by Martin Salcedo, Esq. - The Human Equation
on 8/11/2016 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.
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Tags: benefits & compensation administration, Business Strategy, Benefits and Compensation Administration, Disability and Discrimination Policies, Discrimination, Workplace Rights, health, benefits, group benefits, wellness
Categories: 2016, Human Resources, Safety
by Martin Salcedo, Esq. - The Human Equation
on 7/7/2016 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... 7e2e8f35-d360-40a6-a8c5-e0f346082b4d|0|.0
Tags: OSHA, Occupational Safety and Health Administration, Occupational Safety and Health Act of 1970, Workplace Safety, ergonomics and facilities safety, equipment, Employee Relations and Communication, Employment Liability, Workplace Rights, Workplace Rights
Categories: 2016, Human Resources, Risk Management, Safety
by Martin Salcedo, Esq. - The Human Equation
on 4/14/2016 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.
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by Martin Salcedo, Esq. - The Human Equation
on 8/27/2014
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:
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Tags: 2014, ADA, employee relations and diversity, Employment Liability, EEOC, Equal Employment Opportunity Commission, Nursing Mothers, The Family and Medical Leave Act, Workplace Rights, Pregnancy Discrimination Act, Civil Rights Act, PDA
Categories: Human Resources, Risk Management
by Martin Salcedo, Esq. - The Human Equation
on 7/9/2014 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.
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Tags: 2014, ADA, Americans with Disabilities Act, Civil Rights Act, Employee Relations and Communication, employee relations and diversity, Employee Status and Job Descriptions, Employment Liability, Florida, government forms, Human Resources, Laws and Regulations, Leaves of Absence, Risk Management, Rules and Conduct, United States Department of Labor, Workplace Rights, Hwang V. Kansas, Kansas State University
Categories: 2014, Human Resources
by Martin Salcedo, Esq. - The Human Equation
on 6/4/2014 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:
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Tags: Civil Rights Act, FLSA, employee relations and diversity, Employment Liability, Employee Status and Job Descriptions, Equal Employment Opportunity Commission, Fair Labor Standards Act, Hiring, Human Resources, Laws and Regulations, Productivity and Performance, Reasonable Break Requirement, Reassignment, Risk Management, Rules and Conduct, the employee polygraph and protection act of 1988, The Family and Medical Leave Act, Title VII, Title VII Civil Rights Act, Title VII of the Civil Rights Act of 1964, Workplace Rights, 2014, Americans with Disabilities Act
Categories: 2014, Human Resources
by Martin Salcedo, Esq. - The Human Equation
on 3/12/2014 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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Tags: 2014, Business Strategy, Department of Labor, Discrimination, diversity, EEOC, employee relations and diversity, Employment Liability, Equal Employment Opportunity Commission, Fair Labor Standards Act, FLSA, Human Resources, Laws and Regulations, The Fair Labor Standards Act (FLSA), Title VII of the Civil Rights Act of 1964, Workplace Rights, Workplace Harassment and Discrimination
Categories: 2014, Human Resources
by The Human Equation, Inc.
on 1/29/2014 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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Tags: 2014, EEOC, Equal Employment Opportunity Commission, Age Discrimination in Employment Act, Business Strategy, Disability and Discrimination Policies, Discrimination, diversity, Employment Liability, Workplace Harassment and Discrimination, Workplace Rights
Categories: 2014, Human Resources, Risk Management
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.
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by The Human Equation, Inc.
on 8/21/2013
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...
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Tags: 2013, Background and Reference Checks, benefits & compensation administration, benefits & compensation administration, benefits & compensation administration, Benefits and Compensation, Benefits and Compensation Administration, Business Strategy, Contractual and Other Liabilities, Disability and Discrimination Policies, Discrimination, employee relations and diversity, Employee Status and Job Descriptions, Employment Liability, Workplace Rights, Workplace Harassment and Discrimination, Title VII of the Civil Rights Act of 1964
Categories: 2013, Human Resources, Risk Management
by Martin Salcedo, Esq. - The Human Equation
on 7/17/2013
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...
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Tags: 2013, Background and Reference Checks, Benefits and Compensation, Benefits and Compensation Administration, bonuses & pay increases, Business Strategy, Contractual and Other Liabilities, Discrimination, EEOC, DOLFMLA, Employee Status and Job Descriptions, Employment Liability, Equal Employment Opportunity Commission, Laws and Regulations, Managers, Productivity and Performance, Rules and Conduct, Sexual Harassment, The Fair Labor Standards Act (FLSA), Title VII of the Civil Rights Act of 1964, Workplace Harassment and Discrimination, Workplace Rights
Categories: 2013, Human Resources, Risk Management
by Martin Salcedo, Esq. - The Human Equation
on 6/18/2013
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...
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Tags: 2013, Background and Reference Checks, Business Strategy, Discrimination, diversity, Employee Status and Job Descriptions, Employment Liability, Equal Employment Opportunity Commission, Laws and Regulations, recruiting and offers, Risk Management, EEOC, Title VII of the Civil Rights Act of 1964, Workplace Rights, Workplace Harassment and Discrimination
Categories: 2013, Human Resources, Risk Management
by Martin Salcedo, Esq. - The Human Equation
on 4/3/2013 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...
1c1bb552-d340-4e00-ab2a-f61aa87c7486|0|.0
Tags: 2013, benefits & compensation administration, benefits & compensation administration, Benefits and Compensation, Benefits and Compensation Administration, bonuses & pay increases, Bonuses and Pay Increases, Business Strategy, Employee Status and Job Descriptions, Employment Liability, Fair Labor Standards Act, FLSA, Hiring, Human Resources, Laws and Regulations, Managers, Risk Management, Rules and Conduct, The Fair Labor Standards Act (FLSA), wage & hour, wage & hour, Wage and Hour, Workplace Rights
Categories: 2013, Human Resources, Risk Management
by Martin Salcedo, Esq. - The Human Equation
on 3/12/2013 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:
- The internship, even though it includes performing actual work, is similar to training which would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern works under close supervision of existing staff and does not displace regular employees;
- The employer derives no immediate advantage from the activities of the intern, and its operations may occasionally be impeded by the intern;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
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Tags: 2013, FLSA, Fair Labor Standards Act, Employment Liability, Employee Status and Job Descriptions, The Fair Labor Standards Act (FLSA), Internships, Workplace Rights, wage & hour, Unpaid Internship
Categories: 2013, Human Resources, Risk Management
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.
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Tags: 2013, Fair Labor Standards Act, FLSA, Human Resources, Workplace Rights, The Fair Labor Standards Act (FLSA), Risk Management, Rules and Conduct, Reasonable Break Requirement, Nursing Mothers
Categories: 2013, Human Resources, Risk Management
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?
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Tags: 2012, Business Strategy, Discrimination, EEOC, Employee Status and Job Descriptions, Employment Liability, Equal Employment Opportunity Commission, Fair Labor Standards Act, Human Resources, Laws and Regulations, Managers, Risk Management, Rules and Conduct, Title VII of the Civil Rights Act of 1964, Workplace Rights, Workplace Harassment and Discrimination, Sexual Harassment, Obama, Supreme Court, November, Vance v. Ball State University
Categories: 2012, Human Resources, Risk Management
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...
783d47c8-ec9a-44f3-8dae-453f3e3891da|0|.0
Tags: 2012, ADA, Benefits and Compensation, Bonuses and Pay Increases, Disability and Discrimination Policies, Discrimination, Employee Relations and Communication, Employee Status and Job Descriptions, Employment Liability, Equal Employment Opportunity Commission, Workplace Harassment and Discrimination, Workers' Compensation, Workplace Rights, Reassignment, Seventh Circuit Court, United Airlines, EEOC
Categories: 2012, Human Resources
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...
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...
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.
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