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Supreme Court Green Lights Vaccine Mandate for CMS; Stalls OSHA
By: Donald Berner

Today the U.S. Supreme Court issued two rulings related to the Biden Administration’s vaccine mandates for employees of certain businesses.

First, the Court blocked OSHA’s implementation of the COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) for large businesses and sent the matter to the Sixth Circuit Court of Appeals to reach a decision on the merits. The stay will remain in place until the Sixth Circuit decides the case. Although the ETS went into effect on Monday, January 10, employers may now stop complying with it until the Sixth Circuit’s ruling. 

Second, the Supreme Court has given the go-ahead to the Centers for Medicare and Medicaid Services’ (“CMS”) vaccination mandate by lifting stays imposed by federal courts in Missouri and Louisiana. As previously reported here, on November 4, 2021, CMS issued an Interim Final Rule requiring most Medicare and Medicaid certified providers and suppliers to vaccinate all eligible staff. However, in the weeks following the release of the Interim Final Rule, a series of federal court decisions resulted in a split in CMS’ ability to implement and enforce its vaccination mandate. Until today, CMS could implement and enforce its vaccination mandate in 25 states, but was prohibited from implementing and enforcing the mandate in the other 25 states, including Kansas and Missouri. With today’s Supreme Court ruling, CMS may now implement and enforce its vaccination mandate in all 50 states, including Kansas and Missouri, while the Fifth and Eighth Circuit Courts of Appeals work through deciding these cases on their merits.  

On      Continue Reading...

Side Effects From OSHA’s Withdrawal of COVID-19 Healthcare ETS
By: Donald Berner

Earlier this week OSHA announced its plans to withdraw the substantive aspects of the COVID-19 Healthcare Emergency Temporary Standard (ETS) that was published back in June. This withdrawal will become effective when notice is published in the Federal Register, which we expect to occur within the next week.

While the ETS will be officially withdrawn, OSHA’s statement “strongly urges” healthcare employers to continue to comply with the substance of the healthcare ETS, including its PPE, physical distancing, isolation/quarantine, and screening requirements, among others. The agency states that it will view these requirements as part of a healthcare employer’s obligations to comply with OSHA’s general duty clause.    

A critical consequence of OSHA’s decision concerns the OSHA COVID-19 Vaccination ETS for large employers (100+ employees), which, among other components, requires covered employers to impose a regimen of weekly testing and masking requirements for all unvaccinated employees. The Vaccination ETS contains a provision that excludes employers who are subject to the Healthcare ETS from its coverage.  However, once the Healthcare ETS is officially withdrawn, that exclusion will be inapplicable, and those larger healthcare employers will become subject to the broader OSHA Vaccination ETS. This is noteworthy because the non-testing aspects of that ETS, including having a policy in place, have a practical effective date of Jan. 10, 2022, with testing required for unvaccinated employees by Feb. 9, 2022.  Thus, larger healthcare employers who previously didn’t have to worry about the broader OSHA Vaccination ETS now have a relatively short period to be in compliance.

This      Continue Reading...

Court Stays OSHA Emergency Temporary Standard for Large Employers
By: Donald Berner

On Saturday, November 6, a federal appeals court issued an order temporarily staying the Occupational Safety and Health Administration’s Emergency Temporary Standard (“ETS”), which directs certain private employers with 100 or more employees to mandate COVID-19 vaccinations or weekly testing.

The U.S. Court of Appeals for the Fifth Circuit, stating that the lawsuit may implicate “grave statutory and constitutional issues,” temporarily stayed the ETS pending a later ruling on its validity. The Court ordered an expedited schedule for responding, under which the parties must submit response briefs on November 8 and 9. 

At this time the future of the ETS is uncertain. However, as a practical matter, employers may need to continue making preparations to comply with the ETS by the December 5 deadline, in the event the ETS is ultimately upheld. 

It is important to remember that the Court’s order applies only to the OSHA ETS. It does not apply to the separate vaccine mandates imposed on federal contractors and Medicare and Medicaid certified providers, which require that covered employees be vaccinated (or accommodated for medical or religious reasons) by December 8 and January 4, respectively.

An overview of the OSHA ETS requiring large employers to mandate vaccines or provide weekly testing is available here.

Labor Day: The Unofficial End of Summer or Something More
By: Donald Berner

We hope everyone enjoyed their Labor Day holiday. Over the years, Labor Day has been viewed as the last gasp of summer fun. While taking this last summer holiday to enjoy some travel or family time is a great idea, the roots of Labor Day can actually be traced to labor unions. Labor Day was established in the late 1800s and early 1900s as a holiday to celebrate the contributions of our country's workers and was initially proposed by organized labor unions. Click here for the history of Labor Day.

The Labor Day holiday should serve as a reminder to union-free employers that organized labor is still working hard to represent the employees at their companies. Your management team should spend some quality time on a regular basis communicating with your employees and listening to their concerns. This is a great way to ensure your company remains union-free. If management fails to establish a rapport and maintain a good working relationship with their employees, this opens the door for people outside the company to have those conversations. I'm sure most of you would prefer the good working relationship start within the company as opposed to outside the company.
So now that you have made the most of your holiday weekend courtesy of the labor movement, get back to work building those internal relationships.
Can a Face Mask Land You in the Penalty Box?
By: Donald Berner

Just a quick heads-up for employers in this challenging period. With everyone thinking about COVID-19 and worrying about exposure, some individuals have become enamored with the idea of wearing a face mask for personal protection. 

In the past few days, I have observed a number of people wandering the streets wearing face masks. So it may only be a matter of time before an employee wants to wear one in your workplace. 

While this may seem harmless, employers should be cautious with respect to the use of face masks in the workplace. There is a much deeper discussion that the employer may need to have with regard to this issue. 

If the face mask is a respirator (think N-95), the voluntary use of a respirator in the workplace can draw an employer into the provisions of OSHA’s Respiratory Protection standard.  Going a step further, if an employer decides to require the use of a face mask that is considered a respirator, the requirements under the standard become even more onerous. 

In this time of paranoia and hasty reactions, don’t let yourself get checked into the boards by allowing the use of a face mask or dust mask in the workplace that is actually deemed a respirator, without first getting advice from legal counsel.

Foulston Siefkin 2019 HR Training Series
By: Donald Berner

Foulston Siefkin’s HR Training Series presents workshops on the full range of issues that are important and relevant to employers. These workshops are designed to benefit business owners, executives, and HR professionals with responsibility in their organization for the issues arising from the employer-employee relationship. Each session will be presented by a Foulston Siefkin attorney at our offices in Kansas City, Topeka, and Wichita. All training sessions will be submitted for HRCI and SHRM credit.

Upcoming 2019 dates are listed below. For more information on the topics and to register, visit www.foulston.com/hrtraining.
HR Box Lunch Sessions:
  • What to Do When OSHA Shows Up JANUARY 24, 2019
  • FLSA Update FEBRUARY 28, 2019
  • Box of Tricks or Pandora’s Box? How Outside Information Can Help or Hurt Employee Hiring and Retention JANUARY 30, 2019
  • Anatomy of a Complaint: From Charge to Lawsuit FEBRUARY 21, 2019
  • FLSA Update MARCH 6, 2019
  • Just the Facts: Difficult Conversations, Discipline, and Performance Management APRIL 16, 2019
  • Box of Tricks or Pandora’s Box? How Outside Information Can Help or Hurt Employee Hiring and Retention JANUARY 17, 2019
  • Anatomy of a Complaint: From Charge to Lawsuit FEBRUARY 12, 2019
  • FLSA Update MARCH 5, 2019
  • Just the Facts: Difficult Conversations, Discipline, and Performance Management APRIL 11, 2019
Foulston Siefkin 2018-19 HR Training Series
By: Donald Berner

Foulston Siefkin's HR Training Series is designed to benefit business owners, executives, and HR professionals with responsibility in their organization for the full range of issues arising from the employer-employee relationship. Presented by Foulston Siefkin attorneys at our offices in Kansas City, Topeka, and Wichita, each session will address issues that important and relevant to employers. All training sessions will be submitted for HRCI and SHRM credit.

The 2018-19 schedule is available below. For more information on the topics and HR Training Series, visit www.foulston.com/hrtraining. Click here to register now.

HR Half-Day Sessions


  • Back to the Basics: HR Topics from A-Z that Every HR Professional Should Know AUGUST 29, 2018
  • Not as Easy as One, Two, Three: How the FMLA, ADA, and Workers’ Compensation Interact with Employee Leave of Absence and Return to Work OCTOBER 30, 2018
  • Back to the Basics: HR Topics from A-Z that Every HR Professional Should Know SEPTEMBER 11, 2018
  • Not as Easy as One, Two, Three: How the FMLA, ADA, and Workers’ Compensation Interact with Employee Leave of Absence and Return to Work NOVEMBER 6, 2018

HR Box Lunch Sessions

  • Box of Tricks or Pandora’s Box? How Outside Information Can Help or Hurt Employee Hiring and Retention JULY 24, 2018
  • Anatomy of a Complaint: From Charge to Lawsuit AUGUST 21, 2018
  • Just the Facts: Difficult Conversations, Discipline, and Performance Management SEPTEMBER 27, 2018
  • The Benefit of Staying Up      Continue Reading...
Mandatory E-Verify????
By: Donald Berner

Immigration issues continue to be a hot topic in Washington.  As immigration reform questions circulate through Congress, particularly surrounding the DACA/Dreamer issue, a bill to make E-Verify mandatory for all employers arrived on the House floor.  The bill would phase in the required use of E-Verify over a two-year period.  It is still too early to tell if the bill will survive, but its introduction shows a continued emphasis on border control by the Republican in Congress and the Trump Administration.  Stay tuned for further updates. 

Trump Administration Makes Significant Change to Immigration Renewal Filings
By: Donald Berner

USCIS issued a memorandum on October 23rd that rescinded prior guidance established by the Bush and Obama administrations related to extensions of temporary work visas.  The prior guidance directed USCIS case officers to approve extension requests so long as the main facts of the extension were in line with the original filing.  The new guidance tosses out this presumption in favor of approving those extension requests and indicates that all filings will be subject to the same scrutiny as the initial filing.  In essence, the Trump Administration does not want to give credence to any previously approved filings and will review them with fresh eyes upon the request for an extension. 

The policy memorandum is yet another indication of the Trump Administration's negative viewpoint with respect to the use of foreign labor.  In keeping with the theme of the Buy American Hire American order issued by President Trump, this policy memorandum clears the way for USCIS case officers to reject extension requests in hundreds of thousands of previously approved work visas.  The impact of the memorandum is hard to predict at this point, but does point to a continued tightening and restricting of employer access to work visas for foreign workers. 

The Details are in the Weed
By: Donald Berner

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.

Trump Administration Reverses OSHA Record-Keeping Rule Change Implemented by President Obama
By: Donald Berner

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
By: Donald Berner

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
By: Donald Berner

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.

OSHA Changes Statute of Limitations on Recordkeeping Citations
By: Donald Berner

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. 

Looking Ahead to 2017
By: Donald Berner

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
By: Donald Berner

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. 

Potential Legal Challenge to the New DOL Overtime Regulations
By: Donald Berner

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. 

EEOC's Position on Sexual Orientation Based Discrimination Rejected by the 7th Circuit
By: Donald Berner

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.  

Communications Workers of America Open Field Office in Wichita
By: Donald Berner

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. 

Department of Justice Adjusts Penalties for Inflation
By: Donald Berner

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. 

A New Frontier -- Breastfeeding
By: Donald Berner

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.   



OSHA Record-Keeping Rule Modified
By: Donald Berner

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...

Protecting Your Workforce from the Zika Virus
By: Donald Berner

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.

E-Verify Expansion
By: Donald Berner

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. 

New STEM OPT Regulations Take Effect in May
By: Donald Berner

The new STEM (Science, Technology, Engineering, & Math) OPT regulations issued in March create a new set of requirements and benefits for students and employers seeking to participate in the program.  For those not familiar with STEM and OPT, these concepts relate to foreign students and work authorization which typically applies after the student completes a degree program.  The traditional OPT, which stands for optional practical training, program allows the foreign student up to twelve months of work authorization per program of study (degree level) to obtain practical on-the-job type experience before returning home.  There are special rules for foreign students within the STEM degree fields that allow the OPT time to extend out an additional 24 months.  This extra OPT time comes with some strings attached for the employer.

The primary addition in the new rule relates to training plans and evaluative processes.  Foreign students must now have a training plan that sets out goals for the STEM practical training period.  The plan requires a description of the skills, techniques and knowledge the student will obtain through the opportunity with the employer as well as an evaluation process and a description of how the student will be supervised.  These new requirements take effect for STEM extensions filed by students after May 10th. 

For more information on the new STEM program click here

March Forth!
By: Donald Berner
Now that we’re well into 2016, many of us may have forgotten our New Year’s resolutions and returned to our normal routines. But not to worry. If you’ve ignored your resolutions (or never made any to begin with), there’s still hope. March 4th (sounds like “march forth” - get it?) is national “Do Something Day.” So today, take some time to map out a plan for doing the following things before you let the rest of the year get away from you: 
  • Review your policy materials, and make sure they are current and up to date. You should review your policies to ensure they’re in compliance with all legal requirements, but your review should be practical as well. Are your current policies working as intended, or are there some that would benefit from a different approach? A little reflection and reworking now can help you avoid any issues you had in the past. As Winston Churchill observed, “Those that fail to learn from history are doomed to repeat it.” 
  • Take time to clean up employee files. Is the required documentation in the file? Conversely, are there any prohibited materials that need to be taken out? Remember that      Continue Reading...
DOL Overtime Regulations Update
By: Donald Berner

The timing of the issuance of DOL's new overtime rule has been a matter of much projection and debate.  Prior to last week, the estimated arrival date for the final rule was summer of 2016.  Last week, the Secretary of Labor expressed his desire to ensure the rule is issued in the early spring of 2016.  Considering the potential for Congressional action and other litigation, the early spring 2016 date makes sense.  A key concern for worker advocate groups is to ensure the rule is published early enough that any Congressional action takes place while President Obama is still in office.  An early spring release meets this key goal.  So for employers working on contingency planning for the new rule, you might move your completion date up a bit if you expected this to be a summer/fall of 2016 activity. 

Leave as an ADA Accommodation: How Much is Enough
By: Donald Berner

Consider this fact pattern:  An employee has a back problem that stretches out over a long period of time.  At some point, the back problem becomes severe enough the employee goes out on FMLA leave.  During the twelve weeks of FMLA leave, the employee ends up scheduling a surgery.  The surgery takes place near the end of the twelve week FMLA period and the employee has a set of lifting restrictions that don't allow the employee to perform the essential functions of the position.  Under those facts, there is no way the employee can return to work at the conclusion of the FMLA leave.  Now what?

Employers face fact patterns like this one on a fairly regular basis.  A reasonable accommodation under the ADA might be to provide the employee with additional leave beyond the protected twelve-week FMLA absence.  These cases are usually fact-specific and can be tricky to resolve.  

A federal court in Wisconsin recently decided a case with this set of basic facts.  In the case, the employee requested another two to three months of additional leave to allow for recovery from the surgery.  The employer denied the request for the additional leave and ended the employment relationship.  As you might expect, the employee brought an ADA claim against the employer.  In what might be a surprise for employers, the court ruled in favor of the employer.  The court focused on the fact the employee had not been able to perform the job duties for the three months during the FMLA leave and that the anticipated two to three additional months was too long for the employee to be away from work.

Keep in      Continue Reading...

Expanded Deferred Action Program Remains on Hold
By: Donald Berner

In November 2014, President Obama expanded the deferred action program currently in effect.  The expansion would have extended eligibility to participate in the program to about 4 million more individuals currently in the U.S. illegally.  The program extension is currently on hold due an injunction issued by the U.S. District Court for the Southern District of Texas.  The issuance of the injunction was appealed by the federal government.  The Court of Appeals upheld the injunction in a decision issued earlier this week. 

This means the expansion of the deferred action program remains temporarily blocked from implementation until the trial of the matter takes place or the federal government successfully appeals the decision.  Stay tuned.  It will likely be months before this issue resolves itself. 

Happy Veteran's Day
By: Donald Berner

Happy Veteran's Day and a thank you to all who have served or are currently serving!

For employers looking to support veterans, check out the Department of Labor Veterans' Employment and Training Service (VETS) site.  To see more click here.

DHS Issues Proposed STEM OPT Rule
By: Donald Berner

The Department of Homeland Security (DHS) issued a proposed rule providing for the extension of optional practical training (OPT) time for foreign students that obtain degrees in STEM fields of study.  STEM stands for science, technology, engineering and math.  The new regulation proposes an additional twenty-four month extension to the existing twelve month OPT period.  This extension will be made available for each degree level should the individual obtain a bachelors degree and then later obtain a masters degree.  DHS is currently preparing a listing of eligible STEM fields that will be permitted to participate in the program and will provide that information at a later date. 

The proposed rule also imposes a few requirements on employers participating in the program.  Employers will be required to participate in E-Verify, implement mentoring and training programs to further the attainment of the practical experience contemplated by the program, attest to having the resources to provide the mentoring and attest that no U.S. workers experienced job losses as a result of employing the individual participating in the OPT program.

Stay tuned for the finalization of the rule and the detailed listing of STEM degree fields.   

New Farmworker Safety Rule Issued
By: Donald Berner

The Environmental Protection Agency (EPA) recently issued a farmworker safety rule related to pesticide use.  The new rule will likely take effect in the early part of 2017 as the full version is set to be published in the next 60 days with a 14 month implementation period before taking effect.  Some highlights of the new rule include:

  • Employees under the age of 18 will not be permitted to handle or apply pesticides.
  • Pesticide training must take place on an annual basis as opposed to once every five years.
  • Employees must be trained on how to minimize the risk of carrying home residue of the pesticides in use.
  • The usage of personal protective equipment will be expanded as well as the testing and monitoring of the equipment.
  • Employers will be required to maintain records of all pesticide use for at least two years.
  • Farm workers will now have whistle blower protections.

With these changes set to take place in 2017, employers that use pesticides will want to review the full rule upon publication and begin implementing the changes along the way. 

The Perils of HR: Beware of Texting Applicants
By: Donald Berner

For most somewhat technologically adept members of society, the use of text messages to conduct business has become somewhat common.  It is an easy and quick means of communication.  It is often viewed more informally than an email or other written correspondence.  Putting aside all the standard warnings about the use of text messages for business purposes, HR personnel must now be wary of other more scary concerns. 

A human resources manager in the Chicago area recently reported receiving nude selfies from an applicant after making a conditional offer of employment to the individual.  As the story goes, the man indicated they were accidentally sent to the wrong person.  This does highlight the danger of using text messaging for official workplace communications.  My guess is the HR manager and the candidate had exchanged relevant work-related texts.  This led to the candidate confusing the phone numbers when sending his photos.

So next time you pick up your phone and contemplate texting someone about work-related issues, think twice.  Maybe it would be a better idea to send an email instead.

Amputation Emphasis Program Gets Update
By: Donald Berner

This summer OSHA updated its national emphasis program designed to reduce the occurrence of amputations in the workplace.  The directive sets out a number of program requirements as well as adding a number of new manufacturing industry groupings to the scope of the program.  Here are a few highlights from the directive:

  • For worksites newly covered by the program, OSHA is required to engage in outreach efforts to the employer prior to conducting an inspection under the program.
  • Facilities with an amputation in the last five years can be added to the list of target entities under the program.  In other words, if your facility is not covered by the emphasis program, but has had an amputation, OSHA can add you to the list of targets for random inspection.
  • The new directive utilizes the NAICS code system as opposed to the old SIC code system.  This change will result in differences in the master list of potential employer targets for inspection.  You can find the list within the directive on OSHA's website here.

For employers falling within the industry listing contained in the directive, your facility is on a list OSHA will target for random inspections.  It is well worth your time to take a closer look at your machinery that presents an amputation risk.  As they say -- an ounce of prevention is worth a pound of cure.

DOL "Spouse" Rule on Hold in Four States
By: Donald Berner

The DOL recently issued a final rule modifying the definition of spouse under the FMLA.  The change would recognize a same-sex spouse for purposes of the FMLA based on where the celebration of the marriage occurred as opposed to where the employee lives.  Shortly after the issuance of the rule, the states of Texas, Louisiana, Arkansas, and Nebraska filed for and obtained a temporary injunction blocking the rules application in those states.  The DOL presently intends to enforce the rule as written in the other 46 states not participating in the filing.  Stay tuned for further developments.

H-1B Cap Update for 2016
By: Donald Berner

USCIS announced the cap for fiscal year 2016 (start date of October 1, 2015) has been reached.  For all those submitting applications for an H-1B, a lottery will be conducted to choose the applications to be considered for the 85,000 slots.  The lottery process is likely to take several weeks as USCIS processes the applications and conducts the random selection process.  Stay tuned and keep your fingers crossed. 

Work Authorization for H-4 Visa Holders
By: Donald Berner

The USCIS announced recently that certain H-4 visa holders (dependents of H-1B visa holders) will become eligible to receive work authorization.  This new rule takes effect on May 26, 2015 and is limited to a specific category of H-4 visa holders.  If the H-4 visa holder's spouse has an approved I-140 (permanent resident application) or has an H-1B extension in place beyond the six-year limit for H-1B status, the H-4 visa holder can apply for and receive an employment authorization document to allow them to work.  This is a significant change for the dependents of those individuals pursuing permanent residence as it will allow them the opportunity to obtain employment as well.  Keep in mind, however, that this rule has a very limited application and does not allow all H-4 visa holder's to obtain employment authorization.  If you qualify under this rule, now is the time to begin preparing the application for employment authorization to be ready to file on May 26th when the new rule takes effect.   


NLRB "Quickie Election Rule" Faces Congressional Attack
By: Donald Berner

The NLRB election rules set to take effect on April 14th face a court challenge by U.S. Chamber of Commerce and now face a potential legislative challenge as well.  The Senate passed a resolution designed to block the NLRB's implementation of the new rules.  A similar measure is expected to be considered in the House in the next week or two.  There is no guarantee that these legislative efforts will have an impact on the NLRB election rules.  With just a month or so to go until implementation employers should stay tuned to see if any of the challenges are able to derail the rule. 

Top Ten Most Frequently Cited OSHA Standards for FY2014
By: Donald Berner

Here is a little top ten list fun on this pre-Valentine's Day Thursday.  I spent way too much time earlier this week helping my 4th grade daughter put together her Valentine's Day box for school and I'm sure several of these standards were violated in my kitchen.

Without further ado here is the list . . .  

10. Electrical systems design (good news here for our project -- it was super low tech so no chance of a violation here)

9.  Machine guarding (the scissors I used to cut the shoe box should have been guarded or at least my fingers believe that to be true)

8.  Electrical wiring methods

7.  Ladders (I'm sure my small two step ladder/stool I used to get to the top shelves in the pantry for construction paper violate something here)

6.  Lockout/tagout

5.  Powered industrial trucks (thankfully we didn't need a lift to get the box out the door for delivery to school)

4.  Respiratory protection (the smell of glue sticks and markers in the air surely required some form of protection)

3.  Scaffolding

2.  Hazard communication (anytime I work on an artistic related project somebody should be warning the rest of the house)

and the number one most cited standard . . .

1.  Fall protection (thankfully the table top isn't high enough to qualify as a fall hazard although I did drop quite a few things if that counts)

For all of you that have some safety responsibilities, this list is a good starting point for thinking about the types of issues you might have present in your workplace. 

Deferred Action Program Expansion Kicks Off
By: Donald Berner

The first of the expanded immigration benefits granted by President Obama's executive action is slated to begin processing applications next week.  The Deferred Action for Childhood Arrivals (DACA) program in its new expanded form will provide benefits to a wider range of potential applicants.  This expansion is likely to lead to a new wave of individuals seeking deferred action related benefits which includes a work authorization document to allow these individuals to work legally in the U.S.  This is likely to lead to another wave of your employees receiving new work authorization documents later this year. 

As a reminder, DACA is for those individuals that entered the U.S. prior to reaching age 16.  The DACA program has been modified to allow individuals of any age to apply so long as they meet the requirement of having entered the U.S. prior to age 16 and have lived in the U.S. continuously since January 1, 2010 (the prior version of the program required continuous residence since June 15, 2007).

"Like a Girl" Superbowl Commercial
By: Donald Berner

During last night's Superbowl, the P&G commercial "Like a Girl" caught my attention.  It was an interesting play on how the phrase "Like a Girl" somehow represents doing a task poorly or as the commercial shows us in a not so athletic way.  From an employment law standpoint, the idea that "Like a Girl" represents a weak or poorly performed action is just the type of approach that will get employers into hot water.  So on this post-Superbowl Monday morning, give a thought to what "Like a Girl" might mean to you.  If you buy into the stereotypes portrayed in the commercial, you are likely to be exposing your company to liability at some point down the road.  As an HR professional, if you have managers/executives at your company that buy into the "Like a Girl" stereotype, its only a matter of time until those same managers/executives find themselves on the wrong side of a gender based discrimination claim or concern.  Now might be a good time to remind your management team of the perils of discrimination and your company's policies against the same. 


Immigration Reform Update
By: Donald Berner

Now that the State of the Union address is in the rear-view mirror, it's a good time to peek in on just where things are at with respect to immigration reform.  As you might recall, President Obama announced a series of changes he intended to implement by Executive Order in November of 2014 (read about them here.)  So just where are things with respect to all these changes?  The answer is a simple one -- UNDER CONSTRUCTION.  For those expecting immediate change, immigration reform has been a bit of a sore subject.  As you will remember, comprehensive immigration reform has been a topic of discussion throughout President Obama's presidency.  In fact, Congress was debating comprehensive immigration reform following the election cycle in 2012.  The key takeaway is that while immigration reform gets a lot of discussion and press, actual progress is hard to come by and slow to arrive.  With that said, deferred action related information is likely to arrive in February.  In addition, the new deferred action program targeted at parents of children born in the U.S. will likely arrive in the late spring or early summer (May/June).  What will be interesting to watch is how these upcoming executive changes will motivate Congress to act.  So while things are likely to remain quiet in early 2015, expect immigration reform to be a hot topic again as we move towards spring.  As always, stay tuned. 

DOL Continues to Add States to Employee Misclassification Initiative
By: Donald Berner

With the addition of Wisconsin last week, the Department of Labor (DOL) now has 19 states participating in the collaborative effort to reduce the misclassification of employees as contractors.  The DOL's initiative is a concerted effort to investigate and pursue companies that misclassify employees as contractors to avoid various tax and/or benefit burdens.  Over the last three to four years, the initiative has resulted in a significant number of companies being investigated by the DOL (or a state partner) and the payment of significant back pay amounts to employees.  If your company makes use of independent contractors (contract labor), you should carefully review these arrangements to ensure they are truly contractors and not employees.  Correcting these issues before a government investigation is almost certain to be better for your company.  

Court Invalidates DOL Change to Companionship Exemption
By: Donald Berner

Last week a federal judge invalidated the Department of Labor's (DOL) proposed change to the companionship exemption under the Fair Labor Standards Act.  The change in the rule was expected to cause the majority of home health workers to no longer be exempt and thus subject to the minimum wage and overtime rules.  At issue was how the DOL defined companionship in the rule.  The primary change at issue was eliminating the exemption for those home health care workers that spend more than 20% of their time on personal care related tasks.  These tasks include things like bathing, dressing, cooking, shopping, cleaning, etc.  In most cases, these tasks are a significant portion of what home health care workers do to assist their clients.  It is now in the DOL's court to decide whether to appeal the decision.  Stay tuned.

Termination Case Goes South
By: Donald Berner

A recent decision in a Texas federal court case highlights for employers the dangers of a sloppy termination process.  The basic story is an employer terminated the employment of a 55 year old employee for having a poor attitude and poor work performance.  The employee's story differed in that he claims he met all requirements and his supervisor harassed him.  The parties ended up in litigation and through the discovery process the employer's termination process began to unravel.  The employer's basis for the termination came into doubt when the supervisory team could not identify who made the decision to terminate the employee.  Multiple supervisors pointed in different directions as to the identity of the person making the decision.  In addition, the employer failed to follow its own progressive discipline policy with respect to the employee.  These flaws in the termination process resulted in the court providing the employee the opportunity to present his case to the jury at a trial.  This outcome is a significant loss for the employer and will likely result in the employer choosing to settle the case with the employee rather than go forward to a trial.

Looking back at the facts of the Texas case, there are a couple simple and obvious lessons for other employers.  First, ensure in any termination of employment that you follow your own company policies/procedures.  If you fail to follow your own policies/procedures a court or agency will doubt the truthfulness of story you tell regarding the termination.  Second, make sure your management team is on the same page with the decision-making process.  If      Continue Reading...

New OSHA Reporting Rule Goes Into Effect
By: Donald Berner

Effective January 1, 2015, the new OSHA incident reporting rule took effect.  The rule change expands the types of incidents employers are required to report to OSHA.  The prior rule required employers to report a work-related fatality or work-related hospitalization of three or more employees.  The rule has been modified to require the reporting of any work-related fatality, work-related hospitalization of one or more employees, all work-related amputations, and any work-related loss of an eye.  These new rules significantly lower the threshold for reporting incidents to OSHA.  The result of these changes will be an increase in the number of incidents that an employer is required to report to OSHA.  Employers should make note of the lower threshold on hospitalizations and the addition of the amputation and eye loss requirements. 

NLRB Election Rule Challenged
By: Donald Berner

As most of you are aware, the National Labor Relations Board (NLRB) recently issued a rule changing the process for representation election proceedings.  The rule changes essentially accelerate the process and is a favorable change for unions.  This is the second time the NLRB has attempted to implement this new representation election rule.  The last time the NLRB attempted to implement the rule (2011), the U.S. Chamber of Commerce filed a lawsuit that ultimately resulted in the rule being rescinded due to technical issues in how the NLRB adopted the rule.  Now that the NLRB has reintroduced the rule, the U.S. Chamber of Commerce has filed suit again in an attempt to block the implementation of the rule.  This time around the rule will need to be challenged on its merits because the technical issue from the 2011 implementation will not be an issue.  These challenges will resolve around due process, freedom of speech, and the intent of the National Labor Relations Act.  Stay tuned as the litigation proceeds forward.  The rule is set to take effect on April 1. 

H-1B Season is Approaching
By: Donald Berner

Now that the calendar has turned to 2015 it is time to begin considering the rapid approach of the H-1B filing window.  The H-1B visa is the most commonly utilized work visa for employers.  While USCIS has not issued any information yet with respect to the filing window and lottery process, employers should expect 2015 to be no different than the last couple of years.  The H-1B cap for the 2016 fiscal year (starts on October 1, 2015) will be hit in the initial filing window.  This means employers seeking a H-1B visa for an employee will need to be prepared to file the application by April 1, 2015, to participate in the lottery for a visa.

As a word of warning, if you have individuals working for you that are utilizing OPT (Optional Practical Training) this blog posting applies to you.  If these individuals haven't asked yet, expect them to be asking soon about an H-1B filing in this upcoming filing window.  Considering the need to file by April 1, 2015, it isn't too early to start talking through these issues and planning for any filings. 


NLRB Opens Company Email Up for Employee Use in Organizing Campaigns
By: Donald Berner

In a recent decision, the National Labor Relations Board (NLRB) reversed its longstanding rule regarding employee use of corporate email systems for the purpose of union organizing.  The historical rule allowed employers to prohibit the use of its email systems so long as it did so on a non-discriminatory basis.  This is no longer the case.  The NLRB reversed direction last month changing the rule.  The new rule requires employers to allow employees to use corporate email systems to engage in union organizing activities.  The use must be during non-working hours and cannot interfere with workplace discipline or production.  So long as employees stay within these vague boundaries, employers must allow use of email for these purposes. 

It is likely your Company's electronic communications policies do not permit this type of usage.  It might be time for a revision of the policy.  At a minimum, you need to ensure no discipline is issued to an employee for this type of usage even if your Company's policy prohibits such usage.  

Court of Appeals Weighs in on H-2B Wage Rule
By: Donald Berner

In a recent decision, the U.S. Court of Appeals for the Third Circuit rejected the Department of Labor's (DOL) 2009 guidance regarding the use of private employer surveys for determining prevailing wages under the H-2B program.  The Court found that the usage of the private wage surveys had the effect of depressing wages which harms H-2B workers and U.S. workers.  The Court also found a harm to U.S. employer that could not afford to do a private wage survey and were required to use DOL's wage data which was higher than the private survey data.  The likely effect of the decision will be a push to the use of the DOL's wage data rather than private surveys. 

The decision is just another step down the windy and painful road of prevailing wage complications for H-2B employers.  Stay tuned as DOL plans to engage in further rulemaking on the H-2B prevailing wage front.

Corporate Media Policy Runs Afoul of the National Labor Relations Act
By: Donald Berner

Does your Company have a policy prohibiting employees from speaking to media representatives about the Company?  If so, your policy might be unlawful under the National Labor Relations Act (NLRA).  As a short review, the NLRA protects the rights of employees to engage in concerted activities for their mutual aid or protection with respect to their terms and conditions of employment.  In simple form, anything an employer does to interfere or prevent employees from joining together to address workplace concerns can run afoul of the NLRA. 

In a recent decision, an Administrative Law Judge (ALJ) found a Company media policy overbroad and prevented employees from engaging in protected activities under the NLRA.  The particular policy simply stated that if contacted by the media that "no information exchange is permitted" unless done so by the specifically appointed Company spokesperson.  While the Company tried to assert the policy did not expressly prohibit employees from engaging in NLRA protected activity, the ALJ noted the terms of the policy were "ill defined" and "the guideline, as written, could also encompass and prohibit communications about wages, labor disputes, and other terms and conditions of employment."  The ALJ followed a prior case from 2008 in which a similar corporate media policy was struck down as unlawful.  What is important to note is that in both cases the employer argued a significant need to limit media communications to the centralized corporate spokesperson for official comments to the media for a range of reasons.  These arguments failed and are likely to continue to fail in the immediate future. 

The policies      Continue Reading...

President Obama to Announce Executive Action on Immigration
By: Donald Berner

President Obama is scheduled to announce his executive action on immigration tonight in a nationally televised speech.  The details of the plan will become more clear in the coming days; however, the early information seems to indicate an expansion of the already existing deferred action program.  This latest executive action (or frankly inaction) will expand coverage to another group of illegal aliens estimated to number around five million.  Putting aside all the rhetoric surrounding the action, President Obama will simply be promising all those in the eligible population (those living in the U.S. for at least five years) that apply to not deport them.  In addition, those individuals will be able to obtain a work authorization document which will allow them to legally work in the United States.  Stay tuned tonight and in the coming days as we get a better understanding of the full details of the proposal.  The key thing to remember is to tune out the political rhetoric from all sides and focus on the facts and details of the executive action.  From all indications, President Obama won't be doing anything different from what was already done several years ago when the deferred action program was launched.

EEOC Concern About Targeted Job Advertisements
By: Donald Berner

Does your company utilize social media outlets to recruit employees?  If so, you might take a moment to consider the EEO risks of utilizing targeted advertising the social media sites utilize on your behalf.  If your social media hiring is being targeted to a narrow set of social media users it could leave you exposed to an accusation of discriminatory hiring practices.  The possibility that your ads are being targeted at a specific age, race, gender, or ethnic population could attract the EEOC's attention.  This risk can be particularly high if your hiring is heavily utilizing targeted advertisements of this nature. 

EEOC Catches Grief Over Wellness Plan Litigation
By: Donald Berner

The political maneuvering following the mid-term elections has begun.  As discussed in a prior post (click here), the expectation of more Congressional "oversight" continues to become a reality.  In a recent Senate hearing, the EEOC Commissioner and the EEOC General Counsel were roughed up a bit over the EEOC's recently filed wellness plan litigation.  (Click here for Jason's prior article on the litigation)  The clear message coming out of the Senate hearing was that the EEOC should think very carefully before engaging in the course of filing litigation against employers as it relates to wellness plans.  One of the criticisms directed at the EEOC was the lack of ADA guidance as it relates to wellness plans.  Look for this to get further attention as the new legislature convenes in 2015.   

The Lessons of the Recent Ebola Outbreak
By: Donald Berner

Now that the U.S. has been officially declared Ebola-free, it's a good time to review some key takeaways from the treatment and quarantine of Ebola.  These lessons can be applied in just about any context.  Whether facing a deadly disease like Ebola or a major workplace change that feels like an Ebola outbreak.

1.  Educate and Inform:  Many employee fears can be addressed with timely education and information.  Ebola news coverage was unavoidable and as a result, there seemed to be a disproportionate fear of contracting and transmitting the disease in the U.S.  News coverage aside, statistics don't lie.  The CDC considers the risk of a U.S. outbreak to be very low.  There appear to have been ony two cases of Ebola acquired in the U.S. (both were healthcare workers in Dallas).  Both recovered and have been declared Ebola-free.  The other Ebola cases were individuals that acquired Ebola outside the U.S. 

2.  Identify and Focus on Real Risks:  Nothing incites fear and panic more than misinformation.  The Ebola outbreak gives employers an opportunity to remind employees of more realistic workplace concerns.  Ebola is not easily contracted and infection requires direct contact wtih an Ebola patient while the person is exhibiting symptons.  While the spread of Ebola in the workplace is unlikely, the characteristics of Ebola mimic a much more common plague in the U.S.  The symptoms include fever, headache, muscle pain, weakness, fatigue, diarrhea, vomiting, and stomach pain.  These sound very familiar.  When I hear these symptoms I think flu bug.  Take this as an      Continue Reading...

Happy Veteran's Day
By: Donald Berner

Today is a great day to remember the sacrifices made by our veterans.  Stop and take a moment to thank a veteran for their service to our country.  The freedoms we all enjoy on a daily basis are provided by those who are currently serving and those that have served in the past.  For employers, Veteran's Day is a great time to reflect on your employment policies and practices to ensure compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA).  For more reading on the topic check out Department of Labor Fact Sheet on USERRA located here

The Impact of Election Day 2014
By: Donald Berner

The elections of 2014 have come and gone in most jurisdictions (there are some runoff elections still pending).  The results for Washington will be a divided government with Republicans holding the House and Senate and Democrats holding the White House.  How this will play out in the next two years is anyone's guess.  The most likely obvious impact will be the need for both sides to compromise to move legislation forward.  This should hold the pace of dramatic change down quite a bit.  Here are a few things to keep an eye on:

1.  Immigration reform efforts might be one of the first testing grounds for this new relationship.  President Obama has vowed to take action via Executive Order while Congress seems to bristle at the idea.  Both sides seem to be preparing to "visit" about the issues.  This might be the year we see comprehensive immigration reform move forward.  Remember several years ago the Senate passed a comprehensive reform bill. 

2.  Administrative agencies continuing to push forward.  Over the last several years the Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Administration and the Equal Employment Opportunity Commission have all pushed forward with a strong regulatory agenda.  These agencies are able to change the course and direction of labor and employment law as they manage enforcement of existing laws and regulations. 

3. With the likey continuation of agency activity expect to see Congress increase its "oversight" of these agencies.  The push back against the agencies will come via budgetary actions and/or increased hearings and scrutiny of actions.

From a legislative      Continue Reading...

A Freaky Non-Compete Non-Sequitur
By: Donald Berner

Recently, a restaurant made headlines for something other than its food.  A restaurant employee leaked a version of the store's non-compete agreement and the document raised some eyebrows.  Specifically, the leaked document provided that employees would not work at any restaurants within three miles of a store if the other restaurant "derives more than 10% of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches.:  Although there was no discussion about whether the store ever tried to enforce the non-compete agreement, it does raise some interesting questions for employers to consider when it comes to restrictive covenants like a non-compete.

The first question is most likely whether the agreement is enforceable.  Like most legal questions, the answer is "it depends".  In order to reach a more definitive answer there are a number of questions to ask.  In what state was the store located?  In what state is the dispute arising?  Was it a delivery driver, food preparation staff, hostess, waitress, or store manager that signed the agreement?  The answers to these types of questions can make a big difference and can determine whether the agreement is enforceable.

Another common question related to a non-compete agreement is why?  Employees who are asked to sign non-compete agreements frequenly ask employers why such an agreement is necessary.  A court considering enforcement of a non-compete is likely to wonder the same thing.  While employer responses may vary, typcially the goal is to protect confidential information, trade secrets, customer lists, etc.  The application of the non-compete to the types of concerns can vary dramatically depending on the employee and the specific position.  Employers should      Continue Reading...

Facebook “Like” Protected Concerted Activity
By: Donald Berner

On August 22, 2014, the NLRB found that a Connecticut sports bar illegally terminated employees that criticized their employer’s handling of payroll taxes on Facebook. One employee “liked” a comment posted by a former employee that said “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money …. Wtf!!!!” The other added to the post, stating “I owe too. Such an asshole [referring to the owner].” The NLRB rejected the employer’s argument that such behavior was disloyal and disparaging beyond the protection of the act. Rather, the Board found this activity protected under the NLRA.  

The Board also found in a 2-1 decision that the bar’s “Internet/Blogging” policy interfered with employees rights under the NLRA. The policy banned “inappropriate discussions about the company, management, and/or co-workers.” Such an imprecise ban could reasonably be understood by employees to prohibit NLRA-protected activity. 
Similar in Their Ability or Inability to Work
By: Donald Berner

Although pregnancy is not a disability within the meaning of the Americans with Disabilities Act (“ADA”), according to the EEOC’s new Enforcement Guidance under the Pregnancy Discrimination Act (“PDA”), pregnant workers must be treated the same as other employees who are similar in their ability or inability to work. For example, if an employer accommodates a disabled worker’s need for more frequent use of the restroom during work hours, it must also provide this option to pregnant workers in need of more frequent restroom breaks.  

Additionally, the new enforcement guidance states that employers may not rely on policies that distinguish between employees based on the source of an employee’s limitation. For example, many employers offer light duty work to workers injured on the job, but do not provide this benefit for workers injured off duty. According to the EEOC, even though a pregnant worker’s condition did not arise on the job, she must be given light duty on the same basis as employees injured on the job. 
How far does the PDA reach?
By: Donald Berner

It is not an uncommon perception to assume the Pregnancy Discrimination Act (“PDA”) protects women who are pregnant or recently gave birth. The enforcement guidelines, however, clarify that the PDA is not so limited. Rather, the list of individuals protected by the PDA includes, all women who are currently pregnant, were previously pregnant, are intending to become pregnant, may potentially become pregnant, or have experienced medical conditions related to pregnancy or childbirth. Essentially, if a person has the capability of becoming pregnant, regardless of intention, or has ever been pregnant, they are covered by the PDA. 

The EEOC provides specific examples where employers may be found to have violated the PDA. According to the enforcement guidance, an inference of discrimination may be raised where an employee is penalized for taking time off from work to undergo a surgical impregnation procedure. The EEOC also states that an employer may violate the PDA by providing health insurance that excludes coverage of prescription contraceptives. Health insurance plans must cover prescription contraceptives on the same basis as prescription drugs, devices, and services, used to prevent the occurrence of other medical conditions. Employers are not required to offer coverage for elective abortions. But, employers may not terminate an employee for having or contemplating having an abortion. Additionally, employers may not discharge female employees using contraceptives to avoid pregnancy. 
Happy Labor Day!!!
By: Donald Berner

We hope that each of you enjoyed your Labor Day holiday.  Now that school is back in full swing and the summer has come to an end, it is time to focus on the short period between now and year end.  Most employers have a busy HR schedule as we move towards the end of the year.  Now is a good time to step back and consider any of your employment practices goals before that busy rush to year end begins.  Take this opportunity to look over your HR policies and practices and ensure your handbooks are up to date.  If you haven’t trained your employees on your anti-harassment policies in sometime, now is a good time to get that on the calendar and completed.  If you dig a little deeper, it probably wouldn’t hurt to do some I-9 auditing and employee classification reviews.  As they say, the work of the HR professional is never done.    

Executive Order Protects LGBT Workers
By: Donald Berner

President Obama signed an executive order extending workplace protections to lesbian, gay, bisexual, and transgender (“LGBT”) workers in the federal contracting workforce. The executive order amends Executive Order 11246, which protects employees working for federal contractors and subcontractors from discrimination on the basis of race, color, religion, sex, and national origin. The Office of Federal Contract Compliance Programs (“OFCCP”) will issue a proposed notice of rulemaking later this year. 

EEOC Delivers New Enforcement Guidance
By: Donald Berner

Earlier this summer the Equal Employment Opportunity Commission (“EEOC”) published Enforcement Guidance for “Pregnancy Discrimination and Related Issues.” The guidance addresses pregnancy discrimination under the Pregnancy Discrimination Act and explains how pregnant employees are not excluded from the protections of the ADA, despite the fact that “pregnancy itself is not a disability.” Stay tuned for more details.    

DOL Proposes Rule to Raise Minimum Wage for Federal Contract Workers
By: Donald Berner

The Department of Labor issued a proposed rule raising the minimum wage for employess working on federal government service and construction contracts to $10.10 per hour. The proposed rule implements Executive Order 13658, which was announced by President Obama on February 12. The Executive Order applies to new and renewed contracts with the federal government after January 1, 2015. The proposed rule now goes through a public comment period. To read the DOL's press release click here.  Stay tuned for further developments on the proposed rule.   

How About Lunch?
By: Donald Berner

If you are an HR professional, or know someone who is, we invite you to join us at any one of our 2014 HR Box Lunches this year. This is a chance for you to join us for lunch, brush up on some of the top issues in your field, and earn some CLE. 

Here is the schedule:

The NLRB and the Non-Union Employee: July 16, 2014

FMLA Basic: August 21, 2014

Religion in the Workplace: September 9, 2014

Employee Benefits Update: September 25, 2014

***TO BE DETERMINED: October 7, 2014 (Please send topic suggestions to mknoblauch@foulston.com)

Union Avoidance: November 19, 2014

Wage & Hour Update: December 9, 2014 

You can learn more information and sign up for any of the above lunches here. We hope to see you soon!

Foreign Student Employment
By: Donald Berner

As the end of the school year approaches and summer begins, employers utilizing the services of foreign students as employees should take a moment to review the work authorization of those individuals.  It is important to remember the student's presence in the U.S. doesn't necessarily mean the student is authorized to work.  In addition, those students with work authorization may have an expiring work authorization which is equally problematic for employers. 

Foreign students in the U.S. typically obtain work authorization through one of two vehicles -- CPT or OPT.  CPT stands for curricular practical training and OPT stands for optional practical training.  The authority to work under CPT and OPT are dramatically different.  CPT is work authorization provided through the university for a specific employer for a limited time period (typically a semester).  Think of CPT as an internship while going to school.  Also remember that while CPT has a short approval length, the university can typically provide additional semesters of CPT time.  OPT is typically used by students upon completion of a degree program.  Students taking OPT time are not limited to a specific employer and receive an employment authorization document allowing work at any employer.  OPT is also generally for a twelve month period and in most cases cannot be renewed/extended. 

The key message for employers is to keep an eye on the types and expiration dates for work authorization.  Allowing a student to continue working after the expiration of the CPT or OPT time can result in fines for employers and immigration status problems for the student. 

NLRB Election Process Under Review
By: Donald Berner

The NLRB is currently conducting public meetings concerning proposed changes to the union representation election process.  The proposed changes to the process stem back to the NLRB's attempts in 2011 to change the representation process.  The NLRB's effort in 2011 came to end after the final rule was invalidated by the federal courts.  As you might recall, the changes proposed in 2011 were primarily designed to assist unions and to hinder employer efforts to educate impacted employees.  Stay tuned for further developments.  To read the NLRB press release click here.

H-1B Filing Season Approaching
By: Donald Berner

As the weather begins to warm-up and spring arrives so does the H-1B filing season.  As most of you know, the H-1B visa program comes with a cap/quota for the year.  The new allotment of numbers under the quota become available on October 1, 2014.  The filing window for these slots opens on April 1, 2014.  With the demand for H-1B visas expected to exceed the quota, the USCIS will conduct a lottery drawing in mid-April to identify which applications will be processed.  If you have the need to obtain a new H-1B visa starting in 2014/2015, now is the time to start the application process.  Don't delay.

What's in a Color???
By: Donald Berner

A pink hard hat.  Completely harmless on its own, but let's put the pink hat in context.  A pink hard hat is provided to a female field service representative.  The field rep frequently visits work sites and needs to wear PPE, including a hard hat.  She works in a heavily male industry and is one of the few females working in the field.  The pink hard hat is said to be a sign of "inclusion" making the field rep "part of the team" since it symbolizes her acceptance by the male employees in the field.  She's told that only a few of the office staff (also female) have pink hard hats and she is lucky to have one.

So what's in a color?  The color of this hard hat is not just coincidence.  It is gender stereotyping in action.  Stereotyping is nothing new; it is an age-old way for people to categorize information.  Stereotypes are not inherently negative or illegal -- in fact, there are positive associations that can be made.  With that said, employers should be extremely wary of any sort of mass generalizations.  Stereotypes can cover the entire spectrum ranging from gender, age, race, religion, marital status, sexual orientation, national origin and these sort of biases can be especially costly in the workplace. 

Stereotyping can lead to a variety of harms including poor morale, retention difficulty, lost productivity and even litigation.  At its core, stereotyping leads to the creating of factions with the workplace thus undermining a cohesive work environment.  As      Continue Reading...

EEOC FY2013 Data Shows Growth in EEOC Activity
By: Donald Berner

The EEOC recently released its FY2013 enforcement and litigation data for public review.  The data shows a decline in the total number of charges filed with the EEOC as compared to the totals for 2010, 2011 and 2012.  Of note, however, is the growth in the number of retaliation charges filed as the statistics continue to show a growth in the number of charges based on retaliation claims.  Employers should take note and ensure their policies and procedures address retaliation concerns.  Furthermore, employers should consider additional training for managers as it relates to potential retaliation.  Click here for the new release and link to the statistical data. 

Motivating Your Workforce
By: Donald Berner

One role of the human resources staff is to assist the leadership team with all things related to employees.  A lot of times you are called upon to take part in unpleasant situations or tasks.  As a result, the human resources team is often looked upon as a negative force.  There are other areas in which HR can provide the leadership team with some coaching.  One of these areas is employee motivation.  I read an interesting story related to employee motivation and approaches of various business executives.  When you have a few minutes it is a good read.  Click here for the story. 

OSHA Taking Comments on Electronic Submission of Injury and Illness Data
By: Donald Berner

OSHA has proposed an amendment to the recordkeeping regulations to add a requirement for electronic submission of injury and illness information.  The comment period for this proposed change has been extended through March 8, 2014.  Stay tuned as this proposed change works its way through the regulatory process. 

EEOC Releases End of Year Report
By: Donald Berner

The EEOC released its fiscal year 2013 report earlier this week.  The EEOC's overall message is that despite a tough year with furloughs and reduced budgets, the agency achieved all its goals.  In 2013, the EEOC reached a new record for monetary relief obtained on behalf of claimants.  Piecing together the various numbers throughout the report, it appears that over half of the monetary relief came by way of settlement agreements with employers.  In keeping with that settlement theme, the success of the mediation program last year was also emphasized in the report.  To view the full report click here

OSHA Adds Easy to Access Online Complaint Form
By: Donald Berner

OSHA is responsible for administering whistleblower complaints for a variety of statutes.  Click here for the full listing.  In an attempt to make complaint filing easier, OSHA has established an online complaint form.  Click here for the complaint page.  Only time will tell whether this easy access will lead to an increase in complaints. 

Holiday Party Fun
By: Donald Berner

It is that time of year again.  Now that we have cleared Thanksgiving, we are into the homestretch to Christmas and the New Year.  As they say -- "Tis the Season".  Well it is the season for the annual holiday party or in some circles a series of parties until the holidays are gone.  Before your company holds its holiday party, take a quick review of this post and make sure you are all set in the HR office.  

1.  Be careful with the alcohol.  If you are going to serve alcohol do your best to apply some sane limits upon your partygoers.  And by all means make sure that before you turn off the lights and send everyone home that you have taken care of providing some form of transportation to those that failed to limit themselves.  

2.  It's a great time to shine some light on your productive work environment policy (anti-harassment).  For those that serve alcohol (see #1 above), harassment concerns may rear their ugly heads at the holiday party.  And while everyone else is having a good time, keep your eye out for problems in this area and step in before it gets past the point of no return.

3.  If you have employees involved in any of the setting up or cleaning up beware of wage and hour rules.  Remember, employees are not volunteers. 

4.  Do your best to keep the various religious references out of the holiday party.  Remember, your employee group is diverse and what might be acceptable to one could offend another.

Keeping an eye on these little things prior to, or during, the holiday party can help avoid      Continue Reading...

Update on Immigration Reform
By: Donald Berner

Following the summer passage of a comprehensive reform bill by the Senate, the idea of immigration reform has stalled out in the House.  After several months of delay, the House has resumed discussion of immigration at some level.  The current plan in the House appears to be a piecemeal approach to the various concepts found in the Senate bill rather than a comprehensive approach.  This strategy should result in a slow and tedious process in 2014.  It is still too early to tell whether this is simply a delaying tactic or a realistic approach to solving all of the issues contained in the Senate version of the bill.  Stay tuned into 2014 as the story continues to evolve. 

Facebook Rants: Protected or Not?
By: Donald Berner

On a number of instances over the course of the last few years, the National Labor Relations Board (NLRB) has tackled the issue of when to protect employee use of social media outlets in the furtherance of an employee's rights under the National Labor Relations Act (NLRA).  The early learning for employers was to beware of taking action if the employee communicated workplace concerns through social media.  As the NLRB has decided social media cases, the parameters have become a bit more defined for employers.  In a recent decision involving a series of negative and disparaging types of employee commments, the NLRB found the actions not protected by the NLRA.  The learning point for employers is that if employees cross over the line with their comments, the NLRB will not protect those employees from the disciplinary consequences.  Employers should be mindful that deciding when the employees have crossed that line can be a difficult and murky task and any decision to take negative action can be risky.  To gain a better understanding of the types of social media behavior that is not protected you can click here and then select the Administrative Law Judge's Decision from November 5, 2013 to read the entire decision.

OSHA Hazard Communication Training
By: Donald Berner

Navigating OSHA’s Hazard Communication Standard can be time-consuming and confusing. OSHA’s recent amendments to the Standard do not make this task any easier. These amendments also impose a requirement that employers provide training to their employees on the new label elements and new safety data sheet by December 1, 2013.  The HAZCOM standard applies to any employers with employees who may have access to any hazardous chemical, and is not limited to manufacturing companies or chemical producers. 

In order to assist employers with this requirement, attorneys at Foulston Siefkin have prepared a presentation-ready PowerPoint that meets OSHA’s requirements for the mandatory training. This presentation provides detailed explanations of the new label elements and safety data sheet changes, and offers an easy to navigate, do-it-yourself format. 

The presentation includes:
·         PowerPoint Slides
·         Speaking Notes to assist the presenter
·         A sample Chemical Label compliant with the new requirements
·         Side by Side comparison of the old and new Hazard Communication Standards
·         Detailed Explanations of the new label elements and safety data sheet

To purchase the presentation materials click here.

Happy Halloween!
By: Donald Berner

It's almost Halloween.  A night when young kids dress up and roam the streets crying out "TRICK OR TREAT" in hopes of getting bags full of candy.  For some adults, Halloween is a big holiday.  It's a time to dress in costume and go to parties of their own without the kids.  Keep in mind that Halloween can be a tricky holiday in the workplace.  The origins of the holiday are rooted in religious related concepts (click here for the unofficial history of Halloween).  These religious roots can make Halloween in the workplace more trick than treat.  The holiday meets resistance from those who practice Islam, Judaism, and Christianity.  Some have very strong beliefs about Halloween.  With that in mind, if your workplace celebrates Halloween or requires employees to dress in costume, be mindful of employees with religious objections to such activity.  Should an employee object, ensure you carefully handle these objections to avoid religious discrimination concerns. 

E-Verify Returns Post-Shutdown
By: Donald Berner

Now that the shutdown has come to a close and federal workers have returned to their offices, it is time for employers to get all caught up.  One of those catch-up tasks is the entry in E-Verify of employees hired during the federal government shutdown.  Employers should enter all employees hired during the shutdown prior to November 5, 2013.  In response to any question generated in the system related to the late entry, employers should check the "other" box and enter "federal government shutdown" in the text box.  Now would be a good time to double check to make sure all your new hires over the last three weeks have been entered into the system.  Also keep in mind, employees hired now that the government has resumed operations must be plugged into E-Verify in accordance with the normal rules.  The additional time for data entry applies only to those hired during the shutdown.

Undocumented Workers and Criminal Indictments
By: Donald Berner

It is never good when the federal government seeks to criminally indict your company or one of your management team in the context of hiring undocumented workers.  In my experience, this privilege is reserved for those that have gone above and beyond in their efforts to ignore the law.  In a recent case from northeast Kansas a restaurant owner was indicted for his efforts to employ undocumented workers.  His troubles began when the Department of Homeland Security (DHS) sought to review his I-9 forms and found a number of employees without completed I-9 forms.  When DHS instructed him to correct the problem and issued a fine, he ignored the requirement.  Making matters worse, DHS found that the restaurant owner was paying workers in cash and providing them with housing.  These abuses led to the eventual criminal indictment.  While this isn't the only set of circumstances that can lead to a criminal indictment, it isn't an uncommon fact pattern that leads to that consequence.  Most employers work hard to ensure they are in compliance with federal immigration law.  For those employers, the likelihood of a criminal indictment for minor errors is limited to none.  The key lesson for employers is to ensure you complete I-9 forms for all your employees as a baseline starting point.  Once those forms are completed, periodically audit your I-9 file to ensure you have not made errors on those documents. 

Immigration Reform Still Alive
By: Donald Berner

The topic of immigration reform was hotly debated and discussed in the late spring and early summer of this year as the Senate debated a bi-partisan comprehensive reform bill.  The bill was ultimately passed in the Senate and attention turned to the House.  As the attention turned to the House, immigration reform fizzled a bit and moved to the back burner while Obamacare and the fiscal crisis took center stage.  In a little noticed event on October 2, 2013, a group of House members introduced a bill that more or less tracked the immigration reform bill passed by the Senate.  Only time will tell whether this issue gets traction in the House in the next few months.  It may be a slow process considering the fiscal crisis and its related debate(s) was simply postponed until early 2014.  As we move into 2014, this is one worth keeping an eye on.  For the highlights of the Senate version of the bill click here

E-Verify Goes Dark
By: Donald Berner

Employers are not likely to experience much disruption due to the shutdown of the federal government.  With the shutdown now underway, one of those disruptions is now perfectly clear.  Employers using E-Verify will not have access to the system until the shutdown comes to an end.  Employers should continue completing I-9 forms and operating business as usual.  Once the shutdown occurs, the new hires will then be entered into E-Verify.  For those employers with pending tentative non-confirmations, there will be additional time provided to allow for a resolution.  Employers should continue to employ any individuals in this circumstance until such time as the shutdown ends.  Stay tuned for further developments regarding the E-Verify tool. 

Changes to the TNC Notice Provisions in E-Verify
By: Donald Berner

As of September 8, E-Verify users will only receive one notice when the system returns a Tentative Nonconfirmation (TNC).  The Further Action Notice replaced the Tentative Nonconfirmation Notice and the Referral Letter by combining them into a single notice. The new notice includes the employee’s biographical information, the reason for the TNC, the employee’s decision to contest, and employee instructions for contesting a TNC. 

The Further Action Notice (here) includes instructions for the employer and for the employee.   Employers must review the information contained in the notice with the employee, ask the employee to indicate on page two whether the employee will contest the TNC, and follow the E-Verify instructions if the employee is contesting the case, or close it if not. Employers must attach the original Further Action Notice to the employee’s Form I-9 and provide a copy of the notice to the employee. 

After the employer has referred a contested TNC, a Referral Date Confirmation Notice will appear. The employer must print and issue this notice to the employee. The Referral Date Confirmation Notice informs the employee of the deadline for contacting the DHS or the SSA to begin resolution of the TNC. Although the notice contains this information, employers also must inform employees that the deadline is eight federal government working days from the date of referral. 
Other recent changes include email notifications to employees regarding TNCs. The USCIS will email information regarding TNCs to employees who have chosen to provide an email address on the Form I-9. This does not relieve the employer from      Continue Reading...
EEOC Commissioner Discusses Obesity as a Disability
By: Donald Berner

Chai Feldblum, commissioner of the EEOC, recently discussed obesity as a disability in an interview. While the EEOC has only brought two lawsuits against employers involving morbid obesity since the 2008 Amendments, obesity rates in the United States continue to rise, which means employers must know how to deal with obese workers.  

Feldmun recognized that since the Amendments, courts have begun reassessing whether morbid obesity qualifies as a disability under the ADA. The EEOC has not issued formal guidance on the issue, but recognizes that severe obesity (body weight more than 100% above the norm) is “clearly an impairment.” The key is whether the obesity substantially limits a major life activity or major bodily function. 
Feldmun emphasized that in her experience, discrimination frequently occurs against obese individuals because of perceived limitations rather than actual limitations. Feldblum recommended that employers follow the “stop, think, and justify” method when taking an employment action or dealing with company policies. 
This policy may be extended beyond the disabilities context and may be applied whenever implementing a policy or making an employment-related decision. Spending a few moments to ask why you are taking an action may save a lot of time (and potentially money) in the long run. 
Temporary Impairments Can Get ADAAA Protection Too
By: Donald Berner

A recent case in the District of Columbia addressed whether an employee’s temporary impairment could qualify as a disability under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). In Hodges v. District of Columbia, the employee had a disc herniation, a disc osteophyte with facet degenerative changes, and a lumbar disc bulge. The condition was expected to last three to six months, with a six to eight week “incapacity duration.” Hodges would need a reduced work schedule for approximately three months.  

Hodges requested leave without pay and short term disability. His request was denied and he was placed on absent without leave status. Nine days later, Hodges was fired. Hodges brought various claims against the District of Columbia Office of Inspector General (OIG), including violations of the ADA. 
ADA Refresher
As a quick refresher, the ADA prohibits discrimination in the workplace against qualified individuals on the basis of disability. Disability is defined as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 
Before the Amendments to the ADA in 2008, the Supreme Court required that a disability be permanent or long term and it interpreted “substantially limits” narrowly, in effect making it more difficult to qualify under the Act. As amended, the ADA now states that “disability” and “substantially limits” should be “construed in favor of broad coverage.” These amendments went into effect on January 1, 2009. 
Back to the Case
The District argued that the case should      Continue Reading...
Happy Labor Day!
By: Donald Berner

A belated happy Labor Day to everyone.  Hope each of you had a relaxing day off yesterday.  To some, the Labor Day holiday is a celebration of the efforts of organized labor.  To others, it is the unofficial end of the summer season.  For a bit of historical perspective on the holiday click here to see the Department of Labor's page on the history and meaning of Labor Day.

Employment Practices Liability Insurance: I think I want it, but what should I consider before buying?-Part II
By: Donald Berner

Last post, we gave an overview of the most common type of Employment Practices Liability Insurance (EPLI) policy, and some information on policy coverage and exclusions.  Today, we’ll finish up by highlighting EPLI policy limits and deductibles, choice of counsel and settlement strategy considerations.

Policy Limits and Deductibles-Policy limits and deductibles in a typical EPLI policy apply on a per claim basis (e.g. $250,000 per claim) and aggregate basis ($1 million cap for all claims). Employers need to consider what deductible and cap they are comfortable with. Some will purchase lower premium EPLI coverage with higher deductibles and caps as a type of catastrophic coverage, leaving them without coverage for smaller claims. Other employers will opt to pay higher premiums for lower deductibles--in essence, simply trading dollars with the insurer. Think about the type and frequency of the claims your company may be most likely faced with and buy insurance accordingly.   
Choice of Counsel-A matter often overlooked by employers purchasing EPLI coverage is that most policies allow the insurer to control the choice of defense counsel. Typically, EPLI policies are duty to defend policies, meaning the defense of a covered claim is tendered to the insurance company which will likely reserve the right to select defense counsel. EPLI policies are less frequently reimbursement or indemnity policies. Under these policies, the employer usually chooses its own defense counsel. 
Under duty to defend policies, EPLI carriers require employers to select defense counsel from an approved “panel” of law firms to defend the claims. Sometimes the      Continue Reading...
Employment Practices Liability Insurance: I think I want it, but what should I consider before buying?-Part I
By: Donald Berner

In the last post, we discussed how the increasing number and expense of employment-related claims and lawsuits have prompted employers to seek insurance for the associated defense costs and potential liability awards. While employment practices liability insurance (EPLI) policies are the insurance industry’s answer, as with any type of insurance, there are a number of important considerations the savvy employer will evaluate before purchasing any EPLI product. In today’s issue we’ll highlight the most common EPLI policy type, some important terms and the importance of timely notice of claims, and coverage, and exclusions.

Policy Type, Terms and Notice of Claims-Most EPLI policies are “claims made” policies, that is, the claim must be incurred during the coverage period and the insurer must be notified during a designated reporting period. Because employment disputes may develop over a long period before they actually become “claims,” employers should consider purchasing tail coverage when dropping or changing EPLI policies. It is critical to understand the policy definition of all terms, and in particular those for “claim,” “loss,” “insured,” and “wrongful employment practice.” Know your carrier’s notification requirements. Failure to provide timely notice as set forth in the policy may result in the insurer denying coverage for an otherwise covered claim.
Coverage-EPLI usually provides coverage to the employer, its executives and employees against claims for discrimination, retaliation, harassment; defamation, invasion of privacy and negligent supervision; and wrongful discharge, failure to promote and failure to hire. Traditional insurance policies, including “umbrella” policies, directors and officers liability policies and workers’      Continue Reading...
Employment Practices Liability Insurance: What is it and why should I buy it?
By: Donald Berner

If you’ve ever had an employment related charge or lawsuit filed against your company, you know--they can be costly in terms of money and staff time. Unfortunately, such claims are increasingly common. For example, the Equal Employment Opportunity Commission (EEOC), which enforces federal employment discrimination laws, received nearly 100,000 discrimination charges each of the last three years. In 2012, the EEOC obtained $365.4 million in settlements from employers, the largest amount ever. The agency has decided to shift its focus to systemic pattern and practice discrimination litigation, especially gender compensation inequality. The goal is to have broad remedial impact by spending its considerable resources pursuing large group or class claims rather than individual claims. EEOC litigation can be very expensive, and it’s not just employment discrimination that employers need to worry about. The current administration, which can hardly be characterized as employer-friendly, is also moving to update and aggressively enforce other major workplace laws.                                                                                               

While federal discrimination laws apply to employers of 15 or more (20 or more in the case of the age discrimination), smaller employers are not immune from claims. They are usually covered by substantially similar state laws. Kansas employment discrimination statutes apply to employers with as few as four employees. The Kansas Human Rights Commission enforces these statutes and resolved more than 1,000 claims in 2012, collecting more than $800,000 from Kansas employers.
Discrimination claims are very common because they are so easy to file. It costs a current or former employee nothing and he/she doesn’t need a      Continue Reading...
Are You My Supervisor?
By: Donald Berner

Possibly lost in the anticipation and coverage of the Supreme Court’s DOMA decision was the Court’s opinion in Vance v. Ball State UniversityVance resolved a circuit split as to who qualified as a supervisor. The decision marked another win for employers as the Supreme Court adopted a narrow definition of supervisor. 

In Vance, an African-American employee filed a complaint with the EEOC claiming that she was harassed by co-workers with racial epithets, subjected to references to the Ku Klux Klan and threatened with physical harm under Title VII. Vance sued, claiming a hostile work environment, specifically alleging that her supervisor made her feel unwelcome; a co-worker called her a "porch monkey" and other racial epithets; and that a different supervisor made faces at her.

Vance’s case turned on employer liability. She was able to establish the first three elements of a hostile work environment claim: (1) the work environment was objectively and subjectively offensive; (2) the conduct was based on race; (3) the conduct was severe and pervasive. But, the fourth and final element was key. Vance had to establish that a supervisor harassed her or her employer was negligent in discovering or addressing the situation.
The Supreme Court affirmed the 7th Circuit’s ruling that Vance failed to establish employer liability. For purposes of determining vicarious liability under Title VII, the Supreme Court stated that an employee is only a supervisor if the employee is empowered by the employer to      Continue Reading...
NLRB Recess Appointments Under Continued Attack
By: Donald Berner

The issue of recess appointments to the NLRB was the subject of yet another Court of Appeals decision yesterday.  The 4th Circuit issued a ruling following the same general approach set out originally by the D.C. Circuit Court of Appeals and then followed by the 3rd Circuit Court of Appeals.  The technical outcome of these decisions is to find the recess appointments invalid due to the lack of a recess.  The practical outcome is that without these appointments, there are periods in which the NLRB did not have a quorum to be able to conduct business.  This lack of a quorum calls into question various NLRB decisions during the relevant time period.  This is another area in which employers should stay tuned.  It is possible the U.S. Supreme Court will hear this issue in the upcoming session. 

Secrets, Lies & Whistleblowers
By: Donald Berner

China? Cuba? Ecuador? Russia? While the “Where in the World is Edward Snowden” quest continues, his situation does bring whistleblowers back to center stage. If you’ve been enjoying your summer vacation and somehow missed out on WikiLeaks 2.0, Edward Snowden is a former technical contractor for the United States National Security Agency. Snowden leaked details of several top-secret U.S. and British government mass surveillance programs to the press. Since then, Snowden has been on the run and ignited a debate about whether he is a whistleblower or a traitor.

From a legal sense, Snowden is probably not a true “whistleblower.” On a federal level, whistleblower claims are mostly covered by the False Claims Act. Federally, whistleblowers may also get the benefit of OSHA's Whistleblower Protection Program (WPP). WPP enforces the whistleblower provisions of 20 plus statutes, protecting employees who report violations of workplace safety, airline, commercial carriers, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws.  More information is available here: http://www.whistleblowers.gov/
On a state level, the Kansas Whistleblower Act (K.S.A. 75-2973) protects employees of state agencies from disciplinary action. It does not extend to private employees, but does protect all public employees who report any violation of state and federal law. In addition to the broad public employee protection under the Kansas Whistleblower Act, several individual statutes protect private employees from retaliation. Statutory protections include employees reporting or opposing discrimination under the KAAD      Continue Reading...
Unpaid Interns Can Bring Big Headaches
By: Donald Berner

With the summer coming to a close and the school year about to resume, it's a good time to issue a reminder about the perils of using interns.  This particular topic continues to be a hot one as class action claims continue to be filed on behalf of groups of interns at various companies.  For a quick refresher on interns click here and read our blog post from earlier this year.



You Should Know GINA
By: Donald Berner

At this point, GINA should need no introduction. She’s been around since 2009. But for those who might have ignored her, the time for cat and mouse flirting is over. It’s time to settle in and get to know GINA before it is too late. 

GINA generally prohibits the use of genetic information in making employment decisions. Genetic information includes information about an employee’s or job applicant’s genetic tests, genetic tests of that person’s family members, and family medical history. Under GINA, employers are also prohibited from requesting, requiring, or purchasing such information, except in limited circumstances (i.e. genetic services are offered by the employer as part of a wellness program or the genetic information is necessary for FMLA certification).
Now that you know who GINA is, why should you care? She has been sitting in a corner for the last few years, but the EEOC recently announced that Fabricut, Inc., a large fabric distributor, will pay $50,000 to settle a disability and GINA suit. The EEOC alleged that Fabricut violated GINA when it sent an employee for a pre-employment drug test and physical, which included a questionnaire requiring the employee to disclose the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis, and “mental disorders” in her family. The family medical history and testing disclosed that the applicant suffered from carpel tunnel syndrome and Fabricut rescinded the offer of employment. 
Fabricut is not the only employer who didn’t know GINA. Back      Continue Reading...
Immigration Reform Takes a Leap Forward
By: Donald Berner

Late last week the Senate passed the comprehensive immigration reform bill which now moves the issue to the House.  The bill included provisions related to:

  • The mandatory use of E-Verify by all employers within a five year phase in period;
  • A long-term path to legalization for those currently in the U.S. illegally;
  • A temporary worker program for low-skilled non-agricultural workers;
  • A program to help legalize undocumented farm workers;
  • Minor changes making the H-1B program slightly more restrictive for employers;
  • Additional funding for border security issues; and
  • Funding for a youth jobs program through fees levied on employers using foreign workers.

The next step for immigration reform is for the House to deal with the issue of immigration reform.  While the Senate was taking up the issue of comprehensive immigration reform, the House was simply debating individualized bills targeting specific items of interest to House members.  The step-by-step approach being used by the House has put forward a number of bills addressing similar issues as those covered in the Senate bill.  Over the next several months, the House is likely to see strong debate on this issue.  Stay tuned to see how the House deals with the Senate approved version of immigration reform. 

EEOC Turns up the Heat on Employer Sponsored Wellness Programs
By: Donald Berner

Swimsuit season is in full swing and the EEOC is taking a closer look at those employer-sponsored wellness programs that can help employees slim down for summer. Although most wellness programs are not designed as a weight loss tool, a majority of US employers offer some form of a wellness program designed to reduce the cost of healthcare costs, and/or improve the health and well-being of employees. 

Last month, the EEOC held a public meeting to discuss how wellness programs may stray off course and violate federal anti-discrimination laws.  Specifically, the EEOC panel discussed potential violations of the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Health Information Portability and Accountability Act, and the Affordable Care Act. According to the EEOC, the most common potential violation involves the intersection of wellness programs and the ADA. Specifically, employers can run into trouble when the employer-sponsored wellness program requires medical exams or asks disability-related questions. While asking for medical information in connection with voluntary wellness programs is permitted under the ADA, the EEOC signaled that the meaning of "voluntary" merits further clarification and discussion.
While the EEOC indicated that they may set up enforcement in this area, no substantive details or guidance was provided. A full press release of the EEOC’s panel discussion is available at http://www.eeoc.gov/eeoc/newsroom/release/5-8-13.cfm
June is Safety and Awareness Month
By: Donald Berner


With the official start of summer just around the corner, Governor Brownback proclaimed the entire month of June as “Safety and Awareness Month.” In partnership with the Kansas Department of Labor and the Division of Industrial Safety and Health, Governor Brownback has asked employees and employers to take an active role in not only their own safety, but that of their coworkers, family, and friends.
With the summer heat, employers should stay alert for signs of an employee’s overexposure to heat. Working in direct sunlight, high temperature and humidity, physical exertion and lack of water intake can lead to heat stress—including heat stroke or heat exhaustion. Employers can find more information on protecting workers from the effects of heat on OSHA’s website http://www.osha.gov/OshDoc/data_Hurricane_Facts/heat_stress.pdf.
In connection with Safety and Awareness Month, the Division of Industrial Safety and Health is promoting its Safety and Health Achievement Recognition Program (SHARP). SHARP provides incentives and support to small, high-hazard employers to develop, implement and continuously improve the effectiveness of their workplace safety and health programs. There are currently 175 SHARP employers in Kansas; the highest number of SHARP sites in the U.S.  For more information on SHARP or for safety and health tips throughout the month of June, visit the Kansas Department of Labor’s facebook page.
Immigration Reform Bill Continues to Evolve
By: Donald Berner

The Senate Judiciary Committee continues to work through the markup process on the comprehensive immigration reform bill. The markup process is where the committee works through the bill making revisions prior to the bill arriving on the floor of the Senate for full debate. 

There have been a couple of interesting skirmishes that highlight some areas of disagreement between the parties on the use of E-Verify and the low-skilled worker visas. The current version of the bill contains a four-year phase-in process for the mandatory use of E-Verify with the implementation based on employer size (larger employers sooner). One of the debated changes was an attempt to reduce the phase-in process to eighteen months. This attempt failed, but this amendment will likely be debated again when the bill moves to the full Senate for debate. 

The other skirmish over the low-skilled worker visa focused on the number of visas permitted per year. An amendment was proposed to double the number of visas allowed in the original draft of the bill. This amendment failed to gain support in the committee, but is also likely to be debated again in the full Senate.

The current plan is for the bill to leave the mark-up phase around the Memorial Day holiday time frame. This timetable might be a bit aggressive, but stay tuned as the bill will arrive in the full Senate soon and promises to provide some interesting debate.

NLRB Poster Rule Struck Down
By: Donald Berner

In a decision yesterday out of the Court of Appeals for the D.C. Circuit, the NLRB's notice posting requirement was struck down as invalid. For those of you that have been following along since the start, the NLRB issued the poster rule in August of 2011 and then repeatedly delayed enforcement of the rule as litigation popped up in several federal district courts as to the validity of the rule. The rule, in its simplest form, required employers to post a notice containing information about the ability of employees to seek union representation. Click here for more information on the rule. 

In its decision, the Court held that the rule violated an employer's right to free speech. The Court also addressed a provision in the rule related to the tolling of the statute of limitations for filing a charge based on a violation of the poster rule. This provision was also struck down as invalid. For those that like reading court decisions, this particular portion is a bit convoluted, but interesting for reasons beyond the NLRB poster. The tolling arguments touched on some Title VII and ADEA posting issues and tolling principles used by the EEOC. The Court did not specifically rule on the tolling issues beyond the NLRB poster; however, it did highlight and call into question the validity of tolling in that context as well. 

For now the poster rule looks to be on its death bed, but one never knows what appeal may arise or what another Court of Appeals might have      Continue Reading...

Electronic Population of the Employee Section of the I-9 Form
By: Donald Berner

Immigration and Customs Enforcement (ICE) just provided employers with some troubling guidance on the pre-population of the employee information (Section 1) portion of the I-9 form. Employers with robust human resources systems that integrate the I-9 form into the mix may have reason to be concerned about this problematic new guidance.  

According to ICE, the pre-population of Section 1 is not acceptable under any circumstance. The ICE position is that the employee must complete Section 1 of the I-9 form themselves. The notion that the data placed into Section 1 originates from employee provided data carries no weight with ICE. The ICE view is that any pre-population of the I-9 form based on data input into a human resources system is unacceptable. 

Employers that continue to utilize this practice may find themselves at significant risk should ICE conduct an audit of the employer's I-9 process. This change in position is a fairly dramatic shift in ICE's position on this employer practice. It also seems to be a bit of a drastic change, considering the employee is reviewing and signing the data placed into Section 1. One can only hope ICE changes direction on this decision.

FMLA Changes Proposed in Congress
By: Donald Berner

A bill was introduced last week to amend the FMLA. The proposed changes focus on expanding the family relationships covered under the law. The bill expands coverage to allow leave to care for adult children, siblings, grandchildren, grandparents, parent-in-law, and same-sex spouses or domestic partners. Stay tuned as this proposal begins its journey through Congress.

States Continue to Weigh in on Social Media Access
By: Donald Berner

State legislatures continue to debate and pass laws restricting employer behaviors with respect to the access to employee/applicant social media accounts. 

At the present time, six states (CA, IL, MI, MD, NM, and UT)  have passed legislation on this topic and there will likely be others in time. The primary focus of the legislation to date has been to prohibit employers from requiring candidates/employees to provide passwords and access to private accounts. Most of the state efforts have not tried to prevent employers from reviewing publicly available items published via social media. 

This trend is likely to continue and employers with multi-state operations should be paying attention to these developing statutory enactments. Furthermore, even if you are in a state that doesn't prohibit you from requiring employees to show you private social media areas, you might consider whether you truly want to engage in that type of behavior. There is a pretty strong element of it just not feeling right. Those are the types of feelings jurors and other fact finders are likely to have as well. In addition, who knows what those private pages/areas are going to teach you. There are plenty of facts that you don't really want to know when considering a candidate/employee and their future with your company.


Comprehensive Immigration Reform Bill Introduced
By: Donald Berner

The anticipated comprehensive immigration reform bill was finally introduced in the Senate.  The bill contains provisions designed to deal with a variety of immigration related problems in the current legal framework.  The general changes in the law include:

  • A path to legal status for all those currently illegally in the United States
  • Enhanced border security
  • Temporary worker programs for lower skilled workers
  • Increased visa availability for the H-1B program
  • Mandatory use of E-Verify
  • A re-work of the quota system for employment based green cards to allow faster access for prioritized categories of workers
  • A new merit-based visa category to allow USCIS to provide visas to special categories of individuals

The proposal put forward in the Senate has been labelled a compromise package by the sponsoring Senators.  The current thinking is the bill would be debated in the full Senate in late May or early June.  The bill covers a wide-range of areas of concern and seems to truly be a comprehensive attempt to fix a number of areas in the current law that appear to be broken.  There will almost certainly be changes made in the coming weeks as the bill makes its way through the committee process.  The early takeaway for employers seems to be improved access to foreign talent, a clean-up of the existing labor force, and the required use of E-Verify.  We will keep you posted as the bill moves forward in Washington.

H-1B Cap Hit in First Week of Filing Period
By: Donald Berner

The H-1B filing window opened up for FY2014 application filings on April 1st and by the end of the first week of April, the window is now closed.  USCIS will be conducting a lottery in the coming week or so to decide which applicants will be accepted and processed.  The total number of applications received exceed the H-1B by about 40,000.  This is the first year in the last several in which the H-1B quota has been reached in the initial filing window.  Stay tuned as the lottery is conducted. 

More Shocker Fun
By: Donald Berner

In light of Jason's post about fun final four facts, and in tribute to his participation in the WSU pep band, here is a link to a fun video created by my 8th grade daughter's middle school band.  I'm not sure if they are "playing angry" like the basketball team has been implored to do, but they are playing loudly.  Click here to see the video. 

Building A Strong Team
By: Donald Berner

With the arrival of April Fool's Day, baseball season is officially underway. I know for some of you with kids, baseball/softball season has been underway for quite some time.

I read an interesting blog posting yesterday talking about timeless leadership lessons from baseball. I thought I would pass along some of the more pertinent HR-related points here, although all of the nine items listed in the original posting are good tidbits to consider. Here are the HR-related points:  

  • Measure everything important. Good decisions come from gathering and reviewing good data. Take advantage of your electronic information systems to track and analyze information related to employee performance. This is a key step to fielding a great team at your company.
  • Team versus superstar. Make sure your team is solid from the top to the bottom of your roster. Having great employees surrounded by mediocre employees isn't nearly as effective as having good employees across the board. Make sure to focus your efforts to develop talent across the board.
  • Team chemistry rules. A cohesive team is always better than a team fighting amongst itself. Sometimes you just have to make a move purely to fix the overall workplace chemistry. Ignore this issue at your own peril.

To read the full version of the article click here.  It's a short read and makes some great points about leadership.

Immigration Reform Still Being Discussed
By: Donald Berner

I saw a news story last night about the AFL-CIO (union federation) and the U.S. Chamber of Commerce striking a compromise deal related to guest worker type programs. The gist of the story is that these two adversaries have reached an agreement on how to bring in temporary workers, which is expected to be a big part of any immigration reform legislation. This agreement is a big step forward in the overall effort to create a comprehensive immigration reform package. This agreement may signal a push is underway to finalize the legislative package to bring immigration reform to the top of the legislative agenda in Washington.

Washington Looking to Increase Penalties for OSHA Violations
By: Donald Berner

An OSHA reform bill titled Protecting America's Workers Act was reintroduced in the Senate. Employers should keep an eye on the progress of this bill as its goal is to increase the penalties for OSHA violations. This potential legislation comes following OSHA's own internal changes a few years ago that resulted in higher penalty amounts being levied by OSHA. In addition to the penalty changes, the proposed legislation would expand the coverage of the general duty clause and revise the way subcontractor employer relationships are viewed by OSHA. Stay tuned as this Senate bill begins its journey through the legislative process.  

Beware of Your Job Descriptions
By: Donald Berner

Every so often we are given a gentle reminder to pay close attention to the job descriptions in place at our companies.

In a recent Americans with Disabilities Act (ADA) case from Maryland, the employer failed to obtain summary judgment because of the essential functions listed in the employee's job description. This means the plaintiff gets to present his case to the jury.

The key issue revolved around whether having a commercial drivers license was an essential function of the supervisory position held by the plaintiff. The job description listed the commercial drivers license as a preference for the supervisor, as opposed to a required item in the basic driver job description. This small difference is what led to the employer ending up in what is now a pretty tough spot. 

So make sure you look at your job descriptions and carefully weigh the use of "preferred" versus "required."

The Perils of Interns Under the FLSA
By: Donald Berner

While it may not seem like it with the current weather patterns shifting back and forth from mild to cold, including a little snow, the summer season is just around the corner. And with that comes the arrival to the workforce of students looking for a bit of solid experience between school years. Sometimes this experience is paid work and sometimes it is not.  For those employers considering the unpaid internship approach, beware. Simply calling someone an intern and putting them to work for free isn't necessarily the right approach and may lead to a bill coming due later for unpaid wages.

The DOL has a six-factor test for making determinations about whether an internship meets the exclusion and can be unpaid. Those factors include:

  1. Is the training similar to the training the individual would get in an educational atmosphere;
  2. Is the experience for the benefit of the intern;
  3. Does the intern replace a regular employee and work under close supervision;
  4. Does the employer gain any immediate advantage from the training program;
  5. Is the intern entitled to a job at the end of the internship; and
  6. The employer and intern understand the intern will be unpaid.

If the employer can sufficiently meet all the factors listed above, then the intern can be unpaid. Employers should keep in mind, however, that this exclusion is very narrowly interpreted. For an intern to be truly unpaid, it almost needs      Continue Reading...

Get Back to Work: The Telecommuting Debate
By: Donald Berner

Recently, Melissa Mayer reignited the telecommuting debate when an internal Yahoo! memorandum leaked.  Starting in June, Yahoo! employees with remote working arrangements must physically report to company offices.  But, Yahoo! isn’t the only company rolling back the telecommuting red carpet.  Best Buy also announced the end of its ROWE (Results-Only Work Environment) program.  Most corporate Best Buy employees will now have to report to the company’s headquarters in Richfield, Minnesota.

Is this the start of a new trend or merely a couple companies changing course? The Wall Street Journal reported that more Americans are working from home than ever before. About 9.4% of U.S. workers worked at home at least one day per week in 2010, compared with 7% in 1997, according to a Census Bureau report. So, what is an employer to do? Before changing your company’s course, here are a few considerations.
Offering telecommuting can help employers attract and retain talent.  Certain segments of the workforce value the flexibility provided by telecommuting and such an arrangement can be a valuable recruiting tool.  Before wooing employees with promises of work-life balance bliss, carefully consider whether you have the tools in place to effectively manage performance of employees who work remotely. Evaluate each job and the employee on an individual basis.  Telecommuting is not the answer for every employee or every employer.
Finally,      Continue Reading...
H-1B Filing Season Rapidly Approaching
By: Donald Berner

The H-1B visa filing season is upon us.

Each year, USCIS approves up to 85,000 H-1B visas, which permit specialty occupation employees to travel to and work in the United States. This cap of 85,000 visas is not sufficient to meet all of the demand for applications during a given fiscal year. In the last several years, the cap has been reached at some point in the late summer or early fall.

This year the expectation is that demand for H-1B visas will return to somewhat normal levels, as the U.S. economy seems to have rebounded. What does that mean for someone interested in obtaining an H-1B visa for a potential employee? The filing window will open on April 1st for employees to start work on October 1st of 2013, and the basic assumption is that all visa slots for fiscal year 2014 will be used up in the first few days of the filing period. So if you are planning an H-1B filing, don't be late. If your application isn't ready to file for an April 1 arrival at USCIS, you might be waiting until October of 2014.


New FMLA Posters and Forms In Effect
By: Donald Berner

In honor of the 20th anniversary of the FMLA, the DOL issued final rules regarding the amendments to military family leave and airline flight crew FMLA eligibility. As part of the final rules, as of March 8, 2013, employers must use updated FMLA notice and certification forms. 

One significant change included in the final rules is that the DOL model forms will no longer be included in the appendixes to the regulations. This will allow the DOL to make changes without going through the regulatory approval process. Model forms are now available on the DOL website. The new poster is available here https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf and new certification forms regarding military family leave can be found here http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm.
The final rules mirror the proposed changes we previously discussed here http://www.kansasemploymentlawblog.com/index2.cfm?TopicID=14, but more information including a side-by-side comparison chart is available on the DOL’s website.  http://www.dol.gov/whd/fmla/2013rule/comparison.htm
USCIS Issues New Version of I-9 Form
By: Donald Berner

The USCIS released a new version of the I-9 on March 8, 2013. Employers should begin using the new I-9 form immediately. The old version of the form can continue to be used until May 7, 2013. 

The new I-9 form contains very little in the way of new information employers are required to collect from employees. The primary difference in the new form is the inclusion of email and phone number boxes for the employees in Section 1. While the form itself doesn't designate these boxes as optional, the instructions to the new form reflect that these two boxes are not required. The employee can choose to provide the contact data or simply put N/A in those boxes. 

The real impact of the new look I-9 is the layout. Instead of cramming all the required information into one single page, the employee portion is now one page and the employer portion is now a second page. This allows the form to make it much clearer where data is to be recorded in each area of the form. This change is likely to reduce the number of I-9 forms filled out with data on the wrong line or incomplete forms. 

You can find the new form on the USCIS website in a downloadable PDF here.

Who is the Future of Your Company?
By: Donald Berner

Every business needs a leader.  Someone must be in charge and make the tough decisions.  The sudden resignation of Pope Benedict (read here) should serve as a reminder for your business to consider its future leaders.  From large businesses to small family owned business the issue of succession planning and leadership training is equally important.  Identifying and grooming those individuals in advance of their need to lead is key to the long-term health of your business.  If you haven't considered training plans and leadership succession in some time, spend a few minutes (or a few hours) on this task over the next month or two.  One never knows when a resignation or situation will arise to trigger your company's need to replace a leader.  Being prepared ahead of time, and having a candidate being groomed for that role, will make that sudden transition much smoother when it comes. 

"There Is No I in Team" and Other Coaching Thoughts
By: Donald Berner

I spend a lot of time either coaching youth sports or hanging out watching youth sports.  It is the nature of the beast when you have three kids at home.  Those experiences remind me that managing kids is a lot like managing employees.  The big difference is you hope employees are a bit more mature and responsible than kids.  As most of you in HR can attest, that isn't necessarily true (as a coach I have seen young players be a lot more mature than their own parents). 

Over the last several months there have been a number of times those parallels between sports teams and workplaces were very apparent.  Without naming the guilty, here are a few stray observations about youth sports that carry over to the HR realm:

  1. No matter how hard you try, you can't cure a personality defect.  Individuals who are moody and grumpy (read: have bad attitudes) usually stay moody and grumpy.  It seems the more you try to draw them out of that mindset the deeper they settle in.  It's time for tough love.  Instead of slipping into the cycle of coaxing better performance from this type of person, make it simple.  Drop the attitude or find a new employer.  In other words, just get rid of the cancer -- cut it out.  If you don't it will spread to your other team members.  Plus you will have a lot more time to focus on your other employees since you won't be wasting a bunch of time on      Continue Reading...
So What Does Recess Have to Do With the NLRB?
By: Donald Berner

Those of you following the national news scene closely may have noticed a flurry of excitement related to the National Labor Relations Board (NLRB) and some appointments made to the NLRB last year.  The excitement is related to recess time in Washington, and even more specifically, the Senate's recess time.  Presidents sometimes use the tactic of waiting to make appointments, which technically should be confirmed by the Senate, until after the Senate heads out for recess. 

Three of the five members of the NLRB were appointed during an alleged recess last year.  While the Senate was supposedly out in the yard playing dodge ball, the President gave away a few jobs to people the Senate likely would not have approved.  But this time around, some members of the Senate, having watched President Obama use this tactic in prior recess times, decided to linger inside and work on some homework.  As a result, the question was whether the Senate was actually in recess when the appointments were made.  

The federal appeals court for the D.C. Circuit said the Senate was not in recess, so the three appointments were invalid.  The consequence of this decision could very well be that all of the 200 plus decisions handed out by the improperly formed NLRB may be invalid as well.  In addition, there are also other decisions made by the NLRB that could be in question.  Stay tuned over the next few weeks or months as this schoolyard recess drama plays out.  If you were subject to an NLRB decision in the last year, it is probably worth revisiting the issue to see if there      Continue Reading...

Adult Children and the FMLA: New DOL Guidance
By: Donald Berner

The Department of Labor issued a new interpretation letter last week addressing the issue of adult children under the FMLA.

As most of you are aware, employees are not generally able to seek FMLA to care for a child over the age of 18. For an employee to be able to take leave to care for an adult child with a serious health condition, the adult child must be incapable of self-care because of a mental or physical disability. The hard part for employers is deciding whether the adult child actually clears that threshold. 

In its interpretation letter, the DOL notes that an employee is eligible for FMLA leave to care for an adult child if the adult child has a disability as defined by the ADA, is incapable of self-care due to the disability, has a serious health condition, AND is in need of care due to the serious health condition. The important point for employers to take away is the adult child needs to trigger all four of those elements. 

The interpretation letter contains a couple of examples to help employers understand how these adult-child rules will be applied. In one example, an adult child has an auto accident and is likely to clear the threshold and allow a parent to take FMLA leave. In another example, an adult child suffering from diabetes is determined not to clear the threshold for the parent to take FMLA leave.

The interpretation letter can be found here.  If you find yourself dealing with an adult child situation the letter is a good starting point.   

On a side note,      Continue Reading...

Immigration Reform in 2013?
By: Donald Berner

Every so often the topic of immigration reform comes to the forefront in Washington. In years past, the debate would rage for periods of time and then the effort would stall out amidst political fighting over various elements of the "reform" needed. There are a wide-ranging number of interest groups fighting for and against various types of reform. What can we expect in 2013?

Considering the last election cycle and the behaviors of certain demographic groups in that cycle, a comprehensive effort to reform the U.S. immigration system is a bit more likely. At least right at this moment. My thought on that only applies if some other hot potato social or economic agenda item does not interfere with, or take priority over, immigration issues. At this point, several things look likely, to include:

  1. An amnesty-style program of some sort for those currently in the country illegally or without status;
  2. Changes to the visa allocation quotas/system to allow those trying to immigrate the right way to get out of the long lines and backlogs created by a shortage of available slots;
  3. The inclusion of a guest-worker type program to allow for lower-skilled workers to come to the U.S. to fill temporary needs for lesser-skilled labor; and
  4. A requirement that employers verify the legal status of workers (read this to mean mandatory E-Verify for all employers).

The idea of immigration reform typically brings out vocal advocates on all sides of the equation. Stay tuned over the next six months as things heat up in      Continue Reading...

Wrapping Up 2012 and Launching Into 2013
By: Donald Berner

Now that 2012 has come to and end and we have all returned to the normal routine, here are a few things we might take some time to consider before moving forward into the new year and getting swallowed up in the new routine:

  • Review your policy materials and make sure they are current and up to date. While you should review your policies to make sure they are in compliance with all legal requirements, this review also should be practical as well. Are your current policies working as intended or are there some that just need a different approach. A little reflection now can allow you to get these cleaned up for 2013 and help avoid the same issues you had in 2012.
  • Take a few minutes to clean up any employee-file-related issues. Are the employee files complete? Have the reviews been done in accordance with your policies? Are the required items contained in the file? On a side note, its always a good idea to audit your I-9 files and make sure all is well with those forms and that any old forms that are no longer required for retention are disposed of properly.
  • Evaluate your safety policies and training. Are we complying with all of the applicable OSHA requirements? Spend a few minutes self-inspecting your operations to make sure you are in compliance. Check the training requirements and conduct any annual training or refresher training that is needed.
Things to Watch for in 2013
By: Donald Berner

Welcome to 2013.  Hopefully everyone is already working hard at sticking to their New Year's Day resolutions. Looking ahead to 2013, here are a few things to keep an eye on this year. It can be tricky predicting the future, but here are a few general themes I expect to get some extra attention in 2013 in the employment law area. For all of the HR types out there, you might spend a little extra time thinking about how these might impact your company.

  • NLRB. Expect the NLRB to remain a very active agency. The NLRB has spent the last few years turning up the heat on employers in a variety of areas. At the end of the day, the NLRB is shifting the law to provide a more union-friendly playing field in representation election. In addition, the NLRB has spent a considerable amount of energy in areas that are primarily non-unionized-employer related (for example social-media issues). This trend is almost certain to continue in 2013 and beyond. Is your workplace a potential target for a union organizing drive? Are your policies over-broad in some way that interferes with protected and concerted activity? If so, some adjustments might be in order.
  • Immigration Reform. An immigration reform measure of some sort is on tap for this four-year political cycle, and it may get done in 2013. President Obama put the deferred action program in place in 2012 to allow certain groups of illegals to gain work authorization      Continue Reading...
Policy Considerations for 2013
By: Donald Berner

The passage of Thanksgiving and the approach of Christmas means football season is winding down and basketball season is underway and gaining speed. For most of those working in a broader HR function, benefits enrollment is over (or close to over) and its time to start reflecting on the goals for the coming year. Now is also a good time to think about your workplace policies and more importantly those policies that might be in need of a tune up in 2013. Here are a few that might be worthy of placement at the top of a lot of lists:  

  1. Social Media -- For most of us these two words are enough to convince us to ban Internet use for all employees whether at work or at home. While this has been an area of constant flux in 2011 and 2012, employers that ignore this issue are doomed to suffer a significant failure in the near future.  A good social media policy should account for employee behaviors via social media as well as ownership of business related social media accounts.  
  2. Paid Time Off -- These policies come in a wide range of styles and types. The real task here is for employers to decide whether a historical bucket style approach (vacation, sick, etc.) is the best type of system or whether to consider implementing a single bucket PTO type of system.   Each approach has its pros and cons and there is no such      Continue Reading...
Fair Labor Standards Act Pitfalls Abound
By: Donald Berner

A news release yesterday from the Department of Labor (DOL) announcing the recovery of over a million dollars for a group of approximately 400 bank employees highlights the types of routine risks the FLSA creates for employers.

In the reported case, the employees were improperly classified as exempt employees. As a result, the employer was required to provide back pay for overtime hours worked by the group. Adding insult to injury, the press release noted the DOL collected additional overtime as a result of bonus payments made to the employees improperly classified as exempt. Once the employees were no longer exempt, the bonus payments were required to be added into the employees total compensation in order to calculate the effective hourly rate for purposes of overtime payment. 

This press release should serve as a reminder to employers to pay close attention to the classification of employees as exempt or non-exempt. A group of improperly classified employees can be a ticking time bomb within the workplace since the statute of limitations period for a FLSA claim can be as long as three years. To read the press release click here.

Preparing for the Holiday Season and Beyond
By: Donald Berner

It's that time of year again. Thanksgiving has arrived, and Christmas is just around the corner. The holiday season brings lots of things to prepare for each year. For those of you out shopping, there were preparations for the big Black Friday sales events. Hopefully by the time you are looking at this article you have survived the crazy rush of the day and found all those awesome bargains you went out to get today. Some of you might find preparing for the holiday season to be a bit of a waste of time this year since the Mayan's have forecast the end of the world. 

What I wanted to point out today is a bit of guidance about preparing for the Black Plague of 2012. Or maybe just a simple flu bug. OSHA has a webpage with resources that have been prepared for employers to assist in dealing with a flu pandemic which can be found here. Whether this is the year of the massive global flu outbreak or not, it might be helpful to browse the information put together by OSHA just in case. There are a few items contained in OSHA's guidance that might have some more generic applications to a non-pandemic flu season such as:

1. Develop a sick-leave policy that does not penalize sick employees for staying home. The upshot here is to keep sick employees away from the workplace so the rest of the workforce isn't infected. If your sick-leave policy is already effective and in place, make      Continue Reading...

Are These Common OSHA Violations Present in Your Workplace?
By: Donald Berner

Each year OSHA publishes a listing of the most commonly cited standards during the most recent fiscal year. For fiscal year 2012 (October 2011 to September 2012) the list contains some familiar standards from the fiscal year 2011 list. In fact, the 2012 list contains the same top ten cited standards, just in a slightly different numerical ranking order. The list for fiscal year 2012 is as follows:

  1. Fall Protection in the construction industry (29 C.F.R. 1926.501)
  2. Hazard Communication (29 C.F.R. 1910.1200)
  3. Scaffolding in the construction industry (29 C.F.R. 1926.451)
  4. Respiratory Protection (29 C.F.R. 1910.134)
  5. Lockout/Tagout (29 C.F.R. 1910.147)
  6. Powered Industrial Trucks a/k/a Forklifts (29 C.F.R. 1910.178)
  7. Ladders in the construction industry (29 C.F.R. 1926.1053)
  8. Electrical Hazards - Wiring (29 C.F.R. 1910.305)
  9. Machine Guarding (29 C.F.R. 1910.212)
  10. Electrical Hazards - Design (29 C.F.R. 1926.303)

This list should be instructive for employers with hazards of this nature in the workplace. These are commonly violated by employers and result in the issuance of citations by OSHA. Spending a little extra time in these areas can yield dividends next time OSHA visits your workplace.  


Dealing with Work Authorization Concerns
By: Donald Berner

The recent news regarding the Immigration and Customs Enforcement (ICE) actions in Wichita involving a local McDonald's franchise highlights the risk for employers with respect to employee work authorization. This arena involves a wide-ranging variety of fact patterns for employers to work through as no two cases are ever exactly alike. The key points for employers to consider are:

  • I-9:  Make sure your I-9 process is being conducted properly and that your I-9 documents are being fully and accurately completed. In addition, conduct periodic audits of your completed I-9 collection to identify any shortcomings in your process and follow-up on those shortcomings to ensure the process is working as intended.
  • Stray Information:  Promptly respond to all information that calls into question the work authorization of one of your employees. This can be a very tricky issue for employers since there can be varying levels of information presented which may or may not be legitimate. The source of the information should be evaluated in determining the proper response to the situation. The key point for employers on this issue is not to bury your head in the sand and ignore the information. Ignoring can lead to a very negative outcome at some point in the future.
  • Social Security Problems: While somewhat like the stray information category, there are a number of ways a social security number problem can arise. Anytime the concern is generated by some sort of action by the Social Security Administration,      Continue Reading...
The Day After the Election: A Recap of What I Learned on Election Day
By: Donald Berner

As most of the free world can attest, yesterday (and last night) was election day here in the United States, which is a very serious and somber process. It is on election day that we select candidates to serve all the way from local positions up to the President of the United States. These choices can have a major impact on how government interacts with employers and their employees over the following four years. 

This election day was much different for me than those in past years. I learned a lot by looking and listening as the election process was fed back to me through the eyes and ears of my children. My high school junior and 8th grader had strong feelings about who the right candidate for the job might be for President. The problem is they did not agree. Talk about partisan politics. It's hard enough to keep the normal sibling squabbles under control without tossing politics into the equation. 

While the older siblings were entertaining at some times and irritating at others, the 2nd grader brought the political process into a whole new light for me. On election night at the dinner table I was grilled by her about whether I had voted yet. I had not done so, which seemed to be a big deal even though the polling locations were still open for another ninety minutes (I like to slip in near closing in hopes it is quieter). Not only did I get chastised for not having exercised my right      Continue Reading...

U.S. Attorney Serves up an Unhappy Meal to Wichita McDonald's Franchise
By: Donald Berner

On a night when most of the kids in Wichita are going door-to-door dressed in scary costumes declaring trick or treat, the U.S. Attorney's office served up a very scary and unpleasant trick on a local Wichita business. The press release issued by the Immigration and Customs Enforcement agency (ICE) reflects that the business was charged with one felony count for knowingly accepting a fraudulent identification document.

At some point in the past, the employer was made aware of an employee with a bad social security number. The employer followed up by asking for documentation to prove the employee was authorized to work in the U.S. The employee provided a permanent-resident card, and the employer updated the employee's I-9 documentation.

ICE took the position that the employer was aware the permanent-resident card  was not legitimate because of the speed with which the employee obtained the documentation. The ICE press release indicates a plea agreement is in the works, and the company will pay out $400,000 in fines and forfeitures to the federal government as a result of the agreement. 

Read the ICE press release here.

Employee Off-Duty Access: The NLRB's New Twist on the Open Door Policy
By: Donald Berner

As most of you are probably aware, the National Labor Relations Board (NLRB) has been extremely active in applying the National Labor Relations Act (NLRA) in ways that have are having a significant impact on employers without labor unions. The most well-known of these areas is in the context of social-media policies and the application of those policies in disciplinary matters. In a recently issued decision, the NLRB took on the issue of employee access to the employer's facility during off-duty hours.  

From a historical standpoint, the NLRB decisions considered restrictions for off-duty employee access acceptable, so long as the restriction was clearly communicated to the employees, limited to the interior/working areas of the employer, and applied to all employees seeking access and not just those engaging in union-related activity. This standard allowed employers to generally prohibit employee off-duty access and still allow for limited exceptions as they might arise. For example, an employer could have a policy prohibiting off-duty access that allowed for exceptions with manager approval. This would allow a supervisory employee to make a limited exception in those circumstances where off-duty access was really necessary. Under the historical approach, these limited exceptions would allow for enough flexibility to handle emergency situations and still not run afoul of being interpreted in a way that was targeting employees engaging in union activity.    

The historical approach followed by the NLRB dates back over thirty-five years and has worked sufficiently well to balance the needs of employers to secure their facilities while still allowing some flexibility when needed by employees. The current NLRB, however, in      Continue Reading...

Avoiding Discrimination Claims - Good Investigations
By: Donald Berner

In most cases, a discrimination claim arises following some sort of disciplinary process or performance counseling activity. In more limited cases, the external claim follows some concern raised internally with the employee being dissatisfied with the resolution reached during the internal process. In all of these situations, the employer should have conducted an internal investigation into the matter. The quality of the internal investigation will have a significant impact on the later external claim the employee files with the KHRC/EEOC.

In the case of employee misconduct, the internal investigation will provide the basis for the discipline that is ultimately issued in the matter. The documentation of the investigation will go a long way to supporting the employer's defense to a discrimination claim if the investigation was handled appropriately. The key to any investigation is to be thorough and fair as the facts and circumstances are evaluated. A good investigation includes interviews of any and all witnesses to the situation, even if the witness will provide information that is contradictory to the position the management team has taken. Trust me on this one -- it is much better to find out all the sordid details during the internal investigation than to be hit over the head with those bad facts months (or even years) after the fact during an external investigation. 

Avoiding Discrimination Claims - Good Documentation
By: Donald Berner

If you have worked in HR or management for more than a few days you are sure to have heard several times by now to document and then document and then document. This old employment-law adage remains true today. Maintaining documentation of your employment decisions can be the difference between being able to successfully defend a discrimination claim and losing on that claim. The typical discrimination charge filed with the KHRC/EEOC covers factual events that range anywhere from three months old to several years old. If you are anything like me, remembering where I was at two years ago today is virtually impossible let alone what happened during a three-minute conversation with a co-worker. That's where documentation comes into play.

I want to expand a bit on that concept of documenting to add in the notion that what you are really after is good documentation. Any employment decision made should be supported with documentation reflecting that action. The documentation can be simple notes written by a supervisor or a full-scale form detailing actions taken and the reasons for the action. In most cases, the documentation will be an accurate and true reflection of the events being noted and will be given much more weight two years later than a supervisor or employee's recollection of the events. That's what makes good documentation so important -- it is not subject to revisionist memory since it was created at the time of the event.

One last note: the documentation maintained in an employee's personnel file should      Continue Reading...

J-1 Visa Waivers for Physicians Under the Conrad 30 Program
By: Donald Berner

The new government fiscal year started on October 1st which means it is time to begin preparing and filing J-1 visa waiver applications for physicians under the Conrad 30 program.  The program is used by medical employers (hospitals, clinics, practice groups, etc.) to hire foreign physicians to work in medical provider shortage areas (HPSA or MUA) or outside of shortage areas but providing care to residents within shortage areas.  The program provides Kansas employers with a great tool to recruit physicians to these shortage areas.  For more information click here.

An Employer Wins A Battle in the Social Media War as NLRB Upholds Employee Facebook Posting Related Discharge
By: Donald Berner

Earlier this week the National Labor Relations Board (NLRB) upheld a car dealership's discharge of a salesman for posting photos and comments to his Facebook page. The NLRB's decision is a welcome victory for employers after a long series of employer unfriendly pronouncements from the NLRB. Over the last year or two, the NLRB has provided employers with a series of memoranda designed to highlight the acceptable parameters for employer policies and employee discipline for social media postings. With each additional bit of guidance, an employer's ability to deal with problem social media postings appeared to become increasingly more difficult. While the NLRB should (and will) ensure that employees engaging in protected and concerted activity are not discriminated against, there have to be some boundaries to the types of comments an employee can post for the whole world to read that concern the employer.    

In this particular case, the employee salesman posted two different sets of photos and comments to his Facebook page. One set of photos and comments centered around a dealership event related to the roll out of a new luxury vehicle. The photos and comments were mocking and sarcastic in tone and focused upon the employer's decision to serve hot dogs, chips, and water at the event as opposed to something more appropriate for a luxury event like "champagne or wine". The second set of photos and comments were related to an accident that occurred during the test drive of a new vehicle and were also sarcastic and mocking in tone. Following the postings, the salesman's employment with the dealership was terminated.      Continue Reading...

Avoiding Discrimination Claims - Training
By: Donald Berner

If an employer has a set of policies and practices in place, educating the employees and the management team is a critical link in reducing the likelihood of a discrimination claim. The training for employees will differ somewhat from the training provided to the management team.

With respect to employees, the new-hire orientation process should contain a general overview of company policies and rules. In addition, it is always a good practice to have the employees sign an acknowledgment that they were made aware of the policies and rules in place. Beyond a general new-hire-training process, it is also helpful to conduct periodic training sessions for employees focused on non-discrimination and anti-harassment policies, as well as any specific company rules that need additional emphasis. With respect to the anti-harassment and non-discrimination training, it is important to emphasize the internal process by which complaints under those policies can be made. This internal complaint process will be helpful in that it will encourage employees to keep complaints internal and may provide the employer with the ability to assert some affirmative defenses if the employees fail to follow a complaint process.

The management team should receive the same training as non-management employees, as well as additional training on topics including the FMLA, ADA, Title VII, and the FLSA. It is important for supervisory employees to understand the employer's basic obligations and practices with respect to these various statutes. These management employees are likely to be the first employer representative to encounter a concern implicating these statutes, so they need to understand the basics to ensure they properly respond to the employee. Another key part of the      Continue Reading...

Avoiding Discrimination Claims - Policies Pt. 2
By: Donald Berner

The last installment discussed a couple of important policies - EEO and anti-harassment - that all employers should have in their policy collection to help avoid discrimination claims. Beyond those two policies, employers should also have a wide-ranging variety of policies related to how employees should conduct themselves in the workplace. These various policies will cover all sorts of disciplinary and performance issues and will vary from employer to employer. While having the policies is helpful, the next key to avoiding discrimination claims is to ensure these wide-ranging policies are followed as written by the employer. If an employer policy addresses a situation, the actions taken by the employer should be consistent with the policy. And beyond being consistent with the policy, the actions taken should be consistent how the employer handled past instances of violations of the policy. An employer that deviates from the terms of its own policies or from its past practices may find it difficult to defend the employment action taken. You can be sure the employee filing the charge will claim the deviation is a result of the employee's protected classification as opposed to the employer's insistence the action was based upon the policy violation.

So remember, follow the policy as written and make sure any employment action taken is consistent with how violations have been handled in the past. A failure to do so will invite employee-discrimination claims.   

Avoiding Discrimination Claims - Policies
By: Donald Berner

As most of you know, any of your employees (or former employees) can file a discrimination charge with the EEOC or KHRC alleging your company discriminated against them on the basis of any (or several) protected classifications under the various statutes like the ADA or Title VII. When a charge is filed, the employer will almost always be required to respond to the agency and provide a variety of supporting materials and/or materials requested by the agency. These investigations also frequently involve the agency sending an investigator to your workplace to interview witnesses (managers and co-workers of the complaining party). This process can be time consuming for employers and serve as a distraction from the normal course of business for the employer. The best defense to a discrimination charge is to exercise good preventive medicine. 

Over the next few weeks, check back for a series of posts highlighting some good preventive measures an employer can take to avoid a discrimination charge. And even if these measures don't prevent a charge, following some or all of them will make defending the charge a much easier task.

So let's get started.

The first line of defense revolves around employer policies. Every employer should implement EEO-related policies and procedures. The basic EEO policy should reinforce the employer's commitment to equal employment opportunity and to making employment-related decisions without considering protected classification information. In addition to an EEO policy, employers should also have a policy related to harassment issues. The anti-harassment policy should cover sexual harassment and other forms of harassment based on protected classifications. It is      Continue Reading...

Another Potential Facebook Casualty
By: Donald Berner

Most of you know by now that social media websites can be dangerous in the employment context. Apparently, one of the NFL's replacement referees failed to get that memo. Over the weekend, the NFL was forced to replace a referee on a crew after learning of his posts on Facebook highlighting that he was a New Orleans Saints fan. Apparently the postings included photos of the referee in his Saints jersey at a tailgate party. The bad news for the NFL is that this referee was assigned to call the Saints game on Sunday. Nothing like being placed in a position to officiate your team's game. As of today, the NFL has not terminated the referee for this potential bias. Hopefully, the NFL is smart enough to realize this conflict of interest goes beyond just a game involving the Saints, as his decisions in another game could easily benefit the Saints. I would assume the NFL will piece all this together and take appropriate action. Stay tuned to see if this social media dust up includes some further employment action and whether that action leads to some other legal process. 

EEOC Strategic Enforcement Plan Published
By: Donald Berner

The EEOC published a draft version of its Strategic Enforcement Plan last week. Of particular note for employers is the priorities section of the document, which identifies the areas in which the EEOC will place special emphasis in the future. Some of the areas of emphasis will include:

  • Hiring Discrimination: The gist of this effort is to target employers with hiring practices that discriminate. While this seems easy enough to understand, keep in mind that a neutral policy or practice that has an adverse impact on a protected classification is just as much a problem as a policy that directly discriminates.
  • Immigrants and Migrant Workers: The EEOC views this segment of the population as vulnerable and exploited and intends to pay special attention to the treatment of these groups.
  • Pregnancy Accommodation: The EEOC seems to believe that pregnant women are placed on unpaid leave when other employees are provided accommodations and will be paying special attention to this concern.

There are some other areas of emphasis that shouldn't come as a surprise (like ADA enforcement). You can review the full document here. To see the priorities scroll down to Section III of the document.

Labor Day: The Unofficial End of Summer or Something More
By: Donald Berner

Hopefully everyone enjoyed their Labor Day holiday. Over the years, Labor Day has been viewed as the last gasp of the summer "fun" season.  While taking this last summer holiday to enjoy some travel or family time is a great idea, the roots of Labor Day can actually be traced to labor unions. Labor Day was established in the late 1800s and early 1900s as a holiday to celebrate the contributions of the our country's workers and was initially proposed by organized labor unions. Click here for the history of Labor Day.

The Labor Day holiday should serve as a reminder to union-free employers that organized labor is still working hard to represent the employees at their companies. Your management team should spend some quality time on a regular basis communicating with your employees and listening to their concerns. This is a great way to ensure your company remains union-free. If management fails to establish a rapport and good working relationship with their employees, this opens the door for people outside the company to have those conversations. I'm sure most of you would prefer the good working relationship start within the company as opposed to outside the company. 

So now that you have made the most of your holiday weekend courtesy of the labor movement, get back to work building those internal relationships. 

Leave as an ADA Accommodation
By: Donald Berner

The 10th Circuit Court of Appeals (the federal appellate court responsible for Kansas and other midwestern states) decided a case involving leave as an accommodation under the Americans with Disabilities Act (ADA).  In the case, the employer provided significant amounts of leave time for a disabled employee over a several-year period. After providing leave as an accommodation, the employer eventually discharged the employee because of the uncertainty surrounding her return to work. In its decision, the 10th Circuit confirmed that an employer is not required to provide an indefinite leave of absence as an accommodation under the ADA. In addition, the court referenced the reasonableness of a leave of absence, mentioning that a leave of four months is reasonable and that a leave of six months may not be reasonable. Employers can utilize these guideposts in assessing whether to provide an employee a leave of absence as an accommodation for a disability.  

Finally, congratulations to Jim Oliver, Bud Cowan, and Tara Eberline of Foulston Siefkin's Overland Park office for their successful defense of the defendant in this particular case. To read the opinion in its entirety click here.  

Do Your Workplace Investigations Run Afoul of the NLRA?
By: Donald Berner

As most of you are aware, the NLRB has been very active with respect to employer policies and their impact on the rights of employees under the NLRA. The most widely publicized of those policy-related forays are the NLRB's various decisions and memoranda regarding employer social media policies. In a recent decision, the NLRB weighed in on employer requirements of confidentiality with respect to internal employer investigations. The NLRB noted that a blanket prohibition on employee interaction with co-workers was a violation of the employees' right to engage in collective activity. With its decision, the NLRB noted that in some circumstances a confidentiality requirement may be crucial to the investigation to protect witnesses or preserve evidence; however, a blanket confidentiality requirement was not acceptable.

If you use such a blanket approach to workplace investigations, you might want to consider whether such a restriction is important to the overall investigation. If not, requiring the employee to keep quiet might very well lead you into a fight with the NLRB.

Employer Flunks the Test with Pre-Employment Testing
By: Donald Berner

The use of pre-employment testing by employers has become more common in recent times. In most cases, the testing is conducted by outside vendors offering these types of services to multiple groups of employers. While these tests seem to be a good idea to most employers, it is important to make sure they pass muster with the various administrative agencies at the federal and state level.

In a recent example of a test gone wrong, the OFCCP took issue with an employer's written testing program. The test had an adverse impact on minority applicants and failed to meet the EEOC's Uniform Guidelines on Employee Selection Procedures.  In this recent case, the OFCCP reached a $550,000 settlement with the employer. Click here for the OFCCP press release.

While having the OFCCP involved might suggest this is only an issue for written tests and government contractors, don't be misled. This is only an OFCCP issue because the problem was uncovered by an OFCCP audit of the employer. The EEOC's requirements in this area apply to all employers. In addition, the selection guidelines apply to all types of pre-employment testing, ranging from written testing to skills testing to strength-and-agility testing.

If your company conducts these types of tests, it is important to ensure there is not an adverse impact on a specific class of individuals. If there is an adverse impact, the employer can still defend the testing measure if the employer can show the test is an accurate predictor of a candidate's ability to perform a job. This is where      Continue Reading...

Possible Federal Relief for Employer Protection of Trade Secrets
By: Donald Berner

Last month a bill was introduced in the U.S. Senate to provide a limited federal cause of action for employer use in protecting a company's trade secrets from misappropriation. The Protecting American Trade Secrets and Innovation Act of 2012 was introduced and referred to the Senate Committee on the Judiciary.

The goal of the bill is to provide a federal cause of action to employers attempting to file litigation to protect a company's trade secrets. As currently structured, the new legislation would provide this cause of action under a limited set of circumstances. The current option for an employer is to bring claims in state courts with the underlying law varying significantly from state to state. This variance in state law can create complications and sometimes make it difficult for companies to effectively defend their confidential information. 

Stay tuned as this bill makes its way through the legislative process.

To track the legislation, click here.

Access to Employee Social Media May Be Unlawful
By: Donald Berner

The recent uproar over employers demanding access to a prospective employee's Facebook account has now resulted in state laws prohibiting the practice in Illinois and Maryland.  For employers with employees in those states, it is now unlawful to demand an employee provide passwords or any other means of access to the employee's various social-media accounts.  If your company requires access to an employee's social-media accounts, stay tuned as this is likely to spread to additional states in the near future. 

FLSA Claims Reach Record Levels in 2012
By: Donald Berner

I read an interesting article highlighting the statistics for claims filed under the FLSA over the last twenty years.  This year, FLSA claims reached a record high and we still have four months left in the year.  The statistics show claims for 2011 at 7,006 for the year and this year we are already at 7,064 claims.  By the time the numbers are all in, the claims filed in 2012 will dramatically exceed the numbers historically. 

While employers can't do much to stem the growing number of claims, they can be sure they are complying with the FLSA rules.  For most employers, the key risk areas involve the payment of overtime and proper classification of exempt employees.  Spending a little time this fall to make sure your company is in compliance may be time well spent considering the extra attention being paid to FLSA issues by the Department of Labor and the plaintiff's lawyers.

OSHA Adds Fall-Protection Resources
By: Donald Berner

OSHA recently established a website section devoted to providing construction-industry employers with fall-protection information.  Statistics show that falls are the most likely cause of on-the-job fatalities in the industry, and OSHA is making a concerted effort to reduce the number of fall-related incidents in the industry.

For employers, this new outreach website provides a single location with links to a wide variety of educational materials on the topic.  This includes short summaries of the various regulations related to fall-protection issues, as well as materials that can be used to train employees on these various concerns.  The OSHA fall-protection website section can be found here.

What All Employers Can Learn From Penn State
By: Donald Berner

Over the last several months the Penn State/Sandusky story has taken numerous twists and turns.  For the most part, the final chapter has been written on most of the participants.  The main perpetrator, Sandusky, has been convicted on a significant number of criminal offenses and will spend the rest of his life in jail.  Penn State has been hit with significant NCAA penalties and is defending itself from a range of civil claims.  The once revered head coach, Joe Paterno, has died and his reputation destroyed. 

While most employers don't expect to deal with employee issues as horrible as those Penn State has been faced with, there are some lessons that can be learned from Penn State's fall. 

  1. Make sure your organization has a process by which complaints of wrongdoing can be made.  This process should include multiple avenues for an employee to bring a complaint forward.
  2. No matter how loved and adored a leader in an organization may be, the leader should not be above reproach.  Any allegations made must be investigated and taken seriously. 
  3. If that investigation determines an allegation has merit, take action to protect the victim in the situation.  Ensure the victim is aware of the actions/investigation and are on notice to bring future concerns to the employer.
  4. Protect complaining parties and/or witnesses from all forms of retaliation.  This includes making sure employees are aware of these protections so they are comfortable bringing forward any      Continue Reading...
Foreign Students and Work Authorization
By: Donald Berner

One of the more confusing work authorization scenarios I see clients dealing with relates to when a foreign student is authorized to work in the United States.  The default rule is that a student in the U.S. with an F visa (the typical one used by students) is not permitted to work.  Students typically gain the ability to work in limited ways.  A student may gain work authorization via a curricular practical training program (CPT) or via an optional practical training program (OPT).  These programs differ quite a bit.  A student working via CPT will have the ability to work for a limited period of time and for a specific employer as part of a school sponsored training program.  A student working via OPT will have an employment authorization document (EAD) which will allow a much longer period of employment with no specific employer restrictions.  If your company employs a foreign student, make sure you carefully evaluate whether the individual has proper work authorization documents to work for your company and ensure you carefully note the expiration of that work authorization.   

Heat Injuries and OSHA's General Duty Clause
By: Donald Berner

As most of you are painfully aware, it is incredibly hot outside.  This week the temperatures will continue to exceed 100 degrees.  While most of us understand that the intense heat poses a health risk, it is probably safe to say that we don't fully appreciate just how dangerous the heat can be.  Each spring OSHA issues press releases highlighting the dangers of working in the heat; however, there are no specific safety standards related to avoiding heat injuries.  This does not mean that your company won't receive a citation should heat related injuries occur in your workplace.

OSHA typically issues citations to employers when the employer violates some specific written safety standard established by regulation.  In addition to these written standards, OSHA may rely on the general duty clause within the OSH Act to issue citations.  The general duty clause requires employers to maintain a workplace free of recognized hazards.  In a recent decision, an OSHA citation alleging an employer violation of the general duty clause following an employee heat injury was upheld by an administrative law judge.  In the particular case, an employee died from a heat stroke.  The supervisor's failure to recognize the obvious symptoms of the heat injury resulted in OSHA's issuance of the citation.

The simple message to other employers is to ensure your workforce is adequately trained with respect to heat injuries and to apply as many safety measures as possible to avoid the onset of a heat injury.  A failure to do so may expose your workers to serious injury and your company to significant penalties. 

Summer HR Box Lunch Workshop Series
By: Donald Berner

The first of several HR Box Lunch Workshops is set to begin.  There is still time to get signed up to attend the sessions.  Click here for more information on the upcoming sessions and click here to sign up.  Hope to see you there.

Immigration Debate Likely to Continue
By: Donald Berner

What better time to consider the issue of immigration than on the eve of the 4th of July.  As our nation of immigrants gathers together to celebrate the birth of our nation, the issue of immigration reform should continue to garner attention over the next year.  In the last month, the U.S. Supreme Court upheld the central piece of the controversial Arizona immigration statute and the Obama White House announced an intention not to enforce deportation against a selected group of young illegal aliens.  Both events have sparked significant interest in the issue around the country and should fuel a continued debate over immigration reform.  While the Supreme Court's upholding of the "show me your papers" provision seemed to garner more attention, the enforcement suspension is likely to result in a much larger impact to employers and illegal aliens.  The Department of Homeland Security (DHS) will provide more detail in the coming weeks regarding President Obama's announcement, but the short version is that a status called deferred action will be conferred on those who meet the limited eligibility criteria set forth by DHS.  Once that status is granted, those individuals will be able to apply for and receive work authorization documents.  As DHS publishes the program criteria, there is bound to be a significant amount of attention paid to this issue.  This upcoming debate may provide some momentum for a more comprehensive set of immigration reforms.  For more information on the enforcement suspension click here.

OSHA Targets Nursing and Residential Care Facilities
By: Donald Berner

OSHA recently announced a national emphasis program that targets nursing homes and residential care facilities.  The program is being implemented due to the higher than average injury and illness rates within the industry.  Employers falling within the covered NAICS Codes (used to be SIC Codes) should expect to see a visit from OSHA in the coming year.  For more information on the OSHA emphasis program click here

Drugs, Alcohol, and Falls: Workplace Safety Gone Bad
By: Donald Berner

Most employers with drug-and-alcohol-testing policies require employees suffering a workplace injury to be tested for drugs or alcohol.  It is common for these post-injury tests to be conducted at the same time the employee receives medical attention for the injury.  These types of testing requirements make sense and are generally a sound practice.  The key for employers is ensuring these policies are implemented in an effective yet responsible manner. 

From the category of its-too-crazy-to-be-made-up, a lawsuit on this topic was recently filed in Dallas.  In that case, an employee suffered a workplace injury after falling from an undisclosed height.  The employer had a practice of drug testing employees injured on the job and allegedly required a drug test.  The minor problem in this case -- the employer is alleged to have left the unconscious worker lying on the floor for two hours waiting on the drug test to be administered.  The employer then called 911, and the employee was taken by the paramedics to a hospital, where the employee later died.  The plaintiffs allege the long delay in receiving treatment led to the employee's death.  Click here for the story.

Keep in mind now that, as with any lawsuit, the initial claims made by the plaintiff are not always accurate, and in this case I hope that is exactly the situation.  For those of you that require a drug test following a workplace injury, make sure you always look first to the employee's health and safety before focusing on the testing procedure.

Exercise Caution With Employees of a Contractor Your Company Hires
By: Donald Berner

Imagine you hire a company to perform a service or conduct a function of your business you have chosen to outsource.  As a result, the contractor company sends its employees to your facility to perform those tasks.  Now imagine an employee of the contractor engaging in union organizing activities while on your property.  Can you have the contractor company remove its employee from your property? 

It's a simple question; however, the answer isn't so simple.  The safe assumption to start with is that you cannot ask the company you contracted with to remove one of its employees when the employee engages in protected activity.  In a recent decision, the National Labor Relations Board (NLRB) required a company to reverse its demand to a contractor company to remove an employee engaging in union-organizing activity on its property.  In addition to being required to allow the contractor-company employee on its property, the employer was also required to make payment to the contractor employee for any losses suffered by the requirement  to remove the contractor employee from the employer's property.  

This general theme should cause employers to pause and consider carefully the identity of their contractors and the number of non-employees granted access to their facilities.  While this recent case makes it clear that an instruction to a contractor to remove contractor employee(s) engaging in protected activity is unlawful, there may very well be circumstances that would allow for the removal of the contractor employee(s).  Should a similar situation arise at your workplace, it is advisable to think carefully before requiring a contractor to      Continue Reading...

When 6 Months Really Means 6 Months
By: Donald Berner

In a recent decision, the Court of Appeals for the D.C. Circuit provided some clarity with respect to the statute of limitations contained within the Occupational Safety and Health Act.  Most of us believe that when a statute states any claim, or in this case any citation, must be made within six months of the event, what it really means is there is a six-month cutoff.  OSHA took a little different approach by issuing a series of citations to an employer for failing to keep adequate records over a several-year period.  When the employer pointed out the six-month statute of limitations, OSHA's response was that the violation remained ongoing due to the employer's failure to make the record.  After multiple levels of proceedings where OSHA's continuing-violation theory was accepted as valid, the case arrived at the D.C. Circuit Court of Appeals where it was promptly rejected by the Court.  For now, six months really does mean six months again.

IRS Provides Guidance on $2,500 Health FSA Cap
By: Donald Berner

The IRS issued Notice 2012-40 yesterday (click here for the notice), providing a number of important clarifications regarding the $2,500 cap on health FSA contributions that applies beginning in 2013.  The most surprising development is the IRS's interpretation that the cap applies on a plan-year basis, rather than a calendar-year basis.  This is important for employers with fiscal-year plans.  They will be able to wait until the first plan year beginning after December 31, 2012, to implement the cap, rather than using the transition rule or early implementation of the cap to ensure contributions during the 2013 calendar year do not exceed the cap, as was previously thought necessary.

Other key guidance points include:

  • Clarification that unspent amounts carried over during a grace period will not count against the cap for the plan year in which the grace period occurs.
  • Confirmation that the cap only applies to employee salary-reduction contributions to a health FSA.  Employer contributions (e.g., flex credits) and salary-reduction contributions to dependent-care FSAs do not count, nor do amounts credited to HSAs or HRAs.

In addition to interpretive guidance, the Notice provides a limited correction rule that will allow fixing some good-faith mistakes.  If a mistaken election to contribute more than $2,500 to a health FSA in a year is properly corrected, the error will not jeopardize the plan's status as a qualifying cafeteria plan. 

Of academic interest, the Notice also requests comments on the use-it-or-lose-it rule.  The implication is that the $2,500 cap may be low enough      Continue Reading...

Jason Lacey Joins Kansas Employment Law Blog
By: Donald Berner

As if two ugly faces on this blog weren't bad enough, beginning in June you'll see three.

Jason Lacey is joining the Kansas Employment Law Blog to contribute content on employee benefits and related issues. Consistent with the theme of the blog, his posts will primarily focus on employer-related aspects of new developments and other considerations in employee benefits.

Jason is a partner with Foulston Siefkin LLP in Wichita. He is a hopeless fly fisherman and a worse golfer, so he wisely spends most of his time thinking about federal laws that most people love to hate - ERISA, HIPAA, COBRA, the Internal Revenue Code, and the like. He has two young daughters, who have convinced him that sleep and a full head of hair are overrated.

DOL FAQ's Update Guidance on the Summary of Benefits and Coverage (SBC)
By: Donald Berner

The Department of Labor (DOL) recently posted a new set of FAQs (click to here to read the FAQ) to its website providing additional guidance on the requirement under health care reform to give health plan participants a four page uniform summary of benefits and coverage (SBC).  Some highlights include:

  • A new electronic-distribution safe harbor that specifically allows for distribution of the SBC with online enrollment materials.
  • A transition rule for arrangements that are partly insured and partly self-funded (e.g., an insured high deductible plan with integrated self-insured HRA) that allows using two or more partial SBCs for the first year of applicability.
  • A non-enforcement rule for expatriate coverage during the first year of applicability, effectively suspending the requirement to provide an SBC for expatriate coverage during the first year.
  • Assurance that penalties will not be imposed during the first year of applicability on employers "that are working diligently and in good faith to comply" with the rules.

The detailed requirements for preparation and distribution of the SBC are described in final regulations issued by the IRS, DOL, and HHS earlier this year.  (Click here to see the final regulation.)  The requirement to distribute an SBC generally applies to the first open enrollment period beginning on or after September 23, 2012.

Happy Memorial Day
By: Donald Berner

Memorial Day is rapidly approaching.  Many of you may have plans to take a few days off and enjoy the official start to the summer vacation season.  Popular escapes include a wide variety of outdoor activities like camping and lake trips.  For those of you with kids playing sports, Memorial Day is also a popular time for tournaments.  With all of these recreational activities on our minds, let's not lose sight of the purpose for the Memorial Day holiday.  Memorial Day was originally established as a day of remembrance for those who died in service to the nation (read more here). 

In this spirit, it is a good time for employers to consider their obligations under USERRA, the federal law that protects returning service members as they re-enter the workforce following their military service.  USERRA protects veterans from discriminatory treatment and provides a variety of re-employment related protections.  For a quick review check out this summary of USERRA's protections.  The DOL has published a lengthy handbook related to USERRA, which can be found here.

No matter what your tradition, have a great and safe holiday weekend.

Facing the Music at Facebook: When the Tax Bill Comes for Equity Compensation
By: Donald Berner

Facebook's pre-IPO regulatory filings (click here) with the Securities and Exchange Commission (SEC) highlight a common issue with equity compensation programs -- the tax bill can be very large and trigger a burdensome withholding obligation.  Facebook reports that its employees and contractors hold about 378.5 million restricted stock units (RSUs).  Each RSU represents a right to receive one share of Facebook stock when the RSU vests.  The RSUs will vest approximately six months after the IPO.  Facebook is estimating a median IPO price of $36 per share.  If that valuation holds up, the RSU holders will vest in equity compensation worth approximately $13.6 billion.  Assuming a combined state and federal tax rate of 40%, that will produce a tax bill of about $5.5 billion.

A big tax bill can be a nice problem to have; however, employers are required to withhold taxes with respect to equity compensation as it vests, and the IRS wants to be paid in cash, not shares.  So where does the money come from?  In Facebook's case, it looks like they are planning to use a good chunk of the money they will receive from selling shares to the public in the IPO for business purposes; however, Facebook will likely hold back a percentage of the shares each employee would receive upon vesting of the RSUs and then use some of the cash from the IPO to make the required tax payments.  This is sometimes referred to as "netting down" the shares the employees receive.  It is convenient for employees, but requires the      Continue Reading...

New Election Rule Placed on Hold
By: Donald Berner

The NLRB's new quick election rule (also dubbed the ambush election rule), which took effect at the end of April, has quickly been shelved.  Yesterday, a federal district court ruled the election rule was improperly