The federal courts continue to wrestle with whether sexual orientation is protected by Title VII – the law that prohibits discrimination based on sex. Although most circuit courts of appeal (including the 10^th Circuit that covers Kansas) hold that Title VII does not cover sexual orientation, recent court decisions have brought the debate to the forefront.

These conflicting decisions are not binding on other federal circuits.  But they signal that the Supreme Court may be called on in the near future to settle the debate. 

With the expansion of legalized recreational marijuana in several states and localities, there will continue to be discrepancies between legal usage of a product and the consequences for that usage under employer policies for drug testing.  In some cases, this tension may come from the use of other substances that are not exactly marijuana. 

For example, an employee may test positive for the use of marijuana in cases where they are ingesting products containing cannabis.  These products can include items like hemp oil as well as other edible type items.  If an employee has sufficient levels of a controlled substance in their system, a positive test result can occur.  Unlike other situations where a medical review officer (MRO) can justify the positive result, the scenario with hemp and other cannabis related products is not justifiable.  As a result, employers may see more cases of positive drug test results due to what employees perceive to be acceptable uses of products.

The inability of an MRO to excuse a positive result triggered by hemp oil may be something employers want to address with employees to avoid these difficult situations.  As legalized recreational marijuana becomes more common and the uses of various cannabis related products grows, these situations are more likely to become more commonplace.

On March 27, 2017, President Trump took two actions to roll back a controversial Obama-era requirement for government contractors. 

The OSHA administrative change referenced in my blog post of December 23, 2016, has been overturned by the Trump Administration's approval of a joint congressional resolution.  As you may recall, OSHA established a rule permitting the issuance of citations to employers for record-keeping violations for up to five years from the point of the error or violation.  The Trump Administration's approval of the joint congressional resolution returns the look back period for violations to six months. 

Click here to review the prior blog post from December of 2016.

The annual H-1B visa filing cycle is coming right up.  Employers will be able to file H-1B applications for the fiscal year 2018 cap/quota period after April 1, 2017.  USCIS will begin taking applications on April 3, 2017, and if the cap is reached during that first week, USCIS will conduct a lottery to determine which applications will be accepted under the cap. 

For those employers looking to obtain an H-1B visa for a worker, now is the time to get those applications ready to submit for the upcoming lottery. 

USCIS has announced a suspension of the premium processing program for H-1B visa applications starting on April 3, 2017.  The premium program is a means by which applicants for H-1B visas can shorten the standard processing time of approximately six months to just a few weeks.  The program is funded by the additional filing fees paid with the application.  With the upcoming cap lottery process and the current significant backlog in pending H-1B applications, USCIS is temporarily halting the acceptance of applications filed for premium processing.  This suspension is expected to last a few months, but the actual length is hard to project.  Stay tuned as USCIS works through its annual H-1B visa lottery process as changes to the premium processing suspension are likely.

A federal court in Washington, D.C. has declined to issue an order that would have halted implementation of the EEOC’s wellness plan regulations under the ADA and GINA. The regulations had been challenged by AARP on the grounds that they failed to adequately protect workers’ rights. However, the court concluded there was no risk of "irreparable harm" to workers in allowing the regulations to remain on the books. This means the regulations remain in force and will apply as scheduled. 

The EEOC’s regulations are generally applicable to wellness programs beginning with the 2017 plan year. The regulations limit the incentives that employers may offer in connection with a wellness program that involves a medical examination or disability-related inquiry. Most wellness programs that involve a health risk assessment or biometric screening are covered. The incentive cannot exceed 30% of the cost of employee-only coverage under the related health plan -- or twice that amount in the case of plans that offer incentives to both employees and their spouses.The regulations also impose notice and confidentiality requirements, in addition to limiting the amount of incentives.

The EEOC’s rules apply in addition to other wellness plan rules under HIPAA and the ACA, with sometimes inconsistent results. For example:

• Under the HIPAA and ACA regulations, there is no limit on the amount of the incentive that can be offered in a “participation only” wellness program involving completion of a health risk assessment and biometric screening, but the same wellness program generally is subject to      Continue Reading...

OSHA issued a new rule last week related to the statute of limitations for recordkeeping violations.  For those of you scratching your head and wondering what is a "statute of limitations", it is simply a time limit.  Prior to the issuance of the new rule, OSHA could only cite an employer for a recordkeeping failure in the six month period following the error.  The new rule moves that time limit out to five years.  This basically means that errors in your recordkeeping practices can now result in a citation for up to five years after the error. 

As an example, Frosty the Elf sustains an injury on 12/24/2016 loading Santa's sleigh.  North Pole Industries does not have a full-time HR person and Mrs. Claus fails to record the injury in the logs.  Under the old rules, if OSHA did not discover the error prior to June 24, 2017, North Pole Industries was in the clear.  Under the new rule, Mrs. Claus' mistake can now be the basis of a citation until December 23, 2021. 

The new rule takes effect on January 18, 2017.  While the rule has been issued, it is possible the incoming Trump Administration will change directions or Congress may take action to block the rule.  Stay tuned as we move into 2017. 

For employers, receiving garnishment orders is an all-too-common experience. If one of your employees falls behind on child support payments or has a judgment entered against her, you could receive a garnishment order directing you to make payments toward that obligation out of the employee's wages. As commonplace as receiving a garnishment order may be, the penalties for being inattentive to such orders are extraordinary. As an employer, you need to be aware of, and prepared to satisfy, your obligations under Kansas wage garnishment law. 

1. They would be able to receive severance pay if the county fired them within the first three years after      Continue Reading...

As the outdoor air cools and becomes crisp, office-wide relief becomes palpable as businesses finally stop blasting the office’s AC-on-steroids system.  Ugly holiday sweaters that violate all fashion sensibilities, if not office dress codes, start to appear on the regular.  And all are delighted by that one co-worker in the open cubicle area who plays the 24-hour holiday music radio station.  It’s that time of year again!  Time for holiday cheer and avoiding the pitfalls that can come from the annual holiday office party.

• A California bank branch held an annual holiday party at a local restaurant.  There were only about 15 people in attendance, but they included a female bank teller, the teller’s female boss, and the boss’ boyfriend (a manager at a different bank branch).  The entire affair, including the alcohol, was funded by the bank’s budget.  The office party officially ended, but the party-goers continued their revelries.  But once the bank’s party ended, the bank employees had to fund their own cocktails.  The party continued into the restaurant bar area, then moved to another bar as the night progressed, and finally ended up at the boss’s house.  You can probably see where this is going.  The teller ultimately accused her boss and the boss’s boyfriend of sexual harassment, and brought suit against the bank, alleging that the bank      Continue Reading...

In the holiday classic Christmas Vacation, family patriarch Clark Griswold is distressed that he has not yet received his bonus, which he is counting on to cover a check he wrote for a new swimming pool. Finally, on Christmas Eve, a courier arrives with a delivery. As his family looks on, Clark opens the envelope to find, not the bonus he is expecting, but a one-year membership in the Jelly of the Month Club. 

Late yesterday afternoon, a federal judge in Texas issued an order preliminarily enjoining the DOL's proposed amendments to the white-collar exemptions under the FLSA.  The most notable aspect of these proposed changes was the substantial increase in the minimum salary necessary for exempt status, from the current $23,660 to $47,476 per year. 

This decision arose from two recently filed cases brought against the Department of Labor by a group of state Attorneys General and a coalition of business advocacy groups.  Although the court did not issue a final decision on the merits of the issues, it determined that it was substantially likely that the plaintiffs would prevail on their argument that the DOL lacked the authority to impose a salary requirement that could be determinative of exempt status, regardless of an employee's job duties or responsibilities.

The injunction does not end the litigation in those cases, but it effectively places the regulatory amendments on indefinite hold until those cases conclude through final decisions.  While it's possible that the court could ultimately decide to lift the injunction, or the district court's decision could be reversed on appeal, neither of those decision points is likely to occur in the near term, or before the Trump Administration takes over the DOL.  How and to what extent the Trump DOL decides to continue to fight for these amendments remains to be seen. 

For now, employers should continue to follow the current requirements for exempt status, which are paying a salary of at least $455 per week per the current salary      Continue Reading...

With the outcome of the election in the books, we can begin to look forward to 2017 and beyond.  In most election years, the outcome provides us with a decent idea of what is to come.  This year's election cycle is a bit different than most.  It is a bit difficult to predict how Donald Trump and his presidency will impact the current landscape of employment law.  Here are a few things that might get some attention in the first half of 2017:

• The topics surrounding health care and the ACA are likely to get plenty of discussion.  Whether there will be significant change is another question.  It isn't easy to make tight or fast turns in large vehicles.  The amount of change to the health care system as a whole generated by the ACA in the last several years is considerable.  It may prove to be slow going if there is an attempt to repeal or significantly modify the ACA.
• The immigration area is likely to get some attention in 2017.  The scope and nature of that attention is hard to predict.  This is a rather complex set of issues that has been boiled down to simple campaign rhetoric in 2016.  As with health care reform, this area may prove to be complex as well.  Employers should expect some shifts in enforcement priorities in the coming year as the new administration takes over in Washington.  Keep in mind programs like deferred action (DACA) are      Continue Reading...

In a recent decision, the 11th Circuit Court of Appeals ruled that on campus hiring programs used by employers cannot serve as the basis for an age discrimination claim.  The issue resolved by the Court revolved around whether older applicants can make the claim that on campus hiring creates a disparate impact against older applicants.  The disparate impact theory approach was rejected by the Court requiring older applicants to bring claims only for intentional bias.  In plain language, the idea that on campus hiring disadvantages older applicants was rejected by the Court as the grounds for a hiring discrimination claim.   

Employers should keep in mind that this ruling directly applies to only a couple of states in the southeast.  The issue is still unresolved for most of the country, although this ruling would be persuasive in other areas.  This is an issue to keep an eye on as other jurisdictions grapple with these types of age discrimination claims from older applicants.