Employment Law Lookout

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.

Sham, Scam, Khazaam! It’s Buyer Beware for Employment Tests and Assessments

Posted in Uncategorized

By Jeffrey Ross and David Jones [1]

There are tremendous advantages in effectively screening, testing and assessing candidates. Finding new hires who learn quickly, hit targets and advance is a major payoff. Reducing turnover, whether voluntary or involuntary, is another. Finding new hires who engage with their job, coworkers and organization is yet another. What’s key is doing it the right way.

There are any number of high-quality vendors in the world of employment testing and assessment. But we also see growing examples of pitfalls that employers need to avoid when they shop for the right program. Some sales pitches lead to claims that boil down to: “Trust us, our tests work.” That’s a sign of a buyer beware market.

Accepting claims like these can drive bad hiring decisions and raise the legal compliance risks of an employer’s hiring process. Too often we look at a claim about what a vendor’s test does and are concerned that the employer could be vulnerable if challenged.

To avoid wasting money and creating risk with poor employment testing tools, ask the vendor our questions below. Also seek proof that a vendor’s proposed testing tools actually work before moving forward. This will help you avoid Sham, Scam and Khazaam! claims such as:

  1. “Try Our Test with Your Top Performers”

When asked to explain how their testing tool works, some vendors tell the employer that all it needs to do is test the organization’s very best performers, and then compare future candidates to the resulting top-performer profile. The claim sounds convincing when presented by a talented sales person, but when you think about it, it’s truly a sham.

How would we know whether the poorest-performing employees score any differently than top performers? After all, don’t we want to be sure that the test actually distinguishes between the best versus the worst?

We were asked to help defend an employer where a vendor made such a claim. Yet the data showed that the employer’s top performers scored no differently on the test than its poorest performers. The result? Wasted money, bad hiring decisions and an invitation to legal challenge when the test produced different selection results for candidates of different ethnicity.

  1. “Try Our Test with Your Top and Bottom Performers”

Sometimes a vendor suggests testing a few of the employer’s best and worst performers. This sounds more sensible. But it’s almost as bad in its payoff and defensibility.

Picking just a few employees to compare, choosing extremes from the workforce or simply finding chance differences instead of statistically reliable ones will produce the same result: an unacceptable claim that the assessment tool really works.

There are clear standards that need to be met if the test is challenged. Using data based on small, atypical employee groups just won’t stand up. Instead, ask the vendor how to decide where to set the standard for candidates in the middle of the range and whether they’ve assessed a large enough group to produce statistically reliable results.

  1. “Our Tests Predict Candidate Performance”

Start with a basic concept: To defend a test from a disparate impact discrimination claim, an employer needs to show that the test predicts candidates’ on-the-job performance. This is the concept of “validity.” If the test has validity, it’s much more likely to be defensible. From a business point of view, if the test doesn’t predict a candidate’s job performance, why spend the money?

But what is the vendor claiming that its validated assessment tool actually predicts? Sometimes what’s predicted is a sham because it’s not really important. For example, vendors sometimes claim that candidate scores on their tool match the way supervisors evaluate employee performance. This can be useful, provided the evaluations reflect important work outcomes. But sometimes these claims simply show that the way candidates describe themselves on a test matches how their supervisors describe them. Is this really useful? What about linking test scores with objective measures such as productivity, performance targets or absenteeism? Employers need to ask a vendor:

  • What aspects of on-the-job performance can we expect your assessment tool to predict?
  • How accurate will these predictions be? What level of “hits” versus “misses” can we expect?
  1. “This Test Is Totally Legal”

Unfortunately, there is no such thing as a “legal” test. Whether a test is legal depends on where and how it is used. A test may be perfectly legal when used in one setting or in a given way, and absolutely illegal when used in another. But test vendors are not lawyers. Testing tools usually are created by psychologists, then marketed by sales staff. They generally do not understand the esoteric legal requirements applicable to testing. And that’s where the trouble starts.

Some vendors make bold representations that their test does not cause an adverse impact on any legally protected group. That may be true, but whether a test causes an adverse impact often depends on the composition of the candidate population being tested. And candidate populations differ widely.

Whether a test has an adverse impact also depends on the lawful application of the test. We reviewed the work of one vendor that eliminated adverse impact on African-Americans and Hispanics. How? The vendor used a minority group-based “fudge factor” to alter test scores. But Congress specifically outlawed that type of scam!

Another vendor claimed to perform adverse impact analyses based on “ethnic background.” But their technical report only analyzed data as “white vs. nonwhite” or “white vs. minority.” It provided no breakdown by race or ethnicity (i.e., African-Americans, Hispanics, Asians, etc.). So there was no way to determine from the report whether the test has an adverse impact on any legally protected group.

Then there was a testing expert who advised that it was lawful to continue using a vendor’s test as long as it caused no adverse impact, even though the test had no validity. It’s hard to imagine professional advice that is so truthful, yet at the same time so dysfunctional.

Some vendors are more creative. A vendor of a so-called personality test took liberties with the validation data to develop marketing materials that blatantly misrepresented the traits measured. But if you think that’s bad, the same vendor’s marketing materials also represented, without any basis, that the test would improve tax and regulatory compliance. You can’t make up this kind of scam. Employers can avoid many of these problems simply by posing questions like the following:

  • Will you document in writing your claim that it would be lawful to use your test for the jobs we have identified?

What will your firm do if we face a legal challenge for using your test?

Bottom Line: Ask Probing Questions

Employment testing and assessment can produce tremendous benefits. And many vendors are high-quality professionals who would never consider using Sham, Scam and Khazaam! strategies.

Too often, though, we find employers misled by claims of research and statistical evidence that fall outside their areas of expertise. Making “people decisions” based on vendor promises of “trust me, this will work” can produce some of the biggest losses you’ll ever see, and can keep you from growing a truly high-performance organization.

The principle is simple: Don’t settle for generalities. Find vendors who focus on tracking and continually improving how their product works for you. How you select people needs the same accuracy, monitoring and continuous improvement you use in growing your organization’s other high-value assets.

 

[1]               This article is adapted from one published by Mr. Ross and Dr. Jones in the February 2015 edition of Corporate Counsel.

SEC Cracks Down on Agreement Requiring In-House Reporting of Fraud Complaint

Posted in Whistleblower

By Ada W. Dolph, Christopher F. Robertson and Robert Milligan

The Securities and Exchange Commission (SEC) announced today that it had made good on its prior promises to take a hard look at employment agreements and policies that could be viewed as attempting to keep securities fraud complaints in-house. In KBR, Inc., Exchange Act Release No. 74619 (April 1, 2015), the agency announced an enforcement action and settlement with KBR in which KBR agreed to amend its Confidentiality Statement to provide further disclosures to employees regarding their right to communicate directly with government agencies, notify KBR employees who had signed the Statement in the past, and pay a $130,000 civil penalty.

The SEC concluded that KBR’s Confidentiality Statement violated SEC Rule 21F-17, adopted by the SEC after the Dodd-Frank Wall Street Reform and Consumer Protection Act was enacted in 2010. SEC Rule 21F-17 provides that “[n]o 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.”  Continue Reading

SCOTUS Rules on Pregnancy Accommodation Case

Posted in Absence Management & Reasonable Accommodation

By Camille Olson, Tracy Billows, Paul Kehoe and Ashley Laken

Earlier today in a 6-3 decision handed down in UPS v. Young, OPINION HERE the Supreme Court reversed a closely watched case which addressed whether denying pregnant workers accommodations was discriminatory under the Pregnancy Discrimination Act.  In a somewhat convoluted opinion, the Supreme Court provided some guidance, but nothing crystal clear, which leaves both employees and employers to wade through the sometime murky accommodation waters.

For a full analysis of the decision, see Seyfarth’s “One Minute Memo,”  HERE.

If you have further questions about the decision, please contact the authors, a member of the firm’s Absence Management and Accommodation Team, or your Seyfarth attorney.

Seyfarth Attorney Paul Kehoe’s Congressional Testimony on Wellness Plans

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

As you may remember, our colleague Paul Kehoe has written recently about wellness plans on the Employment Law Lookout, here and here.

Today, Paul testified before Congress on this very topic. The hearing was scheduled to begin at 10:00 a.m. ET. More details on the hearing can be found here. Paul’s written testimony is available here.

We will keep you updated as to further developments on this topic, so be on the “Lookout” (the Employment Law kind!) soon both for analysis on the topic and any for subsequent updates on the law.

DOL’s “Survey of Working Women” to be Updated

Posted in Workplace Policies and Processes

By Erin Dougherty Foley and Craig B. Simonsen

ELL postLast month, the U.S. Department of Labor, Women’s Bureau (WB), has issued a Proposed Information Collection Request (ICR) for a “Survey of Working Women.” 80 Fed. Reg. 10516 (February 26, 2015).

In its notice, the DOL notes that, not surprisingly, the labor force, employment opportunities, work environments, and the American family have changed substantially since 1994, when the WB published the results of its earlier Working Women Count! survey. The WB would like to conduct a new Survey of Working Women in order to identify “women’s current employment issues and challenges and how these issues and challenges relate to job and career decisions, particularly reasons for exiting the workforce.”

The WB is proposing to conduct a “quantitative survey,” that would collect information in order to identify employment issues and challenges currently facing women, including their perceptions on career choice and overall equity in the workplace, and also to explore the factors that contribute to women leaving and/or staying out of the workforce.

The original Working Women Count! report focused on compensation, work and family issues, and equal opportunity issues. For instance, the report concluded:

Solutions must come from many quarters. Positive change will require a cooperative effort, and the imaginations and talents of many individuals and organizations. Sixteen hundred partners joined the Women’s Bureau in this effort out of a shared concern and desire to understand what working women care about. Now each of us—government, business, unions, grass roots organizations and the media—has an important role to play. And we can each begin by discussing these issues with our own co-workers, our own community organizations, and our own families. We must build the consensus documented in this report into a national consensus for change.

The WB’s purposes, driving rationales, and conclusions may lead later to DOL rulemaking and policy initiatives.  Employers who wish to follow or even comment on this DOL project and process are invited to provide written comments to the ICR for a Survey of Working Women, which are due on April 27, 2015. We’ll be following it and will report back with new development.

Test Your Knowledge: Employee Handbook True/False Quiz

Posted in EEOC, NLRB, Workplace Policies and Processes

By: Tracy Billows

Although employers are not required by law to have employee handbooks, if an employer chooses to go down such a path, legal compliance and being current with latest trends is a must. A non-compliant employee handbook can be used in claims of discrimination, union grievances, and other employee-employer disputes. Does your employee handbook need to be updated? Test your knowledge of latest legal trends in employee handbooks.

True or False?

Employers should consider including a pregnancy accommodation policy in its handbook.

True. The Equal Employment Opportunity Commission issued Guidance in July, 2014 on pregnancy discrimination and related issues, including addressing accommodations of pregnant workers. Additionally, the issue of accommodating pregnant workers is on the U.S. Supreme Court’s agenda. A decision on this issue (Young v. UPS) is expected by the U.S. Supreme Court later this year. Regardless of the federal legal landscape, states and municipalities are passing pregnancy accommodation laws that require accommodation of pregnant workers, and in most cases provide greater rights and protections. Thus, employers need to review their employee handbooks for this issue.

True or False?

Non-union employers do not need to worry about the National Labor Relations Board guidance on Handbooks.

False. The National Labor Relations Act applies to all employers – union and non-union. The NLRB has been very active in challenging policies and handbooks of non-union employers, especially in the areas of Social Media, Employer Confidential Information and Rules of Conduct. All employers should be reviewing their handbooks in light of this guidance.

True or False?

There should be a carve out for the employment at will policy in any handbook that references the employer’s ability to change at any time any of the employer’s policies in the handbook.

True. It is best practice to include in any handbook a reference to an employer’s right to revise, modify or eliminate any policy at any time – except for the policy of at-will employment. An employer does not want to concede that a mere policy or handbook change can result in any changes to the at-will employment relationship that governs in most workplaces. It is important to maintain the at-will employment policy and relationship to prevent wrongful termination claims and breach of contract claims.

True or False?

We reviewed and revised our employee handbook in 2014 so we do not need to review again in 2015.

False. 2015 is shaping up to be a busy year in terms of employment law changes. The Department of Labor issued a final rule on same sex spouses and the Family Medical Leave Act.  Numerous states have paid sick leave laws taking effect in 2015. Pregnancy accommodation laws are continuing to be proposed and enacted. There are many other issues on the horizon and employers need to be paying attention to these developments.

How did you do? If you have any questions about this topic, please contact the author, who is also co-chair of Seyfarth’s Workplace Policies and Handbook Team, or your Seyfarth attorney.