In September the Department of Justice released its new directive on individual accountability for corporate wrongdoing in a revived effort to fight corporate fraud. The “Yates Memo” by Deputy U.S. Attorney General Sally Quillian Yates, outlines the DOJ’s policy on targeting and pursuing corporate executives in cases of corporate wrongdoing. With the DOJ’s new guidelines companies should be taking a fresh look at their D&O insurance.
Articles on U.S. Labor, Employment, Benefits & Immigration Law
The EEOC Issues Proposed Rule on GINA and Wellness Programs
On October 30, 2015, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs that are part of group health plans.
The Growing List of States Protecting Social Media Privacy
As we have previously reported, a growing list of jurisdictions have enacted social media privacy laws applicable to employers.
Government to Delete E-Verify Records after 10 Years
Employers using E-Verify may mistakenly believe that once a record is created, it will be stored forever in the E-Verify system. Effective January 1, 2016, E-Verify transaction records more than 10 years old will automatically be deleted from the E-Verify system. That means that employers will no longer have access in E-Verify to cases created prior to December 31, 2005. This action is being taken to comply with the National Archives and Records Administration’s retention and disposal schedule.
OSHA targets more manufacturing industries for amputation inspections
In August, OSHA issued a revised version of its 2006 Directive on the Agency’s National Emphasis Program on Amputations that includes an updated list of 80 industries, primarily in manufacturing, that are targeted for inspection based on the high number of amputations that have occurred in those industries since 2006.
Obesity: A Weighty Employment Issue
Despite the prevalence of obesity in this country, surprisingly there is no federal law that prohibits employment discrimination based on a person’s weight and only one state, Michigan, specifically makes weight discrimination illegal. Still, employers in every state should consider taking steps to avoid the potential for a weight discrimination claim, because obese individuals who decide to sue their employer may find other avenues of protection under federal law.
Fashioning Employee Schedules: Employees Question Compensation Practices
Technological advancements have impacted employee scheduling in certain industries. Notably, employers with access to real-time data that suggest the level of expected business on any given day may require employees to be “on call.” But, in a recent lawsuit against clothing retailer Forever 21, employees allege they’ve been subjected to “exploitative” scheduling practices regarding so-called “on call” shifts. Comparable suits have recently been filed against other fashion retailers like Victoria’s Secret and BCBG Max Azria, regarding similar policies.
Union Seeks Labor Board Review of Regional Director’s Adverse Joint Employer Decision
In Green JobWorks LLC/ACECO, LLC, No. 05-RC-154596 (Oct. 21, 2015), discussed here, a case believed to be the first post-Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), to apply the new joint employer “test” articulated there, a National Labor Relations Board Regional Director found that a subcontractor and temporary staffing agency were not joint employers. Now, the petitioning union, disappointed by the ruling, has requested NLRB review of that decision.
School District Faces Government Sanctions under Title IX for Denying Transgender Female Student Access to Locker Rooms
An Illinois school district has violated anti-discrimination laws by not allowing a transgender student who identifies as female and is on her high school’s girls’ sports team to change and shower in the girls’ locker room, the United States Department of Education Office of Civil Rights (“OCR”) has held.
EEOC Sues Employer Who Allegedly Refused to Hire Methadone User
In the last three years, the Equal Employment Opportunity Commission has filed numerous lawsuits against employers who take adverse actions against applicants and employees who use prescription medications. In accordance with that trend, EEOC filed suit on November 3, 2015 against an employer who purportedly refused to hire a recovering drug addict using methadone, alleging violations of the Americans with Disabilities Act (“ADA”). EEOC v. Randstad, US, LP, 1:15-cv-03354 (D. MD. Nov. 3, 2015).
ADA with a side of FMLA: A Cornucopia of Legal Issues
Mixing the Americans with Disabilities Act and the Family Medical Leave Act can result in a smorgasbord of legal issues for many employers. While determining whether an employee has a qualifying serious health condition under the FMLA is, in large part, fairly straightforward given the FMLA’s certification requirements and detailed regulations, deciding whether the employee is also a qualified individual with a disability under the ADA can be more challenging.
ERISA Claims Procedures For Disability Benefits To Get An ACA Make Over
The Employee Benefits Security Administration (EBSA) of the Federal Department of Labor plans to publish on November 18, 2015, new claims procedures for adjudicating disability benefits designed to enhance existing procedures for those benefits under Section 503 of the Employee Retirement Income Security Act (ERISA). EBSA’s goal is to apply to disability benefits many of the new procedural protections and safeguards that have been applied to group health plans under the Affordable Care Act (ACA). Interested parties may submit comments to these proposed regulations no later than 60 days after publication.
DOL Continues to Warn Employers of Investigation of Systemic FMLA Issues
Edepartment-of-labor-300x300arlier this month, I had the pleasure of presenting on complex FMLA issues at the American Bar Association’s Annual Labor and Employment conference. During the session, entitled “The FMLA 20 Years Later,” we covered key FMLA notice and medical certification issues and other difficult FMLA scenarios.
Who is Responsible for Recording Injuries and Illnesses of Temporary Workers?
OSHA is being criticized for a recent interpretation letter clarifying who is responsible for recording illnesses and injuries in what the agency considers a “joint employer relationship” where supervision is shared between a host employer and a staffing agency. In deciding whether the host employer or the staffing agency is responsible for recording injuries and illnesses, the determining factors, according to OSHA’s requirements, are: (1) who supervises the employees on a day-to-day basis, and (2) what constitutes day-to-day supervision.
Employee Failed to Show that Positive Drug Test Result For Barbiturates Was Discriminatory
A federal court in Georgia rejected an employee’s claim that his termination after a positive drug test result for barbiturates was discriminatory. Roman v. Leggett and Platt, Inc., Case No. 3:14-CV-20 (M.D. Ga. Nov. 3, 2015).