Archive for October, 2015

House Committee Votes to Kill NLRB Joint Employer Rule, Return to Previous Definition

If Republicans in the U.S. House of Representatives have their way, the National Labor Relations Board’s new standard on “joint employers” will be short-lived.

Under that policy, which the NLRB announced in August, an employer’s exercise of indirect control over working conditions at another employer, or even its reserving the right to exercise that control, is enough to make the two companies joint employers

The 3-2 ruling means that companies that use franchises or subcontractors can be held liable for labor violations by those companies and also be forced to negotiate collective bargaining agreements with unions representing those companies’ workers.

Before this ruling, joint employer required that that one company exercise direct control over the other’s operations. But the board majority said that standard no longer reflects today’s changing economy.

This past Wednesday, however, the House Education and Workforce Committee voted to strike down the NLRB policy. The Protecting Local Business Opportunity Act would amend the National Labor Relations Act to specify two or more employers may be considered joint employers only if each has an “actual, direct, and immediate” control over essential terms and conditions of employment.

The bill now goes to the House floor for final approval, which is expected.

Then it’s onto the Senate, where it has at least one sponsor, Senator Lamar Alexander, a Republican from Tennessee.

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EEOC Proposes Incentives for Employees Whose Spouses Reveal Information on Health Status

Employers would be allowed to offer up to 30 percent off on the cost of their group health plan for employees whose spouses disclose information about their current or past health status as part of a wellness program, under rules proposed by the Equal Employment Opportunity Commission today.

The proposal implements a provision of the Genetic Information Nondiscrimination Act, which in general prohibits employers covered by the law from using genetic information in making decisions about employment. It also restricts employers from requesting, requiring, or purchasing genetic information, unless one or more of six narrow exceptions applies.

Under one of those exceptions,  an employee voluntarily accepts health or genetic services offered by an employer, including such services offered as part of a wellness program. In that case the employer can offer a financial incentive, including a discount on the cost of the insurance in the group health plan.

“Genetic information” includes, among other things, information about the “manifestation of a disease or disorder in family members of an individual.” The term “family members” includes spouses.

The limited incentive may take the form of a reward or penalty and may be financial or in-kind (e.g., time-off awards, prizes, or other items of value), according to the proposed rule.

The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled. For self-only coverage under the group health plan, the maximum portion of an incentive that may be offered to an employee alone may not exceed 30 percent of the total cost of self-only coverage.

The EEOC is accepting public comment on the rule through December 29.

To read the proposed rule, go here.

You can find EEOC’s announcement of the proposed rule here.

Snack Food Maker Hit With $2M Award for Minimum Wage and Overtime Violations

It’s the latest sign that the federal government is cracking down on employers and their staffing agencies for not complying with the minimum wage and overtime provisions of the Fair Labor Standards Act.

More than 600 temporary line workers at J&J Snack Foods Corp. will share more than $2.1 million in back wages and liquidated damages for the company’s minimum wage and overtime violations, the U.S. Department of Labor announced on October 27.

J&J’s products include baked goods under the Country Home Bakers, Mary B’s and SuperPretzel brand names, and frozen food products under the ICEE, Luigi’s, Slush Puppie, Minute Maid Juice Bars and WholeFruit labels. Its products are sold nationwide at stadiums and arenas; department, chain and convenience stores; discount and warehouse clubs; theme parks; movie theatres; schools and colleges; and retail supermarkets.

The department’s most recent investigation found 465 workers at J&J’s Swedesboro facility provided by staffing firm Sebastian and Sebastian LLC were paid straight time for overtime hours worked beyond 40 in a workweek, in violation of federal law. In response, J&J agreed to pay a total of $1,260,254 in back wages and liquidated damages to these workers.

Two hundred and twelve temporary workers  at the J&J facility in Chambersburg, Pennsylvania, will receive $920,000 in back wages and liquidated damages to make them whole for not being denied the federal minimum wage and overtime.

J&J and the staffing agencies were joint employers because “the economic realities show that [the workers] are economically dependent on — and thus employed by — another entity involved in the work,” the DOL said

More details on the case are available here.

Gone Viral: Plasma Lab Pays $60K to Settle EEOC Lawsuit on Deferred Donor’s Behalf

It’s not necessary that an employee have an actual disability in order to find an employer liable for violating the Americans With Disabilities Act. It’s enough that the employer perceived the employee to be disabled or acted because the employee has a record of disability.

That’s a lesson driven home today to Plasma Biological Services, a Tennessee-based company, which the Equal Employment Opportunity Commission alleged illegally placed an employee on a deferred donor list after an initial screening for a plasma donation showed a viral marker.

After the employee’s supervisor learned of his placement on the deferred donor list, the supervisor immediately terminated him. Subsequent tests showed the employee was actually negative for such a viral marker, the EEOC charged.

EEOC said that Plasma Biological Services, LLC and Interstate Blood Bank, Inc., dba Plasma Biological Service, which own and operate plasma collection centers, agreed to pay $60,000 to settle the lawsuit.

As part of the settlement, Plasma agreed to modify its Standard Operating Policy Manual to state that it does not maintain a policy of refusing to hire applicants or a policy of discharging any employee because he or she tests positive for a viral marker.

Read more about the lawsuit and the settlement here.

Alcoholism and the ADA In Employment

Our resident blogger Robin Paggi discusses the do’s and dont’s of dealing with an employee with a drinking problem, using the case of a recently fired college football coach to illustrate.

Alcoholism and the ADA in Employment

by Robin Paggi

After the recent firing of USC coach Steve Sarkisian, there has been some discussion about whether his termination was lawful because he apparently has a drinking problem. Even if you’re not a football fan, the situation provides an excellent opportunity for employers to learn about alcoholism in the workplace.

For those of you who are unfamiliar with the story, Sarkisian was put on an “indefinite” leave of absence in mid-October after reportedly showing up to a team meeting intoxicated. According to numerous sources, Sarkisian had previously attended a variety of school events where he appeared to be drunk. One day after his leave began, he was fired.

Those saying his termination might not be legal are doing so because they know that alcoholism is considered to be a disability according to the Americans with Disabilities Act and employers are required to reasonably accommodate employees who are or become disabled.

In the article, “Alcoholism and how USC may have violated ADA by firing Steve Sarkisian,” on www.lexology.com, the author states, “One common form of accommodation with respect to alcohol dependency is an unpaid leave of absence while the employee seeks treatment or other counseling. Frankly, it would be a red flag if an employer that grants an individual a leave of absence (for any reason, let alone a disability) then decides to terminate that same individual shortly after the leave was given. But that’s exactly what USC did.”

All of that’s true but, as the saying goes, there’s more to the story. After being clearly intoxicated at a USC pep rally last August, Sarkisian denied he had a drinking problem, but said he would go into treatment, according to a story on http://espn.go.com.

Evidently, he didn’t seek treatment and he definitely continued to drink. According to the U.S. Commission on Civil Rights, an employer generally has no duty to provide an accommodation to an employee who has not asked for an accommodation and who denies having a drinking problem.

Additionally, the ADA allows an employer to discipline, discharge, or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct.

So, what can employers learn from this story?

First, if you employ fifteen or more employees, you cannot refuse to hire or promote or fire someone because of being a recovering alcoholic. (State laws might lower the employee count. For example, California’ Fair Employment and Housing Act, which also protects persons with disabilities, applies to employers with 5 or more employees).

Next, if employees tell you (before you discover it) that they need to seek treatment for alcoholism, you are required to begin an interactive process to try to reasonably accommodate them. Such accommodations are usually time off without pay to seek treatment.

Finally, it is lawful to discipline all employees whose use of alcohol interferes with their job.

One more thought: it’s said that people need to hit rock bottom before they are willing to confront an addiction. Perhaps this is it for Sarkisian. Sometimes being fired is exactly what people need to turn their lives around.

Robin Paggi is the Training Coordinator at Worklogic HR.

She last wrote for us on Hiring Based on Appearance. For other of her columns, search Paggi in the search box at the top of this home page.

Thanks to the Ohio Employer’s Law Blog and SHRM SWFL website for reposting this column.

EEOC Says Employer Violated ADA By Refusing to Reemploy Cancer Victim After Medical Leave

A Dallas-based business violated the Americans With Disabilities Act by refusing to reinstate an employee with cancer following his medical leave, the Equal Employment Opportunity Commission charged in a lawsuit filed on Thursday.

The employee worked for DAP Products, Inc., a Dallas-based business and a leading manufacturer of home repair and construction products.

According to EEOC’s lawsuit, DAP discharged the employee from his position of production operator because of his prostate cancer, a physical impairment for which he underwent surgery.

After a period of leave the employee was capable of safely continuing in his job, but DAP refused to allow him to return to work, and instead forced him to take extended leave, the EEOC charged.

Then, after refusing to allow the employee to return, DAP fired him for having exceeded company leave limitations.

Read more about the lawsuit.

Fla. School System Settles Citizenship Bias Case

We seem to be in a spree of employers behaving badly under the nation’s immigration laws.

Now it is Miami Dade County Public School’s turn to make good for allegedly requiring non-U.S. citizens to present documents showing their eligibility to work in the United States, but not requiring the same of U.S. citizens.

The U.S. Department of Justice said today that MDCPS will pay a $90,000 civil penalty to the United States and will establish a $125,000 back pay fund to compensate individuals who lost wages because of the MDCPS’ practices, under a settlement of DOJ’s claim against the school system for violation of the Immigration and Nationality Act.

The INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship or national origin when verifying an employee’s authorization to work, the DOJ reminded employers.

Here’s the DOJ’s announcement of the settlement.

For two other INA cases within the last week, click here and here.