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EEOC Not Feeling So Well After Loss over Wellness Program

In prior blogs, I discussed pending cases that the Equal Employment Opportunity Commission (“EEOC”) was bringing against wellness programs in the interim before clear guidance was given by the agency on how to craft these programs. Wellness programs, expanded and encouraged under the Patient Protection and Affordable Care Act (“ACA”), run the risk of triggering provisions of federal antidiscrimination laws, such as the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), according to the EEOC. EEOC brought several high-profile cases against employers in the enactment of their wellness programs, highlighting the bounds of what they view as accepted policy in employer wellness programs. In what is a sure to be a setback for the EEOC, however, it recently lost one of those cases at the trial level. More >

Political Speech in the Workplace: Can I Just Make It Go Away?

Every four years like clockwork, it happens: presidential politics becomes the focus of our national attention, seemingly dominating all aspects of our lives. The national conversation becomes one of campaign rhetoric, and anecdotal evidence suggests that it has only gotten more divisive. The conventional wisdom says that the two things one is never supposed to discuss at work are religion and politics, yet the political conversation can’t help but spill into the workplace, with the attendant potential for division and conflict. As an employer trying to foster productivity and keep the peace in the workplace, is there anything you can do? As it turns out, there’s quite a lot. More >

Employers, Beware: New EEOC Proposed Rule Would Gather Data, but Not Context

Every year, employers with 100 or more employees are required by the Equal Employment Opportunities Commission (“EEOC”) to invite employment applicants to self-identify their gender, race, and ethnicity on an EEO-1 report. On February 1st, however, the EEOC published a Proposed Rule that requires these employers to also include pay data and hours worked for all employees. This new regulation will provide a fairly powerful tool to the EEOC, but it could also prove to be a nightmare for employers. More >

Federal Contractors: Proposed Sick Leave Regulations May Leave You Feeling Sick

As a further push in the Obama Administration’s “Lead on Leave” initiative, the Department of Labor (“DOL”) issued proposed regulations on February 25th that would implement Executive Order 13706, requiring federal contractors to provide up to 56 hours of annual paid sick leave to employees. These regulations are far-reaching in scope, covering not just the amount of paid sick leave, but also when the leave can be used, whether unused leave carries over to the next year, how employees request the leave and which employees are eligible. These regulations will affect employers that enter into contracts with the federal government beginning January 1, 2017, therefore government contractors (and prospective government contractors) should begin now to understand these regulations and how their workforce will be affected. More >

Lexington Approves Local Minimum Wage Ordinance

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Per the Bluegrass Hospitality Association: More >

New FMLA Forms Address GINA Safe Harbor

The Department of Labor (“DOL”) recently revised and updated the template forms that the agency issues for use in Family and Medical Leave Act (“FMLA”) notice and certification. Some of these new forms have received substantial revision, and all have been approved through the end of May 2018. The most notable change, however, may be that certain new forms related to medical certification (WH-380-E, WH-380-F, WH-385 and WH-385-V) address Genetic Information Nondiscrimination Act (“GINA”) “safe harbor” language. More >

NLRB: A Sole Employee Filing a Class Action Lawsuit is Protected Concerted Activity

The National Labor Relations Board’s (“NLRB”) definition of the word “concerted” is beginning to extend past its common sense meaning. The NLRB has been expanding what counts as “concerted” activity under Section 7 of the National Labor Relations Act (“Section 7”) to cover a multitude of activities lately, and in 200 E. 81st Restaurant Corp., it stretches the definition just a bit farther. More >

Employers, Don’t Sleep on Your Rights

There are ways of gaining a tactical advantage in Fair Labor Standards Act (“FLSA”) litigation, but sleeping on one’s rights in such a circumstance is not one of them. NPC International, Inc., a Pizza Hut franchisee, learned this the hard way in the Sixth Circuit in August. If the case of Skylar Gunn v. NPC International proves anything, it proves that courts will frown upon employers gaming the legal system to the detriment of employees bringing claims.

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Parent Companies Ready for Labor Pains? NLRB Adopts New Joint Employer Standard

The end of August saw the National Labor Relations Board (“NLRB”) issue a highly-anticipated opinion in Browning-Ferris Industries of California, Inc.[1] In that opinion, the NLRB broadened the standard for what it considers a “joint employer,” a definition that had remained unchanged since Reagan-era appointees adopted a stricter standard in the 1980s (coincidentally, the earlier standard, endorsed by the Third Circuit in 1982, came in an earlier case against Browning-Ferris Industries of Pennsylvania, Inc. It is entirely possible that Browning-Ferris Industries exists as a company entirely to set joint employer standards before the NLRB). The new standard is liable to create headaches for corporations with subcontractors or franchisees, as it has the potential for parent companies to be held liable for labor violations at lower entity levels.

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Rethinking the 24/7 Response

Always connected. Always available. Always responsive. In an era where personal electronic devices have become more of a technological appendage than merely a handy gadget, a growing number of employers are grappling with the question of how well-connected their employees should be. Employers certainly benefit from the ability of employees to be available at all times and through instantaneous connection. The instant problem is the way in which this constant connectivity begins to warp the work-life balance. Should employees respond to employment-related emails after hours? Should they text back to the boss in the evenings to respond to work inquiries? Should employers expect employees to be responsive around the clock? Some employers are beginning to change their expectations for employee responsiveness after hours, and possibly just in time to stave off impending wage and hour law implications. More >

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