Reminder: IF your company is subject to OSHA’s Injury and Illness Recordkeeping and Reporting Requirements, you must post “in a common area where notices to employees are usually posted” OSHA’s Form 300A (summary of job-related illnesses and injuries) for the previous year.
New California Regulations on Workplace Anti-Harassment, Anti-Discrimination Policies Effective April 1
New California regulations declaring that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by” the California Fair Employment and Housing Act and that “[e]mployers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct” will go into effect on April 1, 2016.
Use Of Personal Cloud-Based Document Accounts Requires New Strategies By Employers
Whether Google Docs, Dropbox, or some other file sharing system, employees, especially millennials and other digital natives, are increasingly likely to set up personal cloud-based document sharing and storage accounts for work purposes, usually with well-meaning intentions, such as convenience and flexibility. Sometimes this is done with explicit company approval, sometimes it is done with tacit awareness by middle management, and often the employer is unaware of this activity.
Employer’s Reliance On Positive Alcohol Test Was Legitimate and Non-Discriminatory Basis For Termination
An employer’s reliance on a positive alcohol test was held to be a legitimate and non-discriminatory basis for termination, despite the terminated employee’s argument that the test result was inaccurate. Clark v. Boyd Tunica, Inc., 2016 U.S. Dist. LEXIS 35223 (N.D. Miss. March 1, 2016).
New Jersey Court: Meal Preparation, Other Tasks Properly Part of “Companion” Duties Under Old Test
In 2013 the Department of Labor announced new regulatory language that substantially limited the scope of the Fair Labor Standards Act’s companionship exemption. Those regulations, of course, were challenged through litigation which remains ongoing, and their implementation by the USDOL was delayed until many months after the original effective date of January 1, 2015. Though the new companionship services regulations have taken effect, pending review by the U.S. Supreme Court, claims brought under the prior regulations continue to work their way through the court system. A federal district court in New Jersey decided one such case last week, finding an FLSA claimant had failed to properly plead that she was not exempt from minimum wage and overtime under the prior version of the exemption. Simoliuniene v. Estate of Maszer, 2016 U.S. Dist. LEXIS 25953 (D.N.J. Mar. 1, 2016).
ERISA Preempts Vermont Health Plan Reporting Law, Supreme Court Holds (Self-Funded Plans Take Note)
Many employers would agree that reporting is a core function of employee benefit plan administration. On top of the numerous reporting requirements for group health plans imposed by the Internal Revenue Service and other federal agencies, states laws, including Vermont’s, add a layer of state reporting obligations for plans, including self-funded group health plans.
Vermont’s Health Plan Reporting Law Impermissibly Impacts National Plan Administration and Falls to ERISA Preemption, Supreme Court Holds
If you were to ask most employers whether reporting is a core function of employee benefit plan administration, they would likely say yes, particularly as many are currently in the middle of completing IRS Forms 1094-C and 1095-C. On top of the numerous reporting requirements for group health plans imposed by IRS and other federal agencies, a number of states, including Vermont, have enacted laws that add a layer of state reporting obligations for plans, including self-funded group health plans. In what is clearly welcome news for employers and plan sponsors, this added state law burden has been lessened by yesterday’s Supreme Court decision in Gobeille v. Liberty Mutual Ins. Co., No. 14-181.
First Circuit: FAAAA Preempts Massachusetts’ Contractor Law
On February 22, 2016, the First Circuit issued its decision in Schwann v. Fedex Ground Package System, Inc. This decision clarified the extent to which the Massachusetts Independent Contractor statute, G.L. c. 149 § 148B (“§ 148B”), as applied to motor carriers, is preempted by the Federal Aviation Administration Authorization Act of 1994, 49 U.S.C. § 14501(c)(1) (“FAAAA”). Schwann v. FedEx Ground Package Sys., 2016 U.S. App. LEXIS 3050 (1st Cir. Mass. Feb. 22, 2016).
Court Denies Class Certification in Telephone Consumer Protection Act Case, Citing Plaintiff’s “Unique” Circumstances
For employers who are facing class claims under the Telephone Consumer Protection Act, you may have more support for your defense: The U.S. District Court for the Southern District of California recently granted Wilshire Consumer Capital’s (WCC) motion to deny class certification in a putative class action filed under the TCPA.
Claims and Recoveries Up at EEOC in 2015, Retaliation Tops Charges
The number of charges filed with the U.S. Equal Employment Opportunity Commission rose in the Commission’s last fiscal year, and the amount of money the agency recovered through administrative enforcement and litigation rose sharply in 2015 over 2014. (The fiscal year runs from October 1 to September 30.)
European Commission Unveils EU-U.S. Privacy Shield (Update)
Earlier today, the European Commission (the Commission) issued a draft “adequacy decision” as well as the texts that will constitute the EU-U.S. Privacy Shield (the Privacy Shield). This includes the Privacy Shield Principles companies have to abide by, as well as written commitments by the U.S. Government on the enforcement of the arrangement, including assurance on the safeguards and limitations concerning access to data by public authorities.
Inconsistent Discipline of Female and Male Mental Health Technicians Bars Summary Judgment for Hospital
Where a former female employee showed a hospital imposed lesser disciplinary action upon male employees for infractions similar to the one that led to her discharge, her sex discrimination claims can proceed, a federal appeals court has ruled, reversing summary judgment for the hospital. Jackson v. VHS Detroit Receiving Hospital, Inc., No. 15-1802 (6th Cir. Feb. 23, 2016).
SEVERANCE, ERISA and RUM PUNCH
ERISA provisions are like fruity rum drinks. A little inattention and they can sneak up on you with most unpleasant consequences.
HIPAA Covered Entities Not Responsible For Intercepted Transmission of PHI When Individual Requested Unsecured Transmission, Office for Civil Rights Concludes
Earlier this month, the Office for Civil Rights (OCR) issued guidance on an individual’s right to access the individual’s health information. That an individual has a broad right to access has been recognized in the HIPAA privacy regulations since they became effective in 2003. OCR has found, however, that individuals are facing obstacles to accessing their health information, and believes this needs to change. To help covered providers, plans and business associates better understand the right to access, the agency issued a comprehensive set of frequently asked questions (FAQ). These FAQs address a number of access issues, but they also provide practical insight on some key points, one of which is summarized below.
Philadelphia’s Amended Ban-the-Box Law Effective March 14
Amendments to Philadelphia’s “Ban the Box” legislation, the Fair Criminal Records Screening Standards, will go into effect on March 14, 2016.