Employment Law Lookout

Boston Breakfast Briefing – You’re invited!

Posted in Workplace Policies and Processes

With the issuance of the proposed regulations on the Earned Sick Time Law and other recent changes to various leave laws in Massachusetts, leave and accommodation issues remain of particular concern to employers.

Please join Seyfarth Shaw’s Boston Labor & Employment team and Mike Firestone, co-author of the proposed regulations and the Director of Strategic Initiatives & Assistant Attorney General, for a careful review of the most recent changes in the laws and guidance towards compliance.   Get a sneak peak at the topics.  The event is scheduled for Wednesday, May 13, 2015.  Registration begins at 8:00 a.m., presentation at 8:30 a.m..

Please contact Events@seyfarth.com to register and for further information.

Send in the Drones: Transforming the Workplace through the Use of Drone Surveillance

Posted in Alternative Work Forces & Independent Contractors, Environmental, Safety, & Toxic Tort, Privacy & Social Media, Reductions-in-Force and Business Restructuring, Workplace Arbitration, Workplace Policies and Processes

By Johanna T. Wise and Andrew J. Masak

Every day new stories about the uses (and misuses) of drones surface in the media.

They have been used to: photograph the 2015 Winter X Games, assist in firefighting operations, monitor agricultural drought, monitor pipelines in remote areas of the world, and take pictures for realtors.  One drone even famously crashed on the White House lawn.  Clearly drones are opening up the world to a whole new set of technological possibilities – perhaps the most widely-published future use being Amazon’s stated position that within four to five years, it could have a fleet of octocopters delivering orders at customers’ doorsteps.  The sky’s the limit to what drones could conceivably be used for, and that includes the workplace.

The president of the Association for Unmanned Vehicle Systems – Michael Toscano estimates that drones could become an $82 billion, 100,000-job industry by 2025.  Indeed, one of the leading commercial drone manufacturers in the world is currently seeking investors for a $10 billion valuation according to media sources.

The Legal Landscape and Regulatory Framework

As with so many areas where law and technology find themselves uncomfortably intersecting, the legal landscape has yet to catch up with a robust legal framework.  A patchwork of state law has emerged, and at least 16 states have approved some form of legislation. Most of these laws focus on law enforcement and prevent the police from using a drone to collect information about an individual without first obtaining a warrant. A few states, however, have adopted privacy-related restrictions which prohibit using a drone to intentionally conduct surveillance on a person or private property in certain situations.

Outside the individual states, the Federal Aviation Administration (FAA) has attempted to flex its regulatory muscle by applying old rules and proposing new ones to better fit the rise of drones.  Currently, anyone in the U.S. who wants to fly an aircraft — either manned or unmanned — must obtain FAA authorization, and failure to do so may result in fines of ten thousand or more dollars.   With this in mind, several companies have already successfully navigated the existing FAA framework (oil companies, real estate companies, and even CNN have applied for authorization).  Thus, while the dust continues to settle, it’s not unlikely that businesses may turn increasingly to drones in the workplace.

Surveillance in the Workplace

The rise of drones has opened the door to countless possibilities.  Society as a whole, and the business community in particular, have barely scratched the surface in unleashing their capabilities.  Some ways employers specifically could harness the power of drones include:

General Monitoring for Discipline or Safety - Perhaps the greatest potential for drones in the workplace involves using drones instead of traditional video cameras as surveillance devices.  Drones can access places where stationary cameras can’t.  What’s more, they can follow an employee and get a more complete picture of an incident. In this way, drone surveillance can aid an employer in disciplining an employee and reviewing accidents and safety issues.

Monitoring Employees Claiming Leave Status -Video surveillance of employees outside the workplace claiming workers’ compensation or disability benefits already occurs.  Indeed “watching” an employee claiming a benefit under false pretenses is a powerful tool employers and disability insurers alike use.  Drones may help facilitate greater monitoring of employees who are claiming leave status under false pretenses.

Non-Compete, Non-Solicit, and Trade Secrets Monitoring – Will employers be able to use drones in unique ways monitoring their trade secrets?  Is it possible for employers to program drones to help monitor whether employees are soliciting customers or other employees? Or are these uses still a bridge too far?

Several concerns and potential pitfalls remain.  Although current Federal law does not generally require an employer to provide notice to an employee and obtain consent to video surveillance in public areas in the workplace, state and local laws may impose additional requirements or limitations. Moreover, it remains a best practice to provide advance notice and warning to employees of video surveillance, drone or otherwise. Thus, as a threshold matter, employers considering using drones in the future to provide surveillance of their workers should strongly consider obtaining consent from employees before implementing any drone program.  Employers facing a unionized workforce should be especially cognizant of consent issues as drone usage would likely constitute a material change to the terms and conditions of employment that is subject to collective bargaining.

The use of drones to monitor employees and any resulting discipline could open employers up to potential discrimination claims. Just as the use of drivecams in vehicles or other tracking technologies must be applied in a non-discriminatory manner, so too should employers consider their use and application of drone surveillance.  Any selection decision or resulting disparate impact based on a protected category could arguably be found to violate the law. In this regard, employers considering using drones would be well advised to maintain policies and procedures describing how they use drones and a neutral process for selecting who will be monitored and under what circumstances.

For more information on the use of drones in the workplace, please contact the authors or your Seyfarth attorney.

The Supreme Court Weighs The Constitutionality Of Restricting Marriage To Opposite Sex Couples, And The Impact Their Decision May Have For Employers

Posted in Diversity, Retention & Pay Equity, EEOC, Hiring, Testing & Selection, Workplace Policies and Processes

By Lynn Kappelman, Laura Maechtlen, Sam Schwartz-Fenwick and Michael Stevens

Background

Today, the U.S. Supreme Court heard oral argument on two questions regarding the Constitutionality of state laws limiting marriage to opposite-sex couples. In 2013, the Supreme Court side-stepped the issue when it dismissed Perry v Hollingsworth on standing grounds. In 2013, the Court also ruled in United States v. Windsor that the Federal government must extend Federal rights and benefits to legally married same-sex couples. The Windsor decision set in motion a sea-change in the law, and presently thirty-seven states and the District of Columbia recognize marriage equality.

Today, the Court heard arguments on four consolidated cases presenting two questions: first, whether the Constitution requires the states banning same-sex marriage to issue marriage licenses to same-sex couples; and second, whether those states must recognize same-sex marriages performed elsewhere. If the Court decides the first question and recognizes a constitutional right to marry, same-sex marriage will be legal in all 50 states, and the Court will not need to decide the second question.

A more complicated scenario could emerge if the Court finds that the Constitution does not guarantee all same-sex couples the right to marry and upholds these state bans, but requires the states to recognize same-sex marriages performed elsewhere. Under those circumstances, the legal status of a same-sex couple’s marriage would depend on where the marriage was performed. Further, a holding that the Constitution does not guarantee same-sex couples the right to marry may permit states, whose marriage bans were struck down by lower courts, to argue that those bans should be given full effect on a prospective basis. In other words, the current patchwork of laws would persist (and perhaps become even more inconsistent) if the Court does not find a constitutional right to marry.

Impact on Employers

Presently, multi-state employers are faced with a non-uniform mixture of state and federal law that impacts how they provide same-sex couples benefits and employee protections, and is necessarily based on whether their employees’ same-sex marriages are legally recognized (and in certain cases where their employees reside). If the Supreme Court finds a constitutional right to marry, the remaining marriage bans will be nullified, and employers will be able to conform certain employment policies to cover same-sex spouses. For employees in newly-recognized marriages, these benefits and policies may include those governed by the following laws:

  • The Employee Retirement Income Security Act (“ERISA”), which provides certain protections to spouses (e.g., a spouse is a beneficiary under retirement plans unless the spouse consents to another beneficiary);
  • The Family Medical Leave Act, which provides leave to care for a spouse with a serious health condition;
  • Federal and State tax laws implicating health benefits provided by employers to their employees (generally exempt from the Internal Revenue Code for spousal coverage);
  • COBRA continuation coverage.

Even if the Court recognizes a constitutional right to marry, a curious result will occur in states that do not extend anti-discrimination protections to LGBT individuals: gay individuals will be able to lawfully wed, but their employers will still be able to fire them because their LGBT status is not protected under state or federal law. While the instant decision will not resolve this issue, the language the Court uses in its opinion may signal whether the Court is willing to open the door to the argument that Federal anti-discrimination laws protect LGBT individuals.

If the Court decides the issue narrowly (e.g., by finding that marriage bans fail rational basis scrutiny as an impermissible form of animus), then the impact of the decision may be limited to marriage equality. However, if the Court finds that laws targeting LGBT people are subject to heightened scrutiny, then the impact could be wider. Such an expansive ruling from the Court could buttress that position (increasingly argued by the Plaintiffs’ bar and the EEOC) that LGBT discrimination is a form of sex discrimination, and is thus barred under Title VII.

If the Court does not recognize a right to marry, but requires states to recognize same-sex marriages performed elsewhere, employers may then have to examine the wedding licenses for their same-sex employees to ensure that the marriage took place in a state where the marriage was legal. This administrative burden is likely de minimis, given that most employers already require proof of marriage before extending spousal benefits to an employee’s spouse. The greater burden is on employees who may lack the resources necessary to travel out of state to marry.

Because there are two separate questions before the Court, and the Court could decide the issue in a number of different ways, it is difficult to project the precise impact of the decision (on both same-sex couples and employers) before it is rendered. Stay tuned because Seyfarth will update this analysis once the opinion is issued, and we anticipate that will happen at the end of the Court’s term in June.

The Supreme Court Grants Certiorari In Spokeo – No Harm, No Standing?

Posted in Workplace Arbitration, Workplace Policies and Processes

By Pamela Q. Devata, Gerald L. Maatman, Jr., and Robert T. Szyba

blogYesterday the U.S. Supreme Court granted the petition for writ of certiorari filed in Spokeo, Inc. v. Robins, No. 13-1339 (U.S. Apr. 27, 2015).

As we previously reported, the Spokeo petition poses a question with a significant impact on the future scope of consumer and workplace-related class actions: whether Congress can confer standing on a plaintiff who suffers no concrete harm, but who instead alleges only a statutory violation?

 

Supreme Court Grants Review Despite Government’s Opposition

The Supreme Court rejected the Solicitor General’s recommendation to deny certiorari or simply avoid the broader question of Congressional power and instead focus on the specifically alleged injury in Spokeo (the public dissemination of inaccurate personal information) and the specific statute at issue (the Fair Credit Reporting Act or “FCRA”), and granted certiorari regarding the broader question of congressional power.

Implications For Employers

The Supreme Court’s ultimate decision in this case is likely to have a significant impact on congressional power as well as the future of consumer, workplace, and other class actions.  Although rooted in the complex arena of separation of powers between the Congress and the federal judiciary under Article III of the Constitution, the Supreme Court’s future decision is likely to have a practical impact on the viability of claims under a variety of federal statutes, including the FCRA.  Ultimately, the Supreme Court’s determination is likely to answer a simpler question than the one presented:  Can plaintiffs sue for the violation of a statute when they can show no actual injury or harm that they have suffered?

The Supreme Court may limit Congress’ power to create private causes of action based solely on statutory violations, and require plaintiffs to plead and establish actual injury — not just a violation of the underlying statute.  Congressional power and the number of viable class actions under the FCRA and other federal statutes may be limited.  This decision would likely discourage the current wave of consumer, workplace, and other class actions seeking millions in statutory damages.  On the other hand, a decision allowing individual and class claims to go forward alleging only statutory damages without injury in fact would likely have the opposite outcome, resulting in claims based on alleged violations of statutory requirements, brought by individuals who suffered no adverse consequence of the identified possible violation.

Stay tuned as we monitor the developments in this case.

Aggressive Enforcement Efforts Will Continue After KBR, Per SEC Whistleblower Chief

Posted in Whistleblower, Workplace Policies and Processes

By Ada W. Dolph

In a post-script to the SEC’s April 1 cease and desist order penalizing KBR, Inc. for a confidentiality statement that failed to carve out protected federal whistleblower complaints (our alert on it here), SEC Office of the Whistleblower Chief Sean McKessy today made additional comments that suggest public companies as well as private companies that contract with public companies should immediately review their agreements for compliance.

In a webinar sponsored by the American Bar Association titled “New Developments in Whistleblower Claims and the SEC,” McKessy commented on the recent KBR Order. Here are the key takeaways:

SEC Rule 21F-17 is “Very Broad

McKessy stated that he views the SEC Rule 21F-17 as “very broad,” and “intentionally so.” The Rule provides in relevant part:

(a)       No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.

McKessy said that he reads the Rule as stating that “no person shall take any action” to impede an individual from communicating directly with the SEC.

Agreement Review a Continued High Priority for the SEC

McKessy stated that this initiative remains a “priority” for him and his office. “To the extent that we have come across this language [restricting whistleblowers] in a Code of Conduct” or other agreements, the SEC has taken the position that it “falls within our jurisdiction and we have the ability to enforce it.”

He noted that “KBR is a concrete case to demonstrate what I have been saying,” referencing public remarks he has made in the past regarding SEC scrutiny of employment agreements. He stated that the agency is continuing to take affirmative steps to identify agreements that violate the Rule, including soliciting individuals to provide agreements for the SEC to review. Additionally, he reported that the SEC is reviewing executive severance agreements filed with Forms 8-K for any potential violations of the Rule.

The KBR Language is Not a “Safe Harbor”

When asked whether the language required as part of the KBR Order constituted a “safe harbor,” McKessy stated that he would “not go that far,” and that each agreement will be viewed in context. He described the language in the KBR Order as “certainly instructive” but “not restrictive” and not insulating a company from further scrutiny by the SEC. He also stated that it is “really not appropriate for me to bless any language,” and suggested that the same language could be acceptable in one context but not in another depending on the company’s approach to encouraging employees to come forward to report alleged securities fraud.

KBR Could Be Applied to Private Companies

McKessy was also asked whether the SEC would apply the KBR Order to private companies under the U.S. Supreme Court’s 2014 ruling in Lawson v. FMR LLC, 134 S.Ct. 1158 (2014), which expanded Sarbanes-Oxley’s whistleblower protections to employees of private companies who contract with public companies.

McKessy stated that the SEC has not officially taken a position on this issue, but in his personal opinion he can “certainly can see a logical thread behind the logic of the Lawson decision” to be “expanded into this space [private companies],” and that “anyone who has read the Lawson decision can extrapolate from it the broader application.”

SEC Not Bound By Agreements Precluding Production of Company Documents

McKessy was asked regarding the SEC’s position regarding the disclosure of company documents by whistleblowers in their complaints to the agency. He said that it will “surprise no one that companies have a 100% record” of preferring that company documents not be provided to the SEC. But, “[a]t the end of the day” he stated that any kind of agreement restricting an employee from providing company documents to the SEC is not enforceable against the SEC and companies should not “bank on the fact” that the SEC would “feel bound” by that agreement in any way.

McKessy took a more measured approach with regard to privileged company documents, however. McKessy stated that the SEC is “not interested in getting privileged information” and that the SEC discourages whistleblowers and their counsel from providing privileged information as part of their complaints. He noted that while there are “certain exceptions to privilege,” he would “hate to leave the impression that [the agency] is looking to create to create an army of lawyers who can ignore their confidentiality requirements because of the possibility of being paid under our [Dodd-Frank bounty] program.”

Next Steps for Companies

McKessy concluded his remarks on this issue by stating that “[t]his is the time for the company to take a look at standard, standing severance and confidentiality agreements.”

In short, it is clear that we can expect further SEC enforcement actions in this area. Public companies and private companies that contract with public companies should consult with counsel to review their employment agreements to be sure they will not be the next to be caught in the SEC’s crosshairs.

Ada W. Dolph is Team Co-Lead of the National Whistleblower Team. If you would like further information on this topic, please contact a member of the Whistleblower Team, your Seyfarth attorney or Ada W. Dolph at adolph@seyfarth.com.

Beware Strangers Bearing Gifts! DOL Promotes “Free” National Safety Council “Cell Phone Policy Kit”

Posted in Workplace Policies and Processes

By Erin Dougherty Foley and Craig B. Simonsen

Blog1In a DOL blog posted last week we learn that driving-related crashes are the number one workplace killer.

Remember … we’ve warned against driving and phone usage before. “Employees Using Cellphones And Other Portable Devices While Driving: Should Employers Ban This Completely?”, and “Employees Driving In Illinois? What Employers Need to Know”.

The DOL blog, prepared by Deborah Hersman, the CEO and President of the National Safety Council, estimates that cell phones are involved in approximately 26 percent of all driving crashes. While reminding everyone that April is “Distracted Driving Awareness Month,” the NSC stressed that “more than 30 studies show hands-free devices are no safer because the brain remains distracted by the conversation. When talking on a cell phone, drivers can miss seeing up to half of what’s around them, such as traffic lights, stop signs and pedestrians.” (Put the phones down, people‼)

In light of the statistics and the real-life dangers, and as we have previously noted, a number of Fortune 500 companies have already voluntarily adopted complete cellphone-bans for their employees while driving. While employers may be concerned that these bans may impact productivity, the Vice President for Safety at Owens Corning has previously stated that “our position is, quite simply, that we don’t make safety decisions based on productivity.”

To the extent that your organization involves employees that are required to drive vehicles in their job duties, a cellphone company-wide policy may both help to limit corporate liability for accidents that occur, and save the lives of your employees and others on the road.

If you have any questions about this new “free cell phone policy kit” or policies related to banning distracted driving, please contact the authors, a member of Seyfarth’s Workplace Policies and Handbooks Team, or your Seyfarth attorney.

 

 

New York City To Prohibit Use of Credit History in Employment Decisions

Posted in Background Screening, Hiring, Testing & Selection, Workplace Arbitration, Workplace Policies and Processes

By Pamela Q. Devata, Cameron Smith, and Courtney S. Stieber

On April 16, 2015, the New York City Council passed Intro-261-A, a bill that would amend the New York City Human Rights Law to make it an unlawful discriminatory practice for an employer to use an individual’s consumer credit history in making employment decisions. In particular, the bill makes it unlawful for employers not just to use an applicant’s credit history, but also to request it for employment purposes. The bill’s protections extend beyond the hiring process to current employees by prohibiting employers from considering consumer credit history broadly with regard to “compensation, or the terms, conditions or privileges of employment.”

With this bill, New York City will become the twelfth jurisdiction in the country to prohibit employers from using credit checks to screen job applicants, joining California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, Washington, and the city of Chicago. See our prior posts on California, Colorado, Nevada, and Vermont’s laws.

The bill carves out the following exceptions, so that the law will not apply to:

–           employers required by state or federal law or regulations, or by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act to use an individual’s consumer credit history for employment purposes;

–           police officers, peace officers, or those in a position with law enforcement or investigative function at the department of investigation (or in certain positions subject to background investigation by the department of investigation);

–           positions requiring the employee to be bonded by City, state or federal law;

–           positions requiring the employee to possess a security clearance under federal or state law;

–           non-clerical positions having regular access to trade secrets, intelligence information or national security information;

–           positions having signatory authority over third party funds or assets valued at $10,000 or more, or positions that involve a fiduciary responsibility to the employer with authority to enter financial agreements on behalf of the employer for $10,000 or more;

–           positions that allow the employee to modify digital security systems protecting the employer or client’s networks or databases.

These exceptions are more narrow than legislation in other jurisdictions, which, by way of example, provide exceptions for managerial positions, financial institutions, or positions where the credit report is substantially related to the job.

Mayor Bill de Blasio is expected to sign the bill, and the law will be effective 120 days following enactment.

Remedies

By amending the New York City Human Rights Law, the bill’s prohibition on credit checks will apply to New York City employers of four or more individuals, and will be enforceable through the City Commission on Human Rights or by civil action, with the potential for attorneys’ fees and punitive damages. In addition, the New York City Human Rights Law uses a broader interpretation of “adverse action” than found under state or federal nondiscrimination laws.

Recommendations

Employers in New York City that use credit reports or information are well advised to evaluate and reassess their practices and procedures with respect to employment-related credit checks in anticipation of the law taking effect.

The EEOC’s Proposed Wellness Plan Regulation: Some Progress, But Issues Persist

Posted in EEOC, Title III Access, Workplace Policies and Processes

By: Paul H. Kehoe and Lawrence Lorber

EEOC-logo2-150x150Earlier today, the EEOC published its much anticipated Notice of Proposed Rulemaking (“NPRM”) regarding the interaction between wellness plans and the Americans with Disabilities Act (“ADA”). As we have discussed here and here, the issue of whether an incentive or surcharge permitted (indeed, encouraged) under the Patient Protection and Affordable Care Act (“ACA”) is nonetheless impermissible under the ADA and GINA has caused consternation for the regulated community. The EEOC’s proposed rule provides some clarity on that issue, but raises or ignores additional concerns for employers offering wellness plan incentives to employees. The comment period will close on June 19, 2015.

The 30% Rule

Under the Affordable Care Act (“ACA”) and its implementing regulations issued by the Departments of Labor, Treasury and Health and Human Services, employers may offer financial incentives to employees up to 30% of their health care premiums for participating in and reaching certain health outcomes in a wellness plan and up to 50% for smoking cessation programs. The EEOC however, has added a nuance to the nicotine prevention component of the ACA and HIPAA. Under the NPRM, if an employer conducts a biometric exam to test for nicotine, any incentive would be capped at 30% instead of 50%. If no disability-related inquiry is made, a 50% incentive is permissible.

In addition, the NPRM does not specifically adopt the “HIPAA / ACA standard” but instead imposes hard percentage caps. If the percentages rise or fall in the future at the behest of those Secretaries, the EEOC’s adoption of hard numbers would then again leave the EEOC inconsistent with the Cabinet-level agencies.

The ADA Safe Harbor

Section 501(c) of the ADA provides that it cannot be construed to prohibit or restrict “a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.” In its discussion of Seff v. Broward Cty., 691 F.3d 1221 (11th Cir. 2012), the NPRM seems to definitively reject the notion that any wellness plan can be part of a bona fide benefit plan. In other words, the EEOC rejects the premise that a wellness plan can be structured to fall within the safe harbor established by the ADA. The fact is, some wellness plans fall within the safe harbor, and some do not.   While the EEOC may disagree with the 11th Circuit’s decision in Seff, it seems to have gone beyond its disagreement with the Seff decision and has unilaterally written the safe harbor out of the statute. The EEOC lacks that authority.

A Question About Affordability

Under the ACA, employers are not required to provide health insurance. Instead, an employer can choose to pay a fine. Even where an employer offers health insurance, it only must offer a single plan that is affordable, and even then, employees can choose whether to enroll in that plan or a more robust plan that may not meet affordability standards.

However, in the NPRM, the EEOC specifically requested comments on the following:

Whether to be considered “voluntary” under the ADA, the incentives provided in a wellness program that asks employees to respond to disability-related inquiries and/or undergo medical examinations may not be so large as to render health insurance coverage unaffordable under the Affordable Care Act and therefore in effect coercive for an employee…

Where such incentives would render a plan unaffordable for an individual, it would be deemed coercive and involuntary to require that individual to answer disability-related inquiries[.]

If an employer would have to test affordability under some as yet to be determined test for each of its plans for each employee, then the same wellness plan incentives could conceivably be voluntary for some employees, and non-voluntary for other employees. Such an outcome was not contemplated by the ACA or the implementing regulations, and would likely chill employers from offering any wellness plan incentives — exactly the opposite of Congressional intent and contrary to White House statements. Nor does the EEOC provide statutory support for its question regarding affordability so that the basis of this discussion in the rulemaking process would seem to be unanchored to any statutory provision.

Spousal Incentives

The regulated community has, for years, raised concerns about EEOC investigations into incentives offered to employee spouses for completing health risk assessments where information related to manifested conditions is inquired about. Indeed, this was part of the Honeywell litigation late last year. Unfortunately, the EEOC failed to address the issue and continues to leave the regulated community and its career staff without guidance.

Implications For Employers

While the rule, if promulgated, would provide some clarity for employers, it would also raise some important questions related to the EEOC’s power to strip employers of a statutory defense, and potentially muddy the waters if an affordability standard is included. In addition, the NPRM opens the door to uncertainty with reference to wellness program-related claims under Title VII and the ADEA as well. Given these potential issues and more that will inevitably arise in the coming weeks, it is important for the regulated community — employers, wellness program providers, and others — to consider submitting comments for the record regarding the pros and cons of the proposed rule. As we have throughout this entire process, we will keep you posted on any developments.

So Is Telecommuting A Reasonable Accommodation? Not So Fast Says The Sixth Circuit, Reversing Course.

Posted in EEOC, Hiring, Testing & Selection, Reductions-in-Force and Business Restructuring, Workplace Arbitration, Workplace Policies and Processes

By Sara Eber Fowler and Johanna T. Wise

Last week, an en banc panel of the Sixth Circuit Court of Appeals took a fresh look at whether Ford Motor Company’s decision to deny an employee’s request to telecommute four days a week violated the ADA. Reversing its prior ruling from last year (previously reported here), the 8-5 panel in E.E.O.C. v. Ford Motor Company held that the employee’s request (citing her irritable bowel syndrome) was not a reasonable accommodation. (Employers collectively breathing a sigh of relief!)

As the opinion concedes, the decision does not tell us anything novel. It notes, as many courts have, that providing a reasonable accommodation “does not include removing an ‘essential function’ from the position, for that is per se unreasonable.” Rather, on the specific facts before it, the majority determined that “regular and predictable on-site job attendance” was an essential function of Harris’ position as a resale buyer. Accordingly, Harris’ request to be able to work from home the majority of the workweek – unscheduled and when she wanted – was not reasonable, and she could not perform her job with or without an accommodation.

The decision may certainly knock the wind out of the sails of the EEOC and others touting telecommuting as a virtual inevitability given the expanding use of technology in the workplace. Without doubt, the opinion provides strong support that an employer’s consistent, bona fide determination that in-person attendance is an essential job function may be given deference. But companies should think twice before ordering their workforce back to the job site. As we have previously noted, determining whether telecommuting is a viable reasonable accommodation still requires an individualized, case-by-case assessment.

In evaluating an employee’s request to telecommute as an accommodation, like any accommodation request, it’s best to start with identifying the position’s essential functions.   Can the majority of those functions be performed from home or do they need to be performed at a physical job site? Consider whether the position requires face-to-face interaction with customers and clients, supervision of other employees, dynamic interactions with other co-workers, and use of specific equipment only available at the office. In Ford, the court emphasized that, while technology may be advancing in society at large, Harris’ resale buyer role required teamwork and interacting with others that was best done face-to-face. It considered that Ford had buyers work in the same building as the suppliers they met with so that they could have spontaneous, in-person meetings. For the court, this reinforced the legitimacy of Ford’s judgment that on-site attendance was important – and an essential function of the job.

Consistency also remains key. Consider your company’s telecommuting policy and practices – do other employees with similar positions telecommute? If so, ensure that any accommodation request is being considered consistent with the company’s standard practices and prior decisions. (And if you don’t have a telecommuting policy, think about implementing one!) In Ford, even though other buyers telecommuted occasionally, the court still found Harris’ accommodation request unreasonable, differentiating between those who worked remotely one day a week and Harris’ request to work up to four days from home.

Finally, we can’t forget the hallmark of any accommodation request: the interactive process. This includes participating in a dialogue with the employee and considering whether other accommodations may allow the employee to perform the job’s essential functions. It’s worth mentioning that Ford tried three times to have Harris telecommute, without success, and also proposed alternative accommodations that Harris rejected. Remember: an employer is only obligated to provide a reasonable accommodation, not an employee’s choice accommodation.

So keep doing what you’re doing! Despite this opinion, requests to telecommute as an accommodation will surely continue. Ensure your job descriptions are up-to-date, review your telecommuting policies and practices, and continue examining each accommodation request on a case-by-case basis. The work you put in – be it from home or the office – will be worth the investment as you consider requests to telecommute.

For more information on telework as a reasonable accommodation, please contact the authors, a member of the Absence Management and Accommodations Team, or your Seyfarth attorney.

DOL Online Enforcement Database Looks Closely at Industry and Corporate Trends

Posted in OSHA Compliance, Wage & Hour Compliance, Workplace Policies and Processes

By Erin Dougherty Foley and Craig B. Simonsen

pic.docxIn a recent “shinny” blog by Jesse Lawder, the U.S. DOL’s Chief of Staff (Acting), Office of Public Affairs, we are told – again – that an “open, transparent government is one of the hallmarks of democracy.” It seems, though, that the government is shining its lights on business interests.

Lawder’s purpose for the blog was in support of Sunshine Week (March 15-21, 2015), a national initiative to promote a dialogue about the importance of open government, freedom of information, and the public’s right to know. He indicates that “we understand the importance of collaborating closely and transparently with all stakeholders, including employers, to give workers a voice. This is not just the right thing to do, it’s also good for business and good for the economy.” (Emphasis added.)

To demonstrate one of the DOL’s “flagship initiatives” for open government, Lawder points to the Online Enforcement Database (OED). This website combines the enforcement data, collected by the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Programs, the Employee Benefits Security Administration (EBSA), the Occupational Safety and Health, Administration (OSHA), and the Mine Safety and Health Administration (MSHA), in the exercise of their missions, to make it “accessible and searchable.” DOL indicates that it intends, also, “to engage the public in new and creative ways of using this data.”

While the OED was first launched in April 2010, it now includes previously unpublished information. Prior to OED’s introduction only OSHA and MSHA databases were available online. Now, however, the website boosts geocoding with Wage and Hour case and violation data available to map, along with a FLSA Repeat Violators chart. While not previously available, now you can search select databases for both a Company Name and Year of possible violation.

Other added features include new agency specific search criteria for the following agencies datasets:

  • WHD can now be searched using: Violation by Act, FLSA Repeat Violator, Civil Monetary Penalty, and Back Wages Agreed to Pay.
  • EBSA can now be searched using: Plan EIN, Plan Admin, Plan Name, Case Type, and Penalty Range.
  • OSHA can now be searched using: OSHA Office, Case Status, Inspection Category, Inspection Type, Union Status, Violation Type, Employees Exposed, Accident, and Degree of Injury.
  • MSHA can now be searched using: Mine ID or Current Mine Name, Operator ID or Name, Controller ID or Name, Mine Type, Coal/Metal, Mine Status, Significant Violation, and Violation by Act.

Lawler notes that the OED is used frequently by the press and other stakeholders. “It allows the public to look closely at industry and corporate trends – assessing gaps and possible areas where policies could be altered or enhanced to provide even more value.”

Businesses and industries may well be alarmed at the ever growing easy access to and availability of what had always been considered closely held “private” information. While making this information available on a huge scale sounds laudable, companies may wish to look [first] at the data and information that is being presented about their interests. While the genie seems to be out of the bottle, having a complete picture of the genie before being asked about it, or being able to respond to data that might be incorrect, may be a corporate plan worth considering.

For additional information regarding these “open and transparent” databases, or the impact on business, please contact the authors, or your Seyfarth attorney.