Federal Employment Law Update – January 2017

Federal

EEOC Issues Q&As Regarding Wellness Program Notice Requirements

The Equal Employment Opportunity Commission (EEOC) has published questions and answers (Questions and Answers: Sample Notice for Employee Regarding Employer Wellness Programs) on the notice requirements for certain employers that provide wellness programs to their employees. Employers offering wellness programs that collect employee health information are required by the Americans with Disabilities Act (ADA) to provide employees with notices detailing confidentiality provisions, and stating how the health information will be used and who will get it.

The notice requirement is effective as of the first day of the plan year beginning on or after January 1, 2017, for the health plan an employer uses to calculate any incentives offered as part of a wellness program. A sample notice is available on the EEOC website.

Read the Q&As

Joint Fact Sheet on Unlawful Retaliation

The National Labor Relations Board (NLRB), the Department of Labor’s Wage and Hour Division (WHD), the Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC) have issued a joint fact sheet (Retaliation Based on Exercise of Workplace Rights is Unlawful) explaining that the agencies will protect all employees from retaliation by employers because the employee has tried to assert his or her workplace rights, according to NLRB Memorandum OM 17-10. The fact sheet notes that in some cases, employers may exploit immigration status to discourage workers from asserting their rights. Federal laws, however, including the National Labor Relations Act, generally prohibit employers from retaliating against workers for exercising their workplace rights, regardless of the workers’ immigration status.

The new fact sheet is available in Spanish, French, Mandarin, Arabic, Vietnamese, Korean, Russian, Tagalog, Hindi, Punjabi, Urdu, Haitian Creole, Hmong, and Portuguese on the NLRB’s Foreign Language Publications page.

Read the Fact Sheet

EEOC Requests Comments on Proposed Enforcement Guidance on Workplace Harassment

On January 10, 2017, the United States Equal Employment Opportunity Commission (EEOC) announced that it is seeking public input on proposed enforcement guidance (Proposed Enforcement Guidance on Unlawful Harassment) addressing unlawful harassment in the workplace under the federal employment discrimination laws. The proposed guidance explains the legal standards applicable to harassment claims under federal employment discrimination laws. The laws enforced by the EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information. The proposed enforcement guidance is available for public comment until February 9, 2017.

Read the Proposed Guidance
Read the EEOC Press Release

Ninth Circuit Reaffirms Service Advisors Eligible for Overtime

On January 9, 2017, the U.S. Court of Appeals for the Ninth Circuit in Navarro v. Encino Motorcars, LLC, concluded that the exemption in the federal Fair Labor Standards Act (FLSA) at 29 U.S.C. § 213(b)(10)(A) from overtime compensation for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles,” does not encompass service advisors at automobile dealerships. Subsequently, automobile dealerships are required to pay overtime compensation to service advisors. Although the case was heard by the U.S. Supreme Court, it was sent back to the Court of Appeals for reassessment. However, the Ninth Circuit conclusively found “under the most natural reading of the [FLSA] statute, Congress did not intend to exempt service advisors . . . even if the text were ambiguous, the legislative history confirms that Congress intended to exempt only salesmen selling cars, partsmen servicing cars, and mechanics servicing cars. Congress did not intend to exempt service advisors.”

Ninth Circuit rulings apply to Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Read the Decision

FAQs About Affordable Care Act Implementation Part 36

On January 9, 2017, the Departments of Labor (DOL, Health and Human Services (HHS), and the Treasury (collectively, the Departments) released Frequently Asked Questions (FAQs) About Affordable Care Act Implementation Part 36. The FAQs deal with issues of the Departments’ religious accommodation for offerings of certain birth control options by religious affiliated entities.

Read FAQs About Affordable Care Act Implementation Part 36