Revised EEO-1 Requirements Give EEOC New Window into Your Employment Practices

Employers with more than 100 employees and federal contractors are probably more than familiar with the EEO-1 reporting requirements, but those requirements are about to change. On July 13, 2016, the Equal Employment Opportunity Commission published a revised version of a proposed rule to broaden the scope of data collected in the EEO-1 report. Earlier this year, the EEOC issued an initial version of the proposed rule, which would have required additional reporting on each of ten categories of employees and pay information reported by race and gender.  The July 13 version of the rule contained some key changes.

Changes to Proposed Rule

Under the new proposal, the EEOC will require reporting on an employer’s established pay ranges for positions and hours worked. In response to the comments received regarding the initial proposal, the revised proposal proposes moving the due date for filing the required report from September 30, 2017 to March 31, 2018. This change will allow employers to use employee’s W-2 earnings for reporting. Because of the revisions to the proposal, a new 30 day notice and comment period commenced with the release of the new revised proposal in the federal register.

Purpose of Data Collection

EEOC explained that it intends to use pay data for early analysis of discriminatory complaints. Investigators will examine the data for pay disparities and perform statistical analyses, yet to be determined in order to investigate whether compensation discrimination appears likely. EEOC has further stated that it will compare periodic reports on pay disparities by gender and race based on the data. Finally, the agency will use the data to enhance its support for training programs by, among other things, providing supporting evidence for training programs.

What Should I Do Now

EEOC actually pays attention to the comments it receives as is evidenced by the new revised proposed rule. We strongly encourage employers to make comments on the hardships the proposed revised rule would create. EEOC has remained silent on how it will account for the merit based non-discriminatory factors that could lead to differences in pay in the same job category. This is an issue we suggest employers should press heavily in their comments. Tenure, skill sets and even the broad nature of the job categories themselves can be pivotal in determining wage differences. Stay tuned, we will likely see more changes when the final rule is published.

 

OSHA Hits Employer with Hefty Fine for Failing to Protect Employee from Assault by Client

A national home health care provider, doing business in York Pennsylvania as Epic Health Services, was recently issued a citation and significant fine by The Occupational Safety and Health Administration (OSHA) in connection with an assault of an employee by a client.

Even a sanitized version of the facts is disturbing. The employer provides health care and therapy services to clients in their homes. One of the employer’s home health workers was sexually assaulted by a client of the employer while working in the client’s home. Prior to this incident, another employee had specifically warned the employer about sexual assaults. In addition, the employer has received numerous prior reports of verbal, physical and sexual assaults directed toward employees, and of a concern that an employee was working in a home where domestic violence occurred.

Following a complaint by the assaulted employee, and resulting investigation, OSHA determined that the employer failed to adequately protect its employees from the dangers of workplace violence. More specifically, OSHA concluded that Epic Health exposed employees to risk of physical assault while provided home health care to clients and support services to family members, without any system in place for reporting or addressing threats or incidents of violence. In its official news release for this case, OSHA stated: “Epic Health Services failed to protect its employee from life-threatening hazards of workplace violence and failed to provide an effective workplace violence prevention program.”

Obviously, the fact that the employer ignored prior employee reports of hazards and the potential for violence at outside work locations (in clients’ homes) was considered significant in terms of OSHA’s conclusion that the employer failed to adequately protect its workers and provide a safe workplace.

As a result, the employer was cited for a “willful” violation for failing to maintain a safe workplace under OSHA’s General Duty Clause, which is a catch-all type provision that is applied when the issue under consideration is not covered by a specific regulation, as well as a second citation for several “other than serious” recordkeeping violations. In addition, the employer was hit with hefty fines totaling $98,000.00 (including the current maximum $70,000 fine for the willful violation plus an additional $28,000 for the recordkeeping violations).

In the primary citation, OSHA also stated a number of suggested abatement measures that the employer was encouraged to implement in an effort to address workplace violence issues and avoid future similar violations, including:

  • A written, comprehensive workplace violence prevention program;
  • A workplace violence hazard assessment and security procedures for each new client;
  • Procedures to control workplace violence such as a worker’s right to refuse to provide services in a clearly hazardous situation without fear of retaliation;
  • A workplace violence training program;
  • Procedures to be taken in the event of a violent incident in the workplace, including incident reports and investigations; and
  • A system for employees to report all instances of workplace violence, regardless of severity.

As with any OSHA citation, Epic Health Services has 15 days to request a conference with OSHA’s area director to discuss the findings and proposed penalties or file a formal contest with before the Occupational Safety and Health Review Commission to challenge the findings and penalties.

There are many lessons that the prudent employer can take from this case, including:

  • Always be on the lookout for and continuously assess safety and health risks and hazards in the workplace;
  • Keep your eyes and ears open, and listen to and consider legitimate employee concerns and complaints;
  • Don’t ignore, and apply safety programs to, outside/remote work locations;
  • Address safety risks in a timely manner;
  • Recognize that it’s an employer’s responsibly to assess risks and keep employees safe at work within established standards, even with respect to risks, hazards and dangers created by non-employees/third parties; and
  • Maintain, review and update as necessary appropriate and comprehensive policies and procedures addressing workplace safety.

All employers should be attentive to and serious about workplace safety issues, particularly considering OSHA’s ongoing aggressive enforcement efforts and the potential for significant liability (including that the already substantial maximum penalty amounts are expected to be significantly increased in the near future).   Don’t be the unprepared employer that is faced with the likely unfavorable and costly outcome of an unexpected OSHA investigation. Instead, take a proactive approach, review safety programs and overall OSHA compliance status now – before an investigator is at your door – and significantly reduce your risk of liability.

Please feel free to call any member of our Labor and Employment Law Practice Group if you have any questions about this post and for further guidance regarding OSHA compliance and workplace safety issues.

To Enforce a Call-off Policy or Not to Enforce a Call-off Policy; that is the Question

This post was contributed by Erica Townes, a McNees Summer Associate. Ms. Townes is a rising third year law student at the Widener University Commonwealth Law School and is expected to earn her J.D. in May of 2017.

Recently you’ve noticed that an employee takes FMLA-covered leave the same week every year or always seems to have a medical emergency between Thanksgiving and January 1. Similarly, another employee regularly calls out of work requesting FMLA-covered, coincidentally on Fridays during football season. How can employers prevent this type of FMLA leave abuse? Several courts have addressed this issue.

Generally, employers are free to enforce company policies even with respect to employees on FMLA leave, provided that such policies are consistent with the FMLA.  Specifically, company policies cannot conflict with or diminish rights guaranteed under the FMLA.  Accordingly, the Third Circuit, the court of appeals that covers Pennsylvania, has routinely held that employers do not have to forego enforcement their call-in policies simply because an employee is FLMA eligible.

The Third Circuit has upheld an employer’s right to terminate employees for violating other policies while the employee was out on FMLA leave.  While employees may view these call-in policies as burdensome or intrusive, courts have expressly held that, despite the fact that employees have the right to take FMLA leave, employees do not have the right to be left alone when out on leave.

For example, one employer implemented a policy that required employees out on paid sick leave to stay home unless the employee was tending to a personal matter related to the reason they were on sick leave.  The employer further required employees to notify a hotline upon leaving and returning to their home, and if necessary, a sick leave investigator could call or visit the employee while he or she was out on leave.  In that case, the court held that the policy could be applied to an employee who was using FMLA-covered leave concurrently with paid sick leave, and that such application of the policy did not run afoul of the FMLA because nothing in the FMLA prevents employers from ensuring that employees are not abusing their leave.

In another case, an employee took FMLA and paid sick leave concurrently to have an operation done.  Only a few weeks after the operation, the employer learned that the employee had gone on a trip to Cancun, Mexico with friends, and as a result, the employee was terminated.  The employee brought a claim challenging her discharge under the FMLA.  Ultimately, the court held that the employee was bound by the employer’s sick leave and absenteeism policies, emphasizing that the FMLA, in no way, restricted the employer from preventing FMLA fraud.  As such, the discharge was upheld.

The Third Circuit has also held that an employer may enforce a written policy prohibiting moonlighting, or working part-time for a different employer, while the employee is out on FMLA leave.

The lesson learned from these cases is that employers have the right to safeguard against FMLA leave fraud and abuse.  To that end, employers may implement policies to reduce the fraudulent use of FMLA, so long as such policies do not abrogate rights guaranteed to the employee under the Act.

Practice Pointers

In addition to the policies mentioned above, consider the below practice pointers.

  • Consistency.  When handling FMLA leave, consistency is critical.  Providing an exception to the rule out of sympathy may hurt the employer in the long run as a disgruntled employee will use such exceptions against the employer in the future.  As the old adage goes, no good deed goes unpunished.
  • Records.  Maintain accurate records of FMLA leave so that (1) an employee’s FMLA eligibility can be accurately determined and (2) to identify suspicious patterns of absence.
  • Paid Leave.  Consider requiring employees to use paid leave concurrently with, or even before, FMLA leave. An employee will be less inclined to abuse FMLA leave if he or she has to exhaust their on time.
  • Abuse.  Immediately address employees who violate your policies.  Without doing so, employees may later argue that the employer excused the violation.
  • Seek Advice.  If you are still unsure whether you can enforce a particular policy, seek advice from legal counsel.

 

Your employee tells you he’s using medicinal marijuana . . . now what?

Since the passage of the Medical Marijuana Act (“MMA”), we have received many questions from employers regarding the MMA’s impact on employment law; one of the most frequent questions being – what do I do if an employee tells me he/she is using medical marijuana? While the answer to this question will partly depend on state regulations that have yet to be issued, for now there are a few things that employers should know and do when confronted with an employee who is using medicinal marijuana:

  1. Recognize that only “certified users” are legally permitted to use medicinal marijuana in Pennsylvania. Only individuals who are “certified” under the MMA are authorized to use medical marijuana in Pennsylvania. Because the regulatory framework to implement the certification process has not been implemented, there presently is no mechanism for individuals in Pennsylvania to become “certified.” Until the regulatory framework is in place and certifications are being issued, any employee who reports that he is using medical marijuana is likely violating the law. Until a certification is issued, the employee is not entitled to the protections contained in the MMA, such as the anti-discrimination provision at §2103(b)(1), which we discussed here.
  1. Understand that the MMA does not require employers to accommodate the use of medical marijuana while the employee is at work. The MMA specifically provides “nothing in this Act shall require an employer to make an accommodation for the use of medical marijuana on the property or premises of any place of employment.” §2103(b)(2). For this reason, it appears employers may implement and/or continue to enforce policies that prevent marijuana use at work or on the employer’s premises, regardless of whether the use is certified under the MMA.
  1. Analyze the employee’s situation in accordance with the ADA. Under current interpretations of the law, it appears that the ADA does not prohibit an employer from discharging an employee who tests positive for marijuana, even if the use was prescribed by a doctor. However, the employee who voluntarily discloses medical marijuana use, because the employee has a disability, may be entitled to protection under the ADA. Accordingly, an employer should engage in an interactive process with the employee to determine whether accommodations are warranted. While we strongly recommend that employers seek guidance from counsel in these situations, the following general steps should be followed in all situations:
  • Ask the employee, in writing, to obtain a letter or report from his/her health care provider identifying the condition for which the medicinal marijuana has been prescribed and how, if at all, the employee’s use of medicinal marijuana will impact or impair the employee’s ability to perform his/her job. Providing a copy of the employee’s job description to the health care provider is a best practice.
  • To the extent the employee’s ability to perform his/her job is impacted by the use of medicinal marijuana, assess whether the employee can perform the essential functions of the job with or without reasonable accommodation. Remember, this is a fact-specific inquiry that should be conducted on a case-by-case basis. For example, if you would normally provide medical leave to an employee temporarily prohibited from performing his job due to the use of prescription drugs, you may be required to do the same for an employee with a prescription for medicinal marijuana.
  • To the extent an employee’s ability to perform his/her job is not impacted by the use of medicinal marijuana, remind the employee that reporting to work “under the influence” and the use of marijuana at work or on the employer’s premises are strictly prohibited.
  • Continue communicating with your employee to fulfill your obligations to interact under the ADA.

Naturally, if you have specific questions about the MMA and its impact on your workplace, please don’t hesitate to call any member of our Labor and Employment Law Practice Group for further guidance. As the Pennsylvania Department of Health begins to implement temporary regulations, we will keep you apprised of further developments.

Judge Puts Breaks on Department of Labor’s “Persuader Rule”

The United States Department of Labor issued regulations earlier this year finalizing the “Persuader Rule.” Under the new Rule, employers and consultants (including lawyers) would be required to report labor relations advice and services under the Labor-Management Reporting and Disclosure Act’s “persuader activity” regulations when such advice and services are offered in the context of union organizing campaigns. Information subject to mandatory reporting under the Persuader Rule includes the identity of the employer, a description of the services rendered to the employer, and the fee arrangement between the employer and consultant/attorney.

The rule was set to become effective on July 1, 2016. Fortunately for employers and management-side labor attorneys everywhere, a United States District Judge in Texas issued a nationwide injunction barring the Department of Labor from enforcing the rule. According to the Judge, the rule obligates attorneys to violate the attorney-client privilege by disclosing clients’ identities, fee arrangements, and the nature of the advice and services provided. The opinion also holds that the Persuader Rule violates employers’ First Amendment rights to free speech and association, as well as their Fifth Amendment Rights to due process.

The decision does not mean that the Persuader Rule is dead, however. The Department of Labor may appeal the District Court’s Decision to the Fifth Circuit Court of Appeals. Alternatively, the Department could elect to scrap the current rule and go back to the drawing board. For now, however, employers and management-side attorneys are not required to comply with the Persuader Rule. We will continue to monitor this issue and report any further developments right here on our blog.

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