More Transparency on Horizon for Federal Contractors

The U.S. Department of Labor (“DOL”) has issued a proposed rule that would bar federal contractors from firing or discriminating against employees or applicants who discuss their pay, or the pay of their co-workers. The proposal comes after President Obama’s executive order in April, which instructed the DOL to issue a rule requiring pay transparency among federal contractors.

According to the Office of Federal Contract Compliance (“OFCCP,” a sub-agency of the DOL), pursuant to the rule, federal contractors or subcontractors would be banned from firing or otherwise discriminating against any employee or applicant for discussing, disclosing, or inquiring about their compensation or that of any other employee or applicant. The rule would also require that federal contractors include the nondiscrimination provision in their handbooks and manuals. The rule would also add definitions for key words such as “compensation,” “compensation information,” and “essential job functions.”

OFCCP believes that existing pay secrecy policies interfere with the requirement that those who work for federal contractors be compensated for merit and that such policies can lead to decreased worker productivity, due to employees’ decline in trust and motivation. The proposal was published on September 17, 2014, in the Federal Register and is open for comment until December 16, 2014.

In addition to the ban on pay secrecy policies, the DOL also recently proposed another rule which would require most federal contractors and subcontractors annually to submit Equal Pay Reports on employee compensation to OFCCP. The aim of that rule is to collect summary data on how federal contractors and subcontractors pay their employees, with an eye toward identifying potential gender-based and race-based pay disparities.

In anticipation of these rules becoming final, employers should review and revise current compensation systems with legal counsel. Compensation disparity issues should be identified and addressed immediately in order to minimize future risks.

B. Koch

 

 

 

 

Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

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EEOC Sues Home Care Agency for GINA Violation

On September 17, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued a press release announcing it is suing BNV Home Care Agency, Inc. (“BNV”) for practices that are prohibited by the Genetic Information Nondiscrimination Act (“GINA”).

GINA prevents employers from requesting genetic information, including family medical history, or using that information in the hiring process. According to the release, BNV asked for family medical history from a class of thousands of applicants and employees through an “Employee Health Assessment” form. BNV applicants were required to complete the form after a job offer was made, but before hire. Employees had to complete the form annually.

Patient Medical History Form

 

BNV should serve as an important reminder that neither employers nor contracted third-party providers (i.e., doctors’ offices that conduct employment-related physicals or tests on the employers’ behalf) should use forms that ask for applicants or employees to disclose family medical history. In January 2014, just ten months after the EEOC filed its first systemic lawsuit alleging violations of GINA against a nursing and rehabilitation care facility, the agency settled the case for $370,000.  At the time, the EEOC warned that, “When illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis.” In addition, addressing emerging and developing issues in equal employment law, which includes genetic discrimination, is one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan. In short, employers can be sure that the EEOC is on high alert for any employment practices that may violate GINA.

Don’t risk the legal liability. If you are an employer and have questions about GINA or your employment-related forms, contact a McBryer attorney today.

B. Johnson

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Sixth Circuit Vacates Decision On Telecommuting Accommodation

In May, we wrote about the Sixth Circuit’s interesting decision in Equal Opportunity Commission v. Ford Motor Co., wherein the Court expanded the instances in which a telecommuting arrangement would be considered a reasonable accommodation for disabled employees in accordance with the Americans with Disabilities Act (“ADA”).[1]

In short, a 3-judge panel from the Sixth Circuit reversed a trial court’s summary judgment in favor of the employer, Ford, holding that physical presence at the employer’s workplace might not be as essential job function and that telecommuting could be a reasonable accommodation from an employee suffering with irritable bowel syndrome, despite Ford’s stance that the employee’s position was not suitable for telecommuting. It is important to note that the Court did not definitively establish that Ford failed to make reasonable accommodations; rather, the Court’s ruling made it clear that the determination should be left up to the jury.

Highway Signpost Telecommuting

Following the ruling, several state Chambers of Commerce and other groups with strong interest in the matter asked the full Sixth Circuit to reconsider the panel ruling. They argued that the panel’s decision essentially gave employees considerable leverage to decide when and where they were able to work. On Friday, August 29, 2014, the Sixth Circuit entered a summary order vacating the panel’s opinion and redocketing the case for consideration by the full court en banc.

It is possible that the full court could affirm the panel’s ruling, but the decision to vacate may hint that other members of the Sixth Circuit would like to weigh in on the issue and harbor a different view.

We will keep you updated as this case progresses. In the meantime, if you have any questions about your telecommuting policy or the ADA, contact legal counsel.

[1] [1] EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. Apr. 22, 2014).

B. Koch

 

 

 

 

Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

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OSHA’s New Regulations Increase Employers’ Reporting Responsibilities

On September 11, 2014, the Occupational Safety and Health Administration (“OSHA”) released a new rule which will significantly increase the type of injuries that must be reported to the agency. The new rule maintains the requirement for employers to notify OSHA of any workplace fatalities within eight (8) hours. Now, in addition, employers are required to report all hospitalizations, plus any injuries that result in amputations or loss of an eye within twenty-four (24) hours. According to OSHA Administrator David Michaels, the expanded reporting requirements for severe injuries will result in employers being “more likely to take the steps necessary to better protect the lives and limbs of their employees.” Michaels said OSHA will use the data they receive to better target industries that need to do more to prevent injuries.

Safety Inspector Checklist

It is important to note that all employers covered by the Occupational Safety and Health Act, even those who are exempt from maintaining injury and illness records, are required to comply with OSHA’s new severe injury and illness reporting requirements. The rule will go into effect on Jan. 1, 2015, for workplaces under federal OSHA jurisdiction. OSHA is encouraging States with OSHA-approved job safety and health programs to implement the new requirements by the same date, but employers will need to verify State plan changes or contact legal counsel for more information.

Employers should report fatalities or severe injuries by phone to the nearest local OSHA office during business hours. Alternatively, the 24-hour OSHA hotline may be used after business hours. Currently, an electronic reporting method is in the works. Employers should be aware that all reports garnered by the new final rule will be made public on OSHA’s website.

If you have any questions about OSHA or your reporting obligations, contact legal counsel today.

B. Johnson

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Part II: What Is A “Micro-Unit” – and Why Does It Matter?

Earlier this week, the standard established by the NLRB in Specialty Healthcare was discussed. As a quick review, the Specialty Healthcare decision made it easier for small collective bargaining groups known as “micro-units” to form in the workplace. These micro-units are easier to unionize, and the employer is left with the burden of showing why excluded employees of the proposed unit should be included. Specialty Healthcare was decided by the NLRB in 2011 and affirmed by the Sixth Circuit in 2013, but it was not until this summer that employers learned how the NLRB would apply this decision to other industries.

In July, the NLRB issued a decision in Macy’s Inc., 361 NLRB No. 4 (July 22, 2014). In its 3-1 Macy’s decision, the NLRB approved the proposed unit of the retail store that only included the cosmetic and fragrance department salespeople – a total of forty-one employees. According to the NLRB, the unit is appropriate because they are a “readily identifiable group” and “share a community of interest.” The NLRB further held that Macy’s had not met its burden of showing an “overwhelming” community of interest between those employees and the other sales employees in the store’s ten other departments.

Just a few days after the Macy’s decision, the NLRB decided Bergdorf Goodman, 361 NLRB No.11 (July 28, 2014). In Bergdorf, the NLRB unanimously found that the store’s shoe sales team did not constitute an appropriate unit, and therefore could not have their own vote on union representation. The NLRB was concerned with the fact that the shoes sales employees were assigned to different selling areas on separate floors and that the contemporary shoe salespeople were part of a different department – Contemporary Sportswear.

Taken together, the Macy’s and Bergdorf decisions make clear that the NLRB will continue to apply the Specialty Healthcare decision to industries besides healthcare. This could lead to tumultuous times for employees, as unions could seek dozens of separate units (i.e., one for each retail department). An employer could face multiple union negotiations, conflicting demands, and contradictory contract obligations if micro-units emerge in their workplace. Employers should be cognizant of smaller employee groups that could band together as a micro-unit. To defeat claims of a “readily identifiable group,” it may be appropriate to cross-train employees, physically separate departments, and divide functions amongst the whole workforce.

If you have any questions about unionization or how these NLRB decisions might affect your workforce, contact a McBrayer employment law attorney today.

Amanda Stubblefield

 

 

 

 

Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

 

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What Is A “Micro-Unit” – and Why Does It Matter?

Employment law attorneys are abuzz with talk of “micro-units.” This term first surfaced in 2011, and has garnered attention once again in the wake of two recent decisions from the National Labor Relations Board (“NLRB”). So, what is a micro-unit, exactly, and why should employers care about this legal catchphrase?

A “micro-unit” is a small and discrete subset of employees at a particular worksite, which a union seeks to represent. For decades, the NLRB held that where employees share a “community of interest” (common management, similar wages and skills, working conditions, etc.) that the appropriate bargaining unit was a “wall-to-wall” unit of all the employer’s similarly-situated employees. To establish a smaller sub-unit or micro-unit of employees, a party needed to show that the interests of the employees in the smaller unit were “sufficiently distinct” from those of other employees.

In 2011, the NLRB took a drastic departure from this principle with its decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). Under Specialty Healthcare, a presumptively appropriate bargaining unit is any “readily identifiable” group of employees who share a community of interest. The burden is on the employer to show that excluded employees share an “overwhelming community of interest” with the proposed unit and should be included. In 2013, the Sixth Circuit affirmed the NLRB’s decision in Specialty Healthcare. The change is both important and detrimental to employers because a union requires 50% + 1 of the votes of any group it seeks to represent to automatically become the unit’s certified bargaining representative. From a common sense perspective, any union will have an easier time convincing 4 out of 7 employees to join a bargaining unit, as opposed to convincing 40 out of 70 to do the same thing.

Specialty Healthcare involved healthcare workers, but the NLRB’s recent decisions affect the retail industry, specifically, department store giants Macy’s and Bergdorf Goodman’s. For information about how the NRLB applied its precedent in Specialty Healthcare to the employees of these stores, check back on Wednesday.

Amanda Stubblefield

 

 

 

 

 

Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

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Job Descriptions & Performance Reviews – a Recap of the McBrayer & Business First Seminar

Just yesterday, Business First and McBrayer sponsored the second part of a two-part seminar entitled “Lessons in Workplace Liability.” Amy D. Cubbage and Cynthia L. Effinger, McBrayer Employment Law attorneys, explained to attendees how job descriptions and performance evaluations can be used as powerful legal tools to limit liability for discrimination-based claims. If you were not able to attend the seminar, but would still like a copy of the materials, contact McBrayer’s Marketing Director, Morgan Hall at mhall@mmlk.com or 859-231-8780. We have also summarized some of the information shared by the presenters below.

 

McBrayer: What’s the big deal with a job description? Why is it so important?

Cubbage: Job descriptions have always been an important HR component.  A good job description helps an employer through the entire hiring process – from recruitment to setting compensation levels to assessing training development needs. A great job description also comes in handy later – when it is time to assess the employer’s performance and make decisions based on that performance.

McBrayer: How can a job description aid an employer in the wake of a discrimination claim?

Effinger: Let’s imagine an ex-employee is making a claim that his previous employer violated the Americans with Disabilities Act (“ADA”) by terminating him after he became disabled. The ADA states that a qualified individual with a disability is “one who can perform the essential functions of the job with or without a reasonable accommodation.” If he could not perform the essential functions of the job without an accommodation, then terminating his employment was not in violation of the ADA. What are the “essential functions” of the job? These should be outlined in your job description, which can then be used as evidence to show a lawful termination.

McBrayer: What is one of the biggest no-no’s you see with employers’ job descriptions?

Effinger: Too often, an employer will describe the kind of employee they are looking for instead of describing the qualifications. For instance, stating that you are looking for a “young and energetic” employee can be unlawfully discriminatory toward older candidates. What are you really looking for? Stating that you want someone who is “willing to learn” or “available for training” can accomplish the same objective.

McBrayer: Any practical tips for someone writing a job description?

Cubbage: A job description is always subject to change. It should be a living document – revised when necessary. Be sure to include a disclaimer that states (1) the description is subject to change; (2) management retains the right to assign or reassign duties at any time; and, (3) the description does not limit tasks that can be assigned. Date the document and review it for accuracy each time the job description is posted for an opening.

McBrayer: Performance reviews are often considered a necessary evil – they are not something typically met with enthusiasm. Why are they important?

Cubbage: I think performance reviews are an underutilized tool and can be a very positive thing, for both employees and management. Importantly, performance reviews can serve as an objective reason for making personnel decisions. In the event a discrimination claim arises, having a documented reason for any adverse action is extremely important. In addition to that, performance reviews, if done properly, can be a motivator and good for morale.

McBrayer: What should employers remember when it is time for employee evaluations?

Effinger: Avoid saying anything that sounds like you are singling someone out based on protected characteristics (i.e., race, religion, age, gender, disability, marital status, pregnancy or sexual preference). Some examples might include, “You let your pregnancy really interfere with your work hours,” or “You just are not old enough to understand how things work around here.” Comments like these, even if made with no ill intent, may be viewed as discriminatory if litigation results.

Cubbage: In addition to that, it is important to note that employee evaluations are meaningless if they are not truthful. Keep it professional, but candid. If a review is sugar-coated, it prevents the employee and the organization from improving. A false review could actually hurt an employer if an employee uses it in an employment action to show that they were a “good employee.”

Thanks to Business First for co-hosting the event and to our presenters! If you have questions or would like to know more about how a McBrayer attorney can speak to your business or group, give us a call today. Don’t forget about our next employment law seminar in October! More details on it can be found here.

Cindy Effinger

 

 

 

 

Cynthia L. Effinger is an Associate of  McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 316.

 

Amy Cubbage

 

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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