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Can employers offer incentives to encourage participation in wellness programs that ask disability-related questions or require medical examinations? Though the Americans with Disabilities Act (ADA) permits health-related inquiries and medical examinations that are part of a voluntary health program, ADA regulations didn’t address whether employers may offer incentives to encourage employee participation in these health programs...until now.

They’re heeeere. No, not a poltergeist, though for many they may be just as unsettling. We’re talking about the new minimum wage and overtime exemption regulations for white collar employees under the Fair Labor Standards Act (FLSA). The long-awaited Final Rule has been released and is scheduled for publication on May 23, 2016.

The Final Rule focuses primarily on salary and compensation levels for the executive, administrative, professional, outside sales and computer employee exemptions, which are the FLSA’s so-called white collar exemptions. Since the Final Rule is not identical to the proposed rule published on July 16, 2015, let’s look at some of the differences.

Chances are there is a bully in your workplace, and that’s bad for business. The Workplace Bullying Institute (WBI) defines bullying as repeated mistreatment involving physically or verbally abusive conduct that is threatening, intimidating or humiliating, or that interferes with or prevents work from getting done. According to the WBI’s 2014 Workplace Bullying Survey:

• 27% are or have been victims of workplace bullying
• 21% have witnessed workplace bullying
• 23% are aware of workplace bullying
• 65 million workers are affected by workplace bullying

Though the frequency of workplace bullying may come as a surprise to some, the consequences should not. Workplace bullying typically increases employee turnover, decreases productivity, reduces job satisfaction, undermines morale, increases workers’ compensation costs and increases employment-related litigation costs.

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According to the Equal Employment Opportunity Commission, charges of religious discrimination brought under Title VII of the Civil Rights Act are steadily increasing. These charges often involve religious dress and grooming practices, such as:

• wearing religious clothing or articles, such as a Muslim hijab (headscarf), a Sikh turban or a Christian cross
• observing a religious prohibition against wearing certain garments, such as a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts
• adhering to shaving or hair length observances, such as a uncut hair and beard (Sikh), dreadlocks (Rastafarian) or peyes/side locks (Jewish)

  Title VII, which protects all aspects of religious observance, practice and belief, defines religion very broadly. It protects not only traditional, organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.

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The Equal Employment Opportunity Commission (EEOC) is on a mission. According to its Strategic Plan for Fiscal Years 2012 through 2016, the EEOC is focused on:

• combating employment discrimination with administrative (investigation, mediation, conciliation) and litigation enforcement mechanisms
• preventing employment discrimination with education and outreach activities
• delivering excellent and consistent services with effective systems.

The EEOC’s enforcement objectives and activities provide valuable insight into what employers should pay special attention to when dealing with equal employment opportunity matters. According to its Fiscal Year 2013 Performance and Accountability Report, the EEOC:

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Title VII prohibits retaliation against employees who engage in protected activity, such as opposing or alleging unlawful workplace discrimination. Those suing for unlawful retaliation must prove that there is a link between the retaliation and their protected activity. But, how strong must the link be? The U.S. Supreme Court recently answered this question in University of Texas Southwestern Medical Center v. Nassar.

In this case, Dr. Nassar alleged that his supervisor was biased against him on account of his religion and ethnic heritage. His supervisor once remarked that “Middle Easterners are lazy,” and, upon hearing that another physician of Middle Eastern descent was hired, the supervisor said that the hospital had “hired another one.” Dr. Nassar lodged several complaints about his treatment. Thereafter, a series of events led to Dr. Nassar leaving the hospital for another position. More...

Who is considered a supervisor under Title VII? Since our last article discussing Vance v. Ball State University, the U.S. Supreme Court has given us the answer. According to the Court, a supervisor is a person

empowered by the employer to take tangible employment actions against the victim; to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Vance involved allegations of racial harassment and discrimination in violation of Title VII. Though the parties disputed the precise nature and scope of the harasser’s duties, it was clear that the harasser did not have the power to hire, fire, demote, promote, transfer or discipline the plaintiff. Given the harasser’s inability to take a tangible employment action against the plaintiff, the Court held that the harasser does not qualify as a supervisor under Title VII. More...

In a previous article we discussed the Equal Employment Opportunity Commission’s (EEOC) position on the use of arrest and conviction records in the employment context. According to the EEOC, Title VII of the Civil Rights Act (Title VII) prohibits the use of arrest and conviction records in a manner that discriminates on the basis of race, color, national origin, religion, or sex. The EEOC recently reaffirmed its position by filing two lawsuits involving the use of criminal background records.

BMW Manufacturing Co.

The EEOC claims that BMW’s criminal conviction policy, which disproportionately screened out African Americans, is not job related and consistent with business necessity. The lawsuit alleges that BMW’s policy is a blanket exclusion that does not provide for an individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the workers’ respective positions. More...

Those of you following us on Facebook or Twitter know that the U.S. Citizenship and Immigration Service (USCIS) recently revised the Employment Eligibility Verification Form (Form I-9). Though optional since early March 2013, the revised Form I-9 will become mandatory on May 7, 2013. As of this date, employers must stop using prior versions of the Form I-9 and begin using the version dated 03/08/13. (The version date can be found at the bottom of the form.)

I-9’s are used by employers to verify the identity and employment authorization of every new employee hired in the United States, regardless of citizenship. This process is authorized by the Immigration Reform and Control Act to preclude the unlawful hiring, recruiting or accepting a fee for the referral of aliens who are not authorized to work in the United States. More...

Did you know that individuals can be held personally liable for violations of the Fair Labor Standards Act (FLSA)? The FLSA’s broad definition of employer includes “any person acting directly or indirectly in the interests of an employer in relation to an employee.” The Eleventh Circuit Court of Appeals recently considered when it is appropriate to hold someone personally liable for wage and hour violations under the FLSA.

In Lamonica v. Safe Hurricane Shutters, Inc., former employees sued their employer to recover unpaid overtime wages under the FLSA. The employees also sued two of the corporate-employer’s directors, arguing that they sufficiently controlled the corporation to justify holding them personally liable under the FLSA. To support their case against the directors, the employees showed that: More...

An employer’s liability for sexual harassment under Title VII of the Civil Rights Act depends on whether the harasser is a supervisor. If the alleged harasser is the victim’s co-employee, the employer may have various defenses to liability. However, if the harasser is a supervisor, Title VII’s strict liability standard may be triggered and the employer may be left defenseless.

So, who is considered a supervisor under Title VII?

Social media websites like Facebook have become the new water cooler. Once discussions (and gossip) about the workplace, supervisors and co-workers moved online, employers started getting curious about who was saying what to whom. More...

For those living or working in areas at risk of experiencing a tropical storm or hurricane, June 1st rarely passes unnoticed. At Setnor Byer Insurance & Risk, we understand that preparing for Hurricane Season is rarely easy and often stressful. We also understand that a lack of awareness and preparation can lead to disaster, and that the best way to limit the risks posed by hurricanes is to take preventative steps now. More...

Under the Fair Labor Standards Act (FLSA), employers are required to pay employees the appropriate minimum wage and overtime rate for every compensable hour worked. Determining the number of hours worked by an employee is ordinarily a routine matter. However, when travel time is involved, employers must understand that the FLSA treats different types of travel, well, differently. More...

Effective January 1, 2012, Florida’s minimum wage will be $7.67 per hour. This represents an increase of 36 cents over the 2011 minimum wage of $7.31 per hour. The minimum wage for tipped employees will increase by the same amount to $4.65 per hour, up from the 2011 minimum hourly wage of $4.29. More...

Some time ago, we posed the following question to our readers: Can an employer be held liable under Title VII of the Civil Rights Act (Title VII) for racial discrimination even though the actual decision-maker did not know that the employee was being fired because he was African American?More...

Many employers utilize the services of interns without giving much consideration to whether these volunteer workers should be compensated. In fact, employers often operate under the assumption that interns never need to be compensated. More...

Diversity in the workplace is a good thing. When men and women of different races, religions, ethnicities, and ages work together in an environment of tolerance and respect, the possibilities are limitless. More...

Does the Americans with Disabilities Act (ADA) require me to provide a reasonable accommodation for a probationary employee who qualifies as an individual with a disability? More...