Employer Law Report

Employer alert: a new H-1B filing season brings hope and anxiety

It is again the time for U.S. employers to begin considering filing H-1B petitions for prospective new foreign national employees. These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2016 for employment beginning no earlier than Oct. 1, 2016, the beginning of the government’s 2017 fiscal year. The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required, such as engineers, teachers, accountants, and many professional information technology positions.. The problem is that there are only 85,000 H-1B visas available each year and we again expect, as in years past, for these numbers to be quickly claimed.

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Updated Affirmative Action thresholds

Federal Acquisition Regulatory Council (FAR) has updated the jurisdictional thresholds for coverage under affirmative action laws for federal contractors and subcontractors. The regulations have not been amended, but an inflationary adjustment statute applicable to the Section 503 of the Rehabilitation Act of 1973 (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) regulations allows the FAR to adjust the jurisdictional thresholds periodically for inflation. The Section 503 basic coverage threshold was increased from $10,000 to $15,000, and the VEVRAA basic coverage threshold was increased from $100,000 to $150,000. This could result in some contractors and subcontractors no longer being covered by affirmative action laws; however, the thresholds remain so low that it is unlikely to affect many contractors.

The basic coverage levels and coverage levels triggering the obligation to create an affirmative action plan are listed below:

EO 11246

  • Basic coverage: any number of employees + total contracts of $10,000 or more
  • Requirement to create an affirmative action plan: 50 employees + total contracts of $50,000 or more

Section 503

  • Basic coverage: any number of employees + a single contract of $15,000 or more
  • Requirement to create an affirmative action plan: 50 employees + a single contract of $50,000 or more

VEVRAA

  • Basic coverage: any number of employees + a single contract of $150,000 or more
  • Requirement to create an affirmative action plan: 50 employees + a single contract of $150,000 or more

OFCCP has released an infographic designed to explain jurisdictional thresholds to federal contractors and subcontractors.

http://www.dol.gov/ofccp/posters/Infographics/JurisdictionalThresholds_JRFQA508c.pdf

Seven employment law trends to keep your eyes on for 2016

2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.

1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement

The Department of Labor (DOL) has proposed changes to the thresholds for exempt status, which will increase the number of employees eligible for minimum wage and overtime payments. In addition, technology advances in the workplace are likely to collide with wage and hour laws with the increased use of smartphones and tablet devices by non-exempt employees and the rise of the sharing economy through businesses such as Uber, AirBnB, etc. Finally, the election year likely will bring with it even more emphasis on laws forcing employers to increase the minimum wage and provide for equal pay and paid family/sick leave on a federal, state and local level.

2. Expansion of the National Labor Relations Board’s (NLRB) efforts to increase unionization

2016 will give us the first full year operating under the NLRB’s new speedy election rules, which so far have served unionization well. In addition, in its last year under the Obama administration, we should expect to see other pro-union decisions and initiatives from the NLRB, including the Board’s efforts at increasing the likelihood of joint employer findings and its onslaught against non-union employment policies.

3. Expansion of Equal Employment Opportunity laws to include LGBT protections

The Equal Employment Opportunity Commission (EEOC) has been pushing an agenda to bring LGBT non-discrimination rights up to the level of other protected classes and this should continue in 2016. Expect state and local laws to begin doing the same.

4. Increased focus on employee privacy protection.

Data breaches occurring in recent years have put the spotlight not only on businesses’ protection of their customer data, but also their own employees. In addition to class action litigation being brought, with increasing success, by victims of data breaches, the Federal Trade Commission has begun enforcing its authority over unfair and deceptive trade practices to regulate in the data privacy/security space.

5.  Employer reliance on wellness programs

As health care costs continue to rise, employers have turned to wellness programs to keep a lid on those costs. Here is another place where technology is creating opportunities and issues as employer wellness programs rely more on smartphone apps and wearable devices to spur on improvements in their workforce health. The EEOC also is weighing in as it relates to the incentives that can be offered to employees for participating to ensure that participation is truly voluntary.

6.  Ban the Box.

Expect the Ban the Box movement, which seeks to prevent employers from asking job candidates about prior criminal convictions on their employment application, to gain additional traction throughout the year.

7. Immigration

Expect the 2016 elections to shine a light on federal immigration policy. Though the election year almost certainly won’t be conducive to any immigration legislation, it could provide whoever wins election with enough political capital to push his or her policy through Congress beginning in 2017.

Fair pay laws on the horizon?

According to the American Association of University Women (AAUW), female workers earn 79 cents for every dollar earned by their male counterparts. For women of color or women with children, this number is even lower. There are many movements across the country demanding equal pay for women, including one right here in Ohio. On Jan. 1, 2016, California’s Fair Pay Act (The Act) became effective, and many employers are wondering- is my state next?

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EEOC issues guidance directed specifically to HIV positive employees and their physicians

Whether the U.S. Equal Employment Opportunity Commission is taking advantage of the fact that HIV infection has been in the news lately (thanks to Charlie Sheen’s recent disclosure about his own HIV status) or the timing is pure coincidence, the EEOC earlier this month issued two publications regarding the rights afforded by the Americans with Disabilities Act to job applicants and employees living with HIV. Although the EEOC previously issued a more general guidance about the ADA’s protections for individuals with HIV/AIDS in 2012, these two new publications are notable in that they are specifically directed to HIV positive applicants and employees and the health care professionals who provide them medical services.

Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA reiterates that HIV infection is a disability under the ADA that protects the applicant or employee from discrimination and harassment and obligates the employer to make reasonable accommodations to allow infected applicants to interview and, if hired, to perform the essential functions of their positions. This guidance is directed to applicants and employees and educates them about when they may be required by an employer to reveal their HIV status (when requesting a reasonable accommodation, for example), the types of accommodations that may be available, and how to request such accommodations. It also confirms that it is unlawful for an employer to refuse to provide an HIV positive applicant or employee with reasonable accommodation, to discriminate against them, or to harass, or allow coworkers to harass, them.

Helping Patients with HIV Infection Who Need Accommodation at Work is a guide for the health care professionals who treat patients with HIV. It educates them about the basic requirements of the ADA, the types of accommodations to which their patients may be entitled, and what they can do to assist their patients in getting such accommodations. It also provides a very specific roadmap to physicians, describing the information they should provide to their patients’ employers, and even suggests that physicians describe HIV infection as an “immune disorder” in the event that a patient does not want to reveal their HIV status to his or her employer.

Employers should be aware of these communications and review them if they now have an HIV positive employee or learn in the future that an applicant or employee is HIV positive. HIV positive applicants and employees, as well as their health care providers, will be well-educated about their rights under the ADA and how to contact the EEOC if and when they believe that their rights have been violated.

OFCCP’s final compensation reporting rule expected in May

OFCCP has said that it will issue final rules in May 2016 requiring federal contractors and subcontractors to submit electronic pay data.  This rule has been highly controversial since it was first proposed in 2011.  Currently there is no obligation for contractors to submit pay data to OFCCP except in the course of an affirmative action compliance review.  The proposed rule would require contractors with 100 or more employees and federal contracts or subcontracts totaling $50,000 or more to submit summary compensation data by race, ethnicity, and sex annually.  The  data would then be aggregated by industry groups and published on OFCCP’s website in a format that would not identify any contractor.  Members of the public, including competitors, could then review the industry data.  OFCCP argues that the data will be useful for contractors that want to benchmark and make compensation adjustments.  Employees could also view the data for purposes of determining if they believe they are underpaid.  While the published data will be anonymized, OFCCP has not published any particulars on how the raw data traceable to each contractor will be secured from inadvertent disclosure or intentional data breaches.  Given the fact that these final rules have been delayed twice already, there is a possibility that these final rules will be delayed further once May 2016 arrives.

OFCCP has also promised a final rule yet this year updating its sex discrimination rules and updated construction contractor regulations by May 2016.

Website accessibility regulations delayed until 2018 but businesses should not table the issue until then

The U.S. Department of Justice (DOJ) yet again delayed the anticipated rulemaking for website accessibility under the Americans with Disabilities Act (ADA). The guidelines are now expected sometime in 2018 (delayed from the most recent expected date of April 2016). But, as I will discuss below, that does not mean that businesses transacting business with the public through websites and mobile applications should ignore web-based accessibility entirely until 2018.

The ADA and public accommodation

By way of background, the ADA requires that “places of public accommodation” be accessible to the disabled. Most businesses operating some form of physical facility open to the public understand their obligations to make those physical facilities accessible.  Public accommodations are generally businesses that are open to the public and fall into one of 12 categories listed in the ADA, such as retail stores, restaurants, hotels, theaters, doctor’s offices, pharmacies, museums, libraries, parks, private schools, and day care centers. Disabled persons can sue under the ADA alleging that they were denied full and equal access to the goods and services at a place of public accommodation. The DOJ can also bring suit for alleged ADA violations.  There is a set of very specific largely objective criteria for accessibility of physical locations

Web accessibility legal requirements and development

Is your website a place of public accommodation?

Beginning in 2006, private litigants and the DOJ began filing or threatening to file legal action based on allegedly inaccessible websites (and eventually also including mobile applications). The law is unsettled on whether websites and mobile applications are places of public accommodation under the ADA. Some courts have held that they are, and others have ruled otherwise. The Third, Ninth, and Eleventh Circuit courts apply the ADA only to websites that have a connection to goods and services available at a physical location, like a retail store.  The theory in those cases is that the store is a place of public accommodation, and “shopping there” online requires accessibility of the website.  The First, Second, and Seventh Circuit courts apply the ADA more broadly to include all websites that offer direct sale of goods or services, even those that lack “some connection to physical space.” Since web-based businesses can be sued anywhere they are regularly transacting business, litigants can select their forum based on which has the most favorable law. With e-commerce, that likely subjects many businesses to suit in all 50 states.

If the website is a place of public accommodation, what has to be done to make it accessible?

Even if a website is a place of public accommodation, the standard for what is accessible under the ADA also is unsettled. There are no current laws or regulations defining what is required. There are voluntary guidelines developed by W3C, an international consortium that develops web standards.  The most recent version is the Web Content Accessibility Guidelines (WCAG) 2.0. Even within WCAG 2.0, there are degrees of accessibility: A, AA, and AAA.

In July 2010, the DOJ released an advanced notice of proposed rulemaking seeking comments on website accessibility issues. The comment period closed in January 2011.  The proposed rules have been delayed several times since that date.  It appears that we will have to wait a little longer to see those rules—until at least 2018.

The lack of formal rules on accessibility has not stopped private litigants and their lawyers and the DOJ from attempting to enforce the ADA against businesses transacting business through websites and mobile applications. The most common targets have been online retailers.  But any website or mobile application where business is transacted with the public is vulnerable to such a challenge. The DOJ has been insisting (without any statutory or regulatory basis) that websites and mobile applications be brought into compliance with WCAG 2.0 AA. DOJ settlements also typically impose requirements for ongoing testing and reporting, independent accessibility consultants, accessibility policy development, and training of website developers.

The DOJ still expects to issue proposed rules on websites for public entities under Title II of the ADA in January 2016. These guidelines may inform private sector businesses on what standards might be adopted when the regulations for private sector public accommodations are issued (under the similar Title III of the ADA).

Accessible technology

Common barriers to web accessibility are (a) incompatibility with speech recognition or screen reading software, (b) lack of text-based alternatives to media content, (c) poor color contrast or small text size, and (d) transaction timing requirements that do not take into account intellectual disabilities. What does it mean to have an accessible website?  At the most basic level, an accessible website would have these (and other) accessible elements:

  • Provides text alternatives for any non-text content;
  • Provides alternatives for time-based media;
  • Includes content that can be presented in different ways without losing information or structure;
  • Is easy to see and hear, including separating foreground from background;
  • Permits all functionality from a keyboard if needed (as opposed to a cursor);
  • Permits sufficient time to read and use content;
  • Is not designed in a way that is known to cause seizures;
  • Includes ways to help users navigate, find content, and determine where they are;
  • Includes text content that is readable and understandable;
  • Operates and appears in predictable ways;
  • Helps users avoid and correct mistakes; and
  • Is compatible with current and future user agents, including assistive web technologies.

What should businesses do?

Waiting until 2018 could have costly consequences. Law firms representing private litigants have become increasingly aggressive in recent months in pursuing retailers regarding web accessibility.  A typical approach involves a letter from a law firm asserting that the retailer’s website is not accessible and offering to discuss an “agreed plan” for bringing the website into compliance.  The threat typically also insists on payment of significant attorney’s fees and sometimes alleged damages as terms to settle. Even more importantly, businesses are potentially missing out on e-commerce with disabled customers who are unable to navigate their websites or mobile applications.  Bottom line:  Companies would be wise to evaluate the costs and potential benefits of incorporating website accessibility designs sooner rather than later, especially if a website or mobile application revamp is in your near-term business plans.

EEOC’s wellness rules to be finalized early 2016

The Equal Employment Opportunity Commission’s (EEOC) regulatory agenda indicated that it intends to finalize its two rules governing employer wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) by February 2016. You can read about the proposed ADA changes here. The EEOC just recently published its proposal to amend the rules implementing GINA as they relate to employer wellness plans in late October, 2015. If adopted, these rules would allow an employer that offers a wellness program as part of a group health plan to provide limited financial and other incentives in exchange for an employee’s spouse providing information about his or her current or past health status. The proposed rule, however, would not permit any incentives to be provided in exchange for children’s current or past health information based on the theory that the possibility of discrimination against the employee based on genetic information is greater when the employer has access to information about the health status of the employee’s children versus the employee’s spouse. Read more about these proposed rules here. According to the EEOC, the proposed rule would provide a narrow exception to the general rule in GINA that prohibits incentives in exchange for an employee’s genetic information.

Overtime proposed rules delayed

The proposed rules on overtime issued by the Department of Labor (DOL) earlier this year will likely not be final until late 2016 according to Solicitor of Labor Patricia Smith, as reported by the Wall Street Journal. Employers had been expecting the rule to go into effect late 2015 or early 2016, the Journal said, but now that seems unlikely.

The proposed rules were released June 30 of this year and have received over 250,000 comments, which may explain why the agency is taking so long to finalize them. Many commentators believe that the agency will still seek to have the regulations implemented prior to a new president taking office because there is a risk that a new Republican president could undo the rule. If that’s the case, employers may have a short amount of time before the rules are finalized and when they become effective.

Employers should be getting ready now for various scenarios that may be implemented under the final rule. Although there is a possibility that the final rule might be revoked if a Republican wins the presidency next November, employers would be wise to prepare for all potential outcomes now.

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