April 18, 2015

EEOC's Proposed Rule on Employer Wellness Permits Incentives

Last week, U.S. Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rulemaking (NPRM) describing how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs that are part of group health plans. It offers "guidance to both employers and employees about how wellness programs offered as part of an employer's group health plan can comply with the ADA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act."

This is a proposed rule. Members of the public have 60 days (or until Friday, June 19) to submit comments.

EEOC Press release

Fact Sheet for Small Business

Questions & Answers

More information
EEOC Issues Proposed Wellness Program Amendments to ADA Regulations
The National Law Review : "The proposed rule clarifies that an employer may offer limited incentives up to a maximum of 30 percent of the total cost of employee-only coverage, whether in the form of a reward or penalty, to promote an employee’s participation in a wellness program that includes disability-related inquiries or biometric examinations as long as participation is voluntary. It is significant that the proposed rule does authorize penalties as the EEOC’s litigations and an EEOC official’s statements had seemed particularly critical of penalties, even though they may have exactly the same economic impact to an employee as a reward."

EEOC Issues Rules for Employee Wellness Program Incentives
Alex Wayne, Insurance Journal : ""Under Thursday’s proposed rules, employers would not be allowed to threaten or otherwise coerce workers to participate, other than by using financial rewards and penalties. Companies couldn’t punish workers with disciplinary measures such as suspension or firing if they opt out."

Revealed! The EEOC’s new proposed wellness program rules.
Employment Law Attorney and blogger Eric B. Meyer offers five key takeaways for employer

Business relieved at EEOC wellness guidance
Dan Cook, Benefits Pro

EEOC Publishes Major Rule on Wellness Incentives
Occupational Health & Safety

Looking for the most comprehensive and effective wellness program for your employees? ESI TotalCare Wellness pairs Behavioral Health Clinicians with certified Wellness Coaches to provide employees and their families with the help, motivation, tools and support to make changes and improve their lives. Call 800-535-4841 for more information.

March 15, 2015

Confusion about Exempt vs Non-exempt employees

What does "exempt" mean in terms of employment? The concept of exempt vs nonexempt employees comes from the Fair Labor Standards Act (FLSA) as a distinction to protect employees from working long hours without extra payment. But the terms are often confused and misunderstood by employers and employees alike.

It's pretty important for employers to understand the distinction. This past week, statistics were released by the Administrative Office of the U.S. Courts showing that "8,160 FLSA cases were launched in the 12 months ending Sept. 30, an 8.8 percent increase from the 7,500 FLSA cases filed during the previous 12 months." (See FLSA, FMLA Lawsuits Soaring, New Statistics Show)

Mike Haberman of Omega HR Solutions has a several great posts that discuss and clarify the issue. In What exactly does “exempt” mean? he defines the overall terms, noting that exempt means a "... particular employee is exempt from being paid overtime, in other words you do NOT have to pay them anymore even when they work more than 40 hours in a week." In contrast, for a non-exempt employee, "you MUST pay them overtime whenever they work more than that 40 hours. In some states overtime has to be paid for work of more than 8 hours in a day."

An employer can't simply decide to make the entire workforce exempt in an effort to get around overtime. Haberman lays out the current criteria, one of which is minimum salary. Although the current level is $455 a week, pending FLSA changes will likely bump that up significantly. And salary is only one criteria in classifying an employee as exempt. See his related post, FLSA Exemptions are about DUTIES not Titles.

In The USDOL is getting ready to disrupt your workplace! Halberman discusses some of the significant changes that are under review.

For additional resources, see

The Department of Labor's FLSA Overtime Security Advisor, an interactive tool

A Substantial Salary-Test Jump Is Likely

Exempt or Non-Exempt: The Risk of Misclassifying Employees

7 Most Common Misconceptions Around Exemptions


ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

March 1, 2015

DOL Extends FMLA Rights to Same-Sex Marriages

On Feb, 23, 2015, the U.S. Department of Labor issued a final rule extending FMLA rights to eligible workers in same-sex marriages. The rule goes into effect on March 27 so you have less than a month to be up to speed.

One important issue is that rights are extended to eligible workers regardless of whether the state in which they are employed recognizes same-sex marital status. In the press release (linked above), the DOL says:

"Today’s rule change updates the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages."

Also see: (DOL) Fact Sheet: Final Rule to Amend the Definition of Spouse in the FMLA Regulations

Whenever FMLA changes occur, we frequently turn to Jeff Nowak's FMLA Insights blog. Nowak is an attorney, co-chair of the labor and employment practice at Franczek Radelet. His blog is a must-read on all FMLA matters.

Here's his post on the recent ruling: DOL Issues Final Rule Extending FMLA Leave Rights to Same-Sex Couples: Here's Everything Employers Need to Know

He discusses:

  • What the ruling covers
  • What it means for employers (amend policies, train managers)
  • Who this applies to (marriages, not civil unions)
  • The issue of documentation
  • The issue of caring for a child to whom they stand in loco parentis

ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

November 16, 2014

FMLA Update - Recent issues & case law

We last checked in on FMLA in July - here's a roundup of experts in employment law weighing in on key FMLA issues and case law, mostly from the second half of the year.

Workplace Prof Blog brings us the results of a recent study on employer compliance with the Family and Medical Leave Act (FMLA): "Using partial identification methods, we estimate that FMLA compliance among firms with 50 or more employees in the private sector is at least 54.3% and at most 76.8%. We also look at organizational characteristics that predict compliance, noncompliance, and nonresponse."

FMLA Insights: Court Determines that Employer's FMLA Notice Sent by Email is Not Reliable (Sending Employer World into Tizzy)
Earlier in the year, a court found that an FMLA notice sent to an employee by U.S. mail cannot be trusted because the employer cannot confirm whether the employee actually received it. More recently, a different federal court has determined that notice sent by email is not reliable either - Jeff Nowak discusses what employers should do now.

FMLA Insights: Are You a Co-Employer? FMLA Joint Employer Liability Can Be Deadly
"To be covered by the FMLA, a private employer must employ at least 50 employees within a 75-mile area. If the employer doesn’t meet this threshold, it is not obligated to provide FMLA leave to its employees. However, an employee can enjoy the protections of the FMLA if he is jointly employed by multiple companies that together have 50 or more employees."

The Emplawyerologist: FMLA Lessons From Wal-Mart: Just What the Doctor (and Court) Ordered

DOL: Notice of Proposed Rulemaking to Revise the Definition of “Spouse” Under the FMLA
"The Department of Labor has published a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse under the FMLA in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional."

FMLA Insights: Don't Be Tripped Up by Light Duty Obligations under the FMLA and ADA: A Discussion of Employer Best Practices

The Employer Handbook: Here's why you provide a list of essential job functions when approving FMLA
"Although, an employee may not be required to take more FMLA leave than necessary, when the employer informs the employee that she is eligible to take leave, the employer can insist that the employee certify, as a condition of returning to work, that the employee can perform all essential job functions. The way this is done is by providing the employee with a list of essential job functions."

HR Daily Advisor: Can You Get Sued Over Improper Leave Administration?

Ohio Employer Law Blog: “Honest belief” isn’t a defense to an FMLA claim, says federal court
"The honest-belief rule is one of most effective shields available to employers in discrimination case ... What happens in an FMLA claim, however? Can an employer use the honest-belief rule to fend off an employee’s claim that an employer interfered with FMLA rights? Yontz v. Dole Fresh Vegetables (S.D. Ohio 10/10/14) says “no.”

Ohio Employer Law Blog: Do not force employees to work during FMLA leave
"With technology making work-from-home more and more feasible, it is easier and easier for employees to work while "out" on an FMLA or other leave. If an employee seeks FMLA leave, however, can an employer force an employee to work, even if the work is paid? According to Evans v Books-a-Million (11th Cir. 8/8/14) [pdf], the answer is no."

FMLA Insights: FMLA FAQ: Can We Terminate an Employee for Working a Second Job While on FMLA Leave?

Seyfarth Shaw LLP: Employer Beware: The FMLA Can Reach Further Than You May Think
"We all know that the FMLA’s protections kick in once an employee has been employed for 12 months. But can those protections be triggered even before a full year’s employment? One federal district court recently held that they can be. Here’s why employers should take note."

SHRM: FMLA Continues to Challenge Employers

Seyfarth Shaw LLP: EEOC Says Reasonable Accommodation Required for All Pregnant Workers

Risk & Insurance: In Search of New Absence Management Strategies

Human Resource Executive: Fighting FMLA Abuse
"Family and Medical Leave Act abuse comes in many forms. The solution to curbing it, however, will require HR leaders to rethink their current approach and suspend their trust in some employees."

Reviewing FMLA Nuts & Bolts

The AR Group: Understanding the Basics of the Family Leave Medical Act

HR Daily Advisor: Understanding FMLA Basics

HR Daily Advisor: Calculating Intermittent FMLA Time
"Managing leave in accordance with the Family and Medical Leave Act (FMLA) can be burdensome. Intermittent FMLA leave in particular gets a bad rap because of the hassle of recordkeeping. Employers must be sure to accurately account for the time taken off from work, and they also must calculate the allowed time correctly—keeping in mind that the allowed number of hours won’t be the same for every employee."

HR Daily Advisor: Designation of FMLA–First Place Employers Fail?
"The list of employers’ FMLA obligations is long and the pitfalls are many. One of the earliest places to make a mistake is in the supposedly simple act of designating the leave as FMLA-qualifying."

The Employer Handbook: The importance of communication during FMLA leave

The AR Group: Are you prepared for a FMLA Audit?

The AR Group: Liability Lurking — The Interplay of FMLA and ADA

Labor Law: Military leave and FMLA

ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

October 5, 2014

Regulatory Update: OSHA Announces New Recordkeeping Rules for 1/1/15

In September, OSHA announced updates to its recordkeeping rule, which expands the list of severe injuries and illnesses that employers must report to OSHA. As of Jan. 1, 2015, all employers under OSHA jurisdiction must report:

  • All work-related fatalities within 8 hours.
  • All work-related inpatient hospitalizations, amputations and losses of an eye within 24 hours.

Among the changes, employers will have the option to file online reports of fatalities and severe injuries and illnesses via a form that is currently still under development.

For a quick summary, see this recordkeeping flow chart that OSHA released in a blog post.


Here are additional resources and fact sheets:

New reporting requirements starting January 1, 2015

Updates to OSHA’s Recordkeeping Rule: An Overview

Updates to OSHA’s Recordkeeping Rule: Reporting Fatalities and Severe Injuries

Updates to OSHA’s Recordkeeping Rule: Who is Required to Keep Records and Who is Exempt

Partially Exempt Industries


ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

July 13, 2014

FMLA Update - Recent issues & case law

Here's a roundup of experts in employment law weighing in on key FMLA issues and case law over the first half of the year.

Obama Administration Announces Proposed Rule Extending FMLA Leave Rights for Same-Sex Couples
Jeff Nowak of FMLA Insights offers a good overview and analysis:
"The Department of Labor announced today [June 20] a proposed rule that would allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status. As expected, the DOL has adopted a “state of celebration” rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married. For example, if the employee was married in New York, but now resides with his same-sex spouse in Indiana, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York."

Additional coverage:
DOL Issues Notice of Proposed FMLA Rule that Offers Equal Leave Rights to Same-Sex Spouses
Marilyn Clark and Jessie E.R. Mischke in JDSupra Business Advisor

Department of Labor (DOL) Proposes New Meaning for “Spouse” for FMLA Purposes
Amy D. Cubbage in The National Law Review

News & Resources
Understanding FMLA Basics

6 Steps You Should Take to Prepare for DOL On-site Visits

ABA's Summary of 2013 FMLA Cases a Critical Resource for Employers, Attorneys

EEOC Commissioner Gives Insight into Handling Employee Leaves of Absence After FMLA is Exhausted

FMLA: Violating work restrictions, ignoring attendance policy cost employer a win

FMLA FAQ: Am I Required to Pay My Employee for Holidays Occurring During FMLA Leave?

Firing an employee just before they’re FMLA-eligible

What happened in Vegas: an FMLA case

Failure to Notify of a Return date

No return date, no problem: Seventh Circuit reverses FMLA summary judgment for employer
"On June 24, 2014, the U.S. Court of Appeals for the Seventh Circuit held that an employee did not forfeit her right to leave under the Family and Medical Leave Act (“FMLA”) to care for her seriously ill adult daughter by failing to provide her employer with an anticipated date of return."

Did a Court Just Allow an Employee FMLA Leave to Care for Her Grandchild?

The importance of communication during FMLA leave

FMLA Leave Requests: Do Employees Need to Specify the Expected Duration of Leave?

FMLA Leave – Follow Up on Expected Return to Work

Adult Child Care & The FMLA
FMLA: caring for an adult child
"Recently, the United States Court of Appeals for the Seventh Circuit reminded us that the Family and Medical Leave Act ("FMLA") provides eligible employees with time off in order to care for adult children who are incapable of self-care. Gienapp v. Harbor Crest and Myra Chattic, No. 14-1053, June 24, 2014.
Her employer argued that the daughter did not qualify as a "daughter" under the regulations because she was married and because Gienapp was no longer "standing in loco parentis." The Court rejected this argument and found that the definition of "daughter" in the regulations was met because she was over 18 years of age and incapable of self-care because of a physical disability."

DOL Guidance: Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability.

Real-World Examples: FMLA with Children 18 and Above

The 5 Hurdles—FMLA Leave for Children 18 and Older

ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

June 8, 2014

FLSA lawsuits on the rise

For the seventh straight year, lawsuits related to the Fair Labor Standards Act (FLSA) have increased. According to study by law firm Seyfarth Shaw LLP, in the 12 month period preceding March 31, there was a 4.7% increase over the prior year, or 8,126 cases. The firm analyzed data from the Federal Judicial Center, noting that the numbers do not include data from state courts, information that is not readily available. In their blog post The Wage and Hour Litigation Epidemic Continues, they discuss reasons for this increase and suggest that the trend is likely to continue:

"Because of increasing publicity that wage and hour issues are likely to receive from DOL’s expected proposed revisions to the exempt status regulations, and the other causes of the explosion in wage and hour litigation discussed previously, we expect this trend to continue and even expand. For this reason, we urge employers to review their exempt classifications and pay practices with experienced wage and hour counsel to make adjustments that may be appropriate."

Steve Bruce of HR Daily Advisor offers a video clip on the 10 most common ‘sins’ managers and supervisors commit in paying—or failing to pay—employees what they are owed.


ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

May 10, 2014

EEOC Releases important guidance on preventing religious discrimination in dress

Religious discrimination charges have more than doubled since 1997, totaling 3,721 charges in fiscal year 2013. There have been several recent court decisions, most notably last December's decision finding Abercrombie & Fitch liable for religious discrimination for firing an employee who wore a hijab. The company had unsuccessfully argued that the employee's dress violated their "Look Policy," or company-wide dress code.

Recently, the The U.S. Equal Employment Opportunity Commission issued two new technical assistance publications addressing workplace rights and responsibilities with respect to religious dress and grooming.

According to EEOC:

Employers covered by Title VII [of the Civil Rights Act of 1964] must make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer's business. When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.

In addition to the press release - EEOC Issues New Publications on Religious Garb and Grooming in the Workplace - EEOC has issued Guides to assist employers and employees:

Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities

A more in-depth question & Answer guide that is based on case law and that includes a more detailed discussion, as well as other resources can be found in this EEOC issue guide: Religious Garb and Grooming in the Workplace: Rights and Responsibilities

The guide addresses the following topics and questions.

1. What is the federal law relating to religious dress and grooming in the workplace?

2. Does Title VII apply to all aspects of religious practice or belief?

3. Does the law apply to dress or grooming practices that are religious for an applicant or employee, even if other people engage in the same practice for non-religious reasons?

4. What if an employer questions whether the applicant's or employee's asserted religious practice is sincerely held?

5. Can an employer exclude someone from a position because of discriminatory customer preference?

6. May an employer automatically refuse to accommodate an applicant's or employee's religious garb or grooming practice if it would violate the employer's policy or preference regarding how employees should look?

7. How will an employer know when it must consider making an exception to its dress and grooming policies or preferences to accommodate the religious practices of an applicant or employee?

8. May an employer assign an employee to a non-customer contact position because of customer preference?

9. May an employer accommodate an employee's religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work?

10. May an employer deny accommodation of an employee's religious dress or grooming practice based on the "image" that it seeks to convey to its customers?

11. Do government agencies whose employees work with the public have to make exceptions to uniform policies or otherwise allow religious dress and grooming practices if doing so would not cause an undue hardship?

12. May an employer bar an employee's religious dress or grooming practice based on workplace safety, security, or health concerns?

13. Are applicants and employees who request religious accommodation protected from retaliation?

14. What constitutes religious harassment under Title VII, and what obligation does an employer have to stop it?

15. What should an applicant or employee do if he believes he has experienced religious discrimination?

16. Where can employers and employees obtain more information?

Employment Law commentary


ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

April 20, 2014

Uncharted Waters: Medical Marijuana & the Workplace

On April 1, Nevada's law allowing medical marijuana took effect. Currently, 21 states and DC have enacted laws to legalize medical marijuana. ProCon.org offers a chart that allows you to track state laws, fees, and possession limits.

Jennifer Robinson explores the Nevada issue in her article Haze surrounds how state’s new medical marijuana law will affect employers, employees in the Las Vegas Review-Journal. Her article depicts the current state of confusion about the effect of the laws:

"If you don’t understand how the state’s new medical marijuana law will affect employers and employees, don’t feel bad.
Labor lawyers say they’re not sure how the rules will work, either.
Sure, the law formalizes some rights of people who have a doctor’s OK to smoke pot for medical reasons. But thanks to its conflict with federal law, which still says pot use is always illegal, the statute’s application to the workplace is hazier than the air in a roomful of tokers."

This conflict with federal law is inherent in virtually every state regulation. There are other key issues that will emerge as well: discrimination, accommodation and more. It's important for HR managers and employers to stay current on this breaking issue, particularly as case law emerges related to these conflicts. While courts have been sympathetic to employers, new cases continue to surface, such as the suit against NJ Transit for suspending an employee in a medical marijuana program. This case involves a 57-year-old Newark man with end stage renal failure is suing his employer for suspending him and sending him into rehab. When he was bumped from his prior position, he sought a transfer to a non-safety sensitive job which required a drug test, the results of which were positive and led to a suspension.

Here are some other recent articles that offer perspective on various aspects of medical marijuana and the workplace.

In the April issue of Risk Management magazine, Lori Widmer looks at the implications of marijuana legalization on the workplace, noting one area in particular that raises concerns:

"Not everyone in the insurance industry is thrilled about marijuana going mainstream. In fact, the National Council on Compensation Insurance named medical marijuana one of the top issues for workers compensation in 2014, and insurers are already seeing an increase in workers comp claims related to medical marijuana."

Employment law attorneys Timothy P. Van Dyck and Nathanael J.C. Nichols explore the issues further in their article Marijuana and the Workplace: A Potpourri of Conflicting Laws for Employers, which offers steps employers should take when regulating marijuana use for the workplace.

SHRM: Marijuana Use and Workplace Drug Policies

Employment law attorney Richard D. Alaniz offers an overview of the issue and recent case law in Legal Marijuana and Employment Law: What Businesses Need to Know

Employment law attorney Jon Hyman looks at Medical marijuana and the Americans with Disabilities Act

USA Today: Legal pot becomes a touchy workplace issue

Earlier articles
Legal Marijuana Use Can Still Get You Fired.

Amendment 64: how do employers address the legalization of marijuana in Colorado?

Five things employers need to know about marijuana and their workers

Looking for the most comprehensive and effective wellness program for your employees? ESI TotalCare Wellness pairs Behavioral Health Clinicians with certified Wellness Coaches to provide employees and their families with the help, motivation, tools and support to make changes and improve their lives. Call 800-535-4841 for more information.

March 12, 2014

Social Media opens an array of employment law resources

Lately, we've been posting about compliance-related issues on the blog - a topic that is frequently on the minds of our employer clients. It crosses industry sectors and organizations of all sizes. While compliance with state and federal laws is a complex responsibility for HR managers, today the web makes a wide array of resources available at your fingertips - you simply have to ensure that you are getting information from credible sources. Many employment law attorneys actively and generously share their knowledge and expertise on blogs and on Twitter. In fact, there's a huge HR community on Twitter so even if you aren't interested in Tweeting yourself, it is worth your while to lurk. You can start by following us at @ESIEAP.

Some of our favorite blogs on compliance and employment law-related issues include:

Jon Hyman - Ohio's Employer Law Blog

Jeff Nowak FMLA Insights

Daniel Schwartz - Connecticut Employment Law Blog

Philip Miles Lawffice Space

Robin Shea Employment and Labor Insider

Michael Fox - Jottings By An Employer's Lawyer

Workers' Comp Insider

All the above also have Twitter accounts. You can also follow our Employment Law list of 70+ contacts on Twitter.

January 12, 2014

Compliance Matters: FMLA, NLRB & More

Take These Five Steps in 2014 to Drastically Improve Your FMLA Compliance
FMLA Insights offers their Top Five "Fix it or Else" List when it comes to leave management in 2014.

Remember that NLRB Notice? “Never Mind”
Connecticut Employment Law Blog: "Despite twice requesting extensions of time within which to file petitions for a writ of certiorari with the United States Supreme Court, the NLRB officially announced this week that it will not seek review of two U.S. Court of Appeals decisions invalidating its Notice Posting Rule. / That rule would have required most private sector employers to post a notice of employee rights under the National Labor Relations Act."

See also: NLRB Throws In The Towel On Poster Rule... For Now

States make moves toward paid family leave
The Washington Post reports: "Rhode Island, where paid family leave was approved by wide margins in the state House and Senate in just one session in July, joins California and New Jersey as the only states to offer workers family leave that is paid not by taxpayers or employers but, like Social Security, out of a pool of employee paycheck contributions."

"Washington state has yet to implement a similar law that lawmakers passed in 2008. New York and Massachusetts have paid-leave bills pending. Connecticut, Vermont and New Hampshire have formed task forces to study the issue. Several states, including North Carolina, Colorado and Oregon, have considered it and may move bills again."

Getting Gay-Friendlier
Human Resource Executive: A new ranking from the Human Rights Campaign shows a record number of companies -- including 299 of the Fortune 500 -- are extending equality to LGBT employees.

Two Ohio FMLA Cases Highlight Need for Awareness of Potential Interference
PorterWright Employer Law Report: "The Family and Medical Leave Act (FMLA) prohibits more than just retaliation — it also prohibits interference. More specifically, the FMLA provides: “it shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA and interference claims arise when an employer’s actions prevent or interfere with an eligible employee’s rights under the FMLA. 29 USC § 2615.

Two recent Ohio district court cases highlight just how important it is for employers to keep the interference provision in mind when navigating employee FMLA requests."

Smoking: Many States Try Snuffing Out Employment Bias Against US Smokers
Xpert HR: "Many states in the US have gone to great lengths to restrict smoking in public places. In fact, some healthcare employers have taken things a step further and adopted no-hire policies for job applicants who smoke."

"But while federal law offers no special employment safeguards for smokers, the HR community should be aware that 29 states plus Washington, DC have laws on the books protecting job applicants who use tobacco products from discrimination during the hiring process. A handy, new XpertHR quick reference chart details these protections."

Don’t Ask and Don’t Tell About Criminal Records When Applying for Jobs
Gilleon Law Firm: "Effective January 1, 2014, is a new law that prohibits California employers from asking questions or using information about candidates’ expunged or sealed criminal records. When a person's record is expunged, it is placed aside and dismissed."

Updating your employee handbook: The essentials
HR Morning - "Badly written or incomplete handbooks have gotten firms in trouble for everything from discriminatory hiring practices to unwittingly creating an employment contract."

Also see: Revise Your Handbook to Minimize Employee Misconduct This Year


ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

September 7, 2013

Reminder - Important ACA Deadline October 1

If you have at least one employee and generate at least $500,000 in annual revenue, you have a requirement under the Affordable Care Act. Kelly Spors at Open Forum explains: "Most U.S. employers—even those with just one employee—are required to send a notice to all employees via first-class mail by Oct. 1 informing them about the new public health insurance exchanges. The notification requirement applies to any business regulated under the Fair Labor Standards Act, which covers all companies with at least one employee and $500,000 in annual revenue. The letters must be sent to all employees, full-time and part-time and regardless of their benefits plan status." Click the link above for more details.

A post on Practical Law Company adds more detail about employer ACA obligations related to notifications per the FAQs issued by the Department of Labor. In the FAQs, the DOL says that "...another entity besides the employer (such as a third-party administrator (TPA), insurer or multiemployer plan) may send exchange notices on an employer's behalf if the notices are timely and complete."

Additional Resources

End-of-Year Employer Checklist from Haynes and Boone, LLP.

Health Care Reform Resource Page – Resources from the Society for Human Resources Management (SHRM)

Affordable Care Act - Information for Employers and Self-Employed
Small businesses - Learn about small employer tax credits, as well as small employers’ rights and responsibilities under the law. Small employers are usually defined at those having fewer than 50 employees.
Large businesses - Information for businesses with 50 or more employees, including information about tax policy and employer responsibility parts of the law.
Self-Employed - Self-employed people have some new options and protections, both now and beginning in 2014. In some states, self-employed people can apply for small business policies.

Health Insurance Marketplace from HealthCare.gov
Find state-specific market information.


ESI EAP offers 24-7 access to counselors and a wide variety of support resources for employees and family members who are facing difficult health challenges. We also offer wellness benefits and health risk assessments, including discounts for weight loss programs, exercise and nutrition programs, and stop smoking programs. If you want to learn more about how ESI can provide more employee EAP benefits and more employer services, call us at 800-535-4841.

August 24, 2013

Employer Work Comp Costs Rise with Economic Recovery

After declining in the wake of the recession, workers’ compensation benefits paid to injured workers and costs borne by employers increased in 2011 as the U.S. economy continued to recover, according to a new report by the National Academy of Social Insurance (NASI).

"Total benefits rose by 3.5 percent to $60.2 billion. The benefits include a 4.5 percent rise in medical care spending to $29.9 billion and a 2.6 percent rise in wage replacement benefits to $30.3 billion. Total costs to employers rose by 7.1 percent to $77.1 billion."

The following infographic offers a summary or you can download the full report, Workers' Compensation: Benefits, Coverage, and Costs, 2011 (PDF), which shows changes in coverage, benefits, and employer costs for all 50 states and the District of Columbia.


ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

May 18, 2013

At-Will employment and the high cost to defend an employment lawsuit

There was an interesting legal exchange on the Huffington Post last week about the issue of at-will law. The segment is summarized as: "In 49 of 50 states there's no law requiring just cause for employee termination. Is at-will employment necessary to promote U.S. business, or exploitative of workers?"

The segment is hosted by Ahmed Shihab-Eldin of Huffington Post and includes employment law attorneys Page Fiedler and Jon Hyman and labor rights and union activist Rand Wilson. Wilson favors expanding protections for workers and Hyman argues that sufficient laws and remedies exist to generally deter employers from capricious firing. Fiedler represented an employee who was fired for being too attractive. It's an interesting and lively (28 minute) exchange. One point of interest is that Fiedler offers an endorsement of the good job that the HR profession is doing in helping to ensure that workers are being treated more fairly.

You can see the full segment in the embedded video below or visit the event page to see the segment and related matter: You're Fired! No, Really....

Related, in response to a statement he made, Hyman blogs about How much it costs to defend an employment lawsuit, a strong deterrent to an employer for arbitrary termination decisions.

"The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000. If an employer loses summary judgment (which, much more often than not, is the case), the employer can expect to spend a total of $175,000 to $250,000 to take a case to a jury verdict at trial.

Most employers, if acting rationally, will chose to retain an employee instead of assuming the risk of a $250,000 legal bill with an uncertain outcome."

Huffington Post points to these related articles for further reading
It's All Too Easy to Get Fired in America: In 49 of 50 States, You Can Be Fired for Any Reason

Rules of Termination: Contemplate before you terminate

Also related:
Employment At Will: The Most Misunderstood Workplace Principle

NLRB Confirms Legality of Most At-Will Disclaimers (and Employers Everywhere Rejoice)

May 5, 2013

Princesses only: Ordinary women need not apply

An interesting historical employment document has been circulating on the web recently - a 1938 job rejection letter from Walt Disney Studios to an aspiring young female animator. It's of interest because the reason for the candidate's rejection is simply that the candidate was a woman, and as the letter states, "women do not do any of the creative work in connection with preparing the cartoons for the screen." The beautifully preserved letter on vintage letterhead goes on to say that the work is performed entirely by young men, and therefore, "girls are not considered for the training school."

For related documents that depict the role of women in the workplace, see our posts on the 1943 Disney Handbook and Danger: Women at Work, a WWII era training clip.

In fairness to Disney, job discrimination against women was the order of the day 75 years ago ... in fact, a lot more recently than that. Employment listings were routinely categorized as "male" or "female" jobs and a job candidate's sex was routinely used as a reason for rejection. In reading historic documents, sex discrimination was actually added to the EEOC as a "poison pill" that many thought might doom the legislation:

"...After all, the prohibition against sex discrimination had been added as a last minute amendment by Congressman Howard Smith of Virginia who opposed the civil rights legislation and thought that Congress would reject a bill that mandated equal rights for women.
Indeed, most supporters of Title VII initially opposed the Smith amendment because they, too, thought that it would doom the legislation. The amendment stayed in because female members of Congress argued that there was a need to protect equal job opportunities for women. Congresswoman Katherine St. George of New York argued that she could think of "nothing more logical than this amendment" and that while women did not need any special privileges "because we outlast you, we outlive you, . . . we are entitled to this little crumb of equality." The need for this "little crumb of equality" was dramatically illustrated by the unexpectedly large number of sex discrimination charges filed in that first year."

For more on job discrimination and the early years of laws prohibiting such discrimination, see the EEOC's 35th Year Anniversary 1965-2000

March 16, 2013

Compliance News: Revised USCIS Form I-9; FMLA Advisor

As of 3-8-13, a revised US Citizenship & Immigration Service (USCIS) Verification Form I-9 has been issued. Employers should begin using the new form as soon as possible, but there is a 60-day grace period to come into compliance, so new forms should be in place no later than May 7, 2013.

According to USCIS, effective 03/08/13:

  • Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications
  • Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013
  • After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

Revised Form I-9 available in PDF
Note that the revision date 3-18-13 of Form I-9 is printed on the lower left corner of the form.

USCIS says that employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.

For more guidance, USCIS offers a series of Employer and Employee Webinars on Form I-9, Employment Eligibility Verification, as well as on other compliance topics related to the E-Verify Program.

Other Compliance News: FMLA
Last week, we posted about the March 8 FMLA deadline for employers to update materials related to new FMLA regulations and policies.

For more information, see the newly updated elaws Family and Medical Leave Act (FMLA) Advisor. This interactive e-tool provides information about employee eligibility under the law including valid reasons for leave, employee/employer notification responsibilities, and employee rights and benefits.

Here are two other documents that may be useful:

Frequently Asked Questions: Final Rule to Implement Statutory Amendments to the Family and Medical Leave Act

Side by side comparison - 2008 vs 2013 regulations

ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

March 1, 2013

Employer Action Alert: March 8 FMLA deadline approaching

Employers, it's time to update your FMLA posters and related materials, if you haven't already done so.

On March 8, new FMLA regulations and policies go into effect. By that date, employers should have updated handbooks, forms, and posters to reflect the changes. FMLA has issued a final rule that expands coverage for families of military service members. In addition, FMLA has clarified rules related to caregivers of adult children with disabilities.

FMLA has also modified existing rules that extend protections for airline personnel and flight crews.

Resources to learn more about compliance:


ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

June 29, 2012

Affordable Care Act - Information Toolkit

Affordable Care Act - Information for Employers and Self-Employed - Small businesses - Learn about small employer tax credits, as well as small employers’ rights and responsibilities under the law. Small employers are usually defined at those having fewer than 50 employees. Large businesses - Information for businesses with 50 or more employees, including information about tax policy and employer responsibility parts of the law. Self-Employed - Self-employed people have some new options and protections, both now and beginning in 2014. In some states, self-employed people can apply for small business policies.

Resources for Consumers and Employers - from Kaiser Family Foundation

After the Ruling: A Consumer Guide - an FAQ from Kaiser Health News about some of the law's provisions that are already up and running as well as major features of what's to come.

What’s Changing and When - an interactive timeline, or see all timeline items on one page in printable format.

Health Reform Implementation Timeline - provisions by year.

The Affordable Care Act by State - See what implementation means for your state. From grants to new services and programs, find out how the Affordable Care Act is helping you where you live.

Prevention and Wellness - insurers are required to cover certain preventive services at no cost to the insured. Beginning as early as August 2012, this list will expand to include additional services for women.

Health Reform Glossary

Full text of the Affordable Care Act - Read the Affordable Care Act in full or browse it section by section.

June 3, 2012

FMLA compliance: the basics

Recently, we've had a spike in questions related to the Family Medical Leave Act (FMLA). In response to this, we will occasionally highlight related tools, resources and articles here on the blog. Today, we'll start with some of the basics.

elaws - Family and Medical Leave Act Advisor is a resource from the U.S. Department of Labor that helps identify which employers are covered by the law, which employees are eligible for FMLA leave, what entitlements and benefits are provided under the law and in what situations FMLA leave may be used. It reflects the current regulations effective January 16, 2009. It also notes changes resulting from Congress's subsequent amendments to the FMLA. After an initial FMLA overview, the tool walks the user through a series of if/then eligibility questions. Pages that may be of significant help to employers include Employer Rights and Responsibilities Menu and a Glossary of Terms Used in the FMLA.

Other tools
DOL Family and Medical Leave Act - comprehensive list of resources and tools.

DOL Wage and Hour Division: Fact Sheet #28: The Family and Medical Leave Act of 1993 (revised in February 2010)

DOL Wage & Hour Division: Military Family Leave Provisions

DOL Wage & Hour Division: FMLA Poster - All covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.


ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

July 26, 2010

The ADA at 20 Years

To commemorate today's 20th Anniversary of the Americans with Disabilities Act, Rep. Jim Langevin of Rhode Island presided over the House. This was noteworthy because Langevin was the first quadriplegic elected to the House ... and this was the first time that he had access to presiding from the rostrum, a chore that's routine for other House members. Recent renovations that installed hydraulic lifts allowed him access to the speaker's podium in his motorized wheelchair.

Langevin is one of many. More than one in five Americans are disabled and more than three million Americans over the age of 15 use wheelchairs. Gary Talbot is one of that number and he tells his story a spinal cord injury and the discrimination he faced. He finally had a chance to make a difference when he became assistant general manager for systemwide accessibility for the Massachusetts Bay Transportation Authority. His story clearly illustrates the difference that the ADA has made.

But despite the many gains since the landmark legislation was passed, debate about the ADA still rages. Many wonder: Could Bush's Americans With Disabilities Act pass today?

"The ADA was the first comprehensive declaration of equality for people with disabilities--ever, in the world--and many nations soon followed President Bush’s lead and enacted similar legislation. The curb cuts, automatic doors, braille signs, “kneeling” buses and handicapped parking spaces that we take for granted now were not a part of American life before then. In fact, there’s a whole generation of teenagers, born in the years since that summer day in 1990, who have no idea what it used to be like. Millions of people joined the mainstream of American life that morning, and not long after many were able to attend public schools for the first time, get jobs for the first time, even just go to movie theaters for the first time. Think of all the people you know whose lives would be very different today had that bill not become law 20 years ago."

ADA resources
ADA home page from the U.S. Department of Justice
ADA Resources for Employers from the U.S. Depatment of Labor's Office of Disability Employment Policy
ADA Guide for Small Businesses
ADA Toolkit for Employers - This resource from the ADA National Network offers various Events & Educational Materials, including FAQs on the ADA, to help employers learn about the Americans with Disabilities Act (ADA) and disability-related topics.
Regional ADA National Network Center Websites

The ADA video gallery features several short films, including:
10 Employment Myths - Many employers misunderstand the Americans with Disabilities Act and are reluctant to hire people with disabilities because of unfounded myths. This seventeen-minute video responds to concerns expressed by employers, explaining the ADA in common sense terms and dispelling myths about this often overlooked pool of well-qualified employees.

Ten Small Business Mistakes - This video identifies common mistakes that small businesses make when trying to comply with the ADA and addresses the importance and value of doing business with 50 million people with disabilities. The video features statements by store owners expressing their doubts or misunderstandings about the ADA followed by responses from the Assistant Attorney for Civil Rights and other Department of Justice employees explaining the law in common sense terms.

April 16, 2010

Patient Protection and Affordable Care Act & the workplace

Now that the Patient Protection and Affordable Care Act is law, how are employers reacting? When it comes to offering workers healthcare benefits, will droves of employers be running for the exits? The answer is no, according to a recent health care benefits survey of about 3,700 employers by Crain Communications, publisher of both Workforce Management and Business Insurance. The survey found that 52.5% strongly disagreed with the statement that it would be better for their organizations to stop offering health care benefits and pay a fine under the new law, and another 15.3% somewhat disagreed. Only 14.1% felt strongly that it would be better for their organizations to drop benefits. The larger the employer, the greater the percentage that disagreed with the idea that it would be better to drop benefits. Many of those surveyed said that health care benefits are critical to employee recruiting and retention (65.7% strongly agreed; 25.6% somewhat agreed).

However, when asked whether they understand the impact of the law on benefits, only 17.7% strongly agreed that they understand, while 38% responded disagreed somewhat or strongly that they understand the impact. \

Focus on prevention and wellness
We'll all be learning more about the law and its implications for employers. In addition to the way that it will effect benefit offerings, the law will also have many implications for prevention and wellness, both on and off the job. The law calls for substantial annual allocations for prevention and public health awareness campaigns - some of which may assist in changing behaviors, much the way that the past anti-littering and no-smoking public awareness initiatives changed behaviors over time. In addition to the general public awareness campaigns, there are numerous programs that will be targeted specifically to the workplace and to workplace wellness initiatives.

At the NIOSH Science Blog, Director of National Institute for Occupational Safety and Health John Howard summarizes many of the prevention provisions in new law. He cites the following specific employer-based initiatives:

  • Provide employers with technical assistance, consultation, tools, and other resources to evaluate employer-based wellness programs including evaluating such programs as they relate to changes in employees' health status, absenteeism, productivity, medical costs, and the rate of workplace injury.
  • Build evaluation capacity among workplace staff by training employers on how to evaluate employer-based wellness programs utilizing mechanisms such as web portals, call centers, etc.
  • Within two years, conduct a national worksite health policies and programs survey to assess employer-based health policies and programs followed by a report to Congress with recommendations for the implementation of effective employer-based health policies and programs.

In a reply to questions and comments that follow his blog posting, Howard notes that the NIOSH role in such programs is still unclear. He is asked if the new provisions will include any change in the current system that separates medical care for people injured on the job vs off the job. He notes that he is unaware of any efforts to unite the non-occupational and occupational healthcare systems, citing the obstacle that workers' compensation insurance is regulated by the 50 states.

April 3, 2010

Pending changes in background screening practices?

It is expected that later this year, the EEOC will issue tighter, "evidence-based" guidelines on background checks for new hires. In addition, the Supreme Court will be hearing an important case involving NASA's background screening practices, which could have an enormous impact on the practice going forward.

Workforce Management recently addressed the issue of EEOC's anticipated evidence-based in a special report entitled "Burden of Proof." (free registration required) We asked our partner, Backgrounds Online to comment on this issue:

According to the recent article "Burden of Proof" in Workforce Management, the United States Equal Employment Opportunity Commission (EEOC) has recently announced plans to issue new guidelines when it comes to pre-employment screening over the next 12 to 18 months. The new guidelines will reportedly require “empirical evidence” that background checks help keep the workplace safe. Empirical evidence is defined as “originating in or based on observation or experience.”
The article focused on the seemingly lack of statistics to back up the need for and benefits of background checks. The author made a point of stating that the National Association of Professional Background Screeners (NAPBS), which is the background check industry’s trade group, has not conducted studies into empirical evidence. However, the author neglected to mention that there have been several studies and points that have been done. For example:
  • One report by the Association of Certified Fraud Examiners found that the median loss for small firms with fewer than one hundred employees was $190,000.
  • The Society for Human Resource Management says that 70% of all job applications provide information that is not fully accurate. )
  • The average jury award for negligent hiring against a company was $870,390 in 2000, according to Barry J. Nadell, former president of InfoLink Screening Services, in Chatsworth, California.
No reputable background check company can tout that running background checks on potential employees will protect a company from every foreseeable pitfall or danger when it comes to hiring. But those few points and statistics highlighted above can’t help but show that the benefits outweigh neglecting background checks completely.
The article also cited one staffing firm as using a blanket “no felons” policy, a policy that could be considered antiquated. The EEOC currently discourages this type of policy and their guidelines are, in fact, very workable as they require an employer to consider the nature of the offense in relation to the position being sought. Some states are even following suit with that line of thinking. For example, New York recently passed a law which prohibits employers from taking adverse action against an applicant if their charge doesn’t apply to the position.
No matter the change in EEOC guidelines, we believe that they would be hard-pressed to put the “burden of proof” solely on an employer as the Workforce Management is implying. Hire a reputable background check company and good legal counsel to consult with and you should be able to avoid any issues with the EEOC and background checks.
As this issue develops, we'll continue to check in with Backgrounds Online. Meanwhile, here are some other recent articles and opinions on this issue:

December 18, 2009

ESI featured in WSJ article on Mental Health Parity Law and EAPs

An article by reporter Shirley Wang at the Wall Street Journal this week noted that many companies are turning to EAPs or expanding their EAP coverage options as a cost-effective alternative to help fulfill requirements of the mental health parity law. We were pleased to find a brief profile about our services in the article:

"One employee at Harrington Industrial Plastics, a distributor of industrial plastics in Chino, Calif., says she "didn't know where to start" when looking for help dealing with the loss of a child. She turned to her company's EAP, which took a "heavy burden" off her by helping find the resources she needed, including an in-network provider.

Harrington had a bare-bones EAP, offering just three telephone counseling sessions, until early this year. To encourage greater use, the company began offering unlimited telephone sessions and introduced in-person sessions through ESI Employee Assistance Group. It also expanded the menu of services offered to include consultations for adoption, caring for elderly parents and even dealing with pets' behaviors and moods.

Employee use of the Harrington EAP has since risen dramatically, says Robyn Cherney, the company's human-resources administrator."

Mental Health Parity and EAPs
According to Wang, many employers with 50+ employees will need to adjust coverage options by January 1 to comply with the mental health parity law (The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008.) This will entail "setting co-payments for behavioral-health services no higher than those for other medical benefits, as well as lifting or expanding limits on the number of visits to mental-health professionals so they are no less restrictive than physical-health benefits." The law expands on the parity provisions stipulated in a prior federal law. In addition, many states have their own mental health parity laws.

One advantage of having an EAP is the potential to intervene early so that many life problems and mental health issues can be addressed at an early stage before they burgeon into more debilitating and more disruptive problems. A good EAP with clinical counselors can also serve as a mental health entry point to help ensure appropriate referrals and follow-up for services within a qualified network of providers.


** An alert reader notified us that the Department of Labor link that we used in our list did not have the most recent information and therefore was inaccurate. We've updated the link with more recent information from the DOL, but be aware that final regulations for the law have been delayed. In October, Health and Human Services Secretary Kathleen Sebelius stated that regulations are planned for January 2010. Meanwhile, affected employers should proceed with good faith efforts to comply with the law's requirements.

March 12, 2009

Coming soon to a neighborhood near you: guns in your company parking lot

As an employer, you have a right to set policy for your private property, right?

Apparently not when it comes to guns. An employer's private property rights are taking a back seat to employees' rights to keep loaded guns in their cars in workplace parking lots. At least that's the word from the U.S. 10th Circuit Court of Appeals.

The ruling is the latest development in a series of events that began in Oklahoma in 2002 when Weyerhaeuser employees were fired for having left firearms locked in their vehicles in the plant parking lot. In reaction to these firings, the state legislature enacted a law banning companies from restricting workers' ability to carry legal firearms in their vehicles. Many employers - Weyerhaeuser Corp., Whirlpool Corp., and ConocoPhillips among them - challenged the Oklahoma law on safety grounds. In October 2007, a U.S. District Judge issued an injunction against the law on the basis that it conflicted with an employer's legal obligation under OSHA to maintain a safe workplace.

In its decision, the appeals court noted that OSHA took a neutral stance on the law and, therefore, the law did not create a conflict.

Since this ruling, both Arizona and Utah legislators have made progress on enacting similar bills. In both places, there has been significant opposition to these laws, particularly from business and employer groups. But such opposition did not stop the passage of a similar law in Florida last year. Ironically, guns are not allowed in most of the chambers where such laws are decided. Guns are not allowed in most federal offices or in many state and municipal offices.

This decision is a substantial victory for the gun lobby of the National Rifle Association, which has been going state by state to promote such legislation. Employers are left with the burden of maintaining a safe workplace while being disallowed from establishing safety policies of their choosing for their own property.

While several such state laws have provisions that offer some thin liability protection to employers, there are other losses that could occur as a result of a gun-related incident at work. Such losses could include business interruption, loss of reputation, an increase in absenteeism, a decrease in employee productivity and morale, and increased disability and workers compensation losses. Waivers are also unlikely to protect an employer from employment suits such as negligent hiring or negligent retention. Is your business ready for the heightened security burden that this additional risk will impose?

The parking lot today, but one has to wonder if the next battle line will be the workplace proper. Will the NRA soon be lobbying for the right of employees to arm themselves at their workstations to be protected from co-workers who retrieve loaded weapons from the parking lot and begin a shooting rampage?

February 1, 2009

Crawford, Ledbetter, and FMLA

There have been several recent legal and legislative developments that will keep HR directors hopping. We provide a rundown of some resources about these developments that we've found helpful.

Employment Law - The Supreme Court recently came down on the side of whistle blowers in issuing a judgment favorable to Vicky Crawford, an employee who testified in a workplace sexual harassment case. Shortly after testifying in the case, Crawford and two other workers who testified were fired. She filed a complaint with the Equal Employment Opportunity Commission but lower courts denied her claim because she had not been the initiator of the harassment charge. The Supreme Court found in her favor, stating "If it were clear law that an employee who reported discrimination in answering an employer's questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others." Michael Fox of Jottings by an Employers' Lawyer offers his thoughts on Crawford v. Metropolitan Government of Nashville and the implications for employers.

Legislation - George Lenard at George's Employment Blawg provides a good backgrounder on the Lilly Ledbetter Fair Pay Act, along with an analysis of the implications for employers:

"Regardless of the impact on litigation, in terms of recommended human resources practices, the Ledbetter Act does not directly require any specific changes, since it merely alters the procedures claimants must follow — and the corresponding procedural defenses available to employers.

Rather, it reinforces the need, in order to comply with substantive pay discrimination law, to carefully review employee compensation, identify any significant disparities along the lines of race, sex, or other protected characteristics, and take all necessary steps to ensure that compensation differences are supported by sound, objective business reasons."

BLR Founder and CEO Bob Brady weighs in with his editorial in HR Daily Advisor on Comparable Worth: Back from the Dead--Again?

Compliance - Human Resource Executive offers part 1 of an overview of the new FMLA regulations. David Greenspan and Briton Nelson of Suits in the Workplace offer a detailed and helpful post on the new Employer Notice Requirements. They promise more information on other aspects of the new regulations in upcoming posts.

January 15, 2009

Reminder: tomorrow is F-Day

If you have January 16, 2009 circled on your calendar and you are trying to remember why, Hr Daily Advisor has a reminder: be sure you are ready for F-Day.

Friday, January 16 is the day the new FMLA changes go into effect and the changes create a new set of obligations for those employers that are subject to FMLA regulations. FMLA applies to:

  • public agencies, including state, local and federal employers, local education agencies (schools)
  • private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who and engaged in commerce or in any industry or activity affecting commerce – including joint employers and successors of covered employees.

CCH posts a helpful rundown of revised posters and forms. They note that every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the FMLA’s provisions. (PDF of revised poster)

If you want to go right to the source, visit the Department of Labor's web page and resources on Revised Final Regulations Under the Family and Medical Leave Act

October 6, 2008

October is Disability Awareness Month; ADA Amendments Act

October is Disability Employment Awareness Month and this year, many have a reason to celebrate with the recent passage of the Americans with Disabilities Act (ADA) Amendments Act of 2008, which was signed into law on September 25, 2008 and becomes effective January 1, 2009. This law extends workplace protections for the disabled. This change will require employers to address and revise their policies and procedures. We've compiled some resources to help:

EEOC: specific changes to the ADA made by the ADA Amendments Act.

BLR: Americans With Disabilities Act Information Center - what employers need to know about the ADA Amendments Act (ADAAA)

The Gavel: House Passes Americans with Disabilities Act Amendments

George's Employment Blawg has a three-part series on this legislation: Part 1: House Widely Approves ADA Amendments, But What Difference Will They Make If They Become Law?; Part 2; and Part 3

ADA.gov - information and technical assistance on the Americans With Disabilities Act

Office of Disability Employment Policy - part of the U.S. Department of Labor

DisabilityInfo.gov - a comprehensive online resource designed to provide people with disabilities with quick and easy access to the information they need.

Veterans With Service-Connected Disabilities and the ADA - A guide for employers from EEOC

Questions and Answers About Cancer in the Workplace and the ADA - from EEOC

Job Accommodation Network

5 Things Every Company Needs to Know About People With Disabilities

April 18, 2008

Florida law: It's now OK to keep guns in your car on work property

Many Florida HR managers will be needing to update their policy handbooks in the wake of contentious new legislation giving employees the right to keep a gun in a locked car at work. On April 15, Governor Charlie Crist signed the Preservation & Protection of the Right to Keep & Bear Arms in Motor Vehicles Act of 2008, which says that beginning July 1, employees with concealed weapons can keep a gun locked in their car at work, even on the employer's private property. Organizations that have polices banning weapons from company premises will need to revise those policies. The law pertains to both public and private employers with some few exceptions: aerospace, nuclear power plants, hospitals, schools, prisons and manufacturers that use combustible materials.

Many employers have been fighting this legislation for years under a coalition called Guns at Work. In reaction to the newly enacted legislation, the Florida Chamber of Commerce and the Florida Retail Federation announced plans to file for an injunction in federal court against the legislation. Mark Wilson, President and CEO of the Florida Chamber of Commerce stated:

"This law is unnecessary and a violation of the private property rights provided by the Constitution. We are taking this action to restore what 80 percent of Florida voters believe to be true—that a business owner should be able to decide if employees can or cannot bring guns on their property."
According to the Brady Foundation, the National Rifle Association has been lobbying heavily in many states to promote such legislation. (See Forced Entry: The National Rifle Association's Campaign to Force Businesses to Accept Guns at Work PDF) Several other states have passed similar laws - Alaska, Kansas, Minnesota and Kentucky. At least 13 other states have rejected such laws, and Oklahoma passed a similar law, only to have it recently overturned in the courts.

Oklahoma - similar measure overturned in court
Opponents have some grounds for hoping that this might be overturned. A similar measure passed in Oklahoma in 2004 in response to the firing of a dozen Weyerhaeuser employees in 2002 for having guns locked in their cars in the company parking lot. After wending its way through courts for a number of years, the law has been overturned. In October 2007, U.S. District Judge Terence Kern issued a permanent injunction against the law which prohibits employers from banning firearms at the workplace. The judge made his ruling based on the law's conflict with federal law, specifically, the 1970 Occupational Health and Safety Act, which preempted the Oklahoma law. OSHA requires requires employers to lessen hazards in their workplaces that could lead to death or serious bodily harm. OSHA also encourages employers to prevent gun-related workplace injuries.

For further discussion on this topic, see our prior post Should employers have the right to ban guns at work?.

February 7, 2008

FMLA amended to include leave for military families; more changes pending

This week marks the 15 year anniversary of the 1993 Family and Medical Leave Act (FMLA), which was signed into law on February 5, 1993. FMLA requires employers of 50 or more employees to provide eligible employees up to 12 weeks of unpaid, job-protected leave each year for the birth and care of a newborn child, for placement with the employee of a child for adoption or foster care, or for the serious illness of the employee or of the employee’s child, spouse, or parent. D.O.L.'s FMLA Compliance Assistance page offers more detail and resources.

On January 28, the FMLA had its first major expansion when President Bush signed the 2008 National Defense Authorization Act into law, which, among other provisions, extends FMLA to family members of military personnel who are recovering from illness or injury. While regulations are still pending, the Department of Labor (DOL) states that the amendment to the FMLA allows a "spouse, son, daughter, parent, or next of kin" to take up to 26 weeks of work leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

More changes in the works
In addition, more regulatory changes to FMLA are forthcoming. DOL will be issuing recommendations for additional amendments on February 11. According to Human Resources Executive, it is expected that DOL recommendations might address the difficulties posed by intermittent leave and might strengthen the definition of "serious medical condition." It is also anticipated that employees will be required to request FMLA-related leave two days prior to taking time off, a change from the current system in which employees can be absent for two days before requesting the leave be designated as FMLA leave.

Once the new recommendations are issued, final regulations will need to be approved, a process that could take 90 days or longer. Once approved, Congress has up to 60-days to review the rules. As the HRE article points out, "That means a new Congress next year could reject what the Congress this year approved."

At least one of the authors of the original FMLA legislation would like to see even more changes. Senator Christopher Dodd wants to strengthen the law to give Americans 8 weeks paid leave after having a child or during a family illness. Dodd contends that millions of workers do not take advantage of FMLA because they can't afford time off without pay. He also notes that 128 countries provide paid and job-protected maternity leave, with an average paid leave of sixteen weeks. Dodd has made several prior attempts to expand FMLA to include paid leave but has met with little success. Time will tell whether a Congressional party shift and change in administration would create a more favorable climate for such a proposal.

Employer advice from legal experts
Meanwhile, legal experts are advising that employers act expeditiously to amend their FMLA policies and practices to reflect the changes. And the employment law firm Littler Mendelson also reminds employers that in addition to these changes, employers may face other obligations under state laws:

"Employers should be aware that time off under this new legislation may be in addition to family leave available under state law. Several states have now passed legislation providing their residents with unpaid family military leave. These states include California, Illinois, Indiana, Maine, Minnesota, Nebraska, and New York. Other states, including Hawaii and Wisconsin, have family military leave legislation currently pending before their respective state legislatures. Employers also should be aware of applicable state statutes and modify their leave policies as appropriate. The family military leave laws do not purport to affect an employee's right to any other legally-mandated leave or employee benefit, including the additional leave benefits now available to employees under the Amendment."

January 16, 2008

NLRB: employers can prohibit union-related email

In a pre-Christmas ruling, the National Labor Relations Board issued an opinion that strengthens the employer's right to restrict the use of company e-mail for non-work related activities, including union solicitation. It applies to all private employers, regardless of union or nonunion status. According to the New York Times:

The ruling involved The Register-Guard, a newspaper in Eugene, Ore., and e-mail messages sent in 2000 by Susi Prozanski, a newspaper employee who was president of the Newspaper Guild’s unit there. She sent an e-mail message about a union rally and two others urging employees to wear green to show support for the union’s position in contract negotiations.
During the years that this case was pending, many companies were uncertain whether they could bar union-related e-mail. But the labor board’s decision gives companies nationwide the green light to flatly prohibit union-related e-mails as part of an overall non-solicitation policy.
“An employer has a ‘basic property right’ to regulate and restrict employee use of company property,” the board’s majority wrote. “The respondent’s communications system, including its e-mail system, is the respondent’s property.”

Prior to this ruling, conventional wisdom held that e-mail would be treated in much the same manner as other communications under Section 7 of the National Labor Relations Act, which forbids employers to discriminate in terms of union organizing. To avoid discrimination, employers that wanted to maintain nonunion status were strict about disallowing any other types of non-work solicitations and communications in the workplace, encompassing communications from Girl Scout cookies and bowling clubs to Avon.

But while this opinion strengthens employer control over e-mail, it apparently does not hold to the same non-discrimination standards, making allowances for some types personal e-mail messages. This would seem to indicate that employers may want to revise organizational policies to clarify what communications are and aren't allowed. It also raises the question as to whether this newer standard will apply to other forms of communication as well. This ruling was politically controversial, split between party lines, and some think that the decision may be revisited by a new Board in the next administration.

We are not lawyers, so for a greater understanding of some of the legal nuances in the decision, we turn your attention to the following experts:

Ross Runkel at LawMemo discusses the "two bombs" that the NLRB dropped in its last day in office. Jeffrey M. Hirsch of Workplace Prof Blog and Mitchell H. Rubinstein of Adjunct law Prof Blog both discuss problems with the ruling.

Rod Satterwhite of Suits in the Workplace also offers a history and summary of the decision and this explanation of what the ruling means to employers:

With respect to e-mail policies, employers may now "distinguish between charitable solicitations and non-charitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations to support any group or organization such as unions, political parties or religious groups. Allowing the employer to distinguish between personal and organization interests is extremely important, because the Board had previously held that if an employer allows employees to discuss personal matters, such as athletic scores, news or family affairs, it could not prohibit discussions of union matters.
Equally important, the Board clearly intends this new understanding of discrimination to apply in other contexts, including right of access to employers' property and internal non-solicitation/no distribution policies, although it excluded situations in which employees had no opportunity for face-to-face communication.

We'll keep you updated if we see any other good legal guidance on the matter.

November 29, 2007

Employer obligations under new OSHA safety standard

As of May, 2008, employers must bear the cost for personal safety equipment (PPE) used by their workers. On November 14, OSHA issued a new rule clarifying employer responsibilities for payment of PPE, requiring that employers bear the cost of most PPE mandated by OSHA's general industry, construction and maritime standards. This rule had been in limbo since it was first proposed in 1999, and the current implementation is thought to be an effort to deter a lawsuit that was filed earlier this year by several unions. One of the controversies around the rule has been whether employers should be required to pay for prescription safety eyewear. The new rule exempts ordinary protective equipment such as prescription eyewear, safety footwear, protective clothing, and weather-related wear. The new rule does not expand the roster of PPE that is required.

OSHA estimates that implementation of the new rule new rule will reduce occupational injuries by as much as 21,000 per year, saving more than $200 million per year in medical and insurance costs. For more details, the full text of the rule is available here: Employer Payment for Personal Protective Equipment (PDF)

August 14, 2006

How HIPAA affects the need for information

We often get requests from our customers for more detailed information about their organization's utilization of EAP services. Employers have a legitimate need to understand how their money is being spent. Some also want to use the data to better address specific issues that their employees and their families might be experiencing. EAPs and other benefits companies—especially health insurance organizations—would like to respond to their customers' needs, but are stymied by the necessity of complying with the regulations set forth in HIPAA.

Since April 13, 2003, all health care organizations have been required to comply with guidelines protecting an individual's health care information. There is a great deal of detail in the Act but, in short, this federal law states that we all have privacy rights and your health information is protected. The law states that no one can release your health care information without your permission. (Detailed information is available at the Health & Human Services, Office for Civil Rights—HIPAA).
Health care organizations, such as hospitals and group health plans, must comply with the law. Physicians are also subject to the provisions of the law. Penalties for noncompliance can be sever—the HIPAA Blog reports on one company that paid $15 million in penalties for breaching personal data.

Many gray areas
When it comes to protecting an individual's medical notes, interpreting and complying with this law is fairly straightforward. Matters become more complex when we start talking about insurance claims data. For instance, suppose you work for a small- to mid-sized company, and one of your employees has been out sick for a period of time. When you later get a claims report from your medical insurer that shows a spike in mental health claims that coincide with this absence, the picture is fairly obvious. Does "putting two and two together" constitute a breach of HIPAA regulations? This is a much more difficult question to answer.

For the short term, employers should expect that benefits organizations will be extra cautious about the information they release. That will make benefit purchase decisions more difficult. It is also likely to cause unwanted friction between benefits companies and the customers they serve.

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