Monthly Archives: June 2016

The Clock Is Ticking…Private Sector Employers Face June 30 Deadline to Avoid New Reporting Requirements

The Department of Labor recently issued a rule imposing new reporting requirements on private sector employers who engage attorneys or consultants to persuade employees concerning the right to organize and collectively bargain. Employers who have entered into an agreement for labor relations services before July 1, 2016 are exempt from the reporting requirement, even if the need for services arises after July 1.

The prior “persuader” rule requires both employers and labor relations consultants (including attorneys) to report to the DOL only when they engage in persuasive communications directly with employees regarding the right to organize a union or bargain collectively. The rule’s long-standing “advice exemption” has generally exempted consultants and attorneys from the reporting requirements when they have simply provided “behind the scenes” guidance to employers (e.g., drafting speeches and letters directed to employees by management to dissuade employees from unionizing).

In the new rule, which takes effect July 1, 2016, the DOL narrows the “advice exemption” by broadening the reporting requirements to include activities undertaken by a consultant or attorney, even when there is no direct contact or communication with employees, where the object of the activity is to persuade employees concerning the right to organize and collectively bargain.

The new DOL rule has triggered numerous legal challenges throughout the country by employers and business associations. One of the principal objections is that the new reporting requirements essentially eviscerate the attorney-client privilege between the employer and its labor relations attorney.

Contact any of our labor and employment attorneys to discuss this time-sensitive issue.

John M. Hament
jhament@williamsparker.com
(941) 552-2555

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

 

Department of Labor Announces Updated Sex Discrimination Regulations for Federal Contractors

For the first time in over forty years, the Department of Labor is publishing new sex discrimination regulations for federal contractors to reflect the current state of the law. The final rule updates the sex discrimination regulations of the Office of Federal Contract Compliance Programs (OFCCP) and makes explicit the protections against compensation discrimination; sexually hostile work environments; discrimination based on pregnancy, childbirth or related medical conditions; and discrimination based on unlawful sex stereotypes, gender identity, and transgender status. The regulations also promote fair pay practices. The new rule also implements Executive Order 11246, which prohibits companies with federal contracts and subcontractors from discriminating in employment on the basis of sex. These updated regulations should afford additional clarity and consistency for federal contractors and subcontractors, as they now reflect existing federal laws prohibiting discrimination on the basis of sex.

The DOL’s final rule can be found here:
https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-13806.pdf

Executive Order 11246 is available here:
https://www.dol.gov/ofccp/regs/statutes/eo11246.htm

Lindsey L. Dunn
ldunn@williamsparker.com
941-552-2556

Increased Fines for Employers Failing to Comply with EEO Posting Requirements

Title VII of the Civil Rights Act of 1964 and other civil rights statutes require that covered employers post notices describing equal employment opportunity laws and how employees and applicants can file a complaint for perceived violations of those laws. The required notice “Equal Employment Opportunity is the Law” poster must be posted in a conspicuous place where other notices to employees and job applicants are customarily located. For those employers that are required to post the notice, generally those with 15 or more employees, the civil fines for failing to do so have been increased from $210 to $525 per violation.

The required notice for covered employers is available here:
https://www1.eeoc.gov/employers/poster.cfm

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Employer-Sponsored Workplace Wellness Programs May Require Adjustments in Light of New EEOC Rules

The Equal Employment Opportunity Commission (“EEOC”) recently issued two final rules regarding employer-sponsored wellness programs. The rules arose as a result of the interplay between several federal statutes which touch upon wellness programs, including the Health Insurance Portability and Accountability Act (HIPAA), the Affordable Care Act (ACA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA), and the EEOC’s concern that employer-sponsored wellness plans, especially those that solicit information about employees’ family members, could violate the ADA or GINA. In an attempt at clarifying when wellness programs are permissible, the EEOC’s final rules provide that wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives of up to thirty percent of the total cost of self-only coverage. The EEOC’s rules also cap the incentive attributable to a spouse’s participation in a wellness program at thirty percent of the total cost of self-only coverage. The final rules will become effective beginning on the first day of the plan year that begins in 2017. Given the numerous statutes applicable to employee wellness programs, and the newly promulgated EEOC rules, employers should review their wellness programs closely to ensure compliance with all applicable laws.

The EEOC’s final rules and related information can be found at:
https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm and
https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm

Lindsey L. Dunn
ldunn@williamsparker.com
941-552-2556

When Should Leave be Provided as a Reasonable Accommodation?

In 2015, charges of discrimination filed with the Equal Employment Opportunity Commission (“EEOC”) alleging employer violations of the Americans with Disabilities Act (“ADA”) reached a new high and increased 6% from the previous year. The EEOC’s analysis of these charges revealed that many arose out of an employer’s refusal to allow leave as a reasonable accommodation.  In response to what the EEOC called a “troubling trend,” on May 6, 2016, the EEOC issued a Resource Document titled Employer-Provided Leave and the American’s with Disabilities Act. The purpose of the resource document is to address employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation. The Resource Document not does carry the same weight as an official EEOC Guidance, as it has not been voted on by the entire Commission. However, it is still a useful resource for employers trying to navigate employee requests for additional leave as a reasonable accommodation.

The EEOC Resource Document is found at https://www.eeoc.gov/eeoc/publications/ada-leave.cfm.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

For Employers with as Few as Four Employees, Mistakes in “Onboarding” Can Lead to U.S. Department of Justice Investigations

The EEOC is not the only federal agency charged with investigating and prosecuting employment discrimination in private-sector workplaces. The Department of Justice’s Office of Special Counsel (“OSC”) is charged with investigating and prosecuting citizenship discrimination and document abuse for employers with four or more employees, as well as national origin discrimination for employers that have between 4-14 employees, thereby encompassing smaller businesses that fall below the 15 employee threshold required for Title VII coverage. The authority for the OSC investigations is provided for in the Immigration and Nationality Act’s anti-retaliation provision. Businesses with at least four employees should ensure that the person completing I-9 paperwork on behalf of the company is properly trained, or risk an investigation by the OSC and the potential imposition of civil and criminal penalties.

For a summary of the OSC’s authority as compared to the EEOC see:
https://www.justice.gov/sites/default/files/crt/legacy/2013/05/08/EEOC_v_OSC_Flyer2.pdf

A summary of the acts prohibited by the INA can be found at:  https://www.justice.gov/crt/types-discrimination

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

App-Based Business Models May Generate a New “Hybrid” Employee Classification

Online, app-based companies such as Uber and Lyft recently attempted to settle class action lawsuits brought by drivers who contend they were misclassified as independent contractors rather than employees. Uber recently reached a proposed $100 million dollar settlement with drivers who worked in California and Massachusetts which keeps drivers classified as contractors. A federal judge unsealed the originally proposed settlement deal, which reflects potential damages closer to $852 million. On June 2, 2016, Uber drivers in New York also filed a federal class action lawsuit seeking millions of dollars in minimum wage and overtime pay. Lyft had also recently agreed to settle its class action lawsuit for $12.25 million, but a separate federal judge rejected the deal because it only represented about 9% of the drivers’ claims. Business models utilized by companies such as Uber and Lyft do not lend themselves to the traditional classification of employee versus independent contractor, and these lawsuits do not resolve the issue. There are proponents of a “hybrid” employee classification that would afford workers certain protections provided to employees, however, any third classification would require corresponding modifications to laws like the Fair Labor Standards Act, which can only occur through congressional action. As there is no indication from Congress that this issue will be addressed in the near future, we will likely continue to see the filing of class action lawsuits against Uber, Lyft, and similar companies alleging worker misclassification.

Lindsey L. Dunn
ldunn@williamsparker.com
941-552-2556

A New Tool in the Arsenal to Protect Trade Secrets

Up until recently, Florida businesses had to rely on state laws to obtain remedies, including injunctive relief, when an employee or competitor misappropriated trade secrets. This changed on May 11, 2016, when President Obama signed into law the Defend Trade Secrets Act of 2016 (“DTSA”), which creates a federal civil remedy for the misappropriation of trade secrets. Previously, Florida businesses have relied on restrictive covenants and the Florida Uniform Trade Secrets Act (“FUTSA”) to seek legal recourse. Similar to the FUTSA, the DTSA provides a civil legal remedy for businesses whose trade secrets have been misappropriated. However, there are several provisions in the DTSA for which there is not a similar counterpart in FUTSA.  For instance, this federal statute provides for ex-parte orders directing the seizure of the trade secret. This civil seizure remedy, available only in extraordinary cases, is intended to prevent the dissemination or use of the trade secrets. The DTSA does not preempt state trade secret laws, however. Thus, Florida businesses may now seek civil remedies under both state and federal statutes and, if claims under state and federal law are brought in one suit, such claims may be brought in either state or federal court.

The full text of the new law can be found at:
https://www.congress.gov/114/bills/s1890/BILLS-114s1890enr.pdf

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

New Overtime Regulations are Anticipated to Have the Greatest Impact in California, Texas, and Florida

The day before the final rules extending overtime protections to 4.2 million workers were released, the White House provided its state-by-state and demographic breakdowns of the workers that as of December 1, 2016, will no longer qualify as exempt employees. It is not surprising that Florida was identified as one of the top three states, behind California and Texas, in terms of the percentage of total workers that are anticipated to be affected by the new rules. By percentage, the largest impact of the new rules will be on workers between the ages of 25-34, and those workers that have a bachelor’s degree. When considering not only those that have attained a bachelor’s degree, but also those that have some college, or an associate/occupational degree, that group will constitute 67.8% of the total affected workers.  Employers are encouraged to consult with legal counsel to discuss options and strategies for ensuring compliance with this new regulation.

For additional information on state-specific impacts, see: https://www.whitehouse.gov/sites/whitehouse.gov/files/documents/OT_state_by_state_fact_sheet_final_rule_v3.pdf

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558