On October 17, 2018, the Trump Administration released its Unified Agenda of Regulatory and Deregulatory Actions (“Agenda”). Reports such as these, usually issued twice a year, set forth each federal agency’s forecast of its anticipated actions and rulemaking priorities for the next six-month period. It also provides estimated timelines for completion. This regulatory to-do list provides insight into the administration’s upcoming priorities. The current Agenda emphasizes the Trump Administration’s efforts to deregulate industry, but also includes several regulatory items of importance to employers.
Here is a summary, broken down by department, of the most significant employment-related items addressed in the Agenda.
Department of Labor
Wage and Hour Division
Joint Employment. The Obama administration took a much broader view of “joint employment” – situations in which a worker may be considered an employee of two or more separate employers. Following the lead of the NLRB, which last month issued its own proposed rule re-tightening the standard for joint employment, the DOL announced its intention to “clarify the contours of the joint employment relationship to assist the regulated community in complying with the Fair Labor Standards Act.” A notice of proposed rulemaking is scheduled to issue as early as December 2018 and will hopefully modernize the method for determining joint employment in today’s workplace.
White Collar Overtime Exemption. The DOL has listed as a priority its long-awaited rule to update the salary level for the exemption of executive, administrative and professional employees under the FLSA (the so-called white-collar exemption). It is expected to raise the threshold exemption for such employees from the historical level under the FLSA ($23,660 annually), but not as high as the former rule adopted by the Obama administration, which would have more than doubled the minimum salary level but was enjoined by a court. The timeframe is somewhat unclear and has been pushed back twice already. The Agenda states it is now expected in March 2019.
Regular Rate. Under the FLSA, employers must pay covered employees time and a half their regular rate of pay for hours worked in excess of forty hours in a workweek. The DOL has stated its intent to amend its regulations “to clarify, update and define the regular rate requirements under the FLSA.” The new proposal is expected in December 2018.
Tip Regulations. In March of 2018, the omnibus budget bill amended the FLSA and addressed rules affecting tipped employees and so-called “tip pooling.” The DOL is expected to issue a proposed rule this month to clarify and address the impact of the 2018 FLSA amendments.
Occupational Safety and Health Administration
Tracking of Workplace Injuries and Illnesses. OSHA proposed to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). OSHA also proposed to add the Employer Identification Number (EIN) to the data collection to increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match OSHA-collected data to BLS Survey of Occupational Injury and Illness (SOII) data and potentially reduce the burden on employers who are required to report injury and illness data both to OSHA (for the electronic recordkeeping requirement) and to BLS. OSHA is reviewing comments and is expected to publish a final rule in June 2019. Many entities submitted comments regarding the anti-retaliation provisions of the rule, but it is not known whether OSHA will make further changes to that aspect of the rule. Meanwhile, OSHA issued a memorandum on October 11, 2018 with the stated intent of clarifying that the rule does not prohibit workplace safety incentive programs or post-incident drug testing. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health. This rulemaking has been moved from the Proposed Rule Stage to the Final Rule Stage. Continue reading
As you know, the Americans with Disabilities Act (ADA) prohibits discrimination against disabled employees and job applicants in all aspects of employment, including hiring, firing, and promotion. It also provides rules for employers regarding the extent to which they may inquire about an employee’s physical or mental health, and requires employers to provide reasonable accommodations to covered employees, unless such accommodations would cause undue hardship. Whether an accommodation is reasonable or would cause undue hardship on the employer is very fact-specific and is usually determined on a case-by-case basis, but the Equal Employment Opportunity Commission (EEOC) seems to have taken a hardline approach on employer policies related to certain types of accommodations.
One type of accommodation often requested is leave (which also tends to implicate the Family and Medical Leave Act). Employers frequently receive such a request where an employee suffers a disabling injury, such as a broken bone, that requires him to miss work for an extended period of time to recover. In this context, the employee will normally request leave for an extensive, but certain amount of time with at least a tentative end date, usually in accordance with his doctor’s recommendation. Although most circuit courts agree that employers need not provide employees with indefinite leave, enforcement guidance provided by the EEOC states that company policies setting a finite limit on the length of leave violates the ADA’s requirement for employers to engage in the interactive process to discuss reasonable accommodations.
So, what happens if an employer implements a blanket “no fault” attendance policy, whereby employees are assigned points for absences, regardless of reason, and are terminated for not being able to return to work after 180 days of leave? Employers might think this is an effective way to maintain neutrality and avoid asking employees about their reasons for taking leave – it gives employees the power to manage their leave as they see fit and takes management out of the picture. But, the EEOC disagrees. In fact, the EEOC would call this a form of “systemic discrimination against employees with disabilities” in violation of federal law, as demonstrated by a recent July 2018 consent decree entered into by the EEOC and Mueller Industries, Inc.
In EEOC v. Mueller Industries, Inc., the EEOC filed suit in the U.S. District Court for the Southern District of California against Mueller Industries, Inc., a global metal goods manufacturer, claiming disability discrimination. It charged the company with terminating employees and/or failing to provide reasonable accommodations for those exceeding its maximum 180-day leave policy. The EEOC also stated that the company violated federal law by implementing its attendance policy in a way that assigned points for absences, regardless of reason. Essentially, the EEOC took issue with the fact that the “no fault” policy did not allow for the type of individualized assessment that the ADA requires. Through the interactive process, employers and covered employees are meant to discuss the types of accommodations needed to allow the employee to perform his essential job functions, and to permit employers to determine whether the accommodations discussed are reasonable. Although the burden of raising the need for an accommodation rests on the employee, once an accommodation has been requested, or the need for an accommodation has been identified, it is the responsibility of the employer to initiate the interactive process and determine a reasonable accommodation for that individual employee. The EEOC’s enforcement guidance and July 2018 consent decree seem to direct that a “one-size-fits-all” leave policy simply does not work.
The case concluded when the parties entered into a consent decree, which will remain in effect for two-and-a-half years and applies to all Mueller facilities nationwide. It provides for $1 million in monetary relief, as well as broad injunctive relief. Namely, the consent decree requires that Mueller reinstate any affected individuals, revise its written policies and procedures regarding its complaint system, appoint an ADA coordinator, create and maintain an accommodation log, post a notice for its employees about the case, provide training to all employees on the ADA, develop a centralized tracking system for accommodation requests, and submit annual reports to the EEOC verifying compliance with the decree. This can be a pretty hefty price for employers to pay, all over one policy.
In light of the EEOC’s guidance and apparent enforcement posture, employers should review their attendance procedures and make sure they are not implementing such blanket “no fault” leave policies that do not make room for employers and disabled employees to engage in the interactive process. Leave policies should always be developed and written with the ADA in mind. This is especially true in today’s enforcement climate where the EEOC has announced that addressing emerging and developing issues in equal employment law, including issues involving the ADA, is one of its six national priorities identified in its Strategic Enforcement Plan.
By: Aaron Gelb
Hiring practices, by their nature, have the potential to impact large groups of individuals. Employers using certain screening tools such as pre-employment tests and medical questionnaires may thus find themselves having to defend their policies and procedures in litigation brought by the US Equal Employment Opportunity Commission (“EEOC”). Last year, the EEOC announced in its Strategic Enforcement Plan (“SEP”) for Fiscal Years 2017 – 2021 that it will continue to focus on “class-based recruitment and hiring practices that discriminate against racial, ethnic, and religious groups, older workers, women, and people with disabilities.” Since issuing the SEP, the agency has filed a number of lawsuits across the country against employers accused of creating barriers to employment for individuals with disabilities. These cases serve as important reminders that even the most well-intentioned employers should take a close look at the tools they are using to screen applicants for the various positions they are attempting to fill or run the risk of squaring off against the EEOC.
Two recently filed lawsuits highlight the perils associated with pre-employment drug testing and/or asking applicants about their prescription drug usage.
In EEOC v. M.G. Oil Co. d/b/a Happy Jack’s Casino, 4:16-cv-04131-KES (D. S.D.), the agency accused the defendant of discriminating against an applicant for a cashier position by revoking her conditional employment offer after learning she received a non-negative drug screen result. M.G. Oil promptly filed a third-party complaint seeking indemnity and contribution from TestPoint Paramedical, LLC, the company which administered the drug test. M.G. Oil accused TestPoint of failing to send the test results to a medical review officer to determine if there was a valid reason for the non-negative result. M.G. Oil’s gamble failed as the court dismissed the claims against TestPoint, leaving M.G. Oil to explain why it refused to reconsider its decision to revoke the applicant’s offer after she explained the non-negative drug test result was due to her lawful use of a prescription pain killer she took for back pain. The EEOC also accused M.G. Oil of violating the ADA by requiring all employees to report both prescription and non-prescription medications they are taking. Eventually, the Company entered a consent decree settling the lawsuit, agreeing to pay $45,000 and adopt company-wide policies to prevent future hiring issues under the ADA. The company also agreed to only require employees to report prescription and non-prescription medications that may affect their performance. Continue reading
Recently, there have been a slew of lawsuits filed across the country alleging that owners and operators of hotels and other places of lodging are using websites that violate the Americans with Disabilities Act (“ADA”). These lawsuits are different than the wave of lawsuits and demand letters sent to so many hotels and other places of public accommodation the last few years alleging that those companies failed to make their websites accessible for users with visual, hearing and physical impairments by not adhering to the Web Content Accessibility Guidelines (WCAG). (For more information about the WCAG issue, check out our prior posts on that issue here and here.)
ADA regulations require hotels to make reasonable modifications in their policies and practices when necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. Because the purpose of a hotel’s website is, in large part, to allow members of the public to review information pertaining to the goods and services available at the hotel and then reserve appropriate guest accommodations, such websites have been found to be subject to the requirements of ADA regulations. According to these regulations, a hotel must identify and describe accessible features in the facilities and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given facility or guest room meets his or her accessibility needs. Thus, rather than alleging that the website itself is inaccessible to users with disabilities, these “new” website accessibility lawsuits claim that a hotel’s website violates the ADA by failing to sufficiently identify and describe the physical “brick and mortar” accessibility features of the hotel.
By: Aaron Gelb
Last fall, the Seventh Circuit Court of Appeals (Illinois, Indiana and Wisconsin) handed down two decisions restricting the amount of leave employers must offer as an accommodation. (Severson v. Heartland Woodcraft, Inc. and Golden v. IHA). Management-side employment lawyers celebrated. Employers breathed a sigh of relief. The Seventh Circuit had finally given employers some much-needed certainty; a bright line, if you will. Relying on these decisions, employers in the Seventh Circuit saw little risk rejecting requests for leave extending beyond 4 weeks. Many employers, though, adopted a wait-and-see approach. The US Supreme Court might take up the issue and reverse the Seventh Circuit. To the surprise of many, the Supreme Court declined in April 2018 to weigh in on the issue. Severson (and Golden) thus remain the law of the land—in the Seventh Circuit. While these decisions are significant, employers must remain diligent when dealing with employees temporarily unable to do their jobs.
Leave as a Reasonable Accommodation
The US Equal Employment Opportunity Commission (“EEOC”) has long held that an employer must offer leave as a reasonable accommodation. Typically, the EEOC recommends that employers first explore whether a modification of the workplace, duties or policies will enable the employee to continue doing their job. If no such accommodation is available, the EEOC expects employers to offer a leave of absence for a definite amount of time so the employee can return to her position at the end of the leave. When neither option is feasible, the EEOC maintains the employer should reassign the disabled employee to a vacant position for which she is qualified. Continue reading
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.
To 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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Legal Updates from the Labor & Employment Practice Group at Conn Maciel Carey
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