EEOC Consent Decree a Reminder That Attendance Policies Must Have an ADA Escape Valve

Contributed by Suzanne Newcomb, August 13, 2018

72219825 - book with title the americans with disabilities act (ada).In July the EEOC announced the terms of a consent decree settling claims of systemic disability discrimination against a global metal products manufacturer. Pursuant to the terms of the decree, the employer will pay $1 million, reinstate affected employees, appoint an ADA coordinator, revise its policies and procedures, track accommodation requests, maintain an accommodation log, provide ADA training to all of its employees, and report its progress to the EEOC over the next two and a half years.

Where did the employer go wrong? According to the announcement, the employer violated the ADA in two ways: by awarding attendance points regardless of the reason for the absence and by terminating employees who were not able to return to work after 180 days of leave.

So called “no fault” attendance policies are common and have many advantages. They are transparent and easy to administer, they remove discretion from frontline supervisors (and with it potential favoritism and bias), they treat employees as adults by allowing them to manage their own time, and they remove much of the burden of policing the reason for each absence. But problems arise when employers – no longer called upon to scrutinize the reason for each absence – miss ADA and FMLA triggers. Remember, employees are not required to say “disability,” “ADA,” or “reasonable accommodation” to trigger the ADA-mandated “interactive process.” There are no “magic words.” The same is true of the FMLA. Anything that alerts or should have alerted the employer that an employee has a disability and may need reasonable accommodation (or that absences may qualify for FMLA protection) triggers statutory obligations. And to further complicate matters, anything a supervisory employee knows can be imputed to the employer.

Even policies designed to help employees, like the policy for providing up to 180 days of medical leave which far exceeds the 12 weeks the FMLA affords, must be applied with the ADA in mind. A blanket policy that any employee who is not able to return after 180 will be terminated does not allow for the individualized assessment mandated by the ADA. Bottom line, all policies, attendance policies as well as work rules, performance metrics, etc. must be analyzed with the ADA in mind. Always include an ADA escape valve.

Best Practices:

  1. Regularly review your ADA and FMLA policies to make sure they are clear, concise and easily understood;
  2. Clearly direct employees to contact HR if they believe they need leave or reasonable accommodation for a disability;
  3. Clarify that your attendance and leave policies (and others as appropriate) are applied within the framework of the ADA and FMLA and again invite employees who believe they may need leave or an accommodation to discuss the issue with HR;
  4. Include FMLA and ADA issues in regular supervisor training and require supervisors to elevate potential issues to HR; and
  5. Finally, there is no escaping the fact that ADA and FMLA issues are difficult. Partnering with trusted, experienced employment counsel as you navigate these complicated issues can often allow you to avoid the expense and hassle of defending legal claims later.

 

Employers: Make Sure You Are A Party To Your Own Arbitration Agreements

Contributed by Steven Jados, August 7, 2018

52078340 - 3d illustration of rubber stamp on arbitration agreementWith the dust settling on the U.S. Supreme Court’s decision upholding the validity of class and collective action waivers in employee arbitration agreements, there is no better time to double-check that employee arbitration agreements are in proper form. A recent decision from the Seventh Circuit highlights one particular area for review: the employer’s name.

In Goplin v. WeConnect, Inc., the employee, Goplin, worked for WeConnect, and he signed an arbitration agreement at the beginning of his employment. Unfortunately for WeConnect, the arbitration agreement never once mentioned WeConnect.  Instead, the agreement referred to an entity named “AEI”—which was not Goplin’s employer.

When WeConnect attempted to enforce the arbitration agreement to compel Goplin to pursue his legal claims with an arbitrator, the court agreed with Goplin that WeConnect was not a party to the arbitration agreement, so WeConnect could not use the agreement to prevent Goplin from suing in court.

The bottom line is that employers must closely review employee arbitration agreements to ensure that all parties to the agreement are properly named—particularly when the employer has undergone a name change or merger in the time since the agreement was drafted. Doing so will help ensure that the agreement has a greater likelihood of enforceability if the agreement is challenged in court.

The NLRB’s Recent Decision Lowers the Trigger for Employee Weingarten Rights

Contributed by Beverly Alfon, August 2, 2018

Employers have had reason to exhale a bit in the Trump era of the National Labor Relations Board (NLRB). However, as demonstrated in a recent case involving employee Weingarten rights, long-standing federal labor principles and facts can nonetheless tilt a decision against the employer.

A Quick Refresher:  The term “Weingarten rights” refers to the rights of union-represented employees to demand union representation during an employer’s investigatory interview that may result in discipline (as opposed to a meeting where discipline is simply being issued to the employee). The U.S. Supreme Court upheld these employee rights in NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975), but made clear that the right to union representation is not automatic, but arises “only in a situation where the employee requests representation.” Consistently, for the past 40 years, the NLRB and federal courts have held that the right to representation at an investigatory interview only attaches once the employee has requested representation.

Union Block WordsIn June, the Board issued a decision addressing what constitutes a “request” for representation. In Circus Circus Casinos, Inc., 366 NLRB 110 (2018), a union-represented employee stated prior to an interview that he had “called the Union three times [and] nobody showed up, I’m here without representation.” The Board majority (2 of 3-member panel) found that this was enough to constitute a request for representation under Weingarten.

The majority pointed out that statements or inquiries such as – “I would like someone there that could explain to me what was happening” or “Should I have someone here with me, someone from the unions,” have been found sufficient to trigger Weingarten rights before. However, in Circus Circus Casinos, Inc., the employee did not ask the employer for union representation, tell the employer that he wanted a union representative, or ask the employer whether or not he needed a union representative present. The employee did not attempt to stop the interview. At most, he indicated that he did not have union representation. Nonetheless, the Board ordered the employer to reinstate the employee (who was discharged as a result of the interview) with full back pay from his termination in 2013, and reimburse him for job-search and interim-employment expenses.

Now, it is clear that Weingarten rights are triggered even if an employee does not directly address the request for representation to the employer. The inquiry has shifted from the question of whether the employee communicated a request for union representation to the employer – to whether or not the employer is somehow “on notice” of the employee’s preference for union representation.

Best Practice: Review and update your policy and procedure related to investigations involving union-represented employees. Review the Weingarten standards with your investigators. If the employee makes any comment or suggestion regarding union representation before or during an interview, ask the employee to clarify whether s/he is requesting union representation before proceeding with the interview, or if s/he would like to proceed without representation. If the employee confirms that s/he prefers union representation, either (a) immediately suspend the interview until a union representative is identified and present or (b) immediately end the interview altogether. Remember that a union-represented employee should not be disciplined for requesting union representation at an investigatory interview.

Being knowledgeable about the do’s and don’ts during an investigatory interview where a union representative is present is equally important. It is important to consult with experienced labor counsel in order to avoid drawing any unfair labor practice charges.

Basics of the HIPAA Privacy Rule for Employers

Contributed by Rebecca Dobbs Bush, July 30, 2018

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) addresses, among other things, the use and disclosure of individually identifiable health information, referred to as “protected health information” or PHI. Many employers are confused as to how the HIPAA Privacy Rules apply to them. With requests for FMLA and accommodations for disabilities, employers are handling very sensitive and private information about their employees on a daily basis. While it is impossible to thoroughly address the multitude of issues within the HIPAA privacy rules in a short article, following are some basic points that should help most employers in navigating compliance with HIPAA privacy rules.

HIPPA RegulationsHIPAA privacy rules generally do not directly affect employers unless they are a “covered entity” as defined under HIPAA. Covered entities typically include health plans, health care clearinghouses, and most health care providers. Even a health care provider may not be directly subject to HIPAA Privacy Rules in their role as an employer. HIPAA regulations provide an example involving a health care employee: When a clinic employee visits a doctor for treatment, her medical file is PHI. However, when that employee takes the doctor’s note she received during her visit and turns it in to HR for attendance purposes, the document is now part of her employment file and is no longer PHI in that setting.

Avoid receiving PHI from your group health plan.  If you do not maintain a self-insured health plan you can minimize the need to comply with HIPAA privacy rule requirements simply by restricting your insurer from sharing the information. Generally an insurer should not be sending PHI to the employer unless the plan document specifically states which employees may receive PHI and for what purposes. Your plan document should not unnecessarily designate employees to receive PHI. It is a good idea to review insurance contracts and plan documents and make sure they limit the role the employer plays in administering the group health plan.

Outsource Administration of group health plans, including flex spending accounts.  If you have a self-insured health plan and/or a flex spending plan, you need to make sure those plans are administered in compliance with HIPAA privacy rules. However, if you hire a third party administrator, you can and should shift the flow of the PHI to the third party administrator who will be handling the claims. This step greatly simplifies what an employer has to do to be in compliance with HIPAA as it greatly limits the amount of PHI the employer receives. Instead, you can focus on making sure you have a Business Associate Agreement in place with the third party administrator.

As with everything, there are exceptions to these basic points. For example, the privacy rules contain special provisions relating to workers’ compensation laws allowing for an employer to obtain PHI directly from a health care provider when “necessary” to comply with workers’ compensation laws. Another exception exists in the privacy rules excluding self-administered plans with fewer than fifty (50) participants from being subject to HIPAA privacy regulations. It is always best for an employer to consult with counsel on any of these issues.

 

REMINDER: Cook County and Chicago Minimum Wage Increased on July 1, 2018…And So Did the Required Poster!

Contributed by Mike Wong, July 27, 2018

WageOn July 1, 2018, the Chicago Minimum Wage and Cook County Minimum Wages increased as follows:

  • Chicago Minimum Wage increased to $12.00 per hour for non-tipped employees and $6.25 for tipped employees (Chicago Municipal Code §1-24).
  • Cook County’s new minimum wage is $11.00 per hour for non-tipped and $5.10 for tipped employees.

IMPORTANT: Even if you are in a municipality that opted out of the Cook County or Chicago minimum wage or paid sick leave ordinances initially, remember to stay up to date as sometimes things can change.  For example, after opting out of the Cook County Minimum Wage ordinance in 2017, the Wilmette Village Board recently voted to opt in to the Cook County Minimum Wage starting October 1, 2018.  The village of Northbrook opted out of the Cook County Minimum Wage and Paid Sick Leave ordinance, but is now reconsidering the decision to opt out of the Paid Sick Leave ordinance.

IMPORTANT NOTICE REQUIREMENTS: With the increase of the minimum wage, the required posters have been updated to reflect the increase.  Employers that are subject to the Cook County or Chicago minimum wage should review and make sure that they have the current required poster posted.  The new poster for the Chicago Minimum Wage ordinance can be found on the City of Chicago website and are in English, Spanish, Polish and Mandarin. The Cook County minimum wage ordinance poster can be found on the Cook County website and is only in English.

 

Save the Date! Complimentary Webinar – Thursday, August 16th – Conducting Effective Workplace Investigations

Join Suzanne Newcomb on Thursday, August 16 at noon ET as she discusses the nuts and bolts of conducting effective internal investigations and examines the legal, ethical, and privilege issues that surround them. A thorough investigation is often the backbone of an employer’s defense to employment-related legal claims. In some cases, a prompt and effective investigation can resolve the underlying problem entirely, preventing a lawsuit from ever being filed.

Specifically, she will highlight:

  • Confidentiality and privilege concerns
  • Dealing with reluctant witnesses
  • Proper documentation of investigatory interviews and other facts
  • Methods of communicating investigation findings
  • Closing the investigation

Who should attend? HR professionals, managers, business owners, and in-house counsel

Webinar Registration

New California Law Protects Employees and Employers from Defamation Claims in the Wake of the #MeToo Movement

Contributed by Allison Sues, July 23, 2018

In the wake of the #MeToo movement, companies have been reviewing their sexual harassment training and investigation practices, and many states have considered the need for additional legislation offering protection to employees. For example, we previously covered legislation discouraging confidential settlements of sexual harassment claims in Tennessee, Washington, and New York. Recently, California enacted new legislation that protects employees who report sexual harassment from lawsuits claiming that they defamed the alleged harasser. Assembly Bill No. 2770, signed into law on July 9, 2018, codifies the common law rule that an employee’s complaint of sexual harassment, made without malice and based on credible information, is privileged and cannot give rise to liability for libel or slander.

16306823 - 3d illustration of scales of justice and gavel on orange background

scales of justice and gavel on orange background

This Act is notable in the protection it offers to employers. Assembly Bill No. 2770 also provides that an employer’s truthful reference is privileged when it reveals to a prospective employer that a former employee was involved in sexual misconduct or other harassment.   The legislative counsel’s digest attached to the bill states that the bill “would authorize an employer to answer, without malice, whether the employer would rehire an employee and whether or not a decision to not rehire is based on the employer’s determination that the former employee engaged in sexual harassment.” This bill should assure employers that they will not be held liable for defamation while they conduct investigations into sexual harassment complaints and respond to reference inquiries regarding workplace harassers. This legislation will hopefully benefit employers on both ends of the reference process. The former employer is free to warn other employers about problem employees without fear of liability, and the potential new employer benefits from a more transparent hiring process and gains the knowledge necessary to avoid hiring someone who may victimize other employees in the new workplace.

All employers – both inside and outside of California – should always be careful when providing references. On the one hand, an employer’s negative reference may lead to claims for defamation and interference with contract if the former employee claims he was denied other employment because of the reference. On the other hand, an employer who refrains from providing truthful information about an employee who engaged in sexual harassment, sexual misconduct, or violence in the workplace could face a claim for negligent misrepresentation or negligent referral if the former employee is involved in an incident at the new workplace that could have been predicted based on prior behavior. To reach a balance between these two risks – and in the interest of promoting safe workplaces – employers should provide truthful references through objective and easily verifiable facts. For example, an employer should not provide subjective commentary about an employee terminated for harassment or sexual misconduct, but may report that the employer investigated complaints that the former employee engaged in sexual harassment and disciplined the employee after the investigation corroborated the complaints.