As we discussed yesterday at Mintz Levin’s Third Annual Employment Law Summit, big changes are likely in the offing as all three branches of our federal government begin to deal with labor and employment issues following President Trump’s election. President Trump’s first 100 days has already included action on a number of employment and labor law issues we’re following here at Mintz Levin.  The Administration has enacted or signaled changes – some potentially significant – in executive orders and through pronouncements of regulatory and enforcement priorities that promise to impact the field of labor and employment law.  Additionally, the expected confirmation this week of Judge Neil Gorsuch means all hands on deck at the United States Supreme Court, and congressional action so far suggests a potentially employer-friendly climate on Capitol Hill.

Below, we highlight changes in the leadership, regulation, and likely course forward for each of the branches of the federal government, and offer our predictions for 2017 and beyond under the current Administration.  Continue Reading Steady as She Goes or Charting a New Course? Employment and Labor Signals in the Trump Administration

The basketball court isn’t the only place you’ll see interesting uniforms this month.  Many employers choose to implement and enforce their own uniform requirements and dress codes at work.  But if done incorrectly, uniforms or dress codes may reinforce stereotypical gender roles and put transgender employees and applicants in a very uncomfortable place.  In addition, some religious people in the workplace require exceptions to uniform requirements and dress codes in order to adhere to their beliefs.  There was even a hotly debated Supreme Court opinion a couple years ago about a religious headwear exception to an employer’s dress code.  These increasing changes in the law are forcing employers to take a time out to rethink their uniform and dress code strategies to make sure they do not travel out of bounds.

uniform

Continue Reading March A-Wear-Ness: Uniforms, Dress Codes, and Employee Choice

March Madness presents one of those occasions where your employees’ diets and exercise may fall by the wayside, and by the wayside, we mean potentially off a cliff.  And when this happens, your workforce is increasing not just their weight and risk of disease, but it may also increase your cost to employ them.  The productivity time you’re losing when they stop working to watch the games is nothing compared to the loss of productivity and increased health care costs due to poor health.

Continue Reading March Flabness: Wellness Programs, the ADA, and the Rising Costs of Employer-Provided Health Coverage

On January 25, the Seventh Circuit Court of Appeals issued it much-anticipated decision in EEOC v. Flambeau, Inc. This case involved the regulation of employer-sponsored wellness plans and programs. Since 2006, the rules surrounding wellness programs had been modestly well settled—for tax and benefits purposes. But little was known about the impact of the Americans with Disabilities Act (ADA). At issue in Flambeau is which of two ADA provisions—the voluntary employee health program exception or the safe harbor for “bona fide benefit plans”—also apply to wellness plans. The lower court, the U.S. District Court for the Western District of Wisconsin, ruled against the EEOC, applying the more flexible bona fide benefit plan exception. The EEOC appealed.

The Seventh Circuit’s decision on appeal is a model of judicial restraint. (This is the doctrine that holds that cases ought to be decided on the narrowest grounds possible.) Flambeau “won” on appeal only in the narrow sense that it avoided liability. The Court did not reach the statutory or regulatory issues before it. Rather, it disposed of the case on procedural grounds.

Continue Reading EEOC v. Flambeau, Judicial Restraint, and the (Uncertain) Future of Employer-Sponsored Wellness Programs

The U.S. Equal Employment Opportunity Commission (EEOC) recently entered the Browning-Ferris saga, filing an amicus brief in support of the new joint employer test articulated by the National Labor Relations Board (NLRB) in August 2015.  Drawing comparisons to its own joint employer test, the EEOC urges the D.C. Court of Appeals to uphold the NLRB’s pliable, fact-specific test to determine whether an entity sufficiently controls the terms and conditions of an individual’s employment to be a joint employer.

Continue Reading EEOC Urges Federal Appellate Court to Uphold NLRB’s Expansive Definition of “Joint Employer”

In a carefully reasoned but ultimately restrained opinion the Seventh Circuit held that Title VII does not prohibit discrimination in employment on the basis of sexual orientation. While declining to become the first circuit court to extend Title VII to sexual orientation claims, the court acknowledged at length the persuasive force of a recent EEOC administrative decision and similar district court rulings noting the logical fallacy of enforcing Title VII’s protections against discrimination on the basis of gender nonconformity while permitting sexual orientation discrimination in the workplace to continue.

Continue Reading Seventh Circuit Holds Title VII Does Not Prohibit Sexual Orientation Discrimination, But Acknowledges Inherent Flaws in Precedent Underlying its Holding

The employer community was sent into a frenzy with the Department of Labor’s release on May 18, 2016 of its final white-collar overtime regulations.  Just two days before however, the Equal Employment Opportunity Commission also released its own final regulations regarding employer wellness programs.

Continue Reading In Case You Missed It: The EEOC Sneaks in Its Final Wellness Program Rule Ahead of The DOL’s New OT Rule

Many employers are familiar with the fact that the EEOC regularly conducts on-site workplace investigations after receiving charges of discrimination or harassment.  A recent federal court decision, however, may lead to an uptick in such on-site investigations – even if the EEOC does not have an administrative warrant for the investigation and even if the employer does not consent.

A federal court in Kentucky recently held that the EEOC has the authority to conduct a warrantless, nonconsensual search of a private employer’s commercial property to investigate a discrimination claim.  This marks the first decision in which a federal court confronted this issue.  Though this is not a favorable decision for employers, the court delineated several limitations and safeguards that help fetter the EEOC’s on-site inspection authority.

Continue Reading Federal Court Allows the EEOC to Conduct Investigation on Employer’s Premises Without Employer Consent or a Warrant

The New York City Human Rights Law now prohibits discrimination based on an individual’s actual or perceived status as a caregiver.  Below, we briefly summarize the law and gauge its potential impact on the workplace.

Continue Reading NYC Ban on Caregiver Status Discrimination is Now in Effect; Employers Must Think Carefully About its Impact

The Fifth Circuit recently held that a third party witness who was fired after providing information in response to her employer’s investigation of a coworker’s harassment allegations had to demonstrate she had a “reasonable belief” that the conduct she reported violated Title VII in order to prove her retaliation claim.

Continue Reading Fifth Circuit Holds Third Party Witness’ Retaliation Claim Requires “Reasonable Belief” That a Title VII Violation Has Occurred