On April 25, 2016, the Second Circuit Court of Appeals ruled in a 2-1 decision that NFL Commissioner Roger Goodell’s four game suspension of New England Patriots quarterback Tom Brady would stand. While the federal court’s decision is noteworthy for the impact it will have on the NFL (and its legions of fantasy league players) this fall, the decision also highlights an important aspect of arbitration that employers should be aware of – court deference to arbitral decisions and authority. Generally, courts will avoid vacating or modifying an arbitrator’s decision unless it falls under a few very narrow exceptions. Courts take the position that since the parties agreed to the arbitration process and to have an arbitrator decide their claims, the judicial system should not involve itself in that process unless absolutely necessary. The Brady case is an excellent example of this legal doctrine in practice.
Biological gender or gender identification? The question is gaining increased importance when it comes to employers, currently with the topic of public restrooms. Following backlash from guidance from the Michigan Department of Education on restroom options for LGBT students and a recent North Carolina ordinance, Patricia Nemeth, founder of Nemeth Law, looks at the potential impact on employers and workplace restrooms. Recent trends indicate the public restroom battle will quickly move to private restrooms and employers should have a plan of action in place with an emphasis on gender identity for bathroom preference.
All is not well with wellness plans. The EEOC, fearing employers can use employee health data gained through employer wellness programs to discriminate against employees, recently issued new regulations for employer wellness programs. Patricia Nemeth, founding partner of Nemeth Law, highlights the 4 key EEOC regulations:
1. Wellness plans must have a reasonable chance of improving an employee’s health
2. The program must be voluntary for employees
3. The employer must notify employees if the wellness plan is part of the employer-sponsored health insurance plan
4. Wellness plans must provide reasonable alternatives for disabled employees who are unable to participate
Two recent bills introduced in the Legislature represent the latest in a line of challenges and proposed amendments to Michigan’s controversial right-to-work law. As currently written, right-to-work laws prevent employers from entering into agreements with unions that require employees to pay dues or fees to the union in order to remain employed. If the new bills are enacted, employees could vote to determine whether they want to be covered by right-to-work. If the employees vote to opt-out of right-to-work, then all employees would be required to pay union dues or fees in order to keep their jobs. The requirement to pay union dues or fees would continue until the employees vote to opt back into right-to-work. But, a vote to opt back into right-to-work could only be held at the expiration of the contract with the union or after three years.
The Department of Labor (DOL) thinks joint employer relationships have become murky and tenuous for employees and is stepping up its enforcement efforts to protect employees. Specifically, the DOL is looking at joint employment in two ways: horizontal and vertical. Horizontal employment involves, for example, a cook who may work at two restaurants owned by the same employer or a nurse who works for two medical groups with the same owner. Vertical employment involves subcontractors who are hired by a staffing agency but report to the supervisor at the contracted company. Nemeth Law’s Terry Bonnette looks at how both forms of joint employment can impact employee pay. Hint to employers: it’s going to cost you.
The Equal Employment Opportunity Commission (EEOC) recently filed two suits in federal court alleging that employers committed unlawful sex discrimination on the basis of sexual orientation under Title VII. These lawsuits go against well-established federal court precedent that sexual orientation is not a protected class under Title VII. Nevertheless, as of last summer, the EEOC has taken the position that sexual orientation discrimination is, in fact, discrimination because of sex and is thus protected under federal law.
On Friday January 29, 2016, the Equal Employment Opportunity Commission (EEOC) announced proposed changes to its annual EEO-1 report that will significantly impact many employers if the changes are enacted. The EEOC proposes that employers should be required to submit pay data as part of their EEO-1 reports. The revised EEO-1 report was proposed as part of the White House's commemoration of the seventh anniversary of the Lily Ledbetter Fair Pay Act which was President Obama's first piece of legislation.
Last May, Nemeth Law wrote about the Equal Employment Opportunity Commission’s (EEOC) recent proposed regulations providing guidance to employers on how the Americans with Disabilities Act (ADA) applies to employee wellness programs. Since then, there have been some notable updates. First, the EEOC published another set of regulations regarding the impact of the Genetic Information Nondiscrimination Act (GINA) on wellness program incentives. Second, a decision in a federal court case out of Wisconsin provides some insight into how courts could apply existing law to wellness program designs.
With the mosquito-borne Zika virus rampant in South and Central America, it’s not surprising that dozens of cases have been reported in the U.S. from recent travelers to those geographic areas. What does this mean for employers doing business in countries where the Zika virus is prevalent? From opt—out travel plans to tips on avoiding gender discrimination, Nemeth Law founding partner Patricia Nemeth looks at how employers should handle the issues raised by the Zika virus without running afoul of the law.
Uber can’t seem to stay out of the employment news these days. Newer to the list of Uber driver unrest is an ordinance in the city of Seattle that would allow its approximately 10,000 Uber drivers to unionize. It’s an interesting turn of events, given the drivers are currently deemed independent contractors – which is yet another hot button topic regarding Uber. Seattle’s mayor is against the ordinance due to anticipated costs in enforcing it, but will other cities follow suit? Nemeth Law attorney Kellen Myers looks at Uber, Seattle and the law.
