Take 5 Newsletter: EEOC Update; Intern Wage and Hour Claims; NLRB Quorum; Unemployment Discrimination; Social Media Passwords

by Epstein Becker & Green

 1. EEOC Releases Letter Addressing Wellness Programs and Reasonable Accommodation Obligations

In a letter issued recently by the Equal Employment Opportunity Commission ("EEOC"), Peggy Mastroianni, the agency's Legal Counsel, responded to questions posed by an employer regarding wellness programs and the need for the employer to provide a reasonable accommodation in that context. The letter offers insight on the EEOC's position in an area receiving considerable attention lately: the application of Title I of the Americans with Disabilities Act ("Title I") to the Affordable Care Act's incentives for the utilization and development of wellness programs.

Health plans encouraging employees to lead healthier lives and reduce their risk of disease qualify as wellness programs, according to the EEOC. Because employees must disclose the presence of certain health conditions in order to qualify for such plans, this type of inquiry constitutes a disability inquiry. Title I, however, strictly limits when employers are permitted to make disability-related inquiries or require medical examinations. Such inquiries and medical exams are permitted only if the corresponding wellness program is voluntary.

As a threshold matter, the EEOC did not take a position in its letter on whether a reward for participation, such as waiver of an annual deductible, amounts to a requirement to participate or whether the withholding of a reward would constitute a penalty, thus rendering a program involuntary.

On the subject of reasonable accommodation, the EEOC's letter explained that, if a wellness program is voluntary and an employer requires that participants meet certain health outcomes or engage in specific activities to earn rewards or stay in the program, then the employer "must provide reasonable accommodations, absent undue hardship, to those individuals who are unable to meet the outcomes or engage in specific activities due to disability." For example, if a wellness plan required a participant to take his or her required medications more than 80 percent of the time and an employee could not meet that requirement because of a disability, then the employer would be required to provide a reasonable accommodation to allow the employee to participate in the plan and still earn the available reward.

Additionally, the EEOC's letter stated that, if a disabled person in a wellness program is unable to meet the plan's requirements because of a disability and is provided with reasonable accommodations, then "it would not be unlawful to remove an employee from the ‘higher benefit' plan for failing to meet requirements, as long as he or she remained eligible to participate in the employer's standard benefit plan." Therefore, a disabled individual might still be removed from a wellness program for failure to meet its requirements, as long as he or she was provided with a reasonable accommodation and could still participate in a standard benefit plan.

The EEOC's letter provides some helpful guidance on wellness programs and persons with disabilities. During the implementation and expansion of wellness programs, it is important to consider the application of Title I and reasonable accommodations in order to avoid liability for disability discrimination.

  1. Paying Interns May Not Be Enough to Stave Off Wage and Hour Claims

While unpaid internships have increasingly been the focus of class and collective actions brought under state and federal wage and hour laws, a lawsuit filed by a paid Hamilton College athletic department non-student intern (Kozik v. Hamilton College) may signal the start of a new line of cases.

In September 2011, former unpaid interns sued Fox Searchlight Pictures, Inc. ("Fox"), alleging that Fox had violated federal and state wage and hour laws by failing to pay its interns for work that they claimed was more aptly suited for paid employees. Since the Fox lawsuit, other unpaid interns have caught wind of the potential for a payday and have followed suit—literally, as evidenced by the complaints filed by former unpaid interns in February 2012 against the Hearst Corporation, in March 2012 against "The Charlie Rose Show," in July 2012 against Dana Lorenz and her company Fenton Fallon, and in February 2013 against the Elite Model Management Corp.

While the Hamilton College complaint differs in that it brings paid interns into the fold—the gist of the allegations is largely the same. The putative collective and class action alleges that although athletic department interns were paid a flat-fee stipend, their long hours (allegedly as high as 100 hours per week) relegated their effective compensation to well below the minimum wage. The complaint further alleges that interns never received any overtime or spread-of-hours pay and that Hamilton College intentionally misclassified them as exempt from such compensation in violation of state and federal laws even though athletic department interns often performed many of the same tasks as full-time employees.

As these complaints demonstrate, companies utilizing intern services must tread carefully. The U.S. Department of Labor ("DOL") uses the following six-factor test to determine whether a worker is actually an "intern" under the Fair Labor Standards Act ("FLSA"), or if he or she should instead be classified as an "employee" who must be paid in accordance with minimum wage and overtime laws:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern and, on occasion, its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If the above factors are met, then the intern is not entitled to minimum wage or overtime under the FLSA. Many states, however, have their own wage and hour laws with additional factors to consider in determining whether a worker is an "intern" or an "employee." New York, for example, uses an 11-factor test and California, since April 2010, has employed a six-factor test—similar to the one used by the DOL. Accordingly, employers must carefully examine their internship program's practices and policies to protect themselves from future wage and hour liability.

  1. House Committee Votes Out Bill Prohibiting NLRB from Acting Without a Quorum

On March 20, 2013, the House Committee on Education and the Workforce sent H.R. 1120, entitled "Preventing Greater Uncertainty in Labor-Management Relations Act," to the House of Representatives. The legislation prohibits the National Labor Relations Board ("NLRB" or "Board") from (1) taking any actions that require a three-member quorum, and (2) implementing, administering, or enforcing any Board decisions rendered on or after January 4, 2012, the date that President Obama made three "recess" appointments to the NLRB. The NLRB would be prohibited from engaging in the above actions until it has at least three Senate-confirmed Board members or the U.S. Supreme Court resolves the constitutionality of President Obama's recess appointments.

This legislation is one of the latest developments in the controversy over President Obama's recess appointments. On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held in Noel Canning v. NLRB that President Obama violated the U.S. Constitution when he bypassed the Senate and made the recess appointments. In the opinion, Chief Judge David Sentelle, writing for the D.C. Circuit, said that "[a]llowing the president to define the scope of his own appointments power would eviscerate the Constitution's separation of powers." The NLRB announced on March 12, 2013, that it will seek U.S. Supreme Court review of the D.C. Circuit's January decision. The Board's petition to the Supreme Court must be filed by April 25, 2013.

For more information on some of the Board's decisions issued since January 4, 2012, see the Epstein Becker Green Act Now Advisories entitled "The NLRB Is Looking at Confidentiality, Non-Disclosure, and Non-Disparagement Provisions in Your Agreements" and "Requiring Confidentiality During HR Investigations May Violate National Labor Relations Act" and blog posts entitled "NLRB Weighs in on Employee Facebook Posting That Ended in Termination" and "Labor Laws vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense."

  1. New York City Human Rights Law Expanded to Prohibit "Unemployment" Discrimination

Earlier this month, the New York City Council enacted a bill prohibiting discrimination based on an individual's unemployment status. The law will become effective on June 11, 2013.

The new law modifies the New York City Human Rights Law to forbid an individual's unemployment status from forming the basis of any "employment decision with regard to hiring, compensation, or the terms, conditions, or privileges of employment." The new law also restricts what may permissibly be included in an advertisement for a job vacancy within New York City. Going forward, job advertisements cannot indicate that being currently employed is a requirement for the job, nor can the advertisement state that the employer will not consider individuals for employment based on their unemployment status. The terms "unemployed" or "unemployment" are defined as "not having a job, being available for work, and seeking employment."

This new law will apply to both large and small businesses alike—specifically, all non-public sector employers with four or more employees or independent contractors and all employment agencies and their agents. There are some carve-outs to the new law's prohibitions. For instance, an employer may still consider an applicant's employment status where there is a "substantially job-related reason for doing so." An employer is also still permitted to inquire into the circumstances surrounding an application's separation from prior employment. Additionally, employers may still base employment decisions on, or post advertisements mentioning, "substantially job-related qualifications," including "a current and valid professional or occupational license; a certificate, registration, permit or other credential; a minimum level of education or training; or a minimum level of professional, occupational or field experience." There are also no restrictions on an employer's limiting an applicant pool to applicants currently working for that employer, or setting compensation or terms and conditions of employment based upon an individual's actual amount of experience.

With passage of the new law, New York City joins New Jersey, Oregon, and Washington, D.C., as adopting employment law protections for the unemployed. The New York City law is unique, however, because it is the first in the country to provide a private right of action for potential plaintiffs. Since New York City's unemployment rate hovers around 9 percent, New York City employers should take steps to ensure that they are in compliance with the new law.

  1. New Jersey May Become the Latest State Law Banning Employers from Requesting Social Media Passwords

The battle against employers' demands for employees' social media information continues. On March 21, 2013, the New Jersey Legislature approved a bill that would ban employers from requiring the disclosure of employee or applicant passwords for social media accounts as a condition of employment—and from even asking employees if they maintain such accounts.

Despite these limitations, the law does not prevent an employer from:

  • maintaining policies governing the use of the employer's electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use;
  • monitoring an employee's work email account or the usage of the employer's electronic equipment; or
  • accessing information about employees and job applicants that is in the public domain and not password protected.

If signed into law by Governor Chris Christie, New Jersey would join California, Illinois, Maryland, and Michigan, which have already enacted similar laws. Comparable legislation is pending in many other states and in Congress. Accordingly, employers should expect additional developments, as legislation in this area shows no signs of slowing down.

Written by:

Epstein Becker & Green

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.