In spring 2016 we notified you that the Equal Employment Opportunity Commission’s (EEOC) finalized regulations aimed at ensuring employer wellness programs comport with the Genetic Information Nondiscrimination Act (GINA) and Americans with Disabilities Act (ADA) would take effect as of the first day of the first plan year beginning on or after January 1, 2017.
NY Continues Trend of Rebuffing Online Legal Service Providers
New York has joined a growing list of states with ethics boards limiting an attorney’s ability to participate in online legal service providers like Avvo and LegalZoom. Similar to other jurisdictions, the New York ethics board authored an opinion honing in on the so called “marketing fee” charged by Avvo for attorney use of its website. Although the opinion declines to decide a list of other potential ethical issues with the company, it concludes that the “marketing fee” is actually a referral fee in violation of Rule 7.2(a) of the New York Rules of Professional Conduct.
Second Circuit: Notice of Termination is an Adverse Action Even if Rescinded
Last week, the U.S. Court of Appeals for the Second Circuit clarified its standard relating to rescinding terminations, and more specifically, how they interpret “adverse consequences.” The issue came before the court in a matter where an employee returned from her honeymoon, visibly pregnant, and was told that her position was going to be eliminated within a few weeks. Shortly thereafter, the employee retained an attorney and notified her employer of the same. Several days later, the employer rescinded her termination and reinstated her position. When analyzing rescinding termination claims under Title VII, the standard is to determine if the reinstatement had any lasting “adverse consequences.” Various circuit courts and lower courts have historically considered whether the employee was restored to the same salary, benefits, and title when reinstated in order to determine if there were adverse consequences to the employee. If the same material conditions were reinstated, courts would not recognize adverse consequences. Here, the employee did not claim any difference in salary, title, or benefits and therefore, the lower court ruled that the employee incurred no adverse consequences.
High Times: Accommodating Marijuana Use at Work
Marijuana laws are evolving in the US. Marijuana is a Schedule 1 drug under the Controlled Substances Act, and has no accepted medical use under federal law.
New Abuse Reporting Requirements for Long-Term Care Facility Employees in New Jersey
Employees of long-term care facilities in New Jersey will soon be subject to new requirements when it comes to reporting abuse. A law recently passed by the New Jersey Legislature and signed by Governor Christie on August 7, 2017, requires these employees to contact the local police when they have “reasonable cause to suspect or believe” that an “elderly person is being or has been abused or exploited.” The law takes effect on October 6, 2017.
Labor Law Update Summer 2017
Goldberg Segalla’s Labor Law Update keeps insurers, contractors, construction managers, developers, and other clients involved in construction informed about significant changes and cases involving New York’s “Scaffold Law” — Labor Law §§200, 240(1), and 241(6).
OSHA’s Multi-Employer Citation Policy and Construction Sites: Who Is An Employer?
Since OSHA’s mission statement is “to assure safe and healthful working conditions for working men and women,” it’s no surprise that its enforcement authority generally rests with citing employers.
Loser Pays: Risks of Civil Rights Claims
Federal civil rights actions are somewhat unique in that they allow the prevailing party to be granted “reasonable attorney’s fees.” An employer on the wrong side of a decision or verdict could leave it paying (a) damages; (b) its attorney’s fees and (c) its adversary’s attorney’s fees. But what are “reasonable” attorney fees? In Sommerfield v. City of Chicago, the Seventh Circuit shed some light on this important question.
New York Paid Family Leave Regulations Finalized
In Spring 2016 we notified you of legislation enacting a 12-week paid family leave policy in New York. The New York Paid Family Leave Act (PFL) is a series of amendments to the state Workers’ Compensation Law set to take effect on January 1, 2018. PFL allows eligible employees to take paid leave time to care for a newborn, a covered service member, or a family member who has a serious health condition.
Accommodation for the Mark of the Beast
Most employers know of the requirement to adjust any aspect of the working environment which may conflict with an employee’s religious beliefs. At the federal level, under Title VII, an employer must make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship. But what are religious accommodations? What proof may an employer request in order to establish that the employee is being sincere? The 4th Circuit recently examined a religious accommodation scenario that ended in an award of nearly $600,000 in damages and other benefits to the employee.
The ADA and the Internet
Most employers and business owners are generally aware of the requirements set forth by the ADA to accommodate accessibility to buildings and facilities by individuals with disabilities.
Pennsylvania Supreme Court Declares IRE Provision of the Workers’ Compensation Act Unconstitutional
On June 20, 2017, the Pennsylvania Supreme Court found Section 306(a.2) of the Workers’ Compensation Act to be unconstitutional. The decision in Protz v. Workers’ Compensation Appeal Bd. (Derry Area School District) means that indemnity benefits are no longer subject to a cap.
Post-Wilkes Decision Tips for Handling Workers’ Compensation Claims
Last week we wrote about the impact of the Wilkes v. City of Greenville decision. In this ruling, the North Carolina Supreme Court significantly expanded the “Parsons presumption,” which posits a relationship between an original work-related injury and additional treatments required.
Workplace Violence: How to Maintain a Safe Work Environment
The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many laws that protect employment interests. Reportedly, every year, approximately 2 million Americans fall victim to workplace violence.
Heavy Scrutiny of Employment Agreements
Agreements within employment contracts and employee handbooks continue to be subject to strict scrutiny by the NLRB. In a recent decision, the Sixth Circuit enforced an NLRB Order finding multiple NLRA violations for prohibiting employees from engaging in “collective bargaining.” The issue should be of interest to all employers given the common misconception that the NLRA only applies to unionized employers.