In the Workplace: Latest Need-to-Know Employment Law News

What’s new for employers? Plenty. Like gender discrimination lawsuits, EEOC investigations, Facebook firings, FMLA developments, employment visa news, whistleblower claims, healthcare reform, and much more.

For your information, here’s a roundup of recent employment law updates from lawyers and law firms on JD Supra:

Second Circuit Vindicates Concepcion in Gender Discrimination Case (Sedgwick LLP):

“In the nearly two years since [AT&T Mobility v.] Concepcion, the courts and the defense bar have been wrestling with a lengthy succession of theories by which the plaintiffs’ bar has hoped to pull the teeth of Concepcion’s unequivocal endorsement of arbitration over costly class litigation. I wrote about one of these cases pending before the California Supreme Court, Iskanian v. CLE Transportation Los Angeles, last month for the Washington Legal Foundation. On Thursday, the Second Circuit handed down another, rejecting plaintiffs’ attempt to evade their arbitration agreement in Parisi v. Goldman, Sachs & Co.Read on>>

Improving and Measuring Quality of EEOC Investigations Focus of Commission Meeting (U.S. Equal Employment Opportunity Commission):

“On Wednesday, the U.S. Equal Employment Opportunity Commission held a meeting to develop the agency’s Quality Control Plan (QCP). Development of the QCP was called for in the EEOC’s 2012-2016 Strategic Plan. The plan will revise the criteria used to measure the quality of agency charge investigations and conciliations throughout the nation.” Read on>>

Facebook Postings Showing Misuse of FMLA Leave Can Form Sufficient Legal Basis of Termination (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

“… the NLRA is not the only federal law that can be implicated in Facebook-related firings. A federal district court in Michigan recently held that a hospital that fired an employee while she was on medical leave did not violate the Family and Medical Leave Act (FMLA), because the employee had posted—on her Facebook page—photos and text about vacation activities that were inconsistent with her medical restrictions, and then lied about those activities.” Read on>>

Latest Developments Under The FMLA (Akerman Senterfitt):

“The Family and Medical Leave Act is a federal law enacted by President Clinton that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified reasons with continuation of group health insurance coverage under the same terms and conditions as if they had not taken leave. Some examples of the reasons for permissible leave include exigency leave and military caregiver leave for families of military service members, caring for a newborn or recently adopted child or a family member with a serious health condition, or an employee’s own serious health condition.” Read on>>

Congress Seeks to Reform Agricultural Worker Visas (Patton Boggs LLP):

“For nearly two decades, Capitol Hill has debated ways to provide a stable workforce for American farmers through immigration reform. Proposals have largely targeted reforms to the H-2A nonimmigrant visa program, which gives an unlimited number of visas to foreign agricultural workers who wish to perform seasonal or temporary agricultural work in the U.S. Currently, 50 to 80 percent of agricultural workers are thought to be working without proper work authorization.” Read on>>

OSHA Penalizes Another Railroad Company In Whistleblower Action (Proskauer):

“On February 28, 2013, OSHA ordered Union Pacific Railroad (UP) to reinstate the employment of and pay over $309,000 ($150,000 in punitive damages, $87,600 in compensatory damages, $71,700 in back pay with interest, plus attorney’s fees) to a locomotive conductor who alleged he was discharged for reporting a co-worker’s on-the-job injury.” Read on>>

Public Disclosure of Private Facts: California Court of Appeal Holds that Spoken Words Do Not Disappear Into Thin Air (Carr, McClellan, Ingersoll, Thompson & Horn):

“For employers, Ignat means another layer of vigilance. As challenging as it can already be to ensure that an employee’s personal circumstances remain private, a leaked oral statement now makes a claim for public disclosure of private facts a greater workplace risk and therefore a topic to address in workplace practices and policies.” Read on>>

IRS Clarifies Applicability of Pay or Play to Multiemployer Plans’ Contributing Employers (Proskauer):

“As expected, the Internal Revenue Service amended the transition rule for 2014 originally set forth in its proposed regulations on the pay or play mandate. An employer required by a collective bargaining agreement to contribute to a multiemployer plan for some or all of its employees is treated as having offered coverage to employees for whom it contributes as long as the plan offers to individuals who satisfy the eligibility provisions coverage that is affordable, provides minimum value and, subject to the transition rule for dependent coverage, offers dependent (i.e., children up to age 26) coverage.” Read on>>

Still No EEOC Guidance on Permissible Wellness Program Incentives (Proskauer):

“Despite the clear support for employers’ continued and expansive use of wellness programs as a means of promoting health and preventing disease expressed in the Affordable Care Act and the recently-proposed rules implementing and expanding employment-based wellness programs, the Equal Employment Opportunity Commission has still not provided more definitive guidance on permissible incentives in the wellness program context.” Read on>>

Healthcare Reform Compliance: Checklist of Next Steps (Winstead PC):

“It is impossible to ignore. Healthcare reform under the Affordable Care Act is on the minds, agendas and budgets of all employers, and now is the time for employers to review their health programs to address compliance with additional requirements that will become effective in 2014. Below is a list of questions for employers to consider as we prepare for 2014 and beyond.” Read on>>

The Side Effects of Mandatory Flu Vaccine Policies (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

“Requiring employees to get vaccinations is, in fact, a common practice among health care employers—but not just to curb employee absenteeism. Employees in the health care industry have close and frequent contact with vulnerable patients, and the vaccine would be aimed at reducing the spread of the flu. But, what if you’re not in the health care industry? Could a mandatory flu vaccine policy be right for your workplace?” Read on>>

H-1B Visa – Employers Should Expect The Cap Will Be Filled Quickly & Premium Processing Has Been Delayed (Scott Legal Services, P.C.):

“April 1 is fast approaching and almost everyone agrees that the H-1B cap will be filled very quickly this year. Recently, the government was added to the list of those who thought exactly this and announced as much to the public. In order to deal with the large number of expected applications, the government has also announced that they will delay premium processing (where you can pay $1225 to have your petition answered in 15 calendar days) for two weeks. As such, the government will spend the first few days counting the filings so that April 15 will be ‘day 1′.” Read on>>

Second Circuit Rules that the FLSA Does Not Apply to Claims for Gap-Time Pay (Sheppard Mullin Richter & Hampton LLP):

“In Lundy v. Catholic Health System of Long Island Inc., the Second Circuit Court of Appeals, resolving what had previously been an unsettled issue in the Circuit, held that the Fair Labor Standards Act does not permit a cause of action for ‘gap-time,’ even when an employee has worked overtime, provided that the employee is paid at least minimum wage.” Read on>>

Second Circuit Holds That Whether On-Time Attendance Is an Essential Function Is a Fact-Based Determination (Littler):

“Employers beware – you cannot assume that on-time attendance is an essential function of every job, as the U.S. Court of Appeals for the Second Circuit recently ruled. In McMillian v. City of New York, the court held that the determination of which jobs compel on-time attendance requires a fact-based analysis, which must include the consideration whether an employee’s “physical presence” in the workplace is in fact necessary.” Read on>>

IRS Relief for 403(b) Retirement Plans (Patterson Belknap Webb & Tyler LLP):

“Recognizing that the requirement to have a detailed written plan document for a 403(b) retirement plan was a new and arduous task for many non-profit entities who sponsored such plans, the IRS has now published favorable guidance giving 403(b) retirement plan sponsors some much needed relief.” Read on>>

Find additional Labor & Employment Law updates at JD Supra>>