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Debate Continues on Whether Title VII Prohibits Discrimination Based on Sexual Orientation

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 10th Circuit that covers Kansas) hold that Title VII does not cover sexual orientation, recent court decisions have brought the debate to the forefront.

We told you in a post last August that the 7th Circuit Court of Appeals had rejected the EEOC’s position that discrimination based on sexual orientation violates Title VII.  That Court, however, later vacated the earlier decision, and granted a rehearing en banc.  Then, on April 4, 2017, the Court reversed course and ruled that discrimination based on sexual orientation is indeed a form of unlawful sex discrimination. 
In late March, the 2nd Circuit Court of Appeals reached the opposite result and ruled that under its existing precedent, Title VII does not prohibit discrimination based on sexual orientation.  In a separate opinion, two of the three judges urged the entire Court to reexamine its earlier precedents in light of the “evolving legal landscape.”   
And in early March, the 11th Circuit Court of Appeals held that discrimination based on sexual orientation was not sex discrimination.  A dissenting judge concluded, however, that “it [was] time that the court recognized that Title VII prohibits discrimination based on an employee’s sexual orientation.”  

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. 

     Continue Reading...
The Details are in the Weed

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.

New World Order for Government Contractors

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

First, the President signed an Executive Order revoking President Obama’s Fair Pay and Safe Workplaces Executive Order (Executive Order 13673, as amended by Executive Orders 13673 and 13738). This controversial executive order had required, among other things, federal contractors to (1) disclose prior violations of federal and state employment and labor laws in solicitations for certain government contracts and every six months during the existence of the contract (the “blacklisting” order) and (2) provide certain pay-related information to employees and independent contractors (the “paycheck transparency” order).  
In conjunction with that Executive Order, the President also signed into law H.J. Resolution 37. This measure—authorized by the rarely used Congressional Review Act, which allows Congress to review and overrule a regulation adopted by a government agency within the last 60 legislative days (in this case dating back to May 2016), prohibiting the agency from issuing in the future a rule that is substantially the same—overruled the final agency regulations designed to implement the Fair Pay and Safe Workplaces Executive Order. A federal judge already had issued a temporary restraining order last fall, blocking implementation of the blacklisting portion of the order, but allowing the paycheck transparency rules to take effect. This resolution now negates the entire set of regulations and bars the government from adopting substantially the same regulations again in the future, unless expressly authorized by an act of Congress.
This action marks President      Continue Reading...
Trump Administration Reverses OSHA Record-Keeping Rule Change Implemented by President Obama

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.

H-1B Filing Season Coming Up

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 Premium Processing Suspended

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.

EEOC Wellness Regulations Survive AARP Challenge

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 Changes Statute of Limitations on Recordkeeping Citations

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. 

Wage Garnishment Orders in Kansas: Follow the Rules to Avoid Liability

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. 

Background on wage garnishment in Kansas
In 2002, the state legislature amended the garnishment statutes, making the rules substantially consistent in Chapter 60 cases (the typical civil case) and Chapter 61 cases ("limited action" civil cases). Now, the substantive requirements for employers who have received garnishment orders are essentially the same under both chapters. 
Below are some basic guidelines that should help you navigate Kansas wage garnishment rules and the way they have been applied since their 2002 update. This article does not cover all of the rules' nuances. Employers who fail to follow the rules face harsh penalties in Kansas, so you are advised to seek the advice of counsel in handling garnishments.
What is wage garnishment?
When you receive a garnishment order, it means that one of your employees owes a judgment creditor money and the creditor wants to collect the debt by forcing you to withhold money from the employee's paycheck. 
On a garnishment order, you will be listed as the "garnishee." The party seeking the garnishment is the      Continue Reading...
Severance Policy Not Applicable to Employees Who Suffered No Job Loss
Some employers have written policies that provide severance pay when employees lose their jobs through actions like job eliminations or reductions in force. So what happens when employees lose their job with the original employer, pursuant to a consolidation or plant sale, but that employer makes arrangements for them to transfer to comparable jobs with the new employer with no lost work time? The Kansas Court of Appeals recently ruled that City of Topeka employees whose employment was transferred to Shawnee County did not experience a “lay-off due to work or job elimination,” and thus were not eligible for severance pay under the City’s severance pay policy.
The terms of employment for workers in Topeka’s parks and recreation department were governed by the city’s personnel code. One provision of the personnel code addressed severance pay, setting forth who is eligible for it, under what circumstances, and how much.
In 2011, the city decided to consolidate its parks and rec department with Shawnee County’s department. The city and county entered into several “consolidation contracts” that set forth the terms of the consolidation. Moreover, the city’s employees didn’t need to worry about their jobs because the city was able to negotiate an assurance with the county that all city employees who wanted to could transfer to county positions at comparable pay.
The city was able to negotiate other provisions for its employees, including:
  1. They would be able to receive severance pay if the county fired them within the first three years after      Continue Reading...
Ho Ho Oh No! HR Pitfalls at the Annual Holiday Party

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.

The Naughty List
Santa’s list wouldn’t be complete if it didn’t have a few coal recipients.  The following are true stories of office parties that went horribly awry.
  • 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...
Christmas Vacation, Free Beer, and the FLSA

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. 

Naturally, Clark has an epic meltdown. Well-meaning but misguided Cousin Eddie then kidnaps Clark’s boss and drags him back to the house, so Clark can confront him about cancelling the employees’ bonuses.
“I was expecting a check. Instead I got enrolled in a jelly club. Seventeen years with the company. I’ve gotten a Christmas bonus every year but this one. You don’t want to give bonuses, fine. But when people count on them as part of their salary—well, what you did was just plain …”
“Sucks,” Clark’s son Rusty interrupts.
After looking around the room at the family’s long faces, Clark’s boss has a change of heart and announces that he is reinstating the bonuses. And it’s Merry Christmas to all, and to all a good night—until a SWAT team breaks into the Griswold home to rescue the kidnapped boss, and Uncle Lewis inadvertently triggers a sewer gas explosion.
Promises, Promises
While cancelling a bonus is a great set up for a comedy movie, year-end bonuses can give rise to legal snags that are no laughing matter for employers. Under state wage payment      Continue Reading...
Federal Court Puts DOL Salary Changes on Ice

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...

Looking Ahead to 2017

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...
On Campus Recruiting and Age Discrimination

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. 


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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