As named by Congress, the “Genetic Information Non-Discrimination Act of 2008” (GINA) appears to be just one more employment law adding to the ever-expanding list of characteristics that cannot lawfully form the basis for an employment decision. However, the law’s name camouflages its true nature. GINA, in reality, is a privacy statue that strictly regulates employers’ collection, use, safeguarding, and disclosure of “genetic information.” Moreover, two recently filed class action lawsuits demonstrate that many employers may be unwittingly violating GINA even if they conduct no genetic tests.
Articles Discussing Human Resources And Other Workplace Topics.
Executive Summary: ‘Tis the season for workplace holiday parties, which can bring about questionable and awkward behavior as co-workers mingle with alcohol. To prevent a legal hangover, employers should take some upfront precautions with regard to their holiday and end-of-the-year parties.
As the end of 2013 quickly approaches, it is time to put your employment and labor law knowledge to the test with Nexsen Pruet’s third annual final exam. We will send out answers to the exam on December 17th. Be sure to email your responses to email@example.com by December 16th. If you score 100 percent, you will be entered to win a fabulous prize. Winners will be announced when the answer key is released next week.
On December 3, 2013, in D.R. Horton, Inc. v. National Labor Relations Board, the U.S. Court of Appeals for the Fifth Circuit found that class action waiver provisions contained in mandatory, pre-dispute arbitration agreements governed by the Federal Arbitration Act (FAA) are enforceable, notwithstanding the right employees have to engage in concerted activities under the National Labor Relations Act (NLRA). On a separate but related issue, the Fifth Circuit found, however, that D.R. Horton violated the NLRA because its arbitration agreement could be reasonably interpreted to prohibit employees from filing unfair labor practice charges with the National Labor Relations Board (the “Board”).
Executive Summary: In a long awaited decision, D.R. Horton v. National Labor Relations Board, (Case. No. 12-60031, Dec. 3, 2013), the Fifth Circuit Court of Appeals vacated the January 2012 ruling of the National Labor Relations Board (“NLRB”) that invalidated an employee’s arbitration agreement containing a class action waiver.
On November 20, 2013, Fred Tilton, the Federal Aviation Administration’s (FAA) Federal Air Surgeon, announced a New Obstructive Sleep Apnea Policy1 (Policy) the FAA will be “releasing shortly.”2 Under the Policy, aviation medical examiners (AMEs) must calculate the Body Mass Index (BMI) – a method for identifying obesity – for every pilot. Pilots with a BMI of 403 or more will have to be evaluated by a physician who is a board-certified sleep specialist, and, if diagnosed with obstructive sleep apnea, treated before they can be medically certified.4 The FAA’s Policy will issue despite new legislation restricting sleep apnea screening for federally regulated commercial drivers and opposition from the Aircraft Owners and Pilots Association (AOPA).
According to the Securities and Exchange Commission’s (SEC) 2013 Annual Report to Congress on the Dodd-Frank Whistleblower Program, the agency awarded four whistleblowers a total of $14,831,965.64 during the fiscal year. More than $14 million of that sum was given to a single whistleblower. Under the Dodd-Frank whistleblower incentive program, individuals who report original information that leads the SEC to recover monetary sanctions of $1 million or more are eligible to receive awards of 10 to 30% of that financial recovery. This year, whistleblowers filed 3,238 tips and complaints with the agency, up from 3,001 filed in 2012. Since the program’s inception in August 2011, the SEC has received 6,573 tips and complaints. Other highlights of this year’s report include the following:
During Tuesday’s Senate Subcommittee hearing – Payroll Fraud: Targeting Bad Actors Hurting Workers and Businesses – Senator Robert P. Casey, Jr. (D-PA) announced that he, along with Senators Tom Harkin (IA) and Sherrod Brown (D-OH), had that day introduced the Payroll Fraud Protection Act of 2013 (S. 1687), a bill that would “hold employers accountable” for independent contractor misclassification. This hearing occurred just days after the Department of Labor (DOL) sent its proposed Worker Classification Survey to the Office of Management and Budget (OMB) for review and approval. The proposed survey will likely provide the groundwork for the future “right-to-know” rule that would amend an employer’s recordkeeping requirements under the Fair Labor Standards Act (FLSA) to provide employees with greater information about their employment status.
As privacy professionals know too well, organizations that handle personal information, especially personal information that can trigger security breach notification obligations, have an overwhelming need to screen out untrustworthy applicants from positions that permit access to such data. One tool that many organizations have used for years is straightforward enough—asking applicants to check a box in response to the following question on an employment application: “Have you ever been convicted of a crime?”
Thanks to the developing news regarding the Miami Dolphins, workplace bullying has generated national attention. There has been considerable press of late concerning school bullying and its impact on children but it is now clearer than ever that in some environments, bullying can exist in the workplace and can cause serious damage to professionals and their employers.
The district court’s opinion denying cross-motions for summary judgment in Bobbitt v. Broadband Interactive, Inc., No. 8:11-cv-2855 (M.D. Fla. Oct. 21, 2013) illustrates how not to structure an independent contractor relationship and how not to lay the groundwork to defend that relationship in the event of litigation. The case also serves as a warning that even well-conceived independent contractor relationships may be open to question by a court that is inclined to distrust them.
With audio recording applications (“apps”) often standard issue on ubiquitous smart phones, employees are now armed with a relatively inconspicuous way to capture their supervisor’s every gaffe. In September, a $280,000 jury verdict in favor of an employee on race and sex discrimination claims demonstrated just how damaging an audio recording can be in employment litigation. In that case, the plaintiff, who is African American, caught her supervisor, who is Hispanic, using the “N” word on tape, and the judge admitted the recording into evidence. Putting aside the risk of employees collecting damaging evidence for anticipated litigation, the ever-present specter of audio recording can undermine the type of corporate culture that so many employers are trying to encourage nowadays, one that thrives on collaboration and candid discussion among colleagues.
The findings from a 2013 survey of “International Business Attitudes to Corruption” conducted by Control Risks and the Economist Intelligence Unit, two independent international business risks and opportunities consultancy firms, suggest that many companies are unprepared to handle a corruption scandal and have yet to implement best practices for anti-corruption compliance. The study surveyed general counsels, senior corporate lawyers and compliance heads in more than 300 companies worldwide.
On Thursday the Senate Judiciary Committee unanimously approved the Criminal Antitrust Anti-Retaliation Act of 2013 (S. 42), a bill that would extend whistleblower protections to employees who report potential violations of antitrust and related criminal conduct. Notably, the measure does not provide an economic incentive akin to the Dodd-Frank bounty program for blowing the whistle on potential criminal law violations. The sum and substance of the bill would prevent retaliation against employees who do come forward, and provide them with judicial redress and possible compensatory damages in the event they are unfairly discriminated against.
ven though Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act more than three years ago, the basic question of who can claim the anti-retaliation protections of that law are less clear than ever. On one hand, the Securities and Exchange Commission (SEC) and a growing list of federal district courts have held that a person who makes internal complaints of fraud or securities laws violations within their company can bring a Dodd-Frank action. On the other hand, a federal circuit court of appeals and several lower courts have recently ruled that only one who provides information to the SEC can reap the protections of the Dodd-Frank anti-retaliation provisions. How this split will resolve remains to be seen.