Join us for a Briefing on the Impact of the Presidential Election on Employment Law and OSHA in 2017

5b0ac5ef-4c7d-4ae7-9d4a-2a1cffe3a587Newly elected President Trump will have a significant impact on shaping the executive agencies that impact employers, unions and the workplace in general, not to mention the fact that he may hand pick up to four new Supreme Court Justices. There is no doubt that legislation, regulation, and court cases during the Trump Administration will have lasting effects on employers in 2017 and beyond.

On February 20, 2017, Conn Maciel Carey’s Labor & Employment and OSHA attorneys will host an in-person briefing in its Washington, DC office to discuss the practical impact of the Trump Administration on the legal landscape in key areas for the workplace, including:

  • The effort to repeal the Affordable Care Act;
  • The rollback of regulation and former President Obama’s Executive Orders, including the Department of Labor’s overtime rule, the persuader rule, and OSHA’s anti-retaliation rule;
  • The National Labor Relations Board under Philip Miscimarra’s Chairmanship;
  • Anticipated court decisions from the Supreme Court, including whether employers can include class action waivers in arbitration agreements;
  • OSHA enforcement, regulatory and policy developments to expect during the Trump Administration’s inaugural year.

Networking will start at 8:30 am, and the briefing will last from 9:00 am – 10:30 at 5335 Wisconsin Avenue, NW, Suite 660.  To register for this complimentary briefing, please contact info@connmaciel.com.

We hope to see you there!

NLRB Makes It Easier for Employers with Temp Workers to Become Unionized

By:  Kara M. Maciel and Lindsay Smith

On July 11, 2016, the National Labor Relations Board (“Board”) reversed decade old precedent requiring consent from the host employer and a staffing agency before a union election that includes temporary employees could take place. Through its 3-1 decision in the Miller & Anderson, Inc. case, the Board revoked its 2004 Oakwood Care Center holding and reinstated its 2000 decision in M.B. Sturgis by finding that bargaining units covering both regular employees and temporary employees do not require employer approval.  Indeed, the Board explained that based on the broad definition of employee in the National Labor Relations Act (“the Act”) and Congress’s “statutory charge” to the Board, it interprets the term “employer unit” in Section 9(b) be made up of both employees solely employed by the host employer and joint employees employed by both the host employer and the staffing agency, when those employees share a community of interest. In a statement released regarding its decision, the Board made clear that host employers would be expected to bargain as usual with their regular employees, and “will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”

The main argument against reversal of the Oakwood Care Center decision and the problem that arises in permitting such a bargaining unit, as explained in Board Member Philip Miscimarra’s dissent, is that Continue reading

Struggling with the New Overtime Rule?  Here is One Compensation Option for Newly Non-Exempt Employees

time clockIn response to the final overtime rule, which increases the minimum salary level to qualify for the white collar exemptions under the Fair Labor Standards Act (“FLSA”), employers must begin to evaluate and alter their current employee classifications and pay structures in preparation for the rule’s December 1st effective date.    For many employers, it may not be possible to raise every exempt employee’s salary level to the new minimum of $47,476.00, over double the current threshold level of $23,660.00.  If employers cannot raise salary levels, exempt employees will have to be reclassified as non-exempt employees entitled to overtime pay.  This can be a very challenging situation for employers because many exempt employees are expected, and regularly do, work a certain amount of overtime each week to complete the required responsibilities of their positions.  Furthermore, exempt employees are used to being paid on a salary basis with some level of certainty in their take home pay.

To address these issues and create some predictability for both the employer and the employee, one option is to implement a compensation structure that pays certain non-exempt employees an annual salary factoring in a certain amount of overtime.  The FLSA permits non-exempt employees to be paid on a salary basis as long as Continue reading

EEOC Issues Final Rules Addressing the Implications of ADA/GINA on Wellness Programs

WellnessToday, the Equal Employment Opportunity Commission (“EEOC”) released its final rules to amend regulations implementing Title I of the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Non-Discrimination Act (“GINA”) as they relate to workplace wellness programs.  The EEOC had originally issued two Notices of Proposed Rulemaking in 2015 to revise current regulations as a result of the confusion surrounding how both the ADA and GINA impact wellness programs under the Affordable Care Act (“ACA”) and its regulations.  The final rules released today largely mirror the proposed regulations, with some important changes.  They will apply only prospectively starting the first day of the first plan year that begins on or after January 1, 2017 for the applicable health plan.

Below are the major provisions from each rule, as well as a discussion of the current legal landscape for employer wellness programs based on recent lawsuits brought by the EEOC.  Although the guidance from the EEOC is long overdue, the requirements these final rules impose do not completely align with the ACA, its regulations, or the intent to promote the use of wellness programs under the ACA.

Highlights of the Final Rule Revising ADA Regulations

As we discussed in a prior post, a major focus of the EEOC’s final rule is to address when a wellness program will be viewed as voluntary under the ADA.  As employers may already be aware, the ADA generally prohibits Continue reading

Webinar: Whistleblower Investigations – OSHA’s 11(c), Title VII and other Statutes

On Wednesday, April 19th at 1:00 PM ET, Kara M. Maciel and Lindsay A. Smith will deliver a webinar regarding Whistleblower Investigations.

L&E  OSHA LogoA host of federal and state laws include provisions prohibiting employers from retaliating against whistleblowers who engage in activities protected by the statute.  The Occupational Safety and Health Act, Title VII of the Civil Rights Act, and several other laws that regulate the relationship between employers and employees, contain such whistleblower protections.  Pursuant to these protections, the laws also provide a mechanism through which employees can report incidents of retaliation to the government to investigate and potentially bring an enforcement action against the employer.  With the number of whistleblower claims continuing to rise in 2015, it is imperative for employers to understand what types of actions could be the impetus for a whistleblower investigation and the potential consequences.

Participants will learn the following:

  • Specific requirements of the major employment-related laws, including the OSH Act and Title VII, that contain whistleblower protections
  • Proactive measures employers can take to avoid whistleblower claims
  • Strategies employers can use to effectively respond to whistleblower investigations and defend against enforcement actions

Here is a link to more information about that event and the registration page.

Don’t Wager Your Company on Incorrect Wages in 2016

As we transition into 2016, it is essential that employers are aware of and plan for changes to employee wage requirements and the increased emphasis on wage and hour compliance. For at least the past decade, the number of wage and hour claims filed in federal courts has increased exponentially and 2016 looks like it will be much of the same with fuel for a significant rise. In Fiscal Year (FY) 2000, employees filed only 1,935 claims for violations of the Fair Labor StandardIncreasing Money Graphs Act. At the end of FY 2014, that number had increased by more than 420% to 8,160 wage and hour lawsuits filed in federal court. In FY 2015, the trend continued with 8,781 wage and hour cases based on data released by a national law firm from the Federal Judicial Center. This represents a 7.6% rise in these types of suits from 2014. With employees filing wage and hour claims on a much more frequent basis, compliance is of even greater importance and 2016 looks to present some additional challenges on that front.

An Increasing Minimum Wage

Last year, many employers saw an increase in the required minimum wage at the state level, as well as a rise at the federal level for federal contractors. For many states and federal contractors, 2016 will bring another round of higher minimum wages. Continue reading

EEOC Expands Permissible Wellness Program Incentives Under GINA

On October 30, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a Notice of Proposed Rulemaking to amend regulations implementing Title II of the Genetic Information Non-Discrimination Act (“GINA”) as they relate to wellness programs offered through a group health plan.  With this new rule, the EEOC intends to broaden the use of incentives to encourage voluntary participation in employer-sponsored wellness programs under group health plans.  Specifically, the EEOC clarifies that an employer can offer a limited incentive to an employee’s spouse if the spouse (1) is covered by the employee’s health plan; (2) receives EEOC NPRM for GINAhealth or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current health status.  Such information is often provided through a health risk assessment.

GINA prohibits an employer from using an employee’s or applicant’s genetic information in making employment decisions.  Thus, an employer is prohibited from requesting genetic information from an employee unless the employee voluntarily accepts health or genetic services, including those offered as part of a wellness program.  Even under this exception, however, current regulations restrict wellness programs from requiring employees to provide genetic information in order to receive an incentive.  The proposed rule makes clear that this restriction does not apply to an employee’s spouse because there is a minimal chance that an employer could obtain information about an employee’s genetic make-up from the current or past health status of an employee’s spouse.  For this reason, the proposed rule is limited to incentives for information about an employee’s spouse and does not include an incentive for current or past health status of an employee’s child as the EEOC believes that information could provide insight into the genetic make-up or predisposition of an employee.

Similar to other laws regulating incentives connected to wellness program participation, incentives permitted under GINA would not be allowed to exceed 30% of the total cost of coverage for the health plan.  Therefore, the total incentive for an employee and spouse to participate in the wellness program, together, may not exceed 30%.  For instance, the EEOC explains that if the total cost of coverage is $14,000.00, the incentive offered for providing information on current or past health status could be no more than $4,200.00 total for both an employee and his or her spouse.  Furthermore, the portion of the incentive attributable to the employee, alone, cannot be more than 30% of the cost of self-only coverage.  The proposed rule allows for a reward or penalty and the incentive can be financial or “in-kind” (i.e., time-off awards, prizes, or other items of value not to exceed 30% of the cost of coverage).  To participate, the spouse would have to provide knowing, written, and voluntary authorization for the employer to collect genetic information, just like an employee.

This proposed rule appears to be part of the EEOC’s continued effort over the last year to clarify the impact of federal statutes regulating health-related discrimination on wellness programs permitted and promoted under the Affordable Care Act.  For instance, as we discussed in a prior post, the EEOC put out a proposed rule to address the Americans with Disabilities Act’s (“ADA”) impact on employer wellness programs last April.  That rule clarifies when participation would be considered voluntary under the ADA and addresses incentives associated with participation.  Both of these proposed rules come amidst a recent upswing in litigation over wellness programs, with the EEOC pursuing claims against employers for violating non-discrimination laws for which it had yet to even provide clear guidance.

At this point, this is only a proposed rule and could potentially change based on comments received by the EEOC.  Employers currently have the opportunity to submit comments on the proposed rule until December 29, 2015.  Although the proposed rule is not yet controlling and could be altered, employers should continue to take proactive steps to ensure a compliant wellness program based on current regulations and the requirements likely to come down the pipeline.  The ability to offer incentives for spouse’s to provide current and past health status information could benefit employers as they are continuing to look for ways to cut health care costs, as long as those incentives are compliant and the program is implemented in a manner that meets GINA’s requirements.