On March 4, 2016, the Miles & Stockbridge Labor, Employment, Benefits & Immigration group presented its fourteenth annual Hot Topics in Employment Law seminar to an audience of over three hundred clients and members of the Baltimore business community. Here are the highlights.

Legal and Regulatory Update

• Equal Employment Opportunity Developments
  
  As of 2015, Maryland was ahead of the curve having implemented its pregnancy accommodation regulations. The Supreme Court followed with its March, 2015 decision in Young v. UPS, 135 S. Ct. 1338 (U.S. 2015) imposing a national requirement regarding light duty accommodations and the EEOC followed suit by re-issuing its light duty guidance. In addition, the Obama administration continues to press for the elimination of systemic pay disparities, and expects to have new pay data in place by 2017 through the use of the revised EEO-1 form. Read more about the implications on employers of the new form here.  

• Developments in Joint Employer Status
  
  The National Labor Relations Board (NLRB) and Fair Labor Standards Act (FLSA) recently broadened the standards used to determine what constitutes joint employer status. Common joint employers include contractors such as temp agencies and staffing companies. The old standards required a finding of direct control over another company’s employees, but now under the NLRB’s decision in Browning-Ferris Indus. of Calif., Inc., 362 NLRB No. 186 (8/27/15) even indirect control and reserved contractual authority to exert such control may be enough to establish joint employer status. This is important because joint employers could be held liable for one another’s labor violations.
• Government Contracts
  
  Over the past year there has been an increase in regulation of government contractors, including establishing i) new minimum wage and sick leave requirements, and ii) a requirement that government contractors disclose adverse labor violations for the past three years when bidding on a new contract. This disclosure requirement could impose long term consequences on, for example, wage and hour violations of the employer because in addition to penalties for the violation itself, the company could lose future government contracts due to the violation.
• Wellness Programs
  
  New regulations have been proposed under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) with respect to company wellness programs. This includes a reasonable accommodation requirement on participatory wellness programs under the ADA. In addition, rewards under both participatory wellness programs and health contingent programs generally must not exceed 30% of the total cost of coverage. Also, notice of accommodations to wellness programs is required as is written and signed authorization where genetic information is collected.
• Religious Accommodations in the Workplace
  
  Title VII requires employers to provide reasonable accommodations based on employees’ religious beliefs. The Supreme Court reversed a 10th Circuit decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (U.S. 2015) holding that an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

Employee Lifecycle

• Retroactive Designation of FMLA Leave
  
  Employers are generally required to notify an employee in writing within five days of a leave request  as to whether the request will be designated as Family Medical Leave Act (FMLA) leave or not. However, sometimes FMLA designations occur after an employee has already taken the leave. This can be harmful if, for example, an employee takes leave to care for one family member without intending to use FMLA and later realizes that he does not have enough remaining leave time to care for a sick child. Absent such actual harm to the employee, retroactive FMLA designation may not be inappropriate.
• Workplace Perks: Telecommuting & Paternity Leave
  
  It’s no secret that today’s workforce greatly values the flexibility of telecommuting options. However, managing remote workers can pose challenges to employers such as monitoring hours and overtime. The most effective telecommuting arrangements are guided by a clear written policy that details the expectations of the arrangement. In the area of paternity leave, there is currently no federal requirement for paid paternity leave but new EEOC guidance stipulates that any leave offered to birthing parents must also be offered to non-birthing parents.
• Gender Identity
  
  Gender identity is not yet a protected class under Title VII, but the EEOC and several federal circuits have interpreted sex discrimination to include discrimination because a person is transgender. State laws in Maryland and DC prohibit discrimination based on gender identity in employment, housing and public accommodations. To ensure compliance and a welcoming work environment, employers are encouraged to craft a plan in collaboration with a transitioning employee that lays out each side’s expectations during the transitioning process and stipulates how workplace changes and communications will be addressed.
• Workplace Violence
  
  Violence in the workplace is the second most common cause of employee death. Employers can face liability for workplace violence under Occupational Safety and Health Administration (OSHA) and under tort-based theories of liability. To ensure a safe workplace, it is a best practice for employers to write and implement a workplace violence policy and treat threats of violence seriously by taking three steps: 1) determine the nature of the threat; 2) determine the history between the employees involved; and 3) separate the employees, possibly through a temporary suspension. Penalties for noncompliance with OSHA requirements recently got more expensive for employers with OSHA’s increased maximum penalties which go into effect in August of 2016. Read more about OSHA’s increased penalties here and common OSHA violations here. Though rare, an employer’s failure to comply with safety standards could even lead to criminal charges.
• Investigating Complaints
  
  The key takeaway here is simple: do not delay when complaints are brought to your attention. When an investigation is warranted, independent investigators are critical but a company’s normal outside counsel may not be the best choice. This is because the investigator’s duty to remain impartial would preclude the attorney from providing guidance to the company if he or she is also acting as the investigator. Once the investigation is complete, it is advisable to bring it to a conclusion and ensure that everyone involved is aware of outcomes and next steps. It is important to narrowly tailor confidentiality policies with respect to internal investigations to ensure compliance with NLRB guidance. Policies that restrict employees from discussing an investigation would likely chill protected concerted activity. Read more about this here and here.

Privacy in the Workplace

• Data Security
  
  Data breaches are now viewed as inevitable. Employees are the first line of defense against data breaches because as the targets of phishing scams, they are best positioned to detect and report data breach attempts. Phishing scams have become more and more sophisticated with the increased use of the Business Email Compromise in which hackers mimic or infiltrate corporate email systems and convince employees to make a fraudulent funds transfer by impersonating high ranking executives or clients. Employers can create a “see something, say something” culture by training employees on data security and limiting employee access to data that is truly necessary. Read more about Business Email Compromise here.
• HIPAA
  
  The Health Information Portability and Accountability Act (HIPAA) protects the use and disclosure of health information that is individually identifiable and transmitted by a covered entity such as a group health plan, subject to certain exceptions. Health information is not limited to a diagnosis and includes payment information and claims information. Outside data analytics companies are now able to mine data for information about whether an employee is likely to become pregnant or is trying to conceive. While such data could be useful to employers for long term planning purposes, HIPAA could impose boundaries on legal uses of the data.
• Big Data
  
  Two messages are important with respect to the use of big data in the workplace. First, employers must be ready to act on the data they are collecting. This arises because advances in technology have increasingly allowed employers to monitor their teams in new ways such as through GPS tracking. Merely collecting data on how fast delivery drivers are driving, for example, may expose employers to liability for accidents caused by speeding. Second, workplace technology policies must be narrowly tailored to avoid chilling protected concerted activity among employees.
• Social Media
  
  Most employers now have policies on social media use in the workplace and they are smart to do so, but should take care to ensure that policies are not overbroad. NLRB guidance provides that policies that prohibit employees from making derogatory comments about their employer would be overbroad because they impinge on the right of employees to discuss the conditions of their workplace. Additionally, about half of the states in the U.S. have enacted laws prohibiting employers from requesting personal login information from employees or applicants. When considering information gleaned from social media, employers should carefully investigate the situation before taking action. While a Facebook picture of an employee surfing while on FMLA leave for a broken leg would be questionable, a beach vacation could be just what the doctor ordered for an employee on leave for depression.

Nicole Whitecar, a law student, assisted in the preparation of this blog post.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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