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Aug 04 2016
Harassment & Discrimination

Transgender rights and issues continue to be on forefront for federal agencies

The federal Equal Employment Opportunity Commission (EEOC) and U.S. Department of Education became the two most recent federal agencies to release guidance regarding treatment of transgender individuals. The EEOC issued a new fact sheet discussing rights of transgender employees and the U.S. Department of Education issued a letter regarding transgender student rights, both of which…

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Jul 28 2016
Leave LawsTermination & Resignation

Employer failed to properly account for overtime in FMLA calculations

Because an employee was subject to discipline if he missed overtime shifts for which he volunteered, the extra shifts were actually mandatory for purposes of calculating regular work hours under the federal Family and Medical Leave Act (FMLA), ruled the Eighth Circuit U.S. Court of Appeals. The company in this case improperly ignored all of…

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Jul 21 2016
Safety and Health

OSHA will scrutinize employee safety incentive programs

Safety incentive programs are under fire from the Occupational Safety and Health Administration (OSHA). In our last newsletter, we reported on OSHA’s general disapproval of automatic post-accident drug testing in its new injury and illness reporting rule. In commentary to the rule, OSHA also expresses discontent about safety incentive programs. Although OSHA’s dislike of incentive…

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Jul 14 2016
Disability

Disability accommodation requests require a careful analysis of essential job functions

A recent disability discrimination ruling highlights the importance of not jumping to conclusions in evaluating essential job functions. A pharmaceutical sales representative gradually lost most of her eyesight, and could no longer drive a car. She had no set office and her job involved traveling and meeting with doctors and other medical providers. The employee…

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Jul 12 2016
Privacy & Confidentiality

Employer responses to EEOC and non-confidential attachments may be shared

Beginning on January 1, 2016, any employer response to a claim filed with the Equal Employment Opportunity Commission (EEOC) and any non-confidential attachments will be given upon request to the individual who brought the claim to the EEOC. This change is designed to “strengthen” the EEOC’s investigation and ensure consistency between all EEOC offices, and…

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Jul 11 2016
Harassment & Discrimination

Sexual Orientation Discrimination: The EEOC Files First Lawsuits

In two ground-breaking lawsuits this past March, the U.S. Equal Employment Opportunity Commission (EEOC) alleges that under Title VII of the Civil Rights Act, “sex discrimination” includes discrimination on the basis of sexual orientation. This is a developing area of employment law, and these lawsuits are part of the EEOC’s national strategy to seek employment…

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Jul 08 2016
HiringQ&A

“Ban the Box”: Can I still ask applicants about criminal backgrounds in Oregon?

Answer: It depends on a lot of different factors, and may vary depending on the city and the circumstances. In the spirit of fair hiring policies, many cities and states across the nation are adopting “ban the box” laws, requiring employers to consider an applicant’s candidacy and qualifications before digging into their criminal background—essentially, removing…

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Jul 07 2016
Drug and AlcoholSafety and Health

OSHA wants employers to change mandatory post-accident drug testing

Although the rule doesn’t ban post-accident testing—and OSHA even deems it reasonable “in some situations”—OSHA’s commentary says that automatic post-accident testing regardless of the nature of the accident is improper. OSHA recommends post-accident testing only if (1) there is a “reasonable possibility that drug use by the reporting employee was a contributing factor to the…

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Jun 24 2016
CaliforniaDisability

Telling a California employee to see doctor not enough to satisfy interactive process

Showing just how far an employer must go to satisfy California’s Fair Employment and Housing Act (FEHA), a federal district court recently refused to dismiss an employee’s claim that his employer failed to engage in a second round of disability accommodation talks. The employee, originally a cut-and-die operator at a corrugated container plant, was placed…

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Jun 14 2016
Employee BenefitsQ&AWage and Hour

Cash in lieu of benefits must be included in regular rate calculation for overtime

Answer: Yes. The money you are providing to the employees for opting out of medical benefits is considered cash in lieu of benefits and should be included in the regular rate calculation for overtime pay. Money must be included in the employee’s regular rate of pay if it is generally understood as compensation for work,…

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Jun 13 2016
Q&ATermination & Resignation

Employer’s Response to Unemployment Forms

A: Neither. The federal Unemployment Insurance Integrity Act (2011) requires employers to respond timely and adequately to a state’s request for information to determine eligibility for unemployment benefits. Each state also has a corresponding law that penalizes employers who fail to provide accurate, timely information on unemployment forms. In some states it’s a misdemeanor offense…

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Jun 10 2016
Affirmative ActionHarassment & Discrimination

Food distribution company to pay $1.85 million to settle entry-level hiring case

The Office of Federal Contract Compliance Programs (OFCCP) recently announced that Gordon Food Service, Inc. will pay $1.85 million to resolve allegations that it systematically discriminated against women when hiring for entry-level warehouse laborer jobs at locations in Michigan, Wisconsin, and Kentucky. The money will be shared among 926 qualified female applicants who weren’t hired….

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