Expert Panelists Testify Before EEOC on “Revamping Workplace Culture to Prevent Harassment”

shutterstock_me tooOn October 31, 2018, roughly one year after the beginning of the #MeToo movement, the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting at agency headquarters in Washington, D.C. entitled “Revamping Workplace Culture to Prevent Harassment.”  The purpose of this meeting was to hear various approaches that different industries are implementing to prevent harassment and provide employers the skills, resources, and knowledge to respond workplace harassment.

Acting Chair Victoria Lipnic began the meeting by noting that the nation is at the apex of a cultural awakening that the EEOC has been tracking for years.  Since the #MeToo movement went viral, hits on the EEOC website Continue reading

Fall 2018 Unified Agenda Forecasts Several Significant Employment-Related Regulatory & Deregulatory Actions

By: Mark M. Trapp and Aaron R. Gelb

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 LaborFall 2018 Agenda_DOL_3

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

[Webinar] A Business Primer on Disability Access Laws: Preventive Tools and Defense Strategies

On Thursday, October 25, 2018, at 1 pm EDT, join Kara M. Maciel and Andrew J. Sommer of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar:  “A Business Primer on Disability Access Laws:  Preventive Tools and Defense Strategies

Businesses continue to be plagued by litigation under the Americans with Disabilities, Title III (ADA) over alleged access barriers.  Lawsuits against hotels and retailers, among other public accommodations, appear to be on the rise with a disproportionate share in California.

Disability Webinar

This webinar will provide an overview of ADA, Title III standards as they apply to construction existing before the enactment of the ADA in 1992 as well as to subsequent new construction and alterations.  The webinar will also address Continue reading

Free In-Person OSHA and Labor & Employment Client Briefing in Chicago – September 25, 2018

Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tuesday, Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.

This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments.  They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s own Labor & Employment and OSHA specialist attorneys.  There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.


Agenda

1:00 PM – Registration and Networking

1:30 PM – OSHA Panel

  • Angie Loftus (OSHA Area Director – Chicago North Area Office)
  • Nick Walters (Former OSHA Regional Administrator – Region 5) Continue reading

EEOC Attacks “No Fault” Attendance Policies as ADA Violations

As you know,shutterstock_policies and procedures 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.

TROUBLE WANTED: EEOC CONTINUES EFFORTS TO ELIMINATE ILLEGAL HIRING PRACTICES

By: Aaron Gelb

shutterstock_application (002)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.

Prescription Medications

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

Conn Maciel Carey Welcomes Former CSB Attorney-Investigator to the Firm

beeta lashkariWashington, D.C.-based Labor & Employment and OSHA / Workplace Safety boutique law firm Conn Maciel Carey LLP is pleased to announce that Beeta B. Lashkari has joined the firm as an attorney in its Washington, D.C. office.

Ms. Lashkari, a former attorney-investigator at the U.S. Chemical Safety and Hazard Investigation Board (CSB), has extensive experience handling government investigations and is equipped to defend clients in an array of matters before federal, state, and local government agencies, including OSHA 11(c) and whistleblower retaliation claims and EEOC investigations and enforcement actions.

Ms. Lashkari will assist the Labor and Employment practice group in advising and representing clients in a wide-range of inspections, investigations, and enforcement actions, including those from the EEOC, the Department of Labor’s Wage and Hour Division, the U.S. Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency, the CSB, and state and local employment agencies.  In addition to her work with the Labor and Employment practice group, Ms. Lashkari will assist the OSHA Workplace Safety practice group in advising and representing clients in a wide-range of inspections, investigations, and enforcement actions before federal OSHA and state OSH agencies.

“We are thrilled to have Beeta join our growing niche practice and look forward to utilizing her government investigation experience to the benefit our employer clients,” said Kara M. Maciel, Chair, Labor & Employment Practice Group.