Trump Administration Gives Us More Information On Where It Stands on LGBTQ Issues

By Kathleen Jennings (kjj@wimlaw.com)

This week, the Trump Administration gave us more information on where it stands on LGBTQ issues with a tweet and a Brief. The tweet came from the President wherein he stated that he plans to reinstate a ban on transgender individuals from serving “in any capacity” in the US armed forces. Whether this tweet will be formally put into practice remains to be seen.

Of more interest to private employers, however, is the Amicus Brief filed by the U.S. Department of Justice yesterday with the full U.S. Court of Appeals for the 2nd Circuit in New York in Zarda v. Altitude Express, a case filed by a now deceased skydiver who claimed that he was fired from his job because of his sexual orientation. In that Brief, the DOJ argues that discrimination on the basis of sexual orientation is not covered by Title VII of the Civil Rights Act of 1964, as amended.

The DOJ’s current position is contrary to the position of the Obama administration’s Justice Department as well as the Equal Employment Opportunity Commission. In its Brief, the DOJ noted that every Congress since 1974 has declined to add a sexual-orientation provision to Title VII, despite what it called “notable changes in societal and cultural attitudes.” The Brief also claimed that the federal government, as the largest employer in the country, has a “substantial and unique interest” in the proper interpretation of Title VII. Although the Equal Employment Opportunity Commission filed its own brief supporting Mr. Zarda, the DOJ Brief claimed that the EEOC was “not speaking for the United States.” “The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the DOJ’s Brief said. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

The takeaway: We have the DOJ and the EEOC, both federal agencies, taking opposite positions on the issue of whether discrimination on the basis of sexual orientation is covered by Title VII. This issue is currently being addressed by federal courts in the various Circuits, and may ultimately be resolved by the US Supreme Court. And that ultimate outcome could be determined by the ideological makeup of the Justices. We’ll provide more updates as things develop.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

OSHA Electronic Injury Reporting: One Step Forward, One Step Back

By Kathleen Jennings (kjj@wimlaw.com)

OSHA appears to be going ahead with implementation of electronic reporting of employer injury data. Business groups including the U.S. Chamber of Commerce have actively opposed this electronic reporting rule, which would make employee injury data public. Nevertheless, earlier this month, the Occupational Safety and Health Administration (OSHA) announced that it will launch the Injury Tracking Application (ITA) on Aug. 1, 2017. The Web-based form allows employers to electronically submit required injury and illness data from their completed 2016 OSHA Form 300A. The application will be accessible from the ITA webpage.

However, the deadline for employers to electronically submit 2016 Form 300A has been pushed back to Dec. 1, 2017 (the initial compliance deadline was July 1), to allow affected entities sufficient time to familiarize themselves with the electronic reporting system, and to provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation.

According to OSHA, the data submission process involves four steps: (1) Creating an establishment; (2) adding 300A summary data; (3) submitting data to OSHA; and (4) reviewing the confirmation email. The secure website offers three options for data submission. One option will enable users to manually enter data into a web form. Another option will give users the ability to upload a CSV file to process single or multiple establishments at the same time. A third option will allow users of automated recordkeeping systems to transmit data electronically via an application programming interface.

The ITA webpage also includes information on reporting requirements, a list of frequently asked questions and a link to request assistance with completing the form.

Which employers must electronically submit information to OSHA? According to the final rule that became effective on January 1, 2017:

  • Establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A and 301 annually.
  • Establishments with 20 to 249 employees that conduct work in industries that OSHA considers “highly hazardous” must electronically submit to OSHA information from form 300A annually.

These “high risk” industries include construction, manufacturing, wholesale trade, healthcare, utilities, agriculture, forestry, and more.

The requirements are scheduled to be phased in over two years. In 2017, all “covered establishments” must submit data from 2016 Form 300A. Next year, the rule requires establishments with at least 250 employees to submit information from 2017 Forms 300, 300A and 301. Those with 20 to 249 workers in specified industries are required to enter data from Form 300A. The deadline moves up to March 2 in 2019 and beyond.

Note that this is a separate requirement from OSHA’s Severe Injury Reporting protocol, which requires employers to report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of a worker within 24 hours to OSHA.

Pro tip: It is possible that the Trump administration will suspend final implementation of the rule. In the meantime, unless and until that happens, affected employers should prepare to comply with the rule on December 1. We will continue to monitor any developments in this area and report any updates.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

What Impact Does the Opioid Crisis Have on Employment?

By Kathleen Jennings (kjj@wimlaw.com)

This week, Federal Reserve Chair Janet Yellen connected the ongoing opioid crisis in the United States to declining labor force participation, although she could not say whether the opioid crisis is a cause or an effect. “I do think it is related to declining labor force participation among prime-age workers,” Yellen said while answering questions during testimony before the Senate Banking Committee on July 13. “I don’t know if it’s causal or if it’s a symptom of long-running economic maladies that have affected these communities and particularly affected workers who have seen their job opportunities decline.”

Asked whether there is a clear connection between opioids and an opportunity to go to a job, get employed, and have purpose in life, Yellen said that “all of those things are bound up in this opioid crisis,” and are “interacting in ways that are really quite devastating for these individuals and their communities.”

Statistics show that labor force participation in the U.S. has decreased substantially since the start of the 21st century, and male involvement in the workforce has been decreasing since the 1950s. The real challenges for employers and the Fed are to determine why prime-age people, in particular, have fallen out of the workforce and then to identify ways that they can bring some of these people back into the labor market.

Yellen’s remarks echo the findings of a recent report from Wall Street bank Goldman Sachs, which also addressed the connection between the opioid crisis and labor participation. That report noted that “The opioid epidemic is intertwined with the story of declining prime-age participation, especially for men, and this reinforces our doubts about a rebound in the participation rate. ”

According to the United States Department of Health and Human Services, opioid abuse is a serious public health issue. Drug overdose deaths are the leading cause of injury death in the United States. The majority of drug overdose deaths (more than six out of ten) involve an opioid. Since 1999, the number of overdose deaths involving opioids (including prescription opioids and heroin) quadrupled. From 2000 to 2015 more than half a million people died from drug overdoses. 91 Americans die every day from an opioid overdose.

The opioid crisis also affects employers in significant ways. According to a survey released earlier this year by the National Safety Council, approximately 70 percent of employers say their organization has experienced negative impacts from prescription drug abuse among employees. Specifically:

  • 39 percent report absenteeism as the result of drug abuse
  • 29 percent have detected decreased or impaired job performance
  • 29 percent report employees who are dealing with a family member’s addiction problems
  • 22 percent report complaints to HR and lower employee morale as a result of drug abuse
  • Yet, only 19 percent of the HR personnel surveyed say they feel prepared to deal with the issue.

Bottom line: The opioid crisis is a serious issue that affects all employers and the overall U.S. economy. Wall Street has taken notice, but that doesn’t mean that there will be a resolution of this problem any time soon.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

 

The EEOC Is Not Backing Off From Its Position on Leave As A Reasonable Accommodation

By Kathleen Jennings (kjj@wimlaw.com)

What does an employer do when an employee with a chronic health condition uses up all of her FMLA leave and accrued vacation time but still needs time off for medical treatment? During the Obama administration, the EEOC aggressively took the position that employers should not deny or unlawfully restrict the use of leave, including unpaid leave, as a reasonable accommodation to a worker’s disability under the Americans with Disabilities Act. The EEOC even filed lawsuits against employers that unceremoniously terminated employees who had exhausted all of their leave but needed additional leave to deal with serious medical issues.

Many wondered if this policy would change or be scaled back under a Trump administration. From the looks of a lawsuit filed by the EEOC this week, maybe not. On July 6, 2017, the EEOC filed a lawsuit against Time Warner Cable Inc. and Charter Communications Inc. in a California federal district court. (EEOC v. Time Warner Cable Inc., C.D. Cal., No. 17-01355, complaint filed 7/6/17). In the Complaint, the EEOC alleges that Time Warner Cable and Charter Communications violated federal law when they failed to provide additional unpaid leave to a worker seeking treatment for a disability. “This case should serve as a reminder to employers that it is their responsibility to provide reasonable accommodations to employees under the law,” Rosa Viramontes, the EEOC’s Los Angeles District director, said in a July 6 statement.

Pro tip: If an employee with a “disability” (as defined by the ADA) requests an accommodation at work, or the need for an accommodation is obvious, the employer must engage in an interactive process with the employee to determine what, if any, accommodation is reasonable for both sides. Employers can demonstrate a good-faith attempt to accommodate by meeting with the employee, requesting information about the limitations, considering the employee’s requests, and discussing alternatives if a request is burdensome. The EEOC has made it clear that it expects employers to at least consider leave as a form of employee accommodation.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Whatever Happened to the Proposed Increase in the Salary Threshold for Overtime?

By Kathleen Jennings (kjj@wimlaw.com)

Last year at this time, employers were scrambling to comply with the Department of Labor’s new regulations which would have more than doubled the existing salary threshold for the overtime exemption for executive, administrative, and professional employees from $23,660/year ($455/week) to $47,892/year ($921/week). The regulations were projected to make 4.2 million more workers eligible for overtime. Advocates for the increase asserted that the new regulations would bring more families closer to a living wage. Businesses argued that the regulations would increase their labor costs to the point where they would need to consider decreasing base salaries or lowering the number of their employees.

Before the regulations took effect on December 1, 2016, everything came to a halt when a federal district court enjoined implementation of the regulations. The Obama administration appealed the injunction to the Fifth Circuit of Appeals. In the meantime, Trump was elected President. Now his Labor Department is handling the appeal on behalf of the government.

So what is happening with those regulations now? Will the salary threshold for the overtime exemption increase?

We received a clue on June 30, 2017, when lawyers for the Labor Department told the Fifth Circuit Court of Appeals that the Labor Department plans to revise the pending Obama era overtime rule. They asked the court to affirm the DOL’s right to use salary levels to determine eligibility for time-and-a-half pay in the future, but to ignore the specific levels contained in the Obama-era regulation: “The Department requests that this Court not address the validity of the specific salary level set by the 2016 final rule ($913 per week), which the Department intends to revisit through new rulemaking.”

In other words, the DOL wants the court to affirm that the department has the authority to set a salary threshold under which workers are automatically eligible for overtime pay for hours worked beyond 40 per week so that the current DOL can make its own changes to that threshold amount.

When will this happen? Not anytime soon. The DOL will not initiate any new rulemaking on the salary threshold for overtime until after the Fifth Circuit rules that the DOL has the authority to do so.

What we know now: The Obama-era increase in the salary threshold for overtime will not be implemented while Trump is in office. Whether the Trump DOL will make any moves to increase that threshold, albeit at a much lower level, remains to be seen.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.