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Wellness Programs: Gaps In Guidance


Last week, the federal DOL issued HIPAA regulations on wellness programs setting forth both restrictions and requirements.  The regulations were issued pursuant to the Affordable Care Act, aka as Obamacare.

 

 

But the Affordable Care Act is not the only law that employers must consider.  There are many other federal and state laws that may affect wellness programs, too.

 

 

For example only, the ADA will apply to many wellness programs.  The question is how.

 

 

The EEOC has stated that employers may conduct medical examinations and activities as part of a wellness program so long as the program is “voluntary.” The program is voluntary “so long as the employer neither requires participation nor penalizes employees who do not participate.”

 

 

However, the  EEOC has not provided guidance on what kind of financial incentives are permissible in order for the participation to be considered voluntary under the ADA.  For example only, the EEOC has not yet provided any guidance on whether there is any legal distinction between a financial incentive (premium discount) and a financial penalty (higher premium), even though both are functionally the same.  Nor has the EEOC provided any guidance on how steep the discount or higher premium may be and the program still be deemed voluntary.

 

 

Even if the wellness program is not voluntary, under the ADA, there is a bona fide benefit safe harbor.  At least one appellate court has held that the safe harbor applied to the wellness program at issue.  Seff v Broward County.

 

 

The EEOC has issued no guidance on its position as to the potential application of the safe harbor to wellness programs that may be deemed involuntary. 

 

 

 In a public meeting last month on wellness programs, the EEOC failed to provide any guidance on the ADA issues addressed above. 

 

 

In this regard, it should be noted that the ADA is not the only federal anti-discrimination law that applies to wellness programs.  For example only, GINA does, too.  The EEOC has provided some guidance in this area.

 

 

To make matters even more complicated, there are state laws that must be considered, too.  For example, not every state non-discrimination law has a safe harbor provision that is the same as or similar to the ADA

 

 

So proceed cautiously in this area.  The DOL regulations are a good starting point but should not be seen as a stopping point. There are additional steps that employers can take to minimize (not eliminate) their legal risks in this area. We are happy to assist.

 

 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship

 

 

 
 
 
 

In The Year 2525


As published by SHRM's We Know Next: See it here

In 1969, Zager and Evans sang “In the Year 2525.”  If you are smiling, you too probably have looked in a mirror and asked: how did that happen? Did you ever wonder what the employment world will look like in 2525?  Perhaps the following:

  • The NLRB will help unions which are failing to thrive by trying to make employers post union-marketing notices to drum up business for them.
  • The DOL will create a smart phone application to help employees track their time so that they can more easily sue their employers.
  • The EEOC will interpret the ADA so broadly that even shy bladder syndrome (the ability to “pee on cue”) may be a disability.  While I have no doubt that Shy Bladder Syndrome is a real syndrome, I also have no doubt that illegal drug users are likely to develop bashful bladders in need of assertiveness training.
  • California will pass 22 employment laws in one year.

Oh no, we don't have to wait until 2525.  All of the above have happened in the last year or so.
If this is where we are now, can it go any further in 2525?  Of course it can. Consider:

  • The Unconscious Dreaming Pay Protection Act. Why shouldn't the unconscious get paid for its hard work? And, should not there be a higher minimum wage since, as we all know, the unconscious does the heavy lifting?
  • The Social Media Right to Bash Your Employer Act. Why should employees be dependent on the NLRB for protection?  We need to create a private cause of action so employees can go right into federal court. Of course, it’s not about the money.  Just knowing you have hurt your employer’s brand, pushed away customers and put your colleagues’ jobs at risk if customers flee should be satisfaction enough.
  • The California Right to Choose Your Manager Act. Of course, the relationship will be at will so that employees can change managers at any time and for any or no reason and with or without prior notice.   And, there will be no exceptions to this at-will principle!
  • The Endangered Species Union Act.  All new hires must be given union authorization cards “for their consideration” when they are asked to complete their portion of the I-9.  After all, it is possible that they might miss whatever union notice the employer may be required to post.

As much as we try to do the right thing, not all employers do. Just as there are good and bad employees, there are good and bad employers. And, there is no question that we need the law to protect employees from wrongful conduct.
But overly aggressive plaintiffs’ lawyers and government agencies continue to push the boundaries of the law. And that does not always benefit employees.
As employers pay more to their lawyers, the reality is that there may be less money for their employees. Just as important: if everything is a legal issue, then we risk trivializing the important purposes underlying the laws. If everything is harassment, then nothing is harassment.
I hope we don’t have to wait until 2525 to find balance in protecting employees but without turning the workplace into what sometimes feels like a legal war zone. Moderation and balance are not inconsistent with protecting and enforcing employee rights. The extremes are, to me, extremely scary.
But, since we won’t be here in 2525, let’s continue the conversation at the Annual Conference. I will be speaking on the Year 2525 at Monday at 10:45 AM. I hope to see you there! Travel safely.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

 

 

 
 
 
 

7 Ways Employers Can Protect Their Ass(ets)


As originally published by ALM's "Law.Com," found here.

From the Experts: 7 Ways Employers Can Protect Their Ass(ets)
Some things you need to know about labor law in 2012.
A list of seven action items for employers to help minimize exposure to labor and employment law litigation.

We’re in the first quarter of 2012, and the government and plaintiffs’ lawyers are continuing their assaults on businesses. Perhaps the biggest job growth this year will be in the employment of defense counsel. Here are seven areas where employers already are—or are likely to be—challenged in 2012 and recommendations for minimizing exposure to such attacks.

1. GINA

The Genetic Information Non-Discrimination Act generally prohibits employers from asking employees about genetic information. You may be tempted to skip this section because most of your managers don’t start Monday mornings by asking: “How was your weekend, and do you have any genetic information that you would like to share with me?”

Yet, under GINA’s regulations, our managers may be doing just that. More specifically, the regulations make clear that there are some very particular dangers regarding an employee’s genetic information. When you ask for medical information, if you do not tell the employee’s doctor not to disclose the genetic information to you, and if you then get genetic information, it is as bad as if you had actually asked for it.

The regulations include a “safe harbor” disclaimer that is recommended be included with all requests for medical information. If you include the disclaimer and you receive genetic information, you still cannot use it, but it will not be treated as though you had asked for it.

Action Item: Review your policies and practices to make sure that you include a GINA disclaimer whenever your HR manager asks for medical information to support a leave under the FMLA, an accommodation under the ADA, etc.

Also, make sure managers are trained in what to do and not do if an employee discloses that a family member has a medical condition. If an employee tells her supervisor that her mother has breast cancer and so did her grandmother, the supervisor may be tempted to encourage the employee to be screened.

But if the employee later is subject to an adverse employment action, the employee may claim it was because of the supervisor’s concern about her genetic likelihood of getting cancer. Sad but true, like the ADA, GINA can make kindness risky.

Tell the employee she is in your thoughts and prayers. Even offer to help. But stay away from medical recommendations.

2. ADA and Leaves of Absence

The EEOC loves consistency, except when it doesn’t. The subject of maximum leave provisions is one of those areas where it doesn’t.

To maximize consistency, many employers have policies that provide that employment will terminate automatically if an employee is absent a certain number of weeks, for example, 26 weeks. The EEOC has taken the position that these automatic termination provisions violate the ADA and has sued numerous employers—and includes on its website the multimillion dollar settlements it has extracted from employers.

Action Item: Revise your policies to make clear that an employee’s employment will not terminate automatically when the “flexible maximum leave” is reached. Rather, before the maximum is reached, the employer will reach out to the employee to determine whether there are any accommodations that would enable the employee to return to work or whether the employee needs additional leave, and whether such additional leave may be a reasonable accommodation. Develop a protocol to implement the policy.

3. FLSA—Remote Work

The FLSA was enacted in 1938 when people worked at work. We now work everywhere—all the time—and the question now becomes: how does the FLSA apply to work outside of the workplace?

Last year, the U.S. Department of Labor developed a smartphone application so that employees could keep track of their own time. The DOL also created hard copy “exhibits” for employees to track their time. In taking these steps, the DOL has stated that employees must be paid for any work they do, regardless of where they do it.

Some have suggested that the DOL is encouraging claims rather than adjudicating them. Whatever the intent, the effect will be to add wind to the tsunami of wage and hour claims. The number of collective actions has increased by more than 400 percent since the 1990s.

Action Item: Focus on off-duty work in terms of your wage and hour practices. Make it clear that non-exempt employees cannot do work remotely, absent prior permission from their supervisor. For example, if BlackBerries or other PDAs are given to non-exempt employees, tell them when they can use them, how to record their time, and pay them for such time.

4. Like Me Bias

We all know that there is not only conscious bias but also unconscious bias. Of course, the unconscious bias exists only at your competitors but never in your own organization!

The EEOC and private plaintiffs’ lawyers are attacking subjective hiring practices where hiring managers hire or promote someone who is like them—in other words, “like me” bias.

When white men look in a mirror, they don’t see a woman of color. Of course, the converse is equally true. So, if we hire and promote our mirror images, we may be engaging in unlawful bias, albeit often unconsciously. At a minimum, we may be excluding talent to our detriment.

Action Item: Have a diverse team make your key hiring decisions. It would be hard to argue that a diverse team hired its mirror image. Plus, diverse teams tend to come up with better decisions by including different perspectives.

Also, be careful of “cultural fit,” which may be seen as a proxy for bias against someone who differs from the group. Where cultural fit is an issue, focus on behaviors exhibited or expectations expressed that were problematic. If you cannot explain them, you have a problem. And if the explanation sounds stereotypical, you have a problem.

5. Social Media and Disparagement

Before the advent of social media, when employees were unhappy, they used to talk with their co-workers. Now, they may blog, tweet, or otherwise send a postcard to the world fulminating about their employer. The initial response may be to fire the employee. Be careful: the posting may be protected.

The National Labor Relations Board is beyond protective of employees who complain about the terms and conditions of their employment by way of social media. While the National Labor Relations Act protects only “concerted activity,” the NLRB has defined concerted activity so broadly that even narcissists who complain only about their individual treatment may be protected in some circumstances. And, remember, the NLRA applies to non-union employers too.

“Disparaging” postings may be protected by other laws, too. For example, allegations of unlawful bias or other unlawful activity may be protected by federal, state, and local non-discrimination and whistleblower laws. Plus, some states have off-duty conduct statutes that may provide further protection.

Action Item: Review your social media policy and minimize the risk that it will be deemed to prohibit protected activity. Prohibit supervisors from taking adverse action based on a social media posting without checking with HR/counsel first so you can assess whether the posting may be protected. And don’t forget the practical reality that terminating an angry blogger only gives him/her more time to post crazed vituperations about you!

6. Performance Management Guidelines

To ensure due process, many employers have progressive discipline policies. I am a believer in progressive discipline, but there are risks in spelling out in too much detail what you will do and how you will do it. If you don’t follow the policy and/or procedure, the employee will argue this is evidence of bias. Don’t let your best legal defense in these circumstances be the lame: “We never follow our policy and/or procedures anyway, so our failure here is not bias“ That’s hardly the sort of defense you want to assert if you want to be seen as a great place to work.

Assume that, over the next year and beyond, we will continue to expect more and have less time and tolerance for those who don’t meet our higher expectations. In the 70’s, Spiral Staircase sang, “I love you more today than yesterday, but not as much as tomorrow.” The update today could be, “I expect more from you than yesterday, but not as much as tomorrow.”

Action Item: Make sure you reserve the right to skip steps in any policy you may have. Consider listing possible steps without suggesting there is a progression from one to the next.

7. Retaliation

The U.S. Supreme Court has leaned toward employers in every area except one: retaliation. In retaliation cases, employees have won every case before the high court. In 2010, retaliation charges were the most common charge filed with the EEOC (for the first time). The same was true in 2011, and we can expect the same in 2012 again.

Sometimes retaliation claims happen because we wait too long to act. An employee knows he/she is in trouble. Before the manager approaches the employee, the employee consults with a lawyer. Then, the employee approaches his/her manager: “I know my performance is not what it should be. That’s because I am clinically depressed, ADA style, because you have been discriminating against me, Title VII style.” The retaliation claim has been set up if and when adverse action follows.

Action Item: Don’t put off the inevitable. When you have made a decision to take adverse action, do not delay. Delay creates a window of opportunity for a protected complaint. Develop a robust retaliation policy that tracks the broad holdings of the Supreme Court’s decisions—for example, prohibited retaliation is not limited to tangible employment actions, but also may apply to other material terms and conditions of employment. Emphasize in training that the fact that a complaint lacks legal merit is almost never a defense against retaliation claims.

And treat retaliation as seriously as discrimination and harassment, which we should treat very seriously. Remember, even if the regulators have taken certain legal rights to the extreme, discrimination, harassment, and retaliation are still wrong. Very, very wrong.

The enormous regulation and extreme litigation result in employers spending too much time and money on lawyers. While legal fees are unavoidable, they can be minimized with careful and proactive planning so that you can achieve your legitimate business goal with less risk.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

 

 

 
 
 
 

2012 Winter Webinar Series - CLE APPROVED CA, FL, NJ, NY and PA


 

Join us from the comfort of your office at one of our upcoming
Duane Morris Institute programs

All webinars have been approved for CLE credit in the following states:
CA, PA, NJ, NY and FL
Also approved for HRCI credit

 

 

 

 

 

For the latest on employment and immigration law developments,
please check out DMi's blogs.

 

 

 

 

 

 

 

 

Pricing: $65 (Standard) | $55.25 (Nonprofit)
Purchase three programs and get the fourth free.

 

 

 

 

 

 

 

 

For more information and to register, please click here.

 

 

 

 

 

 

 

 

Date

Webinar*

Instructor(s)

Time (Eastern)

TH

January 19

The Painful Pentagon:
FMLA, ADA, GINA, WC and STD

Linda B. Hollinshead

1:00 p.m. - 2:00 p.m.

T

January 24

Handbook Traps

Michael S. Cohen

1:00 p.m. - 2:00 p.m.

TH

January 26

California's 22 New Employment Laws

Jennifer A. Kearns

1:00 p.m. - 2:00 p.m.

W

February 1

One Toke over the Legal Line:
Medical Marijuana and the Workplace

Ralph R. Smith 3rd

1:00 p.m. - 2:00 p.m.

TH

February 2

Avoiding Workplace Discrimination: Sexual Orientation and Gender Identity

Marc J. Scheiner

1:00 p.m. - 2:00 p.m.

F

February 3

Florida Employment Law: The Not-So Sunny Side

Richard D. Tuschman

1:00 p.m. - 2:00 p.m.

T

February 7

Union-Free Strategies

Michael W. Casey III

1:00 p.m. - 2:00 p.m.

W

February 8

Leaves of Absence - Lessons Learned

Linda B. Hollinshead

1:00 p.m. - 2:00 p.m.

TH

February 9

Compensation and Governance Issues for
Employer Benefits and Incentive Plans

W. Michael Gradisek

1:00 p.m. - 2:00 p.m.

T

February 14

How Independent Are Your Contractors?

Kevin E. Vance and
Mark J. Beutler

1:00 p.m. - 2:00 p.m.

W

February 15

I-9 Self-Audits

Valentine A. Brown

1:00 p.m. - 2:00 p.m.

TH

February 16

Motivating Employees in a Tight Economy

Michael S. Cohen

1:00 p.m. - 2:00 p.m.

T

February 21

NLRB Rules for Non-Union Employers

James R. Redeker

1:00 p.m. - 2:00 p.m.

TH

February 23

Severance Agreements: Decision Points and Danger Zones

Jonathan A. Segal

1:00 p.m. - 2:00 p.m.

 

 

 

 

 

 

 

 
 
 
 

PHILADELPHIA’S BAN THE BOX PLUS FEDERAL AND STATE LAWS TOO


PHILADELPHIA’S BAN THE BOX PLUS FEDERAL AND STATE LAWS TOO

On April 13, 2011, the Mayor of the City of Philadelphia signed an Ordinance entitled “Fair Criminal Record Screening Standards” which establishes requirements for the screening of criminal records by certain employers within the City of Philadelphia and limits an employer’s ability to consider arrests and convictions of job applicants.  The stated purpose of the legislation is to “give the individual with a criminal record an opportunity to be judged on his or her own merit during the submission of the application and at least until the completion of an interview.”

The Philadelphia Ordinance applies to city agencies and private employers of 10 or more people (employees) in the City of Philadelphia. However, even if an employer is covered by the Ordinance, it applies only to applicants who are applying for jobs in the City of Philadelphia.

The Ordinance makes it unlawful for an employer to make any inquiry about, to take any adverse action against any person on the basis of or to require any person to disclose or reveal any arrest or criminal accusation, not then pending, which did not result in a conviction.

The Ordinance goes a step further and limits the ability of an employer to consider even criminal convictions as part of the early stages of the application process.  The Philadelphia Ordinance makes it unlawful for employers in the City of Philadelphia to make any inquiry regarding or to require any person to disclose or reveal any criminal convictions during the application process, which begins when an applicant inquires about employment and ends when an employer has accepted an employment application.

What’s more, the employer cannot make an inquiry regarding or require a person to disclose or reveal any criminal convictions before and during the first interview either.  If the applicant voluntarily discloses any information regarding his or her criminal convictions at the interview, the employer may discuss the criminal conviction disclosed by the applicant.

The Ordinance becomes effective ninety days after it was signed into law, in other words, on July 13, 2011.

Violations of the Ordinance will carry a fine of up to $2,000 per violation.  Further, it is inevitable that violations of the Ordinance will be argued as the basis for wrongful failure to hire claims.

What This Means For Employers

 Employers in Philadelphia will need to remove from their Applications for Employment any questions about criminal convictions (except where required by another law, in which case a separate application with an appropriate question consistent with the legal requirement must be developed for such applicants only).

Employers in Philadelphia who wish to inquire about criminal convictions will need to develop a criminal conviction inquiry form (focusing only on convictions) to give to applicants who have completed their first interview and to whom they wish to extend either a second interview or a job offer.

In this regard, employers should be careful to avoid the temptation to give the criminal conviction form to all applicants immediately following their initial interview to make things easier administratively. Why obtain information about applicants in whom you have no interest? Applicant may assume--and argue--the information was the basis for adverse action (even though it was not). At  a minimum, there is the cost of defense. 

Philadelphia employers must consider not only the Fair Criminal Record Screening Standards Ordinance, but also the Pennsylvania Dissemination of Criminal History Records Information Act, which restricts when Pennsylvania employers can consider criminal records and includes notice requirements.

Under the Pennsylvania Dissemination of Criminal History Records Information Act, employers can consider felony and misdemeanor convictions only if they relate to the applicant's suitability for the job for which he or she has applied.   Further,  the employer may be precluded absolutely from considering arrest records (which have not resulted in convictions) as part of the pre-employment process.

Further, both the EEOC and PHRC have released guidance which states that disqualifying applicants due to arrest or conviction records may have a disparate impact on certain racial and ethnic groups, and therefore, have suggested similar (but not identical) factors which should be considered before making any adverse employment decision upon a criminal record.

Employers need to be particularly careful of per se rules (for example, individuals with felonies are disqualified from employment for all jobs).  These rules maximize consistency but also may serve as the basis for class actions alleging disparate impact.

According to the National Employment Law Project, at least five (5) major civil rights lawsuits were filed against employers for blanket prohibtions relating to criminal convictions.

If you have questions about how the various laws affect criminal conviction checks, please feel free to contact me at 215-979-1869 or jsegal@duanemorris.com.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

 

 

 

 

 

 
 
 
 

The Unintended Adverse Consequences of the ADA


When I was in college, I had an incredible professor who used to talk about the “unanticipated evil consequences of virtuous social action.” I had no idea what he meant but he sounded so regal that I wrote down what he said every time until it become indelibly etched in my mind.

I heard my professor’s voice when I read the EEOC’s new regulations on the ADA as amended. While the ADA is indeed virtuous social action, it is now even riskier than before to try to help an employee whom you suspect has a physical or mental problem unless he or she asks for help first and here’s why.

By way of background,  a disability is a physical or mental impairment that substantially limits one or more “major life activities.”  An employer cannot discriminate on the basis of: (i) current disability; (ii) past disability or (iii) perceived (regarded as) disability.

Perhaps the biggest expansion of the definition of disability relates to the “regarded as” disability prong.  More specifically, the law now provides that an individual may be regarded as having a disability if he or she is subject to adverse action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.

This is a very easy standard to meet. Indeed, in its new regulation, the EEOC all but invites individuals to bring claims under the “regarded as” prong without having to prove that the individual actually has or had an actual disability as defined by the ADA. And, here’s where the  unintended adverse consequences come into play.

Assume an employee’s performance is declining and you see what you believe to be is clinical depression based on personal experience or exposure.  Ask the person if they are depressed and their depression may lift when they realize that they now may have a viable “regarded as” disability claim if they subsequently are subject to an adverse employment action. The well-intended question creates an issue of fact for the jury as to what was the employer’s true motivation for the adverse action.

Employers need to train their managers to focus on performance or behavioral deficiencies without inquiring or speculating as to whether there is a physical or mental cause. This counsel is particularly important for health care and social service employers whose managers “know” that, at times, the workplace issue is but a symptom of some underlying physical or mental problem.

What should the manager do if the employee responds to counseling, discipline or an evaluation by disclosing a physical or mental accommodation? Stay tuned for my next blog!  

This blog should not be construed as legal advice or as pertaining to specific factual situations.

 
 
 
 

EEOC Continues Its Assault on Automatic Termination Provisions in LOA Policies


Last year, a federal district court in Illinois approved a settlement in the amount of $6.2 million between the EEOC and Sears Roebuck & Co.  The EEOC had brought a class action against Sears Roebuck & Co. claiming that it had violated the ADA by having an inflexible policy of terminating injured employees who had exhausted their workers’ compensation leaves rather than seeking ways to return them to work.  As part of the consent decree, Sears agreed that, prior to terminating an employee for exhausting their leave requirements, Sears would contact the employee to provide them with the opportunity to request potential accommodations, including possibly additional leave, to enable them to return to work. See http://www.eeoc.gov/ for EEOC’s discussion of the Sears' settlement. Since then, both the EEOC  and private plaintiffs have filed a salvo of class actions, alleging that the following types of policies/practices violate the ADA: 

1. Automatic termination of employment upon expiration of FMLA

2. Automatic termination of employment upon expiration of STD benefits

3. Automatic termination of employment upon expiration of fixed medical leave beyond FMLA--for example, upon 26 weeks of leave.

Just this month, the EEOC settled another automatic termination case with a group of supermarkets for $3.2 million. t is the view of the EEOC that, rather than a rigid ‘inflexible’ automatic termination rule, there should be an interactive dialogue initiated by the employer about whether  additional leave is a reasonable accommodation under the circumstances.  The EEOC’s position does not automatically mean that the employee must be given additional leave in each of circumstances set forth above.  It means only that an individualized determination must be made. The same analysis arguably would apply to depriving employees of leave who do not qualify for FMLA. Many companies have medical leave policies independent of the FMLA with minimum service requirements, for example, 6 months. The EEOC’s analysis with regard to maximum leave provisions arguably applies equally to minimum service requirements. To avoid the time and expense of litigation, we recommend that employers revisit their FMLA and other leave policies and consider avoiding the kind of per se minimum and maximum requirements that invite class attack.  The result of individualized determinations may be some apparent inconsistencies that could result in individual discrimination claims but that risk must be balanced against the larger class action risk that goes with consistency flowing from per se rules. It’s risk selection, not risk avoidance. Please let us know if we can help with balancing these competing risks.

Pardon the formality, but this blog should not be construed as legal advice or as pertaining to specific factual situations.

 
 
 
 
 

Jonathan Segal

Business Ally. Help clients achieve business goals and manage legal risks. Areas of focus include: gender equality; wage and hour compliance; social media; leadership training; union avoidance; performance management; and agreements

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.