Employment Matters Blog

The EEOC Continues to Challenge Employer Wellness Programs Through Litigation

Posted in ADA, EEOC, employee benefits

Written by Gauri Punjabi

The U.S. Equal Employment Opportunity Commission is taking a hard look at employers who implement employee wellness programs that condition eligibility for benefits on participation in such programs. In the past few months, the EEOC sued three employers claiming that their wellness programs violated the Americans with Disabilities Act.

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The Affordable Care Act—Countdown to Compliance for Employers, Week 9: Misunderstanding “Offer[s] of Coverage on Behalf of Another Entity”

Posted in ACA Compliance Series, Affordable Care Act, IRS

Written By Alden J. Bianchi and Edward A. Lenz

Applicable large employers faced with the prospect of complying with the Affordable Care Act’s employer shared responsibility rules must grapple with and understand what it means to make an offer of minimum essential coverage under an eligible employer-sponsored [group health] plan to their full-time employees. Final regulations implementing these rules determine an individual’s status as an “employee” by applying the “common law” standard, the contours of which were examined in a previous post. Identifying an employer’s common law employees in a two-party arrangement is a simple matter. But this is not always the case in three-party arrangements (i.e., those in which workers are hired from or through commercial staffing firms or professional employer organizations). Three-party arrangements invite the question—whose employee is it? Where the Act’s employer shared responsibility rules are concerned, the answer to that question tells us which entity must make the requisite offer of coverage when assessing exposure for assessable payments.

The final regulations provide a special rule governing outsourced employees or “offers of coverage on behalf of other entities.” This rule is welcome to be sure, but it also appears to be widely misunderstood, systematically over-utilized, and in a few cases subject to interpretations that (seem to us, anyway) stray pretty far from the text.

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SHRM: Big Data Only as Good as Data In

Posted in Employee Privacy

My colleague Rob Sheridan was quoted in an SHRM article entitled Big Data Only as Good as Data In, in which he comments on the HR and legal implications of both internal and external use of big data by employers. The article focuses on the new trend of big data use in recruiting and hiring top talent, and its meaning in regards to the Fair Credit Reporting Act.

Another One Bites the Dust – Court Strikes Down Non-solicitation Agreement as Overbroad under New York Law

Posted in employee mobility, non solicitation, Non-compete, restrictive covenants

Auto Parts non-solicitation agreementWritten by Daniel Long

The latest casualty to post-employment covenants came at the hands of a Connecticut trial court, which struck down a non-solicitation agreement under New York law as reaching beyond the legitimate business interests that deserve protection.

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Title VII Severance Agreement Issue Remains in Legal Limbo: Judge Tosses EEOC’s Suit Against CVS Solely on Procedural Grounds

Posted in conciliation, EEOC, release, Title VII

CVS Pharmacy EEOC Title VIIWritten by Daniel Long

Last month, we reported that an Illinois district court judge threw out the EEOC’s controversial lawsuit against CVS seeking to invalidate its severance agreements. The judge there did so and promised to follow up with a written opinion. That opinion has now arrived, but it’s not the one that we hoped for. Rather than address whether CVS’s standard severance agreement violated its employees’ rights under Title VII, Judge Darrah focused solely on certain procedural shortcomings; namely, that the EEOC had failed to engage in any conciliation prior to bringing the lawsuit.

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Et tu, Brutus? Yet Another New York Court Offers Guidance on the Do’s and Don’ts (Mostly Don’ts) in Post-Employment Restrictive Covenant Agreements

Posted in employee mobility, New York, non solicitation, Non-compete, restrictive covenants

Post-Employment Restrictive Covenant AgreementsWritten by David Katz

A recent non-compete case out of a New York County court offers employers valuable drafting tips on non-compete and non-solicitation provisions.

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The Affordable Care Act—Countdown to Compliance for Employers, Week 10: What’s an Employer to Do (with Marketplace Notices)?

Posted in ACA Compliance Series, Affordable Care Act, IRS

Written by Alden J. Bianchi

Under the Affordable Care Act’s employer shared responsibility rules, applicable large employers (those with 50 or more full-time and full-time equivalent employees on business days during the preceding calendar year) incur exposure for assessable payments under Internal Revenue Code § 4980H when an applicable premium tax credit or cost-sharing reduction is allowed or paid for one or more low- or moderate-income full-time employees who have been certified to the employer as qualifying for an advance premium tax credit under Code § 36B. The final Code § 4980H regulations refer to this certification as a “Section 1411 Certification,” which is a reference to Act § 1411(a). This provision gives the Department of Health and Human Services (“HHS”) the authority to determine whether individuals are eligible to enroll in qualified health plans through a public exchange and whether they are eligible for a premium tax credit. Continue Reading

Keep Your Hands Off the Customers … and the Cows

Posted in employee mobility, minimum wage, non solicitation, Non-compete, restrictive covenants

Written by Jennifer Rubin

A federal district court in Washington has confirmed that an employer’s relationship with the cows that its employees serviced is insufficient to establish a legitimate protectable interest to enforce a non-compete.

Yes, the court’s decision in Genex Cooperative, Inc. v. Contreras not only confirmed that bovine inseminators were free to solicit their prior clients (and cows), but the case provides some good reminders about drafting enforceable non-competes.

The case involved three bovine inseminators who, unhappy with their wages and working conditions (which included the failure to adhere to state minimum wage laws) quit their jobs with Genex and, the next day joined its competitor CRV USA — who immediately put them to work inseminating the cows of Genex customers. Continue Reading