Labor and Employment

On August 29, 2016, the EEOC issued new Enforcement Guidance on Retaliation which replaces its 1998 Compliance Manual section on retaliation. The Guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.  According to the EEOC, retaliation is asserted in nearly 45 percent of all charges filed with the EEOC and is the most frequently alleged basis of discrimination.  EEOC Chair Jenny R. Yang said that “[t]he examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

The Guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).  Topics explained in the new Guidance include:

• The scope of employee activity protected by the law.
• Legal analysis to be used to determine if evidence supports a claim of retaliation.
• Remedies available for retaliation.
• Rules against interference with the exercise of rights under the ADA.
• Detailed examples of employer actions that may constitute retaliation.

The EEOC has also issued two short user-friendly resource documents to accompany the new Guidance: a question-and-answer publication that summarizes the Guidance, and a short Small Business Fact Sheet that condenses the major points in the Guidance in non-legal language.  To obtain copies of the Guidance or the Q&A or Fact Sheet for Small Businesses, go to https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued two final rules confirming that employers can offer limited incentives (in the form of a reward or avoidance of a penalty) to encourage employees and their spouses to participate in workplace wellness programs.  Under these new rules, employers who offer wellness programs will be allowed to provide such limited incentives to employees or their spouses to induce them to provide information about their current or past health status.  The new rules modify regulations that pertain to Genetic Information Nondiscrimination Act (“GINA”) while creating new regulations that pertain to the Americans with Disabilities Act (“ADA”).

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On July 14, 2016, a three-member panel appointed by the National Labor Relations Board (“NLRB”) reversed an Administrative Law Judge decision in favor of the employee. The Panel found that a complaining employee who was told he was “fired” in a meeting and subsequently told he was not fired after the meeting on the same day, was in fact discharged for purposes of the Act. Thus, the Panel found the employer violated National Labor Relations Act (the “Act”) Section 8(a)(1).

Read more about it here: https://www.nlrb.gov/

Often times, when a company acquires another company, it does not wish to retain all of the other company’s employees.  The employees who do not get brought on board often end up out of work.  Under these circumstances, issues arise over how to handle the laid off employees.  Federal law requires employers to provide at least 60-days’ written notice prior to terminating employees affected by such a merger.  So who is required to provide the notice, the employees’ current employer or the new company that does not wish to retain them? Under federal law, if the employees remain employed as of the day of the sale, the purchasing company assumes responsibility for providing the required notice.  According to the 8^th Circuit, this remains true even where the purchasing company never intended to employ the laid off workers and expressly contracted away the notice obligation when completing the purchase agreement.

Read more about it here: http://blog.hrusa.com/blog/trucking-company-found-in-violation-of-warn-act/

In July 2016, the federal Department of Labor (DOL) updated two posters that employers are required to post in the workplace.

1. The “Employee Rights under the Fair Labor Standards Act” poster; and
2. The “Employee Rights – Employee Polygraph Protection Act” poster.

According to the DOL, every employer subject to the federal Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA) must post and keep posted on its premises the amended posters after August 1, 2016.  The posters must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment.

Copies of the posters can be obtained on the DOL website at: https://www.dol.gov/whd/resources/posters.htm

Employers whose workers earn most of their compensation through tips, such as restaurant employees, know that they walk a fine line to ensure compliance with the Fair Labor Standards Act (“FLSA”) and numerous other laws.  Last month the Fifth Circuit rejected a program instituted by a restaurant operator in Texas that deducted certain fees before paying tips to its restaurant workers that were earned by customers using credit cards. While the ruling does not close the door on such arrangements, employers who utilize such programs will be under scrutiny to ensure strict compliance with the FLSA.

Read more on it here: http://blog.hrusa.com/blog/restaurants-fee-deduction-program-violates-flsa/

The New Jersey Supreme Court says no, or rather not so short. The Court unanimously held that employers cannot contractually shorten the two-year statute of limitations period for private claims under the New Jersey Law Against Discrimination (“LAD”).

Read about it here.