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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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23 May 2013 NLRB Offers Further Clarification Regarding Expression of Employees’ Section 7 Rights on Social Media

On May 8, the National Labor Relations Board (NLRB) issued an advice memorandum that further clarified its position regarding employees’ use of social media to make cybergripes pursuant to their Section 7 Rights. In In re: Tasker Healthcare Group, d/b/a/ Skinsmart Dermatology, no. 04-CA-094222, Charging Party and a group of nine other current and former employees participated in a private Facebook group message.  While the discussion started off as purely social, the tone changed when Charging Party referenced with disapproval a former employee who was…

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22 May 2013 Hot Topic: The Use of Criminal Records to Make Hiring Decisions

Medical testing giant Quest Diagnostics Inc. (42,000 employees worldwide) recently found out the hard way that government agencies across the country are ramping up enforcement of state and federal laws restricting the use of criminal convictions when making hiring decisions. While the Equal Employment Opportunity Commission (EEOC) uses Title VII’s prohibition against disparate impacts against employees relating to race or national origin to investigate companies’ hiring policies in relation to criminal records, many states, such as New York, have laws specifically limiting the use of…

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17 May 2013 EEOC Offers Updated ADA Guidance Q&A’s Pertaining to Cancer, Diabetes, Epilepsy and Intellectual Disabilities

In a measure to keep up with the changes made by the Americans with Disabilities Amendments Act (ADAAA) in relation to what employees and applicants must show to establish that they have a “disability,” the Equal Employment Opportunity Commission (EEOC) has revised its informal “Question and Answer” guidance forms pertaining to four categories of medical conditions – cancer, diabetes, epilepsy, and intellectual disabilities – to provide clarification as to how employers should address such conditions and to confirm that individuals having each of the types…

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16 May 2013 OFCCP Notice Issued Regarding New Census EEO Tab

The Office of Federal Contract Compliance Programs (OFCCP) has issued a notice regarding the date on which federal contractors must begin using the 2006-2010 EEO Tabulation (2010 EEO Tab), which was released to the public on Nov. 29, 2012.  Effective Jan. 1, 2014, federal contractors must begin using the 2010 EEO Tab to develop all Affirmative Action Programs (AAPs) and the OFCCP, likely, will begin using the same at that time. As federal supply and service contractors may know, the employers must prepare and maintain AAPs…

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15 May 2013 Minnesota Passes “Ban the Box” Legislation

This week, Minnesota’s Governor Mark Dayton signed into law legislation known as “Ban the Box.” The law is prohibits most private employers from asking job applicants about criminal backgrounds until either (a) at the point of an interview; or (b) after a provision job offer is made. The statute is known as “Ban the Box” because it refers to the criminal history question included on most job applications wherein the applicant would check off the box as to whether he or she had previously been…

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14 May 2013 EEOC Seeks Comments on Quality Control Plan for Investigations and Conciliations

Last Friday, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it was seeking public comment of its draft principles for the Quality Control Plan (Plan) which will revise the criteria for measuring the quality of the agency’s investigations and conciliations. The Plan was developed by an internal work group of EEOC front-line staff and managers, and addresses the issues of timeliness and quality. The EEOC stated the standard of review in assessing the quality of investigations and conciliations, nationally, will be “whether the actions…

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14 May 2013 Department of Labor Releases Technical Guidance For Employers Relating To Notice to Employees of Health Coverage Options under FLSA Sec. 18B, as Well as Updated COBRA Election Notice

The U.S. Department of Labor Employee Benefits Security Administration (EBSA) recently issued Technical Release 2013-02, in which it provides employers with temporary guidance regarding the notice that must be provided to employees in relation to health care coverage options that will soon be available pursuant to Section 18B of the Fair Labor Standards Act (FLSA). Specifically, beginning on Jan. 1, 2014, individuals and employees of small businesses will have access to coverage through a private health insurance market (referred to as the Health Insurance Marketplace),…

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13 May 2013 Gov. Christie The First to Stand Up to Social Media Legislation Wave?

New Jersey’s legislature recently tried to make it the 8th state to restrict employers from requiring employees to provide social media passwords in the hiring and other employment processes. This trend, somewhat odd in that it addresses a problem that nobody seems to think actually exists (i.e. employers are not really requiring passwords of applicants), started approximately a year ago. New Jersey’s legislation arguably would have been the most restrictive such legislation to date. Governor Christie, however, vetoed the legislation, stating that he would like to see…

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08 May 2013 Is the EEOC Set to Scrutinize Employer Wellness Programs?

On May 8, 2013, the Equal Employment Opportunity Commission (EEOC) hosted a meeting with a group of invited panelists on the treatment of wellness programs under federal law. According to the EEOC, the discussion will focus on various ways employer wellness programs may implicate the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other anti-discrimination statutes enforced by the EEOC. Whether this is a beginning of a new enforcement initiative remains to be seen. Either way, employers should be mindful of potential pitfalls under…

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06 May 2013 Shy Bladder Syndrome Lawsuit Reminds: Applicants Get Reasonable Accommodation

A recently filed Americans with Disabilities Act case alleges that an Iowa hospital refused to accommodate an applicant’s shy bladder syndrome. The condition is an anxiety condition that makes it difficult or impossible for an individual to urinate in non-private or other conditions. Jennifer Connor alleges that she suffers from this condition and was a qualified applicant for a position at the defendant hospital. Ms. Conner would normally run water or flush the toilet in order to be able to use a public restroom. For a mandatory drug test, she was…

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