The Equal Employment Opportunity Commission (“EEOC” or the “Agency”) recently released a draft of its Strategic Enforcement Plan for Fiscal Years 2012 through 2016. The Agency has requested public comment on the Plan, which describes its strategy for targeted enforcement and the integration of administrative and legal enforcement activities. These efforts that are meant to help the Agency meet its responsibilities in the face of increasing demand and limited resources. Most notably for employers, the EEOC’s Plan outlines the nationwide priorities for its enforcement efforts in private, state and local government, and federal sectors.
Continue Reading EEOC Releases Strategic Enforcement Plan

On October 31, 2012, the National Labor Relations Board’s (NLRB) Office of the General Counsel issued two advice memoranda addressing at-will provisions in employee handbooks. In both cases, the NLRB concluded that the specific at-will provision could not reasonably be interpreted to restrict protected activity and, therefore, was permissible under federal labor law.
Continue Reading NLRB Provides New Guidance on At-Will Employment Provisions

Mitt Romney recently drew criticism for commenting to the National Federation for Independent Business (NFIB) that employers should weigh in on the upcoming election when speaking to employees. Specifically, Romney told NFIB members: “I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections.” Romney went on to say that there is “[n]othing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well.” These comments likely had many HR professionals across the country asking, “Can employers really do that?”
Continue Reading Bringing Politics into the Workplace during Election Season: A Wise Move for Employers?

Given the popularity of Facebook, Twitter, and LinkedIn, more and more organizations are resorting to social media sites to promote their brands and manage their public profiles. Employers are also encouraging employees to open social media accounts to carry out marketing and networking objectives. As corporate and professional social media use increases, so is the frequency of lawsuits challenging just who owns social networking accounts and content–the company or the employee who maintains them.

A federal judge is being asked to address this very issue in a case involving a Pennsylvania woman’s claim that her former employer violated the Computer Fraud and Abuse Act when it took control of her LinkedIn account after she was fired.
Continue Reading Employer Takeover of Employee’s LinkedIn Account Does Not Violate Federal Computer Hacking Law, Question of Ownership Remains

As readers of this blog surely are aware, the National Labor Relations Board (NLRB) has embarked on a crusade against overbroad social media policies and handbook language. Notably, in a trio of social media reports, the NLRB’s Office of General Counsel suggested that prohibitions on offensive, demeaning, and inappropriate comments or statements that could damage the reputation of the company or its employees are unlawfully vague and could have a chilling effect on employee communications critical of the terms and conditions of their employment. Moreover, the Office of General Counsel expressed its opinion that the inclusion of a Section 7 disclaimer would not save an ambiguous policy. Recent decisions, however, signal that the NLRB has adopted a contrary position.
Continue Reading NLRB Decisions Suggest that Section 7 Disclaimer Could Save Vague Policies

Employers and wellness advocates have long been confounded by the complex gauntlet of federal laws and regulations that must be considered when structuring wellness programs. HIPAA’s non-discrimination requirements, the Genetic Information Nondiscrimination Act (“GINA”) and, perhaps most daunting, the Americans with Disabilities Act (“ADA”) are among the laws that come into play when an employer is considering its wellness plan options.

Perhaps the most closely watched legal issue concerning wellness programs is this: May an employer offer a health coverage premium discount to those employees who complete a “health risk assessment” (“HRA”) that is administered in connection with a wellness program? Or, put another way, may employees who choose not to complete an HRA be subject to a premium surcharge? HIPAA regulations clearly allow employers to offer “bona fide wellness programs” with limited premium discounts; however, tying a discount to completion of an HRA presents a potential rub under the ADA.
Continue Reading Federal Appeals Court Gives Wellness Program a Clean Bill of Health

Under the Pennsylvania Workers’ Compensation Act (“Act”), employers are required to maintain workers’ compensation insurance coverage. Generally, the employer’s obligation extends only to maintaining coverage for its employees, as that term is defined by law. Independent contractors are not eligible for workers’ compensation benefits under the Act.

However, Section 302(a) of the Act provides that an entity may be deemed a “statutory employer” as to independent contractors of a subcontractor who fails to maintain workers’ compensation insurance. Specifically, an entity that subcontracts with another entity to perform work regularly a part of the entity’s business is secondarily liable for that payment of workers’ compensation benefits to the subcontractor’s employees. Earlier this year, the Pennsylvania Supreme Court issued an opinion expanding the scope of statutory employer liability under the Act.
Continue Reading State Supreme Court Extends Workers’ Compensation Liability to Subcontractor’s Employees

On July 5, 2012, Pennsylvania Governor Tom Corbett signed into law the Public Works Employment Verification Act (“Act”), which requires state public works contractors and subcontractors to use the E-Verify program operated by the Department of Homeland Security. The E-Verify program is a free online system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to government records to instantly confirm employment eligibility.
Continue Reading New Law to Mandate Use of E-Verify by Public Works Contractors and Subcontractors

In recent weeks, identical bills were proposed in the House (H.R. 4123) and Senate (S. 2145) to eliminate the so-called “safe harbor” in the federal tax code that protects businesses that have misclassified employees as independent contractors and, thus, have avoided paying payroll taxes, unemployment insurance, workers’ compensation premiums and other costs. These bills mark the second time in 18 months that such legislation has been put forward. Though unlikely to pass, especially in this gridlocked Congress, the bills are just the latest in a number of recent endeavors by state and federal lawmakers and law enforcement agencies to curb independent contractor misclassification.

While the bills recognize that many workers are properly classified as independent contractors, the U.S. Department of Labor estimates that as many as 30% of employers are misclassifying employees as independent contractors. According to the IRS, approximately $54 billion in tax revenues are lost annually because of independent contractor misclassification. These agencies are now taking action to police misclassification and curb abuse.
Continue Reading Independent Contractor Misclassification in the Crosshairs