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What Supervisors Need to Know Before It’s Too Late

Every work day, supervisors make important decisions that could create organizational liability risks before HR or Legal are even aware of an incident. Robin Shea, a partner at the national law firm Constangy, Smith, Brooks & Prophete, and author of the firm’s award-winning Employment & Labor Insider, cautions that “supervisors make or break the company’s defense” in these situations.

HR Intel: Musings from a SHRM Event

I had the privilege of attending the 25th annual Garden State SHRM Conference and Expo over the weekend in Atlantic City, where some of the brightest minds in HR got together to talk about hot topics in employment law for 2016. With over 60(!) hour-long sessions on topics ranging from global HR compliance to tactical response for HR matters, it’s staggering to think about how much learning was accomplished in such a short period of time across such a huge group of attendees. But this is a blog and our collective attention spans are relatively short, so bear with me if I boil the entire weekend down into one digestible nugget: HR is advancing by leaps and bounds and is far more educated, enthusiastic and strategic-minded than ever before.

Federal Court Simultaneously Rejects and Upholds EEOC’s Positions on Wellness Programs – Rejects Employer’s ADA “Safe Harbor” Defense

In a much anticipated decision, a Wisconsin federal district court has granted Orion Energy Systems, Inc.’s summary judgment on the EEOC’s challenge to its wellness program design. See Sept 19, 2016 Decision and Order. While largely good news for Orion, the ruling creates even more confusion for employers seeking clarity on wellness program design principles. In short, the Court: 1) rejected the EEOC’s claim that the wellness program violated the ADA because it was “involuntary;” 2) upheld the EEOC’s position that the ADA’s “safe harbor” for insurance could not be used to defend the wellness program design; and 3) held there was a triable issue on whether the employer’s termination of an employee who refused to participate in the wellness program was unlawful retaliation under the ADA. The case lives on due to the retaliation claim but many employers are scratching their heads on what the ADA requires for wellness programs going forward.

Trump, Clinton Talk Workplace Law At First Debate

The topic of labor and employment law made an early appearance at last night’s presidential debate between Democratic candidate Hillary Clinton and Republican candidate Donald Trump. Although typically not a needle-moving topic garnering much by the way of mainstream attention, the two nominees were able to spend some time discussing their positions on subjects that could directly impact the workplace during their first head-to-head encounter.

States Increasingly Preempting Pro-Employee City Laws

With various employment-related ordinances, such as minimum wage and paid sick leave laws trending on a local level, employers are probably wondering, is my city next? Maybe, maybe not.

Four States Expanded Employer Data Breach Notification Obligations in 2016

With over 680 security breaches reported so far in 2016,1 more employers are being forced to confront the issue of how to respond to a breach. All states except Alabama, North Dakota and New Mexico now require notification when information commonly maintained by employers, such as Social Security numbers and driver’s license numbers, is compromised. While many of these breach notification laws were initially modeled after California's pioneering 2002 breach notification statute, more and more states are amending their notice laws in different ways, increasing the complexity of security incident response for multi-state employers.

Sixth Circuit Upholds Jury Award Of Compensatory Damages Against CRA Under The FCRA For Negligence, But Vacates Punitive Damages Award

Executive Summary: The Sixth Circuit Court of Appeals in Smith v. LexisNexis Screen Solutions, Inc., __ F. 3d ___, 2016 WL 4761325 (6th Cir. September 13, 2016), recently upheld a jury verdict in favor of a plaintiff in a Fair Credit Reporting Act (FCRA) case, who was initially denied a job due to an error made by LexisNexis Screen Solutions, Inc. (Lexis) in performing a background check. The Sixth Circuit found that the evidence supported the jury’s verdict that Lexis was negligent and upheld the $75,000 compensatory damages award, but found no evidence of willfulness and reversed the punitive damages award.

U.S. Securities and Exchange Commission Surpasses $100 Million in Awards Through Whistleblower Program

On August 30, 2016, the U.S. Securities and Exchange Commission (“SEC”) announced that it surpassed the $100 million mark in monetary awards for whistleblowers. Through the enactment of the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), Congress established the whistleblower program to incentivize whistleblowers who possess “specific, credible and timely” information about federal securities laws violations to report information to the SEC.

Diversity Presentation at New York #SHRM Explores Employer Challenges

Against the backdrop of the Empire State’s Adirondack Mountains, stunning lakes and fall foliage that was just beginning to peek through this week, I had the privilege to speak at the New York State Society for Human Resource Management (SHRM) Conference, “HR Going for the Gold,” in Lake Placid, New York.

eLABORate: EEOC Sues Employer Over Positive Drug Test for Prescription Opioid Painkiller

In recent years, the abuse of prescription opioid pain medication has become a widely reported national epidemic. The New England Journal of Medicine reports millions of Americans are addicted to prescription pain medications, and The Centers for Disease Control and Prevention finds that more people died from drug overdoses in 2014 than in any year on record with the majority of deaths from opioids. The CDCP reports that 78 Americans die every day from an opioid overdose. Prescription opioid abuse also has been linked to the national increase in heroin addiction. Commonly prescribed opioid painkillers include hydrocodone (Vicodin), oxycodone (OxyContin, Percocet), morphine (Kadian, Avinza) or medications containing codeine
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