Kansas Employment Law Blog

Just a heads up to those of you working hard to plan for the change in the overtime regulations set to take effect on December 1. It appears that the U.S. Chamber of Commerce plans to file a lawsuit seeking to enjoin the new rule and ultimately seeking to invalidate the regulation. While nothing has been officially announced, the McKinney Texas Chamber of Commerce issued an announcement that it was joining a coalition supporting the lawsuit which seems to indicate something is about to happen on this front. Stay tuned to this issue as those upcoming changes you are planning to make may not be necessary if the litigation succeeds.

As most of you probably already know, the EEOC has taken the position that bias based on sexual orientation is sex discrimination in violation of Title VII. In a decision issued by the 7th Circuit Court of Appeals (the first federal circuit court of appeals to hear such a case), the EEOC's position was rejected. The Court focused heavily on following the precedent established in prior 7th Circuit cases in reaching its conclusion. that Title VII does prohibit bias on the basis of sexual orientation.

This issue is likely to make news through the remainder of 2016 and throughout 2017 as other federal circuit courts of appeals are set to hear cases raising the same issue. In addition to further court decisions, the Equality Act is pending in Congress which would add sexual orientation and gender identity to the protected classifications currently in existence under federal law. Stay tuned for further developments.

The Communications Workers of America (CWA) plans to open a field office in Wichita to facilitate organizing efforts at T-Mobile. The local office will be in downtown Wichita. While the focus of the organizing effort appears to be T-Mobile, a CWA target nation-wide since 2008, it is possible the CWA will use the office for other organizing activities in the area.

The Department of Justice ("DOJ") published a new set of civil penalty amounts for a variety of civil matters enforced by the DOJ that are set to go into effect for violations occurring after August 1, 2016. The new penalty amounts were adjusted for inflation from the prior penalty amounts which in some cases had not been adjusted by the DOJ for quite some time. As a result, the adjustments to the penalty amounts in some areas were significant.

As part of the inflation adjustment, the DOJ increased the penalty amounts for the various immigration related violations enforced by the DOJ. These penalty amounts, initially established between 1980 and 1996, had never before been adjusted. Of note, the DOJ adjusted the penalty amounts for I-9 paperwork violations from a range of $110 to $1,100 per violation up to a range of $216 to $2,156 per violation. In addition, the penalty amounts for employing aliens not authorized to work in the United States were also increased significantly.

Employers should make note of these increases related to the I-9 process. If you haven't audited your I-9 records in some time, now would be a great time to do so in advance of these increased penalty amounts.

Earlier this month, four breastfeeding airline pilots filed EEOC complaints against Frontier Airlines for refusing to accommodate their need to express breast milk by way of pumping. The charges allege Frontier did not provide any accommodation to allow the employees to pump regularly and disciplined one employee for engaging in pumping activity aboard an airplane.

The EEOC's position on the subject is clear and spelled out in its Enforcement Guidance on Pregnancy Discrimination and Related Issues dated June 25, 2015: "An employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions."

These filings serve as a good reminder to employers that the EEOC reads the Pregnancy Discrimination Act to include reasonable accommodation obligations similar to those in the ADA. Various state laws, including one in Kansas, also provide certain protections for breastfeeding and/or expressing breast milk. Employers should carefully consider any request made by an employee to allow for this type of activity. In addition, not only do employers need to consider Title VII, the Affordable Care Act amended the FLSA to require employers to provide break time and private locations for pumping activity.

It will be interesting to see how Frontier Airlines responds to these charges. Stay tuned.

The EEOC has issued final regulations under the ADA and GINA that address the extent to which employers may use incentives to encourage employees and their spouses to participate in wellness programs that involve disability-related inquiries or medical examinations. Although the regulations allow limited incentives, there are a number of conditions and restrictions. And there are some important differences between the EEOC's rules and other rules governing wellness programs, such as guidance under HIPAA and the ACA. Here are the highlights.

What Wellness Plans Are Covered?

These regulations apply to any wellness plan that involves a disability-related inquiry or medical examination. This will include most wellness plans that require completion of a health risk assessment or biometric screening. It also includes tobacco-related wellness plans that involve any type of medical test to screen for the presence of nicotine, but it does not include tobacco-related programs that merely ask an employee to certify whether they use tobacco (and do not require any other medical examinations).

In an important change from the proposed regulations, the final regulations apply to a wellness program without regard to whether the program is offered in connection with a group health plan. For example, an employer that offers a cash reward to employees for completing a health risk assessment or biometric screening may be subject to the limitations under the final regulations.

What Limits Apply to Wellness Incentives?

For a wellness plan covered by these regulations, the incentive offered to any employee may not exceed 30% of the full cost Continue Reading...

On May 18, the Department of Labor issued the long-awaited regulatory amendments to the white collar exemptions under the Fair Labor Standards Act. Proposed changes were published last summer, and after a period of public comment (and more DOL thought and analysis) the regulations in their final form (known as the Final Rule) are now on the street.

In general, the regulatory changes are as expected and will go into effect on December 1, 2016. The focal point of the changes was to increase the minimum salary for exempt status. Although the proposed changes suggested the new salary could be at or above $50,000 per year, the Final Rule adopts a more conservative figure (in DOL’s eyes) of $913 per week ($47,476 annually). While certainly less than what it could have been, this still represents a more than 100% increase over the current minimum salary of $455 per week ($23,660 annually).

Similarly, for employers who utilize the exemption for highly compensated employees, the minimum compensation figure will increase from its current annual amount of $100,000 to $134,004.

Also as expected, the new regulations will incorporate an automatic salary update, but instead of the annual updates that the proposed regulations suggested, the Final Rule adopts an update schedule of every three years. Thus, after the new salary amounts go into effect on December 1^st, they’ll remain in place until January 1, 2020, and will update every three years after that.

A small silver lining to the new rules is that employers will now be able Continue Reading...

“Come to work with a positive attitude, and promote a positive work environment.” Most employers would look at that statement and think “that makes sense.” But if employers incorporate this type of broad statement into their employee handbooks, they might run afoul of the National Labor Relations Act (“NLRA”). Or so says the National Labor Relations Board (“NLRB”) in its recent decision striking down yet another handbook policy as a violation of an employee’s right to engage in “concerted protected activity” under the NLRA.

T-Mobile’s “Positivity Policy”

The General Counsel of the NLRB filed several complaints against T-Mobile, alleging that many of the company’s handbook policies violated the NLRA because they were overbroad and thus, employees could “reasonably construe the language [of the policy] to prohibit Section 7 rights” under the NLRA. That section of the NLRA guarantees employees the right to engage in “concerted protected activity;” which is activity by two or more employees that addresses and is intended to improve workplace terms and conditions. So, any workplace rule or policy that interferes with that right violates the NLRA.

Among the several policies the General Counsel took issue with was T-Mobile’s “positivity policy” under the “Workplace Conduct” provision of the company’s handbook. That policy stated:

"The Company expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management."

In opposing Continue Reading...

On May 11, OSHA issued a final rule modifying the record-keeping regulations. The final rule takes effect in August of 2016. The highlights of the final rule include:

Requires all employers with 250 or more employees to submit OSHA Form 300A electronically.
Requires all employers with more than 20 employees in high-hazard industries to submit OSHA Form 300A electronically (these can be found by NAICS code in an appendix to the final rule).
The submission deadline for the prior year data in 2017 and 2018 is July 1.
The submission deadline for the prior year data after 2019 is March 2.

Above and beyond the procedural changes, the final rule includes strong anti-retaliation language. For example, the final rule includes a requirement that injury/illness reporting procedures are not reasonable if they deter or discourage employees from reporting. This language may interfere with employer incentive programs designed to reward employees for preventing work-related injuries or illnesses under the theory that such an incentive plan discourages reporting. The final rule also contains a requirement for employers to provide notice to employees of their right to report work-related injuries and illnesses along with notification that the employer will not take negative action against an employee for such reporting.

The purpose of the electronic submission process seems to be driven towards OSHA posting employer specific data on its website as an education/outreach tool. In addition, it will allow OSHA easier access to injury/illness data for its own analysis purposes internally. It is likely this more readily accessible information will Continue Reading...

Clark Freshman, law professor at the University of California-Hastings and lie detection expert, spoke as the keynote speaker at Foulston Siefkin’s 2016 Annual Employment Law Seminar on May 10th. Freshman’s entertaining and informative presentation dispelled certain common myths about detecting lies and provided tips to spot when an employee is being dishonest. A summary of some of these tips may be found in an article published by the Wichita Eagle about Professor Freshman and his presentation, which you can read here.

This week Kansas lawmakers passed, and governor Brownback signed into law, a bill that says public employers, such as cities and counties, cannot forbid their employees from carrying concealed firearms while on duty. Public employees already have the right to carry concealed firearms while in the workplace, and the new law extends this right to when they travel into the community while on the job. Property owners would be able prevent municipal employees from carrying firearms onto their property only by posting the familiar “no gun” sign.

Supporters said that public employers should not be able to endanger their employees by restricting them from carrying a firearm for protection while on the job. Opponents warned that municipal employees, such as city inspectors and firefighters, can now come to your home carrying concealed weapons without any training.

To say the job interview did not go well would be an understatement. This week Ryan Dickson arrived for his interview at Trans Iowa, a taxi and shuttle company, with the hope of landing a job. Instead, he landed in jail.

While trying to park, Dickson backed into another car. He then pulled forward, crashing into the car in front of him. From there he staggered into the building for his interview. An employee on her smoke break saw it all and called the cops.

Dickson blew a .273 on his breath test, three times the legal limit, according to the police report. At first he said he hadn’t been drinking. But later he fessed up. He told police he had been drinking until 2 o’clock that morning, when he went to the hospital because of his alcohol intake. After being released at 8 a.m., he drank a fifth of vodka and then headed to the interview, he reported. Presumably he did not get the job.

While this case is an extreme example, it’s a good reminder than you can learn a lot about a job candidate beyond what he or she says during the interview with the hiring manager. More and more, companies are making a point to solicit feedback from every employee who meets a potential new hire, including the receptionist and administrative support staff. You can learn a lot about a job seeker based on how he or she treats the receptionist. If the candidate is rude, condescending, or Continue Reading...

Last week OSHA issued a fact sheet to assist employers with the prevention of occupational exposure to the Zika virus. While the United States has not seen a Zika virus outbreak, the mosquito types capable of carrying the virus exist in large parts of the United States. With the summer season approaching, employers are more likely to have employees exposed to mosquito bites and thus potentially exposed to Zika and/or other mosquito-borne illnesses.

If you have employees working outdoors, following this guidance will be a good idea. To see the OSHA fact sheet click here.

The HHS Office of Civil Rights (OCR) has announced the opening of its "Phase 2" HIPAA audit program. We have been anticipating this program for some time. It potentially affects all HIPAA covered entities, including employer-sponsored group health plans, as well as business associates of those covered entities, such as third-party administrators for self-insured health plans.

The purpose of the audit program is to "assess compliance" with the HIPAA privacy, security, and breach notification rules. Accordingly, these audits will be directed at a cross-section of HIPAA covered entities and business associates, rather than based on specific complaints or news reports.

Covered entities and business associates that are potential candidates for audit will be contacted by email (check your spam filter!) and asked to complete a pre-audit questionnaire. Not all covered entities and business associates that go through the pre-audit process will be selected for audit. But those who fail to respond to the pre-audit questionnaire will still be included in the potential audit pool, and it seems fair to assume that a failure to respond may increase OCR's interest in conducting a full-scope audit.

Based on the updated audit protocol that OCR is using to train its auditors, we have a good idea what OCR will be looking for if it conducts an audit. In the case of an employer-sponsored group health plan, the audit is likely to include a review of the following:

The plan document (to determine whether the proper HIPAA plan language has been adopted)

The trend of states requiring the use of E-Verify continues as Tennessee will require private employers with 50 or more employees to utilize E-Verify after January 1, 2017. While of not much consequence for Kansas employers (unless you have Tennessee employees), it is notable that the march of states mandating the use of E-Verify continues. It is also likely that any immigration reform at the federal level (whenever that occurs) will require employers to utilize E-Verify. With the trends heading in the direction of mandatory participation down the road, employers should consider the pros and cons of voluntarily opting into the system in advance of any mandates.