Facebook, Twitter, LinkedIn, YouTube, RSS, EmailFacebookTwitterLinkedInYoutubeRSS News FeedEmail

News

EEOC Clarifies Permissible Use of Incentives in Wellness Programs

by Martin Salcedo, Esq. - The Human Equation on 8/11/2016
wellness programs

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.

More...

Nudge, Nudge. OSHA Revises Injury and Illness Recordkeeping and Reporting Requirements

by Martin Salcedo, Esq. - The Human Equation on 7/7/2016
workplace safety is important and OSHA wants to regulate any accidents

Did you know that each year there are more than 3 million serious (requiring more than first aid) workplace injuries and illnesses? Even though the Occupational Safety and Health Act requires employers to provide safe and healthy workplaces, the number of injuries and illnesses remains unacceptably high. To help combat this problem, the Occupational Safety and Health Administration (OSHA) recently revised various workplace safety regulations.

More...

New FLSA White-Collar Overtime Exemption Rules Are Coming...Maybe Sooner Than You Think!

by Martin Salcedo, Esq. - The Human Equation on 4/14/2016
clock depicting overtime

It’s been over two years since President Obama directed the Department of Labor (DOL) to update the ‘white-collar’ overtime exemption regulations under Fair Labor Standards Act, including the executive, administrative and professional exemptions. It’s been nearly a year since the public was first given an opportunity to see and comment on the DOL’s proposed revisions. (The DOL received 293,389 comments.) Now, it seems we are one (huge) step closer to new white-collar overtime exemption rules becoming a reality.

On March 14, 2016, the DOL’s final version of the revised overtime exemption regulations was submitted to the White House's Office of Management and Budget (OMB) for review. Once the OMB completes its review, the final regulations will be published. After that, it’s just a matter of time.

More...

Tags: , , , , ,
Categories: 2016

EEOC Updates Pregnancy Discrimination Act Enforcement Guidance

by Martin Salcedo, Esq. - The Human Equation on 8/27/2014
pregnant woman's stomach

In 1978, the Pregnancy Discrimination Act (PDA) was added to Title VII of the Civil Rights Act to prohibit employment discrimination based on pregnancy, childbirth and related medical conditions. In July 2014, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance regarding pregnancy in the workplace. It has been over 30 years since the EEOC last issued any PDA guidance.

The EEOC’s guidance identifies two fundamental requirements of the PDA:

  • Covered employers, which are generally employers with 15 or more employees, may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions.
  • Women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

The PDA, which covers all aspects of employment, including firing, hiring, promotions and fringe benefits (leave, health insurance, etc.), prohibits discrimination based on an employee’s:

More...

When Does Disability Leave Become an Unreasonable Accommodation?

by Martin Salcedo, Esq. - The Human Equation on 7/9/2014
court room

When has an employer done enough to avoid liability for disability discrimination? Though hard and fast rules are rare in employment discrimination cases, particularly those involving disabilities, the Tenth Circuit Court of Appeals recently held that employers are almost never required to provide more than 6 months leave to an employee with a disability.

The quality versus cost argument is nothing new especially when it comes to insurance. Consumers who pay less tend to get less, whether in the form of coverages, limits or financial security. And, when people choose cost over quality, it usually means they are uninformed about what they really need.

In Hwang v. Kansas State University, an assistant professor working under a one year employment contract was diagnosed with cancer. KSU gave Ms. Hwang a six-month paid leave of absence so she could get treatment. On the advice of her doctor, Ms. Hwang requested additional time off. According to Ms. Hwang, KSU refused her request and effectively terminated her employment.

More...

Warning: Whistleblowers Must be Handled with Care

by Martin Salcedo, Esq. - The Human Equation on 6/4/2014
judge's gavel

Though dealing with a disgruntled employee can be hard, various anti-retaliation protections make it even harder when an employee’s complaints or conduct is protected by law. A 2013 Congressional Report identified 40 different federal whistleblower and anti-retaliation laws, including:

More...

Religious Garb and Grooming Accommodations under Title VII

by Martin Salcedo, Esq. - The Human Equation on 3/12/2014
woman putting on sari

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.

More...

Grading the EEOC in 2013

by The Human Equation, Inc. on 1/29/2014
employee and employer

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:

More...

Prevent Holiday Celebration Litigation

by Martin Salcedo, Esq. - The Human Equation on 12/4/2013

The annual holiday party is an excellent opportunity for employees to strengthen bonds by mixing and mingling and for senior managers to connect with employees they might not otherwise interact with throughout the year. Holiday parties often generate feelings of family and unity in the workplace. They may also lead to litigation.

Since holiday parties are generally viewed work events, most employees know not to cross the line. When alcohol is involved, however, lines may get blurry and employers may get sued. Off-color comments, racy jokes or inappropriate flirty behavior may lead to claims of unlawful discrimination or harassment. Alcohol-related car accidents caused by those attending the party may lead to claims of negligence.

More...

Unlawful Retaliation under Title VII: No More Mixed Messages

by The Human Equation, Inc. on 8/21/2013
workplace discrimination

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 a Supervisor under Title VII? Why does it Matter?

by Martin Salcedo, Esq. - The Human Equation on 7/17/2013
supervisor and employee

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...

EEOC Focusing on Employers Using Criminal Background Checks

by Martin Salcedo, Esq. - The Human Equation on 6/18/2013
background check

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...

Individual Liability under the Fair Labor Standards Act

by Martin Salcedo, Esq. - The Human Equation on 4/3/2013
alarm clock

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...

Is Your Unpaid Intern Really an Employee?

by Martin Salcedo, Esq. - The Human Equation on 3/12/2013
woman training man in the workplace

The Fair Labor Standards Act (FLSA) establishes federal standards for minimum wage and overtime compensation. Under the FLSA, interns in the for-profit private sector will generally be viewed as employees entitled to compensation except in very limited circumstances.

Whether an individual working in an internship or training program is considered an employee that should be paid minimum wage and overtime compensation under the FLSA depends on the facts and circumstances. When making this determination, the following criteria must be applied to each particular situation:

  1. The internship, even though it includes performing actual work, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern works under close supervision of existing staff and does not displace regular employees;
  4. The employer derives no immediate advantage from the activities of the intern, and its operations may occasionally be impeded by the intern;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
More...

Court Interprets FLSA’s Break Requirement for Nursing Mothers

by Martin Salcedo, Esq. - The Human Equation on 1/29/2013

The 11th Circuit Court of Appeals recently became the first federal appellate court to consider a significant, though rarely publicized, provision of the Affordable Care Act—the reasonable break time requirement for nursing mothers under the Fair Labor Standards Act (FLSA).

In Miller v. Roche Surety and Casualty, an employee sued her employer alleging a violation of her rights as a nursing mother under the FLSA. Under the FLSA, employers are required to provide reasonable break time for an employee to express breast milk for her nursing child. This requirement, which extends for 1 year after the child's birth, requires an employer to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public,” so that the employee may express breast milk.

More...

Employers May See More Sexual Harassment Lawsuits

by Martin Salcedo, Esq. - The Human Equation on 11/20/2012

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?

More...

ADA Court Ruling Shocks Employers - Reassignment may be a Reasonable Accommodation

by Martin Salcedo, Esq. - The Human Equation on 10/17/2012

The Equal Employment Opportunity Commission (EEOC) sued United Airlines since disabled employees who could no longer do their jobs had to compete for vacant positions instead of being automatically reassigned. According to the EEOC, this practice violates the Americans with Disabilities Act (ADA).

When the EEOC made a similar argument to the Seventh Circuit Court of Appeals in 2000, the Court held that the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant—provided it is the employer's consistent and honest policy to hire the best applicant for the particular job in question.

Undeterred, the EEOC again asked the Court to answer the same question. This time around, the EEOC got a different answer. More...

Title VII Liability for Considering Criminal Histories in Employment Decisions?

by Martin Salcedo, Esq. - The Human Equation on 5/21/2012

The Equal Employment Opportunity Commission (EEOC) recently issued its Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act (Title VII). A survey cited by the EEOC found that 92% of responding employers subjected all or some of their job candidates to criminal background checks. More...

Employers Take Note: EEOC Reports Record Number of Complaints, Revenue Generated, and Cases Resolved in 2011

by Martin Salcedo, Esq. - The Human Equation on 12/12/2011

According to its annual Performance and Accountability Report, 2011 proved to be a record year… for the Equal Employment Opportunity Commission (EEOC). The EEOC’s fiscal year, which ended on September 30th, culminated with a record 99,947 charges of discrimination. This is the highest number of charges in the EEOC’s 46-year history. The $364.6 million in monetary benefits for victims of workplace discrimination, including $170 million from the private sector, also marks a record year for the EEOC.More...

Eleventh Circuit Court of Appeals Gives Employers New Ammunition to Fight FLSA Claims

by Martin Salcedo, Esq. - The Human Equation on 9/15/2011
In the past, we have written about why employers should generally fear violations of the Fair Labor Standards Act (FLSA) more than violations of other employment-related laws, such as Title VII of the Civil Rights Act or the Family and Medical Leave Act. The FLSA’s broad applicability, plaintiff-friendly provisions, and technical nature, have made it very popular with plaintiffs’ attorneys. However, a recent ruling by the United States Court of Appeals for the Eleventh Circuit appears to offer employers a way to minimize the damages caused by being sued under the FLSA. More...
The Human Equation's newsletters and publications are intended as an information source for the clients and friends of the firm. Their content should not be construed as legal advice, and readers should not act upon the information in these publications without professional guidance. Please note that newsletters and publications that are archived by The Human Equation are not updated after initial publication and may not contain the most current information available.

Refer to friendRefer to friend

Permission to ReprintPermission to Reprint

Contact a Subject Matter ExpertContact an Expert

Subscribe to Our NewsletterSubscribe to Our Newsletter

Tags

© 2017 - The Human Equation, Inc. All rights reserved. - Privacy Policy - Disclaimer -
Follow us on Facebook.comFollow us on Twitter.comFollow us on Linkedin.comFollow us on YouTube.comSubscribe to our RSS FeedSend us an email
Subscribe to our newsletter
900 South Pine Island Road, Suite 300 - Plantation, FL 33324 - Phone: 800-521-9667 / 954-382-0030 - Fax: 954-382-2810