Recently, in a case of first impression in the Third Circuit, a Delaware bankruptcy judge presiding over an adversary action in the Chapter 11 bankruptcy of Fresh & Easy LLC ruled that a class action waiver in an employment arbitration agreement violates the National Labor Relations Act (NLRA).
If you set goals late last year or early this year for workplace compliance to be completed in 2016 and have not yet met your goals, now is the time to revisit them. It is critical to allocate time and energy now to review your policies and achieve compliance with various statutes including the National Labor Relations Act, the Fair Labor Standards Act and the Fair Credit Reporting Act (“FCRA”) as the repercussions to employers for failing to do so are proving to be very costly. As was predicted for 2016, the trend of filing class actions for failure to comply with the requirements of the FCRA has and continues to grow.
The Americans with Disabilities Act Amendments Act (“ADAAA”) sought to broaden the scope of protection for disabled individuals which had been available under the Americans with Disabilities Act (“ADA”) by expanding the definition of “disability.” “Disability” is defined under both the ADA and ADAAA as “(i) a physical or mental impairment that substantially limits one or more of a person’s major life’s activities; (ii) a record of such impairment; or (iii) a condition regarded as an impairment.” Subsequent to the passage of the ADAAA, the Equal Employment Opportunity Commission (“EEOC”) issued regulations to provide guidance under the Act. According to these regulations, the “definition of the term ‘impairment’ does not include physical characteristics such as …weight… that are within the ‘normal range’ and are not the result of a physical disorder.”
It is now a part of the strategic business plan for most employers to have implemented some form of wellness program for their employees. These programs are intended to improve the health of employees with the goal of preventing sickness and motivating employees to lead healthier lives. From the employer’s perspective, these programs are aimed toward the critical financial goals of decreasing (i) the rising cost of healthcare, (ii) illness related absenteeism, and (iii) reduced performance while at work. Often, these programs include wellness screening tasks, including the collection of biometric data (height, weight, blood pressure, cholesterol, and blood glucose levels) to identify health risks. It is estimated that 80% or more of employers with a wellness program screen their employees for evaluation and preventive interventions. As part of the wellness landscape, however, the Equal Employment Opportunity Commission (EEOC) has been challenging employer wellness programs for allegedly violating the Americans with Disabilities Act (ADA).
On April 8, 2014, President Obama signed Executive Order 13665, amending section 202 of Executive Order 11246 which had previously prohibited employment discrimination by federal contractors based on race, color, religion, sex, sexual orientation, gender identity, and national origin. Executive Order 13665 added further protection for an employee’s or applicant’s inquiries, discussions, or disclosures regarding his or her own compensation or the compensation of another applicant or employee. This protection typically applies when the applicant or employee obtains this information through ordinary means such as a discussion or conversation with a co-worker.
For years, employers in the United States have become familiar and worked with federal, state, and local laws that prohibit harassment and discrimination based on certain specific characteristics, such as those set forth in Title VII of the Civil Rights Act. Increasingly, employers are having to deal with sometimes more subtle actions by employees and supervisors that are not directly related to any particular characteristic but may be just as, or more, destructive in the workplace. This activity is called bullying, and employers need to be aware of its high costs and the steps to prevent this activity in their workplaces.
For the last five years, the National Labor Relations Board (NLRB) has been aggressively reviewing and issuing decisions regarding employer rules and policies and whether such rules and policies violate Section 7 of the National Labor Relations Act (Act). What once started as a relatively limited review of social media policies has now broadened to other policies and procedures of employers, including the areas of confidentiality, email and technology use, and conduct in the workplace. These decisions by the NLRB have required many employers, both union and non-union, to revisit and redraft employee policies that could be interpreted to violate employee rights protected by the Act. However, even with the reported decisions, it was still difficult for an employer to know whether a policy “chilled” an employee’s Section 7 rights under the Act.
Currently, there are no federal laws that require paid sick leave. If an employer is subject to the FMLA (Family and Medical Leave Act), it is required to provide up to twelve weeks of unpaid leave to an employee under certain medical conditions when that employee is eligible. In many cases, an employer will require an employee to substitute paid leave for the unpaid FMLA leave. Similarly, the Fair Labor Standards Act requires that an employee only be paid for hours worked.