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.
The National Labor Relations Board (“NLRB”) recently overturned a 2004 decision that established a standard determining whether workplace rules, including those contained within employee handbooks, infringed upon workers’ rights under the National Labor Relations Act (“NLRA”).
As a general principal in West Virginia, a claimant is precluded from receiving workers’ compensation benefits for a mental injury with no physical cause. West Virginia, like most other states, provides that for workers’ compensation purposes, no alleged injury or disease shall be recognized as a compensable injury or disease, which was solely caused by non-physical means and which did not result in any physical injury or disease to the person claiming benefits. The purpose of W. Va. Code § 23-4-1f is to clarify that “mental-mental claims” are not compensable for workers’ compensation purposes in West Virginia.
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.