If you set goals late last year or early this year for workplace compliance to be completed in 2016 and have not yet met your goals, now is the time to revisit them. It is critical to allocate time and energy now to review your policies and achieve compliance with various statutes including the National Labor Relations Act, the Fair Labor Standards Act and the Fair Credit Reporting Act (“FCRA”) as the repercussions to employers for failing to do so are proving to be very costly. As was predicted for 2016, the trend of filing class actions for failure to comply with the requirements of the FCRA has and continues to grow.
On July 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a revised proposal to expand data collection through its Employer Information Report (“EEO-1”). Through EEO-1 reports, the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) have been able to identify possible discriminatory practices and conduct pay discrimination investigations through the race, gender, ethnicity, sex, and job category pay data collected from employers across the country.
As employment attorneys, we are often asked by employers, “How can I protect my company from employees leaving with critical information or being poached by a competitor?” One way that employers can protect themselves is to prepare reasonable non-compete agreements that have the effect of deterring competitors and, likewise, encouraging retention amongst the workforce. There are, however, pitfalls which must be considered by employers before the execution of these non-compete agreements. Generally speaking, West Virginia courts will accept and enforce non-compete agreements that (1) are no more restrictive than required for the protection of the employer; (2) do not impose an undue hardship on the employee; and, (3) are not injurious to the public.
The use of independent contractors is a growing trend in the American economy, and many believe the trend is here to stay. Independent contractors come in a variety of shapes and sizes. Companies like Uber rely almost exclusively on independent contractors, and there has been significant increase in the use of independent contractors for a variety of duties (in nearly all industries).
On May 13, 2016, the Department of Labor (“DOL”) and the Department of Education (“DOE”) issued a joint directive to school districts nationwide titled the “Dear Colleague Letter on Transgender Students.” The correspondence “summarizes a school’s Title IX obligations regarding transgender students and explains how the [DOE] and the [DOL] evaluate a school’s compliance with these obligations.” The letter makes clear that “[a]s a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.” (Emphasis added). While the information applies directly, through Title IX, to school districts, private employers on a much broader scale must also be cognizant of the new interpretation of “sex” discrimination.
When dealing with their employees’ needs for accommodations due to religious, disability, or family leave reasons, it’s necessary for employers to know some personal information about their employees. But, simply asking for information can be considered a violation of certain employment laws. What’s an employer to do?
According to a 2011 publication of the Centers for Disease Control and Prevention (CDC), “Mental illnesses account for a larger proportion of disability in developed countries than any other group of illnesses, including cancer and heart disease.” The study noted that an estimated 25% of adults self-reported a mental illness at a projected economic cost of $300 billion as of that date.
Yesterday, the Supreme Court of the United States issued its long-awaited opinion in EEOC v. Abercrombie & Fitch Stores, Inc., where it addressed questions surrounding the obligation of an employer to make a religious accommodation. The decision is an important one, so an understanding of what the Court exactly concluded and how its dictates should be adopted for employers on a day-to-day basis is essential. In order to truly gain that understanding, though, let’s briefly take a bit of a bigger-picture look at the issue of religious accommodation in general first.