On July 14, 2014, the EEOC issued Updated Enforcement Guidance on Pregnancy Discrimination, as well as a set of Questions and Answers and a Fact Sheet for small businesses related to that Guidance. This is the first comprehensive update to the Commission’s pregnancy discrimination guidance since 1983.
In an important win for employers seeking to resolve disputes with former employees outside of the circuit courts, the West Virginia Supreme Court of Appeals recently upheld a circuit court decision that compelled a former employee to submit his wrongful termination dispute to alternative dispute resolution (“ADR”) rather than pursue the claim in court. Although the West Virginia Supreme Court often finds ADR agreements to be unenforceable, it’s important to note why they found this one was acceptable.
Retaliation against an employee who has filed a complaint, testified, or exercised any right under OSHA is a violation of that Act. OSHA, however, has a small window of opportunity for an employee who believes he has been retaliated against by his employer to bring a claim before OSHA. To be timely, an employee must file his whistleblower complaint with OSHA within thirty days from the date of an adverse action.
The first open enrollment period for obtaining health coverage through the ACA’s Health Insurance Marketplace ended on March 31, 2014. That means that individuals without coverage can no longer obtain private coverage through the Marketplace for 2014 unless they are eligible for special enrollment by virtue of having a “qualifying life event.” Qualifying events for purposes of COBRA are also “qualifying life events” under the Marketplace rules. So, for example, a participant in an employer-sponsored group health plan who loses coverage under the plan due to termination of employment (other than for gross misconduct) is eligible for COBRA coverage or may purchase Marketplace coverage in lieu of COBRA. This “special enrollment event” for Marketplace coverage is available for 60 days from the time coverage under the employer’s group health plan ends.
On Thursday, June 26, 2014, the U.S. Supreme Court issued its long-awaited ruling in NLRB v. Noel Canning, a case where a soda bottler and distributor challenged an NLRB enforcement Order and claimed that the Board did not have a requisite quorum of members to issue the Order because three of its members, at the time, had been unconstitutionally appointed. After the District of Columbia Circuit Court sided with Noel Canning, the Supreme Court affirmed, and ruled on the Board’s appeal that the three recess appointments President Obama made to the NLRB in January 2012 were indeed unconstitutional.
Employers often are leery of retaliation claims, and rightfullly so, since they are among the most dangerous to defend in court. Typically, however, employers confront allegations of retaliation only from current or just-made-former employees. Now, in a recent decision issued by the Fourth Circuit, even applicants can go the retaliation route in the right circumstances.
Many employers understandably want to perform a criminal background check on potential employees. It is possible for employers to lawfully ask about criminal convictions on applications or to administer a criminal background check. However, it is not “open season” on criminal background checks, and you need to be careful when conducting this kind of inquiry.
The Pennsylvania Superior Court recently ruled in Socko v. Mid-Atlantic Systems of CPA, Inc., that non-compete agreements signed during employment are not enforceable unless the employer provides its employee additional consideration in exchange for signing.
In the past decade, it has become increasingly common to see employers devise new and innovative ways to reinforce the importance of safe workplaces to their employees. In an effort to achieve greater workplace safety, employers have frequently looked to implementing safety incentive programs (“SIPs”) to reward employees with cash, prizes, awards, or other recognition when the total number of injuries and near misses falls below the level specified by management. For example, an individual employee or department could be rewarded with anything from free t-shirts to a chance to win a new pickup truck in a company raffle if the injury tally falls below the threshold the employer establishes. Some employers have even used cash incentives or additional vacation time as rewards to encourage workers to be more safety conscious.