Employer Law Report

2nd Circuit “Cat’s Paw” decision highlights importance of employer investigations before termination

In 2011, the U.S. Supreme Court in Staub v. Proctor Hospital first endorsed the “Cat’s Paw” theory of liability in a USERRA case. Derived from an Aesop Fable, the Court held that an employee termination based on information from a supervisor with discriminatory or retaliatory intent can provide the basis for employer liability even if the biased supervisor did not participate in the adverse employment decision. Following up on this decision, federal courts began applying the theory to Title VII and other federal discrimination laws. Last week’s 2nd Circuit decision in Vasquez v. Empress Ambulance Service, Inc., took the “Cat’s Paw” theory one step further when it upheld an employer’s liability under Title VII when the adverse employment decision was influenced by the retaliatory intent of a low level co-worker who had no supervisory responsibilities.

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DOL issues updated required posters for FLSA and EPPA

The federal Department of Labor (DOL) has issued an updated poster for the “Employee Rights Under the Fair Labor Standards Act” poster, which is a federally required poster. The updated poster adds information on the rights of nursing mothers (to lactation breaks) under the FLSA, misclassification issues related to independent contractors and tip credits. In an effort to move forward with technology, the new poster also includes a scannable QR code which take employees to the DOL website for information on compliance with the FLSA as well as instructions on how to file a complaint. The poster is available here. It is also available in different formats and in 10 different languages.

The DOL also has issued an updated Employee Polygraph Protection Act (EPPA) poster, which is also a federally required poster. It is identical in content to the prior version except for the QR code and removing a prior reference to the amount of the penalty for a violation. The poster is available here. It is also available in Spanish.

As a reminder, the DOL issued an updated FMLA poster in April 2016. If you have not already updated that poster, it is available here. There is also a Spanish language version.

If you utilize an “all-in-one” poster, printing these updated posters and posting them on top of the outdated sections within the all-in-one poster will satisfy the requirement. Each of these postings are required by federal law. The EPPA and FLSA posters apply to all employers. The FMLA poster applies only if the FMLA applies to the employer—triggered by having 50 or more employees—and should be posted even if no work location has 50 or more employees within 75 miles. Any small business with questions about which posters are applicable to its business can utilize a poster advisor tool on the DOL’s website, available here.

Employers advised to review drug free workplace policy if they intend to prohibit medical marijuana use

As we outlined more fully in our earlier post, Ohio’s new medical marijuana law takes effect next month. Employers should be reminded that business groups lobbied for an exception allowing employers with drug-free workplace policies to take adverse action against applicants and employees for medical marijuana use.

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Long wait times for Indian nonimmigrant visas merit human resources planning

Special thanks to summer associate Sara Schiavone for her work on this blog post.

Human resource professionals who are managing the immigration processing for Indian nonimmigrant employees should be aware of the increased processing times for the visa application at consulates in India. The extraordinary increase in routine processing for nonimmigrant visas requires significantly more planning to avoid long periods of non-productivity while employees are stranded abroad waiting for a visa appointment.

It was not that long ago that one week was seen as a standard timeframe to receive an interview appointment. However, applicants now experience wait times as long as four months. As of July 2016, current wait times for nonimmigrant visa (NIV) interview appointments other than B (visitor), F (student) and J (exchange visitor) at the following consular posts are: Continue Reading

OFCCP publishes final rules on sex discrimination for federal contractors

As we reported last year, the Office of Federal Contract Compliance Programs (OFCCP) planned to issue a Final Rule updating its sex discrimination regulations for federal contractors and subcontractors for the first time since the 1970s. In doing so, sex discrimination prohibitions for federal contractors have been modernized to include discrimination on the bases of sex, pregnancy, childbirth, pregnancy-related medical conditions, gender identity, transgender status and sex stereotyping. Notably, sexual orientation was excluded from the definition.

The Final Rule amends regulations implementing Executive Order 11246, which prohibits discrimination by federal contractors on sever bases, including sex. The Final Rule applies only to companies that are contractors and subcontractors of a covered federal contract (totaling $10,000 or more over a 12-month period). The Final Rule includes mandatory provisions targeted at prohibiting modern issues of sex discrimination, as well as some advisory “best practices.” Continue Reading

DOL’s Persuader Rule blocked from taking effect – for now

A special thanks to summer clerk Arslan Sheikh for his assistance with this article

On June 27th, 2016, a federal district court in Texas issued a preliminary injunction, temporarily blocking the Department of Labor’s (DOL) new interpretation of the “Persuader Rule.” This injunction, which is national in scope, is a big win for employers and attorneys alike as it provides both parties more latitude to discuss union avoidance issues without being subject to reporting requirements. The Texas court’s decision means that the DOL must continue to exempt an attorney from reporting to the DOL on advice given to clients pertaining to union avoidance and employee relations, as long as the attorney does not communicate directly with non-supervisory employees. For example, this injunction means that an attorney may lawfully, without reporting, prepare documents and speeches for an employer’s use during union organizing, train managers and supervisors through seminars, and develop personnel policies and practices for an employer to implement.

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Important update regarding DOL’S new “Persuader Rule”

As we previously reported, the U.S. Department of Labor’s (DOL) new “Persuader Rule” is set to take effect July 1, 2016. The rule is highly controversial because it requires employers and labor relations consultants, including attorneys, to file reports with the DOL regarding any arrangements to assist the employer in “persuading” employees regarding their rights to engage in, or refrain from engaging in, union organizing activities or to collectively bargain. Under the new Persuader Rule, many legal services that labor consultants and lawyers typically provide to employers will have to be reported to the federal government effective July 1, 2016. Examples of activities that will have to be reported under the new rule include:

  1. Planning, directing  or coordinating activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees
  2. Providing material or communication for dissemination to employees
  3. Conducting a union avoidance seminar for supervisors and other employer representations
  4. Develop or implement personnel policies, practices, or actions for the employer that are intended to influence or persuade employees regarding their rights to engage or abstain from engaging in union organizing activities

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Ohio’s new law legalizing medical marijuana includes key exceptions for employers

A special thanks to one of our summer clerks, Abigail Chin, for her assistance with this article.

In the wake of Ohio’s new medical marijuana law, you may be thinking, what does it mean for your drug-free workplace policy? Ohio’s new medical marijuana law, H.B. 523, provides targeted exceptions for employers.

Ohio’s law goes into effect in approximately 90 days; however, it is expected that full implementation could take up to two years before the Ohio Department of Commerce, State Medical Board and Board of Pharmacy can establish licensing requirements for growers, processors, testing laboratories, dispensaries and physicians. H.B. 523 allows people with the following qualified medical conditions to receive a physician’s recommendation for medical marijuana: HIV/AIDS, Alzheimer’s disease, Amyotrophic lateral sclerosis (ALS), cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is chronic, severe and intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury and ulcerative colitis. Marijuana is only permitted in certain forms, like edibles and vaporizers; as smoking it is prohibited under the new law. Continue Reading

Employers wanting to take full advantage of the Defending Trade Secrets Act should consider including immunity notice in all new and updated confidentiality agreements

As our sister blog, Technology Law Source has reported, on May 11, 2016, President Obama signed into law the Defending Trade Secrets Act (DTSA), which creates a federal trade secret misappropriation cause of action. As noted, businesses have a lot to consider in deciding whether to pursue this new cause of action in federal court when the security of their trade secrets are threatened. Because the DTSA does not pre-empt state laws protecting trade secrets, however, if a federal forum is otherwise appealing, there really is no reason not to pursue a DTSA cause of action.

Employers will be particularly interested in knowing that the DTSA includes an immunity from criminal and civil liability for employees who disclose their employers’ trade secrets if:

  • the disclosure is made in confidence to a federal, state, or local government official, directly or indirectly, or to an attorney solely for the purpose of reporting a violation of law;
  • it is made in a complaint or other document filed under seal in a lawsuit or other proceeding.

The DTSA also permits an individual who files a lawsuit against his or her employer alleging retaliation for reporting a suspected violation of law to disclose the employer’s trade secret to an attorney and use it in a court proceeding if the document containing the trade secret is filed under seal and in response to a court order. Continue Reading

OSHA issues final rule requiring electronic submission of workplace illness and injury logs

On May 11, 2016, OSHA issued a final rule requiring electronic reporting of illnesses and injuries. The new rules apply to establishments with 250 or more employees. The rules require electronic submission of the 2016 OSHA form 300A summary report by July 1, 2017, and the 2017 300 log, 300A summary and 301 incident report for 2017 by July 1, 2018. In each subsequent year, all reports for every establishment must be submitted by March 2 of the following year. The new rules also require employers in high-risk industries (construction, manufacturing, furniture stores, waste collection and nursing care facilities) with 20-249 employees to electronically submit their 300A summary. OSHA has stated that no exceptions will be granted to employers who file the required reports in paper format. The information electronically submitted by employers will then be posted on OSHA’s website. OSHA has stated that it will post establishment-specific data but not post any data that would identify any employee. However, in major injury incidents (especially those where there is publicity), it would not be difficult to determine the identity of the employee(s).

OSHA has stated that it believes that publishing the data will encourage safer workplaces. In addition, OSHA has said that it intends to use the data to determine the employers and industries on which to focus its enforcement efforts.

This is a major change from the current injury and illness recording requirements. Presently, employers are required to maintain the 300 logs, 301 incident reports and 300A annual summary and to post the 300A summary in the workplace each year. There is no requirement to submit the records to OSHA. Generally, OSHA only reviews them in the event of an onsite inspection. The only current obligation to report to OSHA is the requirement to report fatalities, amputations, hospitalizations or the loss of an eye. Continue Reading

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