Wellness programs in the workplace are generally based on the belief that as employees lose weight, stop smoking, eat more healthfully, and lower their cholesterol, their employer will reap a drop in absenteeism and health care costs. With that hope in mind, employers are often willing to offer a financial reward to encourage employees’ participation. The Equal Employment Opportunity Commission (“EEOC”) has long been concerned about whether the financial reward offered makes such wellness programs “involuntary” such that the wellness programs fail to comply with the Americans with Disabilities Act (“ADA”) and/or the Genetic Information Nondiscrimination Act (“GINA”). Previous S&J blog posts have reported the EEOC’s actions with respect to wellness programs over the years, including the EEOC’s issuance of final ADA and GINA regulations addressing wellness programs. Those regulations have been challenged in court by the AARP, and you can expect changes in the regulations as a result. This post will bring you up to speed on the litigation and what you should watch for going forward.
Pennsylvania’s Commonwealth Court recently issued an opinion, which, while arising in the unemployment compensation arena, may have broader implications for today’s contingent workforce. In Lowman v. Unemployment Compensation Board of Review (January 24, 2018), the Court was called upon to decide whether a claimant, who had been laid off from his job as a behavioral health specialist, engaged in self-employment by becoming a driver for Uber. To perform his duties for Uber, the Claimant used his own phone and car, paid for all related expenses (fuel and maintenance), had to have insurance, a driver’s license, and vehicle registration, set his own hours, could refuse assignments, and could drive for others. Additionally, he earned approximately $350 per week, showing a frequent and prolonged relationship with Uber—not occasional and limited to earning some extra money on the side.
I was recently asked if an employer may require an employee who was taking leave under the Family and Medical Leave Act (“FMLA”) to return to work after the employee was seen working his second job—refereeing school basketball games—while on leave. In this particular case, the employee was taking FMLA leave to care for his daughter, who had a serious health condition.
Like it or not, winter is upon us as the calendar rolls into February, and Jack Frost is constantly lurking around the corner. In this space, we’ve talked about pay issues under the Fair Labor Standards Act (“FLSA”) when employees can’t make it to work or the business must close. On the flip side, however, some businesses, such as healthcare entities, provide critical services and often have no choice but to remain open to the best of their ability when winter strikes.
Towards the end of 2017, the National Labor Relations Board issued a flurry of important decisions that established more employer-friendly standards. Significantly, the Board overturned a decision that was used to strike down many employment policies the Board found unlawfully interfered with employees’ rights to organize. Under a standard set forth in Lafayette Park Hotel (1998) and later clarified in Martin Luther Home d/b/a/ Lutheran Heritage Village-Livonia (2004), a policy could be deemed unlawful if it could be “reasonably construed” by an employee to prohibit or chill employees’ exercise of their right to self-organize for collective bargaining or mutual aid.
Over the past several months, allegations of sexual misconduct have dominated headlines in all walks of celebrity life – including Hollywood, national newsrooms, business boardrooms, and even the halls of Congress. These revelations of widespread harassment have fueled the rise of the “#metoo” movement, which strives to raise the curtain on the pervasiveness of sexual harassment and assault in both the workplace and everyday life. Indeed, Time Magazine has collectively named “The Silence Breakers” as its 2017 Person of the Year. In many cases, and as is common in the American workplace, accusers of the alleged perpetrators now in the news had been required to sign agreements requiring arbitration of any employment-related disputes.
On November 28, 2017, the Supreme Court heard oral argument in Digital Realty Trust Inc. v. Paul Somers, a case that will determine whether employees who report fraud-related conduct internally will be protected by the Dodd-Frank Act’s anti-retaliation provisions or whether the employee must report directly to the government to earn that protection.
This question today comes up in many contexts. The Commonwealth Court of Pennsylvania, an intermediate appellate court, in D&R Construction v. Workers’ Compensation Appeal Board, had to determine whether the Construction Workplace Misclassification Act (CWMA) 43 p.s. § 933.1-17 was instructive in evaluating the employee or independent contractor question.