretary of Labor Thomas E. Perez. "But the work to recover from those severe storms continues and the federal funds we're awarding today will assist the state with completing this work."
In an unexpected announcement, the U.S. Department of Labor (DOL) Family Medical Leave Act (FMLA) Branch Chief Helen Applewhaite says the DOL will be increasing its enforcement of the FMLA by having more on-site visits by its investigators.
Today, July 21, 2014, President Barack Obama signed an Executive Order making it illegal for federal contractors to discriminate against employees and applicants on the basis of sexual orientation or gender identity, which will protect lesbian, gay, bisexual and transgender (LGBT) employees from such discrimination. Currently, there is no federal law in place that provides protection from employment discrimination on the basis of sexual orientation. President Obama's Order amends Executive Order 11246, signed by President Lyndon B. Johnson in 1965, to add sexual orientation and gender identity to the list of protected categories covering federal contractors.
This announcement means that any recipient of federal contracts will be required to have Equal Employment Opportunity policies and/or procedures in place to protect employees from discrimination on the basis of sexual orientation. In addition to the new protections for federal contractors, federal employees, who are already protected on the basis of sexual orientation, will be protected from gender identity discrimination, which has not been previously protected.
Employers should review all current company policies and procedures, which will likely require an update to employee handbooks, application materials and discrimination policies to ensure compliance with revised Executive Order 11246. If you have any questions regarding this recent announcement, contact an attorney with our Firm.
Read more about the Hobby Lobby case here.
In Lane v. Franks, 13-483 (2014), the United States Supreme Court unanimously held that a public employee's testimony during a criminal proceeding was protected speech under the First Amendment.
Whereas ten years ago working from home was an exception afforded employees only under special circumstances, working from home today is the norm for millions of Americans. In fact, many Americans work from home at least one day per week. Many companies even set up employees with home offices in order to minimize the need for office space. The feasibility of working from home has placed the issue of telecommuting as a reasonable accommodation center stage.
In EEOC V. Kaplan Higher Education Corp., 13-2408 (2014), the Sixth Circuit rejected the Equal Employment Opportunity Commission's (EEOC) claim that Kaplan's use of credit reports discriminated against applicants because the credit reports had an adverse impact on African American applicants.
On April 7, 2014 the US Citizenship and Immigration Services (USCIS) announced that between April 1, 2014 and April 7, 2014, the agency received more than enough applications for new H-1B visas for the 2015 fiscal year. Applications exceeded the quota, for both the regular 65,000 limit (also called a "cap") and the additional 20,000 quota for persons who have an advanced degree (more than a bachelor degree) from a US university. Because more applications than the quota permits were received for both Bachelor's and Master's cap cases in the first five business days of April, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit. USCIS will reject petitions that are subject to the cap and are not selected.
Counting employees under health care reform is not as easy as 1-2-3. The rules are quite complicated, and if not done correctly can have serious repercussions for your business. The final employer-shared responsibility ("play or pay") regulations have been issued and beginning in 2015, larger employers will need to either offer health coverage that meets the requirements of the Patient Protection and Affordable Care Act (PPACA) or pay penalties. Although the requirement is not effective until 2015, employers need to be gathering data and making decisions now.
President Obama recently signed a memorandum instructing the Department of Labor (DOL) to revise the regulations governing "white-collar exemptions" under the Fair Labor Standards Act (FLSA), which exempt certain employees from overtime requirements. The Administration's stated goal is to make more workers eligible for overtime and minimum wage by overhauling the existing regulations. However, others believe the President's initiative is motivated by his endeavors to increase the minimum wage by expanding the number of workers who are entitled to receive minimum wage and overtime pay.
In an unprecedented decision issued on Wednesday, the Regional Director for Region 13 of the National Labor Relations Board (NLRB) determined that college scholarship football players at Northwestern University are considered employees under the National Labor Relations Act (NLRA) and can unionize for collective bargaining purposes. The Regional Director applied the common law definition of an employee to determine if these student athletes were covered under the NLRA. Under that doctrine, a person who performs services for another under contract of hire in return for payment while being subject to the other's control or right of control is considered an employee. The Regional Director found that grant-in-aid scholarship football players perform services for the benefit of the school under a contract. They are also subject to the control of the school in the performance of their duties as football players. Consequently, they are "employees" and, thus, eligible for coverage of under the NLRA.
Supreme Court Rules Severance Payments Are Taxable
On March 6, 2014, the U.S Equal Employment Opportunity Commission issued two technical assistance publications about employers' responsibilities with respect to religious dress and grooming in the workplace under Title VII of the Civil Rights Act of 1964. According to the new publications, employers covered under Title VII must permit employees to follow religiously mandated dress and grooming practices unless it would pose an undue hardship on the business.
Pursuant to the publication, employers must provide reasonable accommodation to an employee when the employer is put on notice that a religious accommodation is necessary for a sincere religious belief. It would not be considered a reasonable accommodation to have the employee cover or hide the religious article if that would violate the employees' religious beliefs. However, when an exception to the dress code is made for a religious accommodation, the employer may still refuse to allow secular exceptions sought by other employees. Additionally, if a religious accommodation creates an undue hardship on business operations, the employer is not required to provide any accommodation.
An undue hardship is defined as "more than de minimis" burden on the operation of the employer's business. For instance, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the undue hardship defense to disability accommodation under the Americans with Disabilities Act (ADA). However, neither co-worker disgruntlement nor customer preference is sufficient to establish an undue hardship.
Employers are advised to make case-by-case determinations of any requested religious accommodations and to train managers appropriately in order to properly adhere to all Title VII requirements.
Recently, the National Labor Relations Board (NLRB) has stricken a number of employer handbook policies, including employers' confidentially policies. On February 6, 2014, the NLRB continued this trend by determining that MCPc, Inc., a technology product and service company, violated the National Labor Relations Act (NLRA) by maintaining an "overly broad" confidentially policy and by discharging an engineer for his protected concerted activity.
It's been a busy week at the Department of Labor. DOL-VETS published a Notice for Proposed Rulemaking (NPR) identifying changes they'd like to make to the VETS-100A form.
EEOC Sues to Limit Protections in Severance Agreements
Public awareness of workplace bullying has never been higher, thanks to high-profile cases such as the one involving Miami Dolphins teammates Richie Incognito and Jonathan Martin. Yet none of the more than two dozen states that have taken up the issue has actually passed any legislation to tackle the problem.
OFCCP, on February 21, 2014, posted new information and resources on its Web site to assist federal contractors with outreach and recruitment targeting individuals with disabilities, employing and retaining individuals with disabilities, promoting self-disclosure as a person with a disability, assistive technologies that help change corporate culture, and reasonable accommodation. Several of the new items are listed below.
President Obama's call to raise the federal minimum wage could help lift 900,000 workers out of poverty, but at a cost of as many as 500,000 jobs, according to an analysis released by the non-partisan Congressional Budget Office (CBO), says USA Today.
On April 1, 2014, the United States Citizenship and Immigration Service (USCIS) will begin accepting applications for H-1B petition filings for Fiscal Year 2015. Due to the annual limit on the number of H-1B Visas that can be issued each fiscal year to employers subject to the cap, employers should be prepared to file their H-1B petitions promptly on April 1, 2014, which means contacting an immigration attorney prior to March 10, 2014, to allow for preparation time.
Let's put our heads together on this one. You see, it appears as though far too many employees have bought into the notion that their employer is always responsible for the cost of obtaining medical certification to support an FMLA-related absence. Case in point: just last week, a client called me for help after one of her employees simply refused to return medical certification because she didn't want to foot the $50 bill quoted by her physician for completing the certification form. She firmly believed her employer should pick up the tab.
On February 5, 2014, the National Labor Relations Board (NLRB) reissued its proposal to radically shorten the time frame between when a union files a representation petition and an election takes place. In essence, this proposed rule will allow labor unions to "ambush" employers with union elections with little notice. Currently, the average time between a petition being filed and the election being held is 38 days. The NLRB's proposal (the "Ambush Rule") may shorten that time frame to as little as 10 days, which gives employers very little time to prepare itself for a union's petitioned election.
The National Labor Relations Board (NLRB) posting rule has been laid to rest.
As HR managers begin the new year by updating their policy manuals, the Society for Human Resource Management has thoughtfully provided a list of new state laws that took effect on Jan. 1.
Despite much moaning about discrimination against aging workers — particularly during the recent recession — stats from the Equal Employment Opportunity Commission suggest that two old standbys still receive the lion’s share of attention from the enforcement agency.
On March 12, 2013, the United States District Court for the Eastern District of Pennsylvania ("the Court"), determined in Eagle v. Morgan, that, absent a policy to the contrary, an employee's LinkedIn account is not the property of the employer. The decision means that employers, in general, should not have an ownership expectation in their employee's LinkedIn accounts, and an employer's attempt to lock the employee out of his account after termination may lead to legal ramifications. Furthermore, while the issue was not before the Court, the Court noted that, even if a policy is in place, it may not be legally enforceable due to LinkedIn's User Agreement, which states that, even if an employee uses a LinkedIn account on behalf of a company, the employee is nevertheless individually bound by the User Agreement.
Acoustic trauma, also known as acoustic shock, can occur when a person is subjected to an extremely loud noise or series of loud noises such as gun shots, explosions or shouting at very close proximity.
On January 9 – 10, 2014, OSHA held a public meeting at the U.S. Department of Labor in Washington, D.C. to give stakeholders the opportunity to provide oral remarks on the proposed rule aimed at amending its recordkeeping regulations with requirements for the electronic submission of injury and illness information. According to OSHA, the proposed requirements are not drastically different from the current requirements under the OSHA Data Initiative (ODI) where data is collected on injuries and illnesses from approximately 80,000 employers with 20+ employees and used to target enforcement and compliance assistance activities. However, representatives from businesses and the U.S. Chamber of Commerce beg to differ. The debate over the proposed requirements drew comments from representatives in business, labor, and safety councils and associations, and it was clear — according to our J. J. Keller representative who attended the meeting — that there is a balance of support for and against the proposed rulemaking.
WASHINGTON — Federal officials have filed a formal complaint charging that Wal-Mart violated the rights of protesting and striking workers last year.
The Supreme Court issued its opinion today upholding the availability of premium tax credits for individuals who purchase health insurance through a federal Exchange, King v. Burwell, No. 14-114 (U.S. June 25, 2015). The opinion maintains the status quo - it does not change anything under the Patient Protection and Affordable Care Act ("ACA"), and individuals and employers should proceed with ACA compliance.
The minimum wage rose in 13 states as 2013 drew to a close. As many as 11 states and Washington, D.C., are expected to consider increases in 2014, and approval is likely in more than half of the 11, according to the National Employment Law Project, says USA Today.
A look at what reduced schedule or intermittent FMLA leave is and, more importantly, what it is not
The Supreme Court of Arkansas recently ruled that employment-related retaliation claims may be filed in Arkansas within three (3) years of the alleged retaliatory conduct taking place. In Smith v. ConAgra Foods, Inc., the Supreme Court answered this question proposed by an Arkansas Federal District Court Judge in an ongoing employment discrimination and retaliation lawsuit. The question was certified to the State's highest court because Arkansas's retaliation statute does not set forth a specific time period in which a claim must be filed to be timely.
An estimated 40,000 new state laws, regulations and resolutions were approved by state legislatures in 2013, and many of which take effect January 1, says USA Today.
U.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization. This diverse workforce contributes greatly to the vibrancy and strength of our economy, but that same strength also attracts unauthorized employment.
The Obama administration unexpectedly announced Tuesday it is delaying the employer mandate under the Patient Protection and Affordable Care Act until 2015.
The NOARK Legislative Blog offers literary tidbits on state and federal legislation as it relates to the Human Resources field. Because employment laws are constantly changing, staying up-to-date is imperative as an HR Professional. We hope you find this blog a useful tool for answering questions and raising awareness of legislative issues.
Currently, Title VII of the Civil Rights Act of 1964, amended 1991, at 42 U.S.C. Section 2000e, prohibits voluntary veterans preferences in employment as unlawfully discriminatory under Title VII due the potential disparate impact of female employees and applicants.
The Supreme Court Strikes Down President Obama's Appointment of National Labor Relations Board Members Made During a Three Day Recess of the Senate.
On October 23, 2014, the Michigan Court of Appeals held that three unemployed claimants were entitled to unemployment benefits after they were terminated for failure to pass a drug test as a result of their lawful marijuana usage under the Michigan Medical Marihuana Act (MMMA).
USCIS published a notice in the Federal Register on Nov. 24, 2015, to inform the public of proposed changes to Form I-9, Employment Eligibility Verification. The public may provide comments on the proposed changes for 60 days, until Jan. 25, 2016.