Archive for March, 2013

Don’t Neglect Reasonable Accommodation in Wellness Programs, EEOC Says

An employer could be on shaky legal ground if it requires employees to disclose their medical conditions in order to participate in a wellness program, but then denies them a reasonable accommodation if their conditions disqualify them from participating.

That’s the gist of a recent “informal discussion letter” issued by the Equal Employment Opportunity Commission in January and posted on its website this past week.

The letter isn’t an official EEOC opinion on the subject, but does provide an insight into how it might approach the question if it were formally asked to render an opinion.

The plan described in the letter offered to waive annual health plan deductibles as a reward for participation, and the EEOC said it assumed that, as a condition of participating, employees must disclose that they have qualifying health conditions.

Medical-related inquiries are permitted only in “voluntary” wellness programs, the EEOC said. But if the program is to remain “voluntary,” it must reasonably accommodate those employees who want to participate so that they could earn whatever reward is available, EEOC indicated.

Also, EEOC said, the employee could be removed from the plan for failure to comply with its requirements, if participation is voluntary, and the employee is reasonably accommodated, as long as he or she “remained eligible to participate in the employer’s standard benefit plan.”

Click here to read the letter.

Insurance Investigators Not Entitled to Overtime Under FLSA, 6th Circuit Holds

Nationwide Mutual Insurance doesn’t have to pay overtime to 91 current and former special investigators, the U.S. Court of Appeals for the Sixth Circuit ruled on March 15.

The investigators argued that Nationwide improperly classifed them as administrative employees exempt from overtime under the Fair Labor Standards Act. The investigators argued that they fell under the definition of “investigators” in a U.S Department of Labor regulation under the FLSA.

However, the appeals court ruled that this regulation, 29 C.F.R. 541.3(b)(1), read in context, pertains to law enforcement and public safety personnel and not to the current and fomer investigators employed by Nationwide.

Unlike background investigations into facts and records that are the thrust of the regulation, the investigators here performed work “directly related” to Nationwide’s business operations, the 6th Circuit explained. Thus, they did not perform independent work requiring the exercise of discretion that would require the payment of overtime.

Read the opinion here.

EEOC Suit Charges N.C. Hospital With ADA Violation Over Rescinded Job Offer

Persons with physical impairments have a tough enough hill to climb to get a job. They don’t need the additional hurdle of employers that don’t know they cannot refuse to offer an applicant a job because they have a perceived disability.

According to an EEOC lawsuit filed this week, Presbytarian Healthcare Associates, based in North Carolina, violated the Americans With Disabilities Act by rescinding a job offer to a qualified applicant for a phlebotomist position because it perceived he had a knee injury that would prevent him from doing the job.

The suit charged that the aggrieved victim, Donovus Todd, had received medical clearance to participate in a phlebotomist training course at a community college. Following completion of that course and a seven-week internship at Presbytarian, the EEOC continued, the hospital offered him the phlebotomist job, pending a health screen exam.

The EEOC said that Todd disclosed his knee impairment during the medical screening and provided Presbytarian with related medical records. Still, the hospital took back the job offer, “simply because Presbytarian perceived him to be disabled as a result of his knee injury,” EEOC charged.

However this suit plays out, don’t fall into the apparent trap the hospital fell into, which is to take back a job offer because you perceive the applicant to have a disability. The question to ask is, even with this apparnet disability, is the applicant qualified to perform the job with or without a reasonable accommodation. Only after answering that question should you extend or withhold a job offer.

Read more about the case.

DOMA Arguments Elicit Strong Reactions From Justices

Today, in the second of two cases involving same-sex marriage, the U.S. Supreme Court considered the question of whether the federal Defense of Marriage Act is a constitutionally-acceptable expression of congressional preference for marriages between only one man and one woman.

As with yesterday’s argument over California’s Proposition 8, there is even a question of whether the case is properly before the court, because the federal government did not come to the statute’s defense. Rather, it was left to a bipartisan group of House members to hire outside counsel to defend the law before the court.

DOMA defines marriage as being between a man and a woman only. As a consequence, same-sex couples who are legally married in their particular state are denied over 1,000 federal benefits, including the right to file a joint tax return.

In this case, Edith Windsor, who married her female spouse in Canada, and then moved with her to New York, had a recognized marriage in New York. Yet when her spouse died, Windsor was stuck with a large estate tax bill from the IRS.

In the argument, Justice Kennedy, the potential swing vote, worried that DOMA may intrude too deeply in the states’ traditional role in defining and regulating marriage. Justice Ginsburg suggested that DOMA treats same-sex nuptials like a “skim-milk marriage.”

On the other hand, Justice Antonin Scalia chided the Justice Department for arguing that DOMA is unconstitutional yet continuing to enforce the law.

The implications for employers in all of this? Certaintly they would welcome consistency in how marriages are treated, especially if they have operations in more than state. If same-sex marriages are recognized throughout the country, then it should be easier for to administer spousal benefits of all kinds, including health insurance, family and medical leave, and other workplace benefits.

Otherwise, employers in different states will have to administer a patchwork of different benefits depending on the genders of the particular spouses involved.

Here is the audio and transcript for today’s argument.

High Court Hears Oral Argument in Proposition 8 Case

Does the U.S. Constitution’s equal protection clause entitle same-sex married couples to all of the rights of married couples of different genders? Or is the issue of marriage rights best left to individual states to work out?

And if the latter, can the voters of a state nullify existing same-sex marriage through a referendum or initiative?

Those are among the questions before the U.S. Supreme Court this week as it hears oral arguments in two cases involving same sex marriage.

In the first case, which was heard today, the justices considered whether California’s Proposition 8, which reinstated the state’s ban on same-sex marriage, is constitutional.

Based on the justices’ questioning, the betting is that a majority will not declare a right to same-sex marriage under the U.S. Constitution, but may be willing to rule that Proposition 8 violates the constitution because it deprives gay married couples of rights that the state supreme court had granted them prior to that vote.

Justice Anthony Kennedy, often the swing vote in closely-contested rulings, signaled doubt both as to whether the court should enter the “uncharted waters” of same-sex marriage. But he also worried aloud about the impact of a ruling upholding Proposition 8 could have on the children of same-sex married couples whose marriages would be declared null and void.

An interesting twist to the case is that the state of California is not defending Proposition 8, meaning that both the state and Prop 8’s opponents agree the law is unconstitutional.

This means the U.S. Supreme Court must decide whether the case is properly before the court before it can rule on the merits of the dispute.

The implications for employers, of course, will depend on the breadth of the court’s eventual ruling. If the court strikes down Prop 8 and reinstates same-sex marriage in California, employers will have to provide benefits to same-sex married couples on the same basis as heterosexual married couples.

Tomorrow, the court hears argument in the Defense of Marriage Act case. Check back here for a report on how that went.

You can listen to and read the transcript of today’s argument here.

EEOC’s Cleveland Office Enters Cooperative Agreement With Mexican Consulate

The Equal Employment Opportunity Commission announced this month the signing of a cooperative agreement between its Cleveland Ohio field office and the Mexican consulate in Detroit-a sign of the agency’s growing concern over employment discrimination against Mexican nationals in the United States.

The Mexican Consulate in Detroit provides services to preserve the rights of Mexican nationals residing in Michigan and Ohio. The EEOC’s Cleveland Field Office enforces federal employment discrimination laws and has jurisdiction over half of the State of Ohio.

The agreement will facilitate cooperation by the two counrites “to provide Mexican nationals with information, guidance, and access to resources on the prevention of discrimination in the workplace, regardless of documentation status,” the announcement said.

Hence the mutual benefit to both countries from the agreement, known in bureaucracy-speak as a “Memoradum of Understanding.”

Read more.

Tomorrow and Wednesday the same-sex marriage cases will be argued at the U.S. Supreme Court. Check back here for an update on how it went.

Court: Defendants Can Quiz EEOC on Investigation Adequacy

Want to throw sand in the gears of an Equal Employment Opportunity Commission lawsuit? Then do as a pair of Pennsylvania health care companies did after the EEOC sued them under the Americans With Disabilities–complain that the agency did not carry out a proper investigation before suing.

Under the ADA, the EEOC cannot bring suit against an employer unless it first investigates the underlying discrimination charge and gives the accused employer an opportunity to settle the matter prior to initiating suit.

Grane Health Care Co. and Ebensburg Care Center LLC this month persuaded a federal court in Pennsylvania to allow them to take discovery from an EEOC representative to determine wehther the EEOC met its statutory obligation to investigate.

The EEOC brought this suit against the companies in 2010, alleging they subjected various job applicants to mandatory pre-offer medical examination and inquiries–and then refused to hire many of these applicants because of information obtained during these examinations and inquiries.

The complaint recited that “All conditions precedent to the institution of this lawsuit have been fulfilled.”

But, depending on what the discovery reveals about EEOC’s pre-suit conduct, perhaps the defendants might yet derail or least postpone the litigation.

The case is EEOC v. Grane Healthcare Co. and Ebensburg Care Center LLC, WD Pa, No. 3:10-cv-00250, 3/15/13.

OSHA To Hold “Stakeholders” Meeting on Construction Crane Safety

Those construction cranes you see building new homes and offices? They must operate under safety guidelines promulgated by the Occupational Safety and Health Administration.

OSHA is determining whether to refine and augment those standards by holding a series of “stakeholder” meetings. The next meeting is scheduled to take place on April 3 in Washington, D.C. at the U.S. Department of Labor, the agency announced recently.

According to the announcement, this meeting will focus on
“the effectiveness of crane operator certification to ensure that crane operators can safely operate equipment, and the level of competence and safe operation that certification ensures.”

OSHA is seeking the public’s input on whether it would be useful to certify operators for different capacities of cranes, and the risks of allowing an operator to operate all capacities of cranes within a specific type.

If you care about crane safety–and we all should–then you’ll want to consider attending the meeting or offering suggestions to OSHA on these subjects.

Here’s more from the announcement.

Lighting Company Dimwitted on Religious Bias, But Smart Enough to Settle EEOC’s Suit

Maybe if the light bulb had gone off earlier, Voss Lighting Co. wouldn’t have found itself in court battling the Equal Employment Opportunity Commission, and wouldn’t be $82,500 out of pocket for choosing to settle the case.

Turns out that was a bright decision if the EEOC’s allegations are to be believed. According to the commission, the company denied a job to Edward Wolfe, despite his qualifications, because it didn’t like his religious beliefs.

The branch manager who did the hiring, for example, asked Wolfe to identify every church he has attended over the past several years; where and when he was “saved” and the circumstances that led up to it; and whether he “would have a problem” coming into work early to attend Bible study before clocking in. “According to Wolfe, the branch manager expressed dissatisfaction with his truthful responses to the religious questioning,” the EEOC said.

And this was after a supervisor had asked Wolfe for personal religious information during his interview with him.

In announcing the settlement, EEOC made clear that refusing to hire an applicant because he holds different religious views than those of the employer violates Title VII of the 1964 Civil Rights Act, even if the employer is a for-profit company with a religious mission or purpose.

Now it should be noted that a religious institution can limit employment to co-religionists if that is a business necessity for the position. But that wasn’t the case here. Wolfe had applied for an operations supervisor position, and besides Voss Lighting is not a religious institution.

Read more about the case.

Staffing Agency Settles Citizenship Bias Charges Brought by DOJ Over Internet Advertisements

With talk of immigration reform in the air, some employers might forget that it is already illegal to discriminate against applicants on the basis of citizenship status.

Apparently a Florida healthstaffing agency ignored that reality when it posted advertisements on the Internet. According to the U.S. Department of Justice, Avant Healthcare Professionals Inc. published hundreds of internet-based job postings expressing a preference for foreign-trained individuals seeking permanent residence or H-1B visa sponsorship over U.S. workers.

That misstep will cost the company $27,750, DOJ said in announcing settlement of federal charges against the company under the Immigration and Nationality Act, which “prohibits employers from discriminating on the basis of citizenship or immigration status unless required by law, regulation or government contract.”

Avante HealthCare didn’t qualify for any of those exceptions, DOJ said.

Under the settlement terms, the company will also have to change its internal policies and written procedures to incorporate the INA’s anti-discrimination protections, and subject itself to reporting and compliance monitoring requirements for a period of three years.

Interestingly, the settlement was announced by then-Assistant Attorney General Thomas E. Perez, who President Obama nominated this week to be the next U.S. Secretary of Labor.

Read more.