Will Your Arbitration Agreement Be Enforceable After September 30, 2013?
Some employers have decided that it is beneficial to try to avoid public lawsuits and arbitrate disputes they may have with their employees. Such employers typically require employees to agree to arbitration at the time of employment by including such language in their employment applications or other documents that are signed by employees.
Employment Law Update: Background Becomes Battleground
The Equal Employment Opportunity Commission (EEOC or Commission) recently filed federal lawsuits against Dollar General and a BMW manufacturing plant in South Carolina based on the EEOC’s revised guidance concerning use of criminal background checks. The Commission’s new guidelines, revised last year, recommend that employers not ask applicants about past criminal convictions and encourage employers to give job applicants an opportunity to explain past criminal misconduct before they are rejected. The EEOC emphasizes that background checks have a discriminatory impact on minorities and can violate Title VII of the Civil Rights Act – even if the background check policy applies to all applicants regardless of race.
EEOC Files Suit Over Employer Use of Criminal Background Checks
In an opening salvo following its recently revised enforcement guidelines, the Equal Employment Opportunity Commission (“EEOC”) has filed suit against two major employers, a national retail chain and an international automobile manufacturer, alleging the companies used criminal background checks to disproportionately exclude African-Americans from their workforces.
Seattle City Council Votes to Limit Inquiries into Job Applicants’ Criminal Backgrounds
The Seattle City Council has voted unanimously to prohibit employers from inquiring about an applicant’s criminal record or excluding from consideration for employment during the initial stage of the hiring process those with an arrest or criminal record. Council Bill 117796 will take effect on November 1, 2013, if, as expected, Seattle Mayor Mike McGinn (D) signs the measure.
Rise in Employer Confidence
The latest results of ManpowerGroup's Employment Outlook Survey for third quarter 2013.
Final Wellness Regulations Clarify Rules for Discounts Linked to Health Results
The Internal Revenue Service (IRS), the Department of Labor (DOL), and the Department of Health and Human Services (HHS), the three federal agencies with primary responsibility for implementing the Affordable Care Act (ACA), released final regulations on May 29, 2013 that expand the limits on rewards (and penalties) that certain workplace wellness programs may provide without running afoul of the nondiscrimination requirements under the Health Insurance Portability and Accountability Act (HIPAA). The new rules replace regulations from 2006 and make significant changes to the criteria that wellness plans must meet in order to reward health results without discriminating based upon a health factor. The final regulations are applicable for plan years beginning on or after January 1, 2014, and employers should review the new opportunities and requirements the final regulations provide as they consider changes to their plan designs for the upcoming open enrollment season.
Two New EEOC Criminal Record Lawsuits Underscore Important Strategic and Practical Considerations for Employers Conducting Background Checks
In March 2010, an employer successfully persuaded the Equal Employment Opportunity Commission (EEOC) to concede its disparate impact discrimination lawsuit against the employer based on its criminal record screening policies in a federal case in Michigan.1 The EEOC was ordered to pay $250,000 in attorney's fees and $500,000 in costs, including expert witness fees. In February 2013, a different employer successfully persuaded a federal court in Ohio to dismiss the EEOC's disparate impact discrimination lawsuit against the employer based on the employer's credit history screening policies.2 In a similar disparate impact discrimination case that is currently pending in Maryland involving both criminal records and credit history information, a different employer has made a similar motion to dismiss the EEOC's lawsuit, and the federal court could issue a ruling at any time.3
U.S. Supreme Court Affirms Deference Owed to Arbitrator Decisions, Allows Arbitration to Proceed on Class Basis
Contractual arbitration agreements are to be enforced according to their express terms, even if the effect of these agreements is to limit the ability of plaintiffs to bring class action claims, the U.S. Supreme Court has held repeatedly in recent years. In Oxford Health Plans LLC v. Sutter, No. 12-135 (June 10, 2013), the Court upheld the decision of an arbitrator who had interpreted the scope of an arbitration agreement to allow an arbitration claim to proceed on a class basis. The Court ruled that because the arbitrator had interpreted the contract language, he had not “exceeded his powers” under the arbitration agreement, which therefore required the courts to uphold the award even if the arbitrator’s interpretation was erroneous.
Does Your Employee Handbook Work For You or Against You?
Employee handbooks are a great tool for management. A good handbook can help ensure consistent application of rules, save time by making policy decisions that don’t need to be reinvented every time the issue arises, guard against employees’ claims of ignorance of the rules (and help you win an unemployment claim), satisfy legal posting requirements, and even “sell” the company as a great place to work. Unfortunately, a bad handbook can set the wrong tone at your company, be too specific or not specific enough to be useful, unintentionally create an employment contract, or violate the law by maintaining unlawful policies even if they are never enforced. If you do not have a handbook, it was written a very long time ago, or it was written by anyone other than a competent labor and employment attorney or HR expert, you should strongly consider changing that.
Employment Reform Law In Venezuela
Venezuela’s new labor law referred to as the Organic Law of Labor and Workers (“LOTTT”), became effective May 7, 2013. LOTTT establishes several critical labor reforms relevant to wage and hour requirements, maternity leave and pension requirements. All employers who are doing business in Venezuela or who are considering doing business in Venezuela should familiarize themselves with the specific provisions of LOTTT and review their current policies and practices to ensure compliance with the new requirements.