While autumn is generally a mirthful season of crisp weather, beautiful colors, and tasty s’mores, it also serves as the harbinger of one of the most dreaded yearly seasons – flu. With experts predicting that this flu season could be a severe one, employers are understandably worried about the safety of their employees and clientele. Over the past several years, many employers have implemented mandatory flu vaccination programs for their employees. If you have implemented, or are considering implementing, such a program, read on for tips you should consider.
According to the Occupational Safety & Health Administration (“OSHA”), nearly two million American workers report having been victims of workplace violence each year. In fact, according to the Bureau of Labor Statistics, homicide is the fifth-leading cause of workplace fatalities in the U.S., accounting for 8% of all fatal on-the-job injuries. In recent years, tragedies around the country have focused employers’ attention on workplace violence, especially those involving firearms.
On May 11, 2016, the Occupational Health and Safety Administration (“OSHA”) issued the final version of amendments to its Injury and Illness Recordkeeping Rule. While the principal function of the new rule is to require certain employers to begin electronically filing injury and illness reports to OSHA in 2017 (records which will then be published to the public), employers should also take note that OSHA has quietly adopted new anti-retaliation provisions in its regulations that could lead to more investigations and citations.
In recent years, legal protections for the civil rights of LGBT individuals have expanded at a rapid pace. Since the U.S. Supreme Court struck down the federal Defense of Marriage Act (“DOMA”) in 2014 as unconstitutional, it has done the same with state-law equivalents. That same year, President Obama signed Executive Order 13672, which prohibits federal government contractors from discriminating on the basis of sexual orientation. As this blog noted in 2015, the Equal Employment Opportunity Commission (“EEOC”) quickly jumped on the bandwagon with regard to other employers, affirming its position that Title VII protections extended to LGBT individuals. Now, the first U.S. Circuit Court of Appeals to consider the issue in this new legal landscape has disagreed – albeit reluctantly.
Up until recently, the federal Equal Employment Opportunity Commission (“EEOC”) protected from disclosure information collected during the course of an investigation while that investigation was still pending. As of January 1, 2016, that is no longer the case – at least for information submitted by an employer. For all employer position statements submitted to the EEOC on or after that date, the EEOC has implemented new procedures which will provide, upon request, the employer’s position statement to the employee (or former employee) bringing a claim of discrimination. Previously, the position statement was not available to the charging party until after the EEOC’s investigation was completed.
“For, although common Snarks do no manner of harm, Yet, I feel it my duty to say, Some are Boojums –.” So goes the warning in Lewis Carroll’s 1876 poem The Hunting of the Snark. In the poem, a hunting party pursues the harmless Snark but is warned along the way that some Snarks are actually highly dangerous Boojums. If one meets a Boojum, he will “never be met with again!” At the conclusion of the story, one member of the crew believes he has found a Snark and calls out to his friends – but when they arrive, they find that he has vanished without a trace, “For the Snark was a Boojum, you see.”
Most employers are familiar with the protected classes under Title VII of the Civil Rights Act of 1964. While these classes include race, color, sex, religion, and national origin, “sexual orientation” is not mentioned as a protected category. Accordingly, federal courts have traditionally declined to extend Title VII protection to plaintiffs asserting claims of discrimination based upon sexual orientation. However, with the EEOC’s recent decision of Complainant v. Foxx, the landscape may be shifting with regard to LGBT rights under federal anti-discrimination statutes.
Recently, the National Labor Relations Board (“NLRB”) officially overruled longstanding protections against disclosure of witness statements taken by employers during an internal workplace investigation. Since 1978, the Board has maintained that the general duty on an employer to furnish information, pursuant to Section 8(a)(5) of the NLRA, “does not encompass the duty to furnish witness statements themselves” to a union. Anheuser-Busch, Inc., 237 NLRB 982, 984-85 (1978). Thus, a bright-line rule was born which protected the confidentiality of witnesses who chose to cooperate with internal workplace investigations.
A few months ago, my colleague Jana Grimm wrote a blog entry outlining the latest in the NLRB’s ongoing aggressive reviews of employer rules and policies. In her post, which can be found here, Jana outlined Memorandum GC 15-04, a memorandum from the NLRB’s general counsel providing guidance on the issue of employer handbook policies. Citing Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), which states that work rules can violate Section 8(a)(1) of the NLRA if the rule has a chilling effect on activity protected by Section 7, GC 15-04 gives several examples of “dos” and “don’ts” of policies governing topics such as social media, confidentiality, intellectual property, and contact with individuals outside the company.
On February 25, 2015, the United States Supreme Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc, a case where religious articles of clothing have come to clash with an employer’s neutral dress code policy. In this case, a Muslim teenage girl applied for a job at an Abercrombie & Fitch store. Abercrombie requires all of its employees to adhere to a “Look Policy” which, among other things, prohibits wearing black clothing or headgear. Consistent with her religion, the applicant normally wore a hijab, a type of headscarf, for modesty purposes. The applicant’s headscarves, however, were different than those frequently worn by devout Muslim women. Unlike others, her headscarves did not cover her neck, were not tightly bound, and were often bought at ordinary mall clothing stores.