Employment Best Practices: A McBrayer Employment Law Seminar
This event featured our Employment Litigation Practice Group providing a law update and best practices for human resource managers and others concerned with evolving legal issues affecting employment. Attendees at this free seminar received a complimentary continental breakfast and boxed lunch. Attendees were also eligible to claim 4 Human Resources Certification Institute credits and 3.25 hours of Kentucky continuing legal education credits.
Sessions and key points of presenters include the following:
The EEOC Strikes Back: New Guidance on Retaliation
• The EEOC issued new guidance on employer retaliation that incorporates Supreme Court rulings and newer agency interpretations.
• The focal point of the guidance is a new, expansive interpretation of the elements of retaliation, leading to greater liability for employers.
• Best practices and practical hypotheticals are included with the guidance to assist employers with compliance.
HIPAA and other Health Care Landmines for Employers
• While HIPAA generally does not apply to employers, employers often gain access to and must maintain private health information of employees that must be afforded confidentiality and protection. Because of the content, health information is much more valuable than credit card information on the black market. HIPAA establishes best practices even if not directly applicable to certain industries. The ADA, GINA, HIPAA and EEOC rules all affect employers and pose complex regulatory frameworks for dealing with employee's private health information.
• Commitment to corporate compliance through a baseline audit, development of compliance plan, appointment of a compliance officer, and establishment of an anonymous reporting mechanism are critical steps to reducing risk of violations of the laws, fines and penalties, and employee lawsuits. Corporate compliance should be made a part of every employee handbook and employee evaluation.
• Ransomware attacks are the 21st century's highway robbery crime with more than 4000 daily attacks documented by authorities. Compliance with HIPAA may be an effective tool to combat ransomware attacks on information systems. Employees should be knowledgeable about cyberattacks and educated about how to prevent and maintain confidentiality.
• Wellness programs will prove to be an effective and important tool for employers to promote healthy lifestyles, prevent disease, and manage chronic problems through lifestyle adjustments. Payment of incentives now has regulatory approval, which provides clarity for employers who offer wellness programs. With new rules for ADA and GINA compliance recently published, wellness programs must be reasonably designed to promote health or prevent disease rather than shifting cost to employees based upon their health.
• The Americans with Disabilities Act interprets "disability" broadly and applies to those with behavioral health disabilities as well.
• With the proposed repeal of the Affordable Care Act, the new administration will likely make major regulatory changes that will affect employers' responsibilities for providing health insurance. There is much to come!
Perspectives on Wage and Hour and Kentucky Employment Law Update
• The Kentucky Legislature and Gov. Bevin recently enacted three laws that will have an impact on employers going forward: HB 1, which is "right to work" legislation that ends closed shops throughout Kentucky; HB 3, which repeals prevailing wage considerations for contractors on public projects; and SB 6, the "Paycheck Protection Act," which prohibits employers from deducting union dues from employee paychecks absent express consent of the employees.
• The final rule on the "white collar" overtime exemption salary threshold may be dead in the water. It was enjoined by a Texas federal judge in November, which prevented it from going into effect on December 1st of 2016. There is a reasonable question as to whether the Trump administration will continue the litigation; instead they may engage in administrative rulemaking to supersede the rule's provisions.
• HB 3 also includes a provision that prevents local governments from imposing wage standards such as minimum wage and prevailing wages higher than state law standards.
Cutting Loose: Issues in Firing and Severance
• Although Kentucky is an at-will employment state, there are three major public policy exceptions to the rule: contracts with the employee, refusal to commit illegal acts by the employee and discrimination or retaliation in firing.
• The best defense employers have to a wrongful termination claim is to create sufficient documentation that provides an objective and contemporaneous account of employee performance or workplace issues.
• Severance agreements benefit employers by incentivizing employees to waive employment claims, but these must be carefully constructed to comply with various statutes, regulations and basic contract law.
To be added to our mailing list for future installments of our employment seminar, newsletters and employment law alerts, contact Elizabeth Bagby at (859) 231-8780, ext. 136 or firstname.lastname@example.org.