Employers Must Consider the ADA before Requiring Medical Examinations

Depending on your industry, it may be commonplace for you as an employer to require medical examinations of employees for a specific purpose in order to ensure the safety and health of those employees.  This often occurs, for example, in situations where employees have been exposed to a dangerous chemical and relevant laws, such as OSHA regulations, require medical examinations/testing for purposes of assessing and monitoring the impact of the exposure.  From an employer’s perspective, however, the question sometimes arises as to whether, as a reasonably prudent measure, it can also require those employees to submit to medical examinations for other purposes, even if the examinations are not absolutely necessary or required at the time — such as whether there was exposure to any other chemicals or exposure below levels at which medical evaluation is mandated by OSHA.

Medical ExamTo answer that question, an analysis of the Americans with Disabilities Act (“ADA”) is required.  Of course, other federal laws, such as the Genetic Information Non-Discrimination Act (“GINA”), the Health Insurance Portability and Accountability Act (“HIPAA”) and OSHA, also may be implicated in this analysis, as could state disability-related laws and/or privacy laws, but for purposes of this blog post, our analysis is limited to the ADA.

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Obama Era Overtime Rule Officially Struck Down

On August 31, 2017, a Texas federal judge invalidated the Obama administration’s controversial rule expanding overtime protections to millions of white collar workers, saying the U.S. Department of Labor (DOL) improperly used a salary-level test to determine which workers are exempt from overtime compensation.

As you likely will recall, the Obama administration’s “overtime rule” (which we explainedOvertime Business Man Clock in detail here) raised the minimum salary threshold required to qualify for the Fair Labor Standards Act’s “white collar” exemption to just over $47,000 per year.  In granting summary judgment to the Plano Chamber of Commerce and other business groups who had filed a lawsuit challenging the “overtime rule,” U.S. District Judge Amos Mazzant said that the “significant increase” to the overtime threshold amount would essentially render meaningless the duties, functions, or tasks that an employee performs if their salary falls below the new minimum salary level.  Judge Mazzant further stated that “[t]he department has exceeded its authority and gone too far with the final rule,” and that “[t]he department creates a final rule that makes overtime status depend predominately on a minimum salary level, thereby supplanting an analysis of an employee’s job duties. Because the final rule would exclude so many employees who perform exempt duties, the department fails to carry out Congress’s unambiguous intent.”

As we previously informed you here, the “overtime rule” had been on hold by way of an injunction since late November 2016 as a result of a legal challenge brought by states and business groups, and as a result, employers have been waiting for clarity since that time.  Through his decision, Judge Amos Mazzant has now provided employers with much needed clarity.  Based on previous statements made by the current administration’s Labor Secretary, Alex Acosta, it is expected that at some point in the future the DOL will propose a new rule, setting the salary threshold somewhere between the current level of $23,660 and the $47,476 level set by the Obama administration.  However, based on Judge Mazzant’s harsh criticism, as well as the tenor of the Trump administration, it is unlikely that a new rule will be promulgated anytime soon.  So, for now, employers can continue to abide by the traditional overtime threshold that has been in place for more than a decade.

OMB Suspends New EEO-1 Reporting Data Requirement

Employers throughout the nation who have been preparing to comply with the revised Employer Information Report (EEO-1) will be pleased to learn that the Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) has indefinitely suspended the new report’s compliance date.

By way of background, as explained hereEEOC Picture, in February 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced a major revision to the EEO-1 Form reporting requirements, requiring all employers with more than 100 employees (and federal contractors with more than 50 employees) to submit compensation data based on certain demographic information such as gender, race, and ethnicity to the EEOC beginning in 2017.  Following that announcement, employers in all industries voiced numerous concerns about those changes, including the increased time and money that would be required to complete the new report, confidentiality issues, data security and privacy issues, the range of false positives that would result from the submission of pay data, and the enforcement actions that would inevitably arise from these false positives.  Although the EEOC thereafter issued a “revised” Final Rule in September 2016, the revised rule changed very little from the original, aside from moving the due date for submission to March 31, 2018.

However, on August 29, 2017, the OIRA stopped the new EEO-1 rule in its tracks, stating in a memorandum to the EEOC that among other things, it is “concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

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Businesses Should Prepare For Predictive Scheduling Laws

Last month, Victoria’s Secret agreed to pay $12 million to settle a class action lawsuit in California brought by hourly employees that were denied pay as a result of the store’s use of on-call shift scheduling.  In that lawsuit, the employees relied on a California law requiring employees, who report for work on a scheduled workday but who either are not needed (and therefore not put to work) or are furnished with less than half their usual or scheduled hours, to receive two to four hours of pay at their regular rate of pay. Work Schedule Calendar

This settlement brings to light the “predictive scheduling” trend that is occurring throughout the nation.  Historically, restaurants and retailers have used on-call scheduling to help control labor costs.  But as workers began claiming that the daily unpredictability of on-call scheduling hindered their ability to earn a living, hold more than one job, arrange reliable child care, and attend classes, this practice began to change.

Now, to combat worker uncertainty, numerous states and municipalities have begun passing these types of laws, referred to as “predictive scheduling,” “fair scheduling,” “secure scheduling,” and “fair workweek.”  For the most part, predictive scheduling laws typically require employers to provide employees (i) with their schedules two to four weeks in advance; and (ii) with predictable pay if changes to work schedules are made within this window.    Most of these laws contain exceptions to these requirements where an employer’s inability or failure to provide an employee with scheduled work results from specific causes beyond its control.

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Join Us for our July Webinar on Joint-Employer, Independent Contractor, and Temporary Worker Issues

On Tuesday July 11, 2017, Conn Maciel Carey Labor & Employment attorneys Jordan B. Schwartz and Lindsay A. DiSalvo and OSHA attorney Eric J. Conn will be presenting a free webinar discussing issues relating to Joint and Multi-Employer, Independent Contractor, and Temporary Workers from both and Employment Law and OSHA perspective.

 

Employers’ perceptions about whether a legal employment relationship has been formed is not always shared by the Dept. of Labor. Although an employer may classify workers as independent contractors or engage them as temp workers through a staffing agency, that does not mean the DOL agrees. At the tail end of the Obama Administration, the DOL was vocal about its belief that most workers should be treated as employees, so employers will be accountable for the specific obligations of an employer-employee relationship. Additionally, employers may have certain HR or OSHA obligations and potential liabilities depending on their role at multi-employer worksites or in joint employer situations. The DOL has been cracking down on employee misclassification and division of responsibility among multiple employers.

Now, under the new Trump Administration, the DOL’s and OSHA’s views of the employment relationship are shifting. It is essential for employers to stay abreast of these issues, and carefully evaluate their employment relationships and functions at multi-employer workplaces.

During this webinar, participants will learn:

  • Current criteria used to evaluate the employer-employee relationship
  • Employers’ responsibilities on multi-employer worksites
  • How to clearly establish an independent contractor relationship
  • How to lawfully and effectively manage temporary workers

The webinar begins at 1:00 pm ET.  You can register for the webinar HERE.  You can also register for Conn Maciel Carey’s entire 2017 Labor & Employment Webinar Series below:

Register me for the entire 2017 Labor & Employment Webinar series

Federal Court in Florida Rules that a Grocery Store Must Make its Website Accessible

Our retail and hospitality clients often ask whether the Americans with Disabilities Act (“ADA”) requires their websites to be accessible for individuals with disabilities.  Unfortunately, as we have previously explained, there are numerous reasons why there is no clear answer to this question:  Website Accessiblity

  • While Title III of the ADA prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, the statute does not explicitly define whether a place of public accommodation must be a physical place or facility;
  • These types of issues historically have arisen in brick-and-mortar buildings such as lack of accessible parking stalls, insufficient ramps, and inaccessible bathrooms;
  • No regulations on the issue of website accessibility currently exist, and the Department of Justice (“DOJ”) has pushed back the date on which it is supposed to issue such regulations until 2018 at the earliest;
  • The DOJ has emphasized that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards developed by the World Wide Web Consortium known as the Web Content Accessibility Guidelines (“WCAG”);
  • Very few cases have reached a resolution on the merits.

As a result, the state of the law regarding the applicability of the ADA to company websites has been in flux the last several years.  However, we now are starting to see some guidance from the courts, although there have been contrasting decisions that have not exactly clarified matters.

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Join Us for our May Webinar on Key Marijuana Issues in the Workplace

On Wednesday May 24, 2017, Conn Maciel Carey Labor & Employment attorneys Jordan B. Schwartz and Andrew J. Sommer will be presenting a free webinar discussing recurring marijuana issues in the workplace in light of new state legislation.

medical marijuanaThe rise in medical and recreational marijuana legislation poses many interesting questions for employers.  State legislation of the lawful use of cannabis likely will require employers to change their perceptions of longstanding drug policies and practices.  Legalized medical and recreational cannabis is a reality in many states, dispensaries are open for business, and state legislation on this topic has become a hot topic throughout the country.

Challenges by medical marijuana patients and recreational marijuana users concerning their employers’ practices are sure to arise, and there are several state and federal laws that may be implicated in those lawsuits.  Employers with national operations must take into account potentially divergent laws of the states in which they operate. This webinar will provide guidance to employers so they can tread carefully and refrain from making hasty decisions that can lead to the time, expense, distraction, and potentially unflattering publicity resulting from litigation.

 

The webinar begins at 1:00 pm ET.  You can register for the webinar HERE.  You can also register for Conn Maciel Carey’s entire 2017 Labor & Employment Webinar Series below:

Register me for the entire 2017 Labor & Employment Webinar series