Archive for the 'Legislation' Category

Now What?

I am not a political pundit and I am certainly not going to use this blog to share my political views, but I think it is safe to say that none of us, no matter which way we voted, saw that coming. But come it did, and on January 20th we are going to have a new President and a new House and a new Senate and they are all controlled by a single party.

So now, we are all asking, what comes next? Now what?

In an effort to stay out of trouble and stick to what I know, I’m going to limit my “now what” to “now what” for those of us that work in labor and employment law and human resources. So what can we expect from Mr. Trump’s Presidency in those areas?

I have no idea. And neither does anyone else, and anyone telling you they do is kidding themselves.

So that’s it, nice talking to you, see you next time . . .

I’m kidding, because we can make some pretty good guesses, at least in some of the bigger areas.

The NLRB: Let’s start with something easy. There is nothing new here. Every time we get a change in party in the White House, we get a sea change in the composition of the Board. That is because the President gets to appoint the members of the NLRB and Republicans tend to appoint more employer-friendly Boards, Democrats tend to lean the other way and at least one member of the Board changes over every year. The NLRB has five members and currently three of those seats are filled – two by Democrats and one by a Republican. With Congress on his side, it is pretty clear President-elect Trump will fill the vacant seats with members that will tend to lean toward management. But again, nothing new there as this happens every time we get a new party in the White House. What is new is that we may, for the first time in a long time, and because we have a Congress and President of the same party, get a full Board. All five seats filled.

The DOL: We are going to have a new Secretary of Labor. What does that mean for the DOL’s pet project, the new FLSA regulations? We don’t know. But before you get all excited, don’t expect not to have to comply with these regulations. Don’t forget, they go into effect December 1, and Mr. Trump won’t be the President on December 1. There is no way Congress can act that fast, and even if they do, President Obama will veto any attempt to stop implementation. But who knows what will really happen next year. Do they get rolled back? Are they phased in or out? I don’t know and neither does anyone else, but don’t forget, every state that had a minimum wage issue on the ballot in this election voted to increase the minimum wage. So, maybe President Trump will leave it up to the states to decide. I just don’t know.

The EEOC: The current Chair of the EEOC is Jenny Yang. Chairperson Yang’s term expires in 2017. President Trump will then appoint a successor. The Chairperson of the EEOC sets the EEOC’s enforcement agenda, which in recent years has focused on pay equity, sexual orientation and transgender issues. With a new and more conservative Chair, and with the impending departure of the EEOC’s General Counsel who announced that he would be leaving the EEOC in December, it is likely that the EEOC’s enforcement focus will change dramatically. And the first place we might see that is in the EEOC’s new requirement regarding the EEO-1 form. As you know, last February the EEOC issued proposed regulations that would require employers to report certain pay data on the EEO-1 beginning in March of 2018. I would not bet on that happening now. But again, we are just going to have to wait and see. And what else might change? For example, at least for the last couple of years, the EEOC has been pretty aggressive in bringing complaints against employers for what it calls systemic violations. In short, the current EEOC likes the big splashy case. Will that trend continue, or will the EEOC be less aggressive in its enforcement and focus more on specific individual complaints?

And just to show you exactly how much we don’t really know about what President Trump will do, I’m going to leave you with this . . . what about paid leave? As you know, there has been a bunch of noise out of Congress lately about making at least some of the FMLA paid. I know what you are saying, “not anymore.” But not so fast. During his campaign Mr. Trump actually supported paid leave, at least for working mothers. Here is a quote: “We need working mothers to be fairly compensated for their work, and to have access to affordable, quality child care for their kids.” This initiative is championed by Mr. Trump’s oldest daughter, Ivanka Trump. You can read the full story in the Washington Post.

So there you go. Helpful, right? OK, not so much, but stay tuned. Time will tell.

More Minimum in Michigan

Sometimes when I do this thing I just write news.  I don’t try to be funny or entertaining, I just write the news.  The two or three of you that read this thing regularly know that I do that when something happens and I am just not that sure of how to make it funny or interesting and I feel like I need to write something about it.  Today is that day.

I know you have all read or seen or heard this by now, but I’m going to take a second, and I mean a second, to write about it anyway.  Michigan has raised its minimum wage.  The federal minimum wage stays the same (it was lower than Michigan’s anyway), but the state minimum wage is going up.  On May 27 the Legislature passed and Governor Snyder signed legislation that will, over the next 4 years, raise Michigan’s minimum wage to $9.25 per hour.  In addition, tipped workers will also get a bump in their minimum up from the current $2.65 to $3.52 per hour – something the Legislature forgot to deal with the last time they changed the minimum.

Finally, the new bill will index the minimum wage to inflation starting in 2019.  Depending on the rate of inflation in a given year, the minimum may go up by as much as 3.5%.

So, Steve, you just said the federal minimum wage stays the same.  Which one do I have to pay if I have employees in Michigan?  You have to pay the higher one.  Want to read more about that, here you go.

WHAT A WAY TO END THE YEAR!

Over the course of this year I have written a lot about social media and labor law.  A couple of those posts have had to do with, as I put it, “gnashing of teeth” over employers requiring employees or applicants for employment to provide them with private passwords to social media accounts.  You can read those posts here and here.

Well, the gnashing of teeth is over here in Michigan.  On Friday Governor Snyder signed into law House Bill 5523.  This new law prohibits an employer or educational institution from requiring an employee or a student or an applicant to turn over a private social media password in order to get or keep a job or spot in a school.  I read somewhere, I can’t remember where, that this bill was a solution looking for a problem.  I’m inclined to agree.  I represent all kinds of clients all over this state, big and small, and I don’t know of a single one ever requiring that an employee or a candidate for employment turn over his or her Facebook password to get or keep a job.  But, the legislature and the Governor obviously thought it was important, so we now have Public Act 478 of 2012.

As I mentioned in April, the Act is pretty short.  It prohibits: “employers and educational institutions from requiring certain individuals to disclose information that allows access to certain social networking accounts; to prohibit employers and educational institutions from taking certain actions for failure to disclose information that allows access to certain social networking accounts; and to provide remedies.”  Section 3 of the Act says:

Sec. 3. An employer shall not do any of the following:

(a) Request an employee or an applicant for employment to disclose access information associated with the employee’s or applicant’s social networking account.

(b) Discharge, discipline, fail to hire, or otherwise discriminate against an employee or applicant for employment for failure to disclose access information associated with the employee’s or applicant’s social networking account.

So there you go, the very last law signed by the Governor in 2012.

2013 can’t get here fast enough.

Hand over that Password!!!!!

As you know, there has been a lot of gnashing of teeth lately over employers requiring employees and candidates for employment to hand over their passwords to social media sites like Facebook and Google +.  You may recall that I wrote about a couple of Senators writing an open letter to the EEOC.  I even mentioned that a bunch of bills were pending at the federal level dealing with privacy in one way or another.  You can see the post here.

What I did not tell you was what was going on at the state level.  I thought I would.  Currently pending in the Michigan State Legislature is House Bill 5523.  You can see it here.  The bill is pretty short and is designed “ to prohibit employers and educational institutions from requiring certain individuals to disclose information that allows access to certain social networking accounts; to prohibit employers and educational institutions from taking certain actions for failure to disclose information that allows access to certain social networking accounts; and to provide remedies.”  Section 3 of the bill says:

Sec. 3. An employer shall not do any of the following:

(a) Request an employee or an applicant for employment to disclose access information associated with the employee’s or applicant’s social networking account.

(b) Discharge, discipline, fail to hire, or otherwise discriminate against an employee or applicant for employment for failure to disclose access information associated with the employee’s or applicant’s social networking account.

Violate this section and according to the bill, you have committed a misdemeanor and can go to jail for up to 93 days.  That’s right, YOU CAN GO TO JAIL!  And the person whose private access information you want to get can sue you for actual damages or $1,000, whichever is greater.  They also get costs and attorney fees just in case we needed to give the plaintiff’s bar incentive to take these cases.

Don’t think this bill will ever pass?  Think again.  Maryland has already passed a similar law.  You can read about it at Molly DiBianca’s excellent Delaware Employment Law blogCalifornia is about to become state number 2.

EEOC ISSUES GINA FINAL REGULATIONS

I know all of you have been dying to see the final regulations issued by the EEOC under the Genetic Information Nondiscrimination Act (GINA).  Well, wait no more.  On November 9, 2010, the EEOC issued those final regulations. The first thing the final regulations provide is specific definitions for many of the terms that the law itself simply defines by making reference to other laws (for example, Title VII).  The regs then go on to tell you what you can’t do.  For example, you can’t “limit, segregate or classify” employees because of genetic information.  As an example, the regs say “an employer could not reassign someone whom it learned had a family medical history of heart disease from a job it believed would be too stressful. . .”  In addition, the regs prohibit discrimination or retaliation based on genetic information.  No surprise there.

So, what is new?  Well, the regs do help clarify what is meant by “requesting” genetic information.  For example the regs say “Request includes conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information; actively listening to a third-party conversation of searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.”  Ok?  So you can’t do an internet search looking for genetic information.  But what if you are a Facebook friend of one of your employees and you just happen to see some genetic information (i.e., “took mom to the Dr. today. Her Parkinson’s is acting up.”).  Have you violated the statute?  The regs say no.  In fact, they provide a specific exception for overhearing a conversation, expressing sympathy to a co-worker, and finding information “inadvertently”:

. . . from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).

But don’t forget, this exception only applies if you have permission to access the profile by the creator of the profile.  In other words, Not “friends” not allowed.

The regs also provide a so called “safe harbor” for employers who “inadvertently” receive genetic information in the course of seeking other permissible medical information.  Like say on your FMLA medical certification form.  To take advantage of the safe harbor, the employer must include language in the request for medical information.  The regs give the following sample language:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Oh, one last thing.  An employer who offers  health or genetic services as part of a wellness program is allowed to receive genetic information as part of the program as long as participation in the program is knowing and voluntary.  Voluntary means that when an employer offers incentives for participation in the program, the incentives must be paid even if the employee decides not to answer any question requesting genetic information.

From a practical perspective, at the very least you will want to update your FMLA, workers’ comp, and ADA forms (and any other form seeking medical information about an employee like disability leave forms) to include the safe harbor language.  You might also want to take a look at your wellness plan to make sure that it complies with the new final regulations.

WHAT’S NEXT? PLAN, PREVENT, AND PROTECT, THAT’S WHAT.

It’s been an interesting year so far for those of us who practice labor and employment law.  First, Congress and the President gave us the LedbetterFair Pay Act.  Then the Employee Free Choice Act got put off for who knows how long (with a bit of luck, forever).  Then, over the strong objection of some business groups, the President made recess appointments to fill vacancies on both the National Labor Relations Board (3 new members) and the Equal Employment Opportunity Commission (4 to the EEOC).  For the first time in a long time the NLRB and the EEOC both have a full compliment of members and the EEOC has a new General Counsel.  So what’s next?  Well, only time will tell what the NRLB and the EEOC will do.  And we still don’t know what Congress is going to do next:  Are they back after the EFCA?  Will we see passage of Employment Nondiscrimination Act, or maybe it’s the Paycheck Fairness Act, all of which are currently pending.

Well, at least the Department of Labor is not keeping us waiting.  Oh, joy. On April 26, 2010 the DOL published, in the Federal Register, its Semiannual Regulatory Agenda.  In a video message posted on the DOL website Secretary of Labor Hilda Solis announced the DOL’s “Plan/Prevent/Protect”Initiative.  Secretary Solis informs the public that the DOL is proposing 78 new rules in its’ 2010 regulatory agenda.  In the video, Secretary Solis decries what she calls the “catch me if you can” model of current labor regulation, wherein some “employers make calculated decisions not to comply with employment laws.”  She says, that instead, the new initiative is designed to expand the DOL’s effort to “ensure compliance with labor laws.”  Secretary Solis explains the new Plan/Prevent/Protect Initiative as follows:

Plan means employers will be required to “create a plan to find and fix violations of the law.”

Prevent means that employers’ will be required to implement their plan in a “manner that prevents violations of the law.”

Protect means that employers must make sure that the plan “actually does what it is supposed to do.

Secretary Solis goes on to say that employers who fail to do these things will be “considered out of compliance with the law.”

To give you a taste of what the Secretary is talking about, one of the sets of regulations under consideration for changes are the regulations related to the Fair Labor Standards Act.  For example, the Wage Hour Division of the DOL is proposing that the record keeping requirements of the FLSA be updated to “foster openness and transparency, to increase awareness among workers, and to encourage greater compliance by employers.”  DOL is considering rule changes that will require employers to provide greater information to employees about how hours worked are recorded and how wages are computed.  In addition, the proposal will require that if and employer seeks to “exclude a worker” from coverage (by hiring them as an independent contractor for example) the employer will be “required to perform a classification analysis and disclose that analysis to the worker.”  The employer will also be required to keep the analysis and provide it to the WHD on demand.

Of course, all of this is simply a proposal at this point.  But you just never know what’s next.  We will keep an eye on what is going on. In the meantime, if you want to see the Secretary’s message, or see all 78 sets of regulations under consideration for revision,  you can find them athttp://www.dol.gov/regulations/.  And if you are ready to Plan, Prevent and Protect your business, give us a call.

HOW MUCH DO YOU REALLY LIKE FRENCH FRIES?

 

Seriously, how much do you really like french fries?  Now we all know that french fries are not the best food in the world for us.  In fact, the government (I’m not sure which one, could be state, could be federal, could be the local school board) has determined that they are so bad for kids that they have taken real french fries out of my kid’s high school cafeteria.  I’m not kidding; they have so called “baked” fries, but not real french fries.  You know what I mean when I say real french fries, right?  I’m talking about the deep fried, salt covered yummy goodness that has so much fat on it you can feel your arteries starting to harden with the first bite!!!!!  Man, I’m making myself hungry.  Of course, despite all that fatty goodness, no one can seriously question how bad these things are for you, can they?  In fact, Bodybuilding.com has an article that explains why you should NEVER let your kids eat french fries.  You can see the article at http://www.bodybuilding.com/fun/depew7.htm  Seems fries have “bad fat”, “bad carbs” and expose you to “carcinogens!”  Wow.  Who knew?

Well your friendly neighborhood federal government knew that’s who.  It seems Congress has also apparently discovered that french fries are bad for you.  In fact, buried deep in the brand new Patient Protection and Affordable Care Act , way way down on page 900 and something, is a 10% excise tax on. . drum roll please. . yes, french fries.

The Act states:

SEC. 10907. EXCISE TAX ON FRENCH FRIES.

(a) IN GENERAL.—The provisions of, and amendments made by, section 9017 of this Act are hereby deemed null, void, and of no effect.

(b) EXCISE TAX ON FRENCH FRIES.—Subtitle D of the Internal Revenue Code of 1986, as amended by this Act, is amended by adding at the end the following new chapter:

‘‘CHAPTER 49—FRENCH FRIES

‘‘Sec. 5000B. Imposition of tax on French Fries.

‘‘SEC. 5000B. IMPOSITION OF TAX ON FRENCH FRIES.

‘‘(a) IN GENERAL.—There is hereby imposed on any business that sells French Fries a tax equal to 10 percent of the amount paid by the consumer for the French Fries (determined without regard to this section).

Ok, ok, ok, STOP THE PRESSES, you caught me, the Act does NOT really impose a tax on french fries but I had you going for a second didn’t I?  Come on, admit it.

Instead, it puts a tax on “Indoor Tanning Services.”  That’s right, the health care reform act taxes tanning services and you can basically take french fries out of the section above and put in Indoor Tanning Services.  Not the kind you get at the beach (although I am sure that if they could have figured out a way to do that they would have) but the kind you get at the salon.  So what you say, indoor tanning is bad for you, it causes skin cancer.  And it just might, but then again, french fries are bad for you too. So, what is the lesson in this little fable?   No, it is not that I am losing my mind.  It is stop listing to what the people on TV are telling you and Go read the Act and in the mean time, we will try to keep you up to speed on some of the other stuff in it.  Despite my little joke, you can trust us to get it right way more than the people you see on TV.  In fact, we are doing a webinar on the new Patient Protection Act and what it means for your health plan on April 21, check out our website at http://www.wnj.com/newsevents/ for details.  In the meantime you can hope that you are not in some business that the next Congress decides is bad for people.

BREAST FEEDING MOTHERS GET A BREAK

So, is everybody Health-Care-Reformed out yet? Don’t you worry, this is just the beginning. It doesn’t matter whether you are (were?) for or against the health care reform bill, it’s here. And when the President signed the Patient Protection and Affordable Care Act into law last week he gave employers a lot of reasons to pay attention. Allow me to give you an example.

Contained among the 906 pages of the Act are 3 little paragraphs that are going to have an immediate impact on employers.  Section 4207 of the Act amends Section 7 of the Fair Labor Standards Act as follows:

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:
‘‘(r)(1) An employer shall provide—
‘‘(A) a reasonable break time for an employee to express
breast milk for her nursing child for 1 year after the child’s
birth each time such employee has need to express the milk;
and
‘‘(B) a place, other than a bathroom, that is shielded from
view and free from intrusion from coworkers and the public,
which may be used by an employee to express breast milk.
‘‘(2) An employer shall not be required to compensate an
employee receiving reasonable break time under paragraph (1) for
any work time spent for such purpose.
‘‘(3) An employer that employs less than 50 employees shall
not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

 OK, now everyone get a copy of the Act and get reading.

CONGRESS IS AT IT AGAIN

You have all heard about the Lilley Ledbetter Fair Pay Act. It was the very first bill that President Obama signed into law. Ms. Ledbetter was an active campaigner for the President and she was at the bill signing. We also all know that the whole point of the Ledbetter Fair Pay Act was to overturn the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 616 (2007). Congress it seems did not like the fact that the Court felt that Ms. Ledbetter should have brought her complaint when the pay decision was made, not when she got her last paycheck. 

Guess what? Congress is not done yet. Last week, the Wall Street Journal reported that the Senate was considering two bills that would overturn two more Supreme Court decisions.  Senator Harkin introduced S. 1756, the “Protecting Older Workers Against Discrimination Act” and last April Senator Finegold introduced S. 931, the “Arbitration Fairness Act of 2009”. Both Bills have companion bills that have been introduced in the House. 

Senator Harkin’s bill would reverse the Supreme Court’s decision in Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009). Congress it appears does not care for the Court’s holding in Gross that in a mixed motive age discrimination case, age must be a “but for” cause of the adverse employment decision. In fact, the bill’s introduction says that Gross improperly narrowed the protections of the Age Discrimination in Employment Act. The bill would overturn Gross and provide that in mixed motive cases age need only be a “motivating factor” in the adverse employment decision making it much easier for age plaintiffs to prove their case.

Senator Finegold’s bill does not expressly mention a Supreme Court decision but in recent years the courts have upheld arbitration of employment disputes.  S. 931 would prohibit pre-dispute agreements to arbitrate both employment and civil rights disputes among other kinds of disputes. The bill would specifically invalidate these agreements and would apply to any dispute that arises on or after the date the bill is signed into law, regardless of when the agreement to arbitrate was signed. You can see the WSJ article at http://online.wsj.com/article/BT-CO-20091007-711697.html

We will keep an eye on these bills and keep you informed.

NON-DISCRIMINATION

Today’s posting is a news flash and nothing more.  On Wednesday, September 23, 2009, U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, chaired the first full committee hearing in the House of Representatives on legislation to prohibit employers from discriminating against employees on the basis of sexual orientation or gender identity.

The Employment Non-Discrimination Act (H.R. 3017), introduced by Rep. Barney Frank (D-MA), would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees. Currently, it is legal to discriminate in the workplace based on sexual orientation in 29 states and in 38 states based on gender identity.”  See http://edlabor.house.gov/hearings/2009/09/hr-3017-employment-non-discrim.shtml

 

Witnesses before the House included, among others, Rep. Barney Frank, the Bill’s sponsor, Stuart Ishimaru, Acting Chairman of the EEOC, Vandy Beth Glenn, a former employee of the state of Georgia who alleges she was fired from her job after she told her supervisor she was transitioning from being a man to being a woman, various legal professionals and representatives of religious organizations. 

 

You can get links to a video of Representative Frank’s testimony and pdfs of the other witnesses testimony at the committee website listed above.

 

The full House is expected to vote on the Bill later this year with the Senate taking up its version sometime next year.

 

We will keep you posted.

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