Category Archives: Compliance

Genetic Discrimination

The subject of this post is not a recent development, but, because many employers remain out of compliance, it is still a timely item. The U.S. Equal Employment Opportunity Commission has revised its “E.E.O. Is The Law” poster to include information about the Genetic Information Nondiscrimination Act of 2008 (“GINA”), which became effective near the end of 2009. The poster also includes information about the Americans with Disabilities Act Amendments Act of 2008 and some updates from the U.S. Department of Labor. To order or print the revised poster or a supplement to go next to your existing (2008) poster, go here. (To review posters on other subjects currently available from the Department of Labor, go here.)

As a reminder–or perhaps a first look–here is how the E.E.O.C. currently interprets the law, which affects employers having fifteen or more employees:

Overview

Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs – referred to as “covered entities”) from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information. The E.E.O.C. enforces Title II of GINA, which addresses genetic discrimination in employment. (The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.)

Definition of “Genetic Information”

Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Discrimination because of Genetic Information

The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision, because genetic information is not relevant to an individual’s current ability to work.

Harassment because of Genetic Information

Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim’s being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area of the workplace, a co-worker, or someone who is not an employee, such as a client or customer.

Retaliation

Under GINA, it is illegal to fire, demote, harass, or otherwise retaliate against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.

Rules against Acquiring Genetic Information

It will usually be unlawful for a covered entity to get genetic information. There are, however, six narrow exceptions to this prohibition:

  • Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
  • Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
  • Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.
  • Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).
  • Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
  • Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.

Confidentiality of Genetic Information

It is also unlawful for a covered entity to disclose genetic information about applicants, employees or members. Covered entities must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.) There are limited exceptions to this non-disclosure rule, such as exceptions that provide for the disclosure of relevant genetic information to government officials investigating compliance with Title II of GINA and for disclosures made pursuant to a court order.

As with other workplace laws, employers should review their policies and procedures to ensure that they are current and that the appropriate contact people are knowledgeable about the requirements.

Federal Agency To Require Posting of Employee Labor Rights

The National Labor Relations Board has issued a Final Rule that will require covered employers to notify employees of their rights under the National Labor Relations Act, effective November 14, 2011. 

Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Additionally, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Board’s regional offices may also be downloaded from the NLRB website

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, as well as to refrain from any of those activities. It provides examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints. 

The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws. 

Questions about compliance with this or other requirements can be directed to this firm, to the National Labor Relations Board, or to other resources familiar with employment and labor law.

Text credit in part to Nancy Cleeland, Director of N.L.R.B. Office of Public Affairs

Federal Minimum Wage Increases

Effective July 24, 2009, the federal minimum wage increases to $7.25 per hour. This is the last increase required by the 2007 Minimum Wage Act.

Employers of covered employees must post a notice that describes, among other things, employees’ minimum wage rights. A link for posters is available below, under “Resources.” Note that the U.S. Department of Labor is likely to revise the currently available posters.

Minnesota employers who are not covered by the federal Fair Labor Standards Act’s minimum wage provisions are likely to be covered by the state’s wage and hour laws. Minnesota’s minimum wage remains unchanged, at $5.25 per hour for employers grossing less than $625,000 and $6.15 per hour for employers at or above that level. More information on Minnesota’s minimum wages, including some exemptions, information on the training wage, and discussion of the fact that there is no tip credit allowed in Minnesota, is provided in the official notice available below, under “Resources.”

Whether a particular classification of employee is covered by the federal minimum wage law is an analysis that is beyond the scope of this brief article. The answer depends in part on the nature of the employer’s enterprise and in part on the specific duties of the employee. If you have questions about coverage, you might contact any of the following: the Wage and Hour Division of the Employment Standards Administration of the U.S. Department of Labor; your employment law advisor; or this firm.

Resources:

  1. Federal minimum wage and other wage-and-hour posters
  2. Frequently asked questions about federal employment posters
  3. Compliance assistance with federal wage-and-hour issues
  4. Minnesota employment posters
  5. Information on Minnesota minimum wage law

New E.E.O.C. Guidance on Severance Agreements

On July 15, 2009, the U.S. Equal Employment Opportunity Commission issued updated and comprehensive guidance on the issue of employee waivers of discrimination claims contained in severance agreements. Although the recent guidance is directed to employees, it contains valuable information for management, as well. The document
addresses, among other topics, the requirements of the Older Workers Benefit Protection Act. It also provides a checklist for employees, which has obvious value for human resources staff who are drafting material or preparing for layoff conferences, and model text for an enforceable waiver.

The guidance pertains only to the limited issues presented by discrimination waivers in severance agreements. There are many related issues regarding both general compliance requirements and also problems arising from specific workers or worksites that the guidance does not attempt to address. It is important, therefore, not only to review this recent expression of the E.E.O.C.’s position but also to continue to use more comprehensive checklists, involve in-house expertise, or consult with an employment lawyer.

Additional Resources from U.S. Department of Labor

The U.S. Department of Labor today unveiled the FirstStep Recordkeeping, Reporting and Notices e-laws Advisor. By using this tool, employers can determine which recordkeeping, reporting, and notice requirements apply to them under the major laws administered by the federal Labor Department. This new advisory service has been integrated with the revised FirstStep Poster and FirstStep Employment Law Overview advisory services. All three services are intended to help employers identify the federal employment laws that are relevant to them and then to provide assistance in complying with the requirements. For further information, go to this web page. (Users should note that, while the site is a valuable addition to Internet employment law resources, it does not provide guidance on all of the regulations that the Department administers or on any state laws, nor can it tailor recommendations to specific client objectives.)

F.M.L.A. Amended: 26 Weeks for Military-related Medical Reasons

The federal Family and Medical Leave Act has been amended to add two types of required leaves of absence. The 2008 National Defense Authorization Act (“N.D.A.A.”) amends the F.M.L.A. to provide a new 26 week leave to care for a family member who is in the military and is undergoing treatment or is temporarily disabled due to a serious injury or illness. The N.D.A.A. also extends the familiar 12 week leave to care for a family member who has experienced an as-yet-undefined “qualifying exigency.”

Prior to the 2008 N.D.A.A., the F.M.L.A. required covered employers to grant eligible employees up to twelve workweeks of unpaid leave during a twelve month period for one or more of the following reasons:

  • for the birth and care of the newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

The National Defense Authorization Act amendments to the F.M.L.A. extend the scope of the law to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” This part of the N.D.A.A. became effective on January 28, 2008. The Department of Labor is preparing guidance and proposed regulations to implement the new leave.

The amendments also extend the F.M.L.A. by permitting an employee to take leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” This part of the amendment is not yet effective; it will become effective after the Department of Labor issues final regulations defining “any qualifying exigency.”

New Minimum Wage Poster and Requirements

A revised Federal minimum wage poster, reflecting the recently enacted minimum wage increases, is now available free of charge on the Department of Labor’s Web site. Every employer of employees subject to the Fair Labor Standard Act’s minimum wage provisions must post a notice explaining the Act in a conspicuous place in all of their establishments so that employees can read it without difficulty.

Effective July 24, 2007, the federal minimum wage for covered non-exempt employees will be $5.85 per hour. The minimum wage increases to $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009.

The tip credit provisions of the federal F.L.S.A. remain the same. An employer is still required to pay $2.13 an hour in direct wages if that amount plus the tips received equals at the least the Federal minimum wage, provided the employer has informed the employee of the tip credit being taken, the employee retains all tips except to the extent they participate in a valid tip pooling arrangement, and the employee customarily and regularly receives more than $30 a month in tips.

Many states also have minimum wage laws. Covered employers must comply with both federal and state requirements. In Minnesota, for example, there are several minimum wages, depending on the size of the organization:

Large employer — $6.15 an hour. “Large employer” is defined as any enterprise whose annual gross volume of sales made or business done is not less than $625,000.

Small employer — $5.25 an hour. “Small employer” is defined as any enterprise whose annual gross volume of sales made or business done is less than $625,000.

Training wage — $4.90 an hour. An employer may pay $4.90 an hour to new employees who are younger than age 20 during their first 90 consecutive days of employment. Permanent or current employees may not be displaced by new employees covered by the training wage.

Minnesota law does not provide a tip credit such as that found in the federal law.

Minnesota recognizes the following exemptions from state minimum wage requirents (among others): babysitters, taxicab drivers, volunteers of nonprofit organizations, elected government officials, people providing police or fire protection, and employees subject to the provisions of the U.S. Department of Transportation (drivers, drivers’ helpers, mechanics and loaders).

“Newer” New Rules for Filing EEO-1 Reports in 2007

Quick Summary: Covered employers are not required to resurvey their workforces pursuant to the revised ethnic and racial categories until the reporting period ending September 30, 2008, one year past the original effective date. Other aspects of the revised EEO-1 procedure continue to take effect with the close of the 2007 reporting period.

First, the “Old” New Rules

Last year, the U.S. Equal Employment Opportunity Commission revised its EEO-1 survey procedure. The EEO-1 is, for many employers, a mandatory survey and reporting process that has been in use since 1966 to chart the patterns of women and minorities in the workforce. In November 2005, the E.E.O.C. issued final regulations that modified two aspects of the report, the ethnic and racial categories and the job categories. Along with the category changes, the EEO-1 report itself was revised.

Use of the revised report to survey and report the newly defined categories was initially scheduled to be required next year, with the reporting period that closes September 30, 2007. Now, the process is being phased in as described below.

Who Is Affected

The E.E.O.C.’s Standard Form 100, commonly called the EEO-1, must be filed by:

1. All private employers that:

  1. Are subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees excluding state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations;
  2. or

  3. Are subject to Title VII, as amended, who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.

and also by

2. All federal contractors (private employers) that:

  1. Are not exempt pursuant to 41 C.F.R. § 60-1.5, and
  2. Have 50 or more employees, and
    • Are prime contractors or first-tier subcontractors, and have a contract, subcontract, or purchase order amounting to $50,000 or more; or
    • Serve as a depository of Government funds in any amount, or
    • Constitute a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes.

Only those establishments located in the District of Columbia and the 50 states are required to submit EEO-1s. No reports should be filed for establishments in Puerto Rico, the Virgin Islands or other American Protectorates.

The Category Revisions:

The racial and ethnic categories were changed in the following ways:

  • Adding a new category entitled “Two or more races”
  • Dividing “Asian or Pacific Islander” into two separate categories: “Asian” and “Native Hawaiian or other Pacific Islander”
  • Renaming “Black” to “Black or African American”
  • Renaming “Hispanic” to “Hispanic or Latino”
  • Endorsing self-identification of race and ethnic categories, as opposed to visual identification by employers.

The job categories were changed in the following ways:

  • The category of “Officials and Managers” was divided into two levels based on responsibility and influence within the organization. The two new levels are:
    1. Executive/Senior Level Officials and Managers (plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, within two reporting levels of CEO)
    2. First/Mid-Level Officials and Managers (direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers; oversee day-to-day operations)
  • The revised EEO-1 also moves business and financial occupations from the Officials and Managers category to the Professionals category.

Now, the “New” New Rules

The new reporting form, i.e., the revised EEO-1 report, is still required for the reporting period ending on September 30, 2007.

The revised job categories are still required to be used for the reporting period ending on September 30, 2007.

If an organization will have knowledge of its workforce based on the revised ethnic and racial categories, then that information should be reported for the period ending on September 30, 2007.

However–and this is the “new” part–the E.E.O.C. will not require reporting employers to survey their workforces for information required by the revised ethnic and racial categories until the reporting period ending on September 30, 2008.

The E.E.O.C. encourages employers to obtain the revised ethnic and racial information by having employees “self-identify.” The process of self-identification and the development of a related database for EEO-1 purposes can begin as soon as practicable. It is not required to begin until the organization prepares to file in 2008.

More Information

Answers to frequently asked questions and instructions for filing the new reports can be found on the EEO-1 portal in the E.E.O.C. web site. Or contact us, and we’ll help.

Help from the Department of Labor

The U.S. Department of Labor posts a substantial amount of guidance for employers on its web site.

This is the current list of topics on which the Agency provides free compliance information:

  • Drug-Free Workplace Advisor
  • Family & Medical Leave Act (FMLA) Advisor
  • Federal Contractor Compliance Advisor
  • FirstStep Employment Law Advisor
  • FLSA Child Labor Rules Advisor
  • FLSA Coverage & Employment Status Advisor
  • FLSA Hours Worked Advisor
  • FLSA Overtime Security Advisor
  • FLSA Section 14 (c) Advisor (Special Minimum Wage)
  • Health Benefits Advisor
  • MSHA Online Forms Advisor
  • MSHA Training Plan Advisor
  • MSHA Fire Suppression & Fire Protection Advisor
  • OSHA Confined Spaces Advisor
  • OSHA Fire Safety Advisor
  • OSHA Hazard Awareness Advisor
  • OSHA Lead in Construction Advisor
  • OSHA Software Expert Advisors
  • Poster Advisor
  • Small Business Retirement Savings Advisor
  • Uniformed Services Employment & Reemployment Rights Act (USERRA) Advisor
  • Veterans’ Preference Advisor
  • e-VETS Resource Advisor

To give an idea of the scope of information in the Department’s pages, here is the preliminary statement from the recently added Health Benefits Advisor for Employers: “This Health Benefits Advisor provides employers with an overview of certain federal laws that can affect health benefit coverage provided by group health plans. The requirements described in this Advisor generally apply to group health plans and group health insurance issuers….” And here is the preliminary statement from the FirstStep Employment Law Advisor: “The FirstStep Employment Law Advisor is designed to help employers determine which laws administered by the Department of Labor (DOL) apply to their business or organization and to provide links to information about how to comply with these laws.”

Additionally, the Department publishes an online Employment Law Guide, which describes laws, regulations, and technical services available to employers.

These services are limited to areas regulated by the Department of Labor under federal law. There is no information about areas regulated by other agencies, other federal laws, or any state laws. Additionally, the Agency information is oriented to the area of law, not to the workplace dilemma, so it might be difficult to find the right web page if one is unsure what specific laws are implicated. Even so, the web site is a valuable and convenient addition to the resources available to employers with compliance questions.

Proving Compliance with COBRA

COBRA, the federal Consolidated Omnibus Budget Reconciliation Act, requires that administrators of covered health plans notify their terminated employees of a limited option to continue the group health benefits they had before termination. Substantial liability can be at risk if the employee asserts that he or she never received this “COBRA notice” and the plan administrator has inadequate records to satisfy its burden of proof. A recent case will help employers and administrators know what types of records should be created and retained.

The Eighth Circuit of the United States Court of Appeals has ruled that administrators, to carry their burden of proof that a COBRA notice was mailed to an employee, must have “evidence that the employer had a system for sending out the required notices [and] that the system was in fact followed with respect to the person in question.” Crotty v. Dakotacare Administrative Services (8th Cir. 2006) (No. 05-3798).

The Court held that COBRA administrators “must provide something that indicates that its mailing system was reliable and that the system was followed in the relevant instance.” Examples of the records that the administrator in that case did not have are “any evidence that [the contested] letter was printed out, placed in a properly addressed envelope, or sent through the mail.” Examples of records that, in other cases, were sufficient were a photocopy of the addressed envelope, a report stamped with the date of mailing, and an affidavit from the person who recalled mailing the notice.

Employers should be sure that they or their contracted COBRA administrators are creating and retaining the appropriate records. The records should reflect (a) a well-planned and well-executed system for tracking and notifying eligible former employees and also (b) contemporaneous records of the actual mailing to specifically identified recipients.

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