EEOC Wellness Plan Controversy: All’s Well That Ends Well?

health assessmentEarlier this month, the EEOC and Orion Energy Systems settled a case pending in a Wisconsin federal court in which the EEOC alleged that the company’s wellness plan violated the Americans with Disabilities Act (ADA). This case goes back to the spring of 2009 when an employee was forced to pay 100% of her group health insurance premium because she refused to submit to a “health risk assessment” (HRA) during open enrollment.  Those employees who submitted to the HRA did not have to make any contribution for health insurance coverage.  The HRA consisted of a health history questionnaire, biometric screen involving a blood pressure check, height, weight and body circumference measurement and blood draw and analysis.  An employee in the accounts payable department openly complained about the HRA, elected not to participate and was charged the full monthly premium (no company contribution).  She was counseled to keep her opinions about the wellness plan to herself.  Within a few weeks after that, the employee criticized the company’s CEO’s request for information about the employee’s coffee and water breaks.  Orion terminated the employee about 10 days later. Continue Reading

Google’s Pay Policy: Good? Or Too Good to be True?

In January, the U.S. Department of Labor (“DOL”) brought suit in a San Francisco administrative court against Google, Inc. to require Google, as a federal contractor, to allow the government to inspect Google’s pay records.  While the DOL was demanding various documents regarding employees’ compensation history for compliance purposes, it was clear the underlying reason was the DOL’s suspicion that Google was committing gender pay discrimination.

Ironically, in 2016, Google published advice to help other employers analyze their pay structures in order to close the gap in pay between genders. On Equal Pay Day earlier this month, Google also announced to the world that it had proudly “closed the gender pay gap globally.”

google pay

In the administrative court case, the DOL responded: not so fast! Janette Wipper, a DOL regional director, testified last week that the DOL found “systemic compensation disparities against women pretty much across the entire [Google] workforce.” Janet Herold, regional solicitor for the DOL, added “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters.”

The internet giant doubled down on its claim that it had closed the gender gap by posting a blog about its pay methodology. Google explained that each year, an amount for each employee’s compensation is proposed based on role, job level, job location, and current and recent performance ratings.  Google stated that the analysts who calculate the suggested compensation have no access to employees’ gender –in essence, it is a “blind” analysis.

Google’s blind analysis uses the following methodology:

google pay2

How can both Google and the DOL be so sure about their respective, completely opposing opinions? Could the disagreement be rooted in the way the DOL and Google define the “roles”? For example, if Google and the DOL compared compensation between similar roles instead of exact roles, would the gender pay gap widen or narrow? If there is a pay gap, could it be that the information used by the Google analysts to “blindly” assign pay is tainted by gender bias—for example, are women not being hired for certain “roles” with higher rates of pay because only men traditionally held those roles? Or are women being scrutinized more harshly in their evaluations, which are then used in the “blind” assessment as a factor in determining pay? The answer is unclear.

Ultimately, the DOL has yet to provide its methodology for determining that Google is discriminating against women. It will be interesting to see how this case unfolds over the next few months. Regardless of the outcome, the case serves as a good reminder to employers that they need to  identify and address any potential inconsistencies or biases that could unlawfully affect compensation and benefits.

*An earlier version of this post stated that the DOL lawsuit was brought in federal court. The blog post has since been revised to clarify that the suit was brought in administrative federal court.

Email Restrictions: Good Idea But Don’t Hold Your Breath America

no emailEmployers are always looking for ways to improve work-life balance for their employees. The objective, of course, is to reduce employee burnout and turnover, while increasing employee satisfaction, productivity and creativity. Some companies have gone the untraditional route, such as Daimler’s “Mail on Holiday program” which gives employees the option of automatically deleting all incoming emails while on vacation or The Virgin Group’s “Unlimited Vacation” policy. These and other “lifestyle” benefits are becoming popular recruiting tools to attract candidates from competitors and also to retain qualified employees.

A new French law, which took effect January 1, has taken it one step further by barring work email after hours!  French employees now have the “right to disconnect” from email, smartphones and other electronic devices once their working day has ended. The law requires companies with more than 50 employees to establish hours when staff should not send or answer emails. If management and staff cannot agree on new rules, the company must publish a charter to define and regulate when employees should be able to disconnect. Some French companies have already put guidelines in place to prohibit employees from using work devices after hours. A few have even gone as far as completely shutting down their email systems overnight. Continue Reading

Data Breaches May Cost Corporations Dearly

hackerYahoo! has taken several hits in the last six months for failing to protect its users’ electronic information. Its September, 2016 announcement of a massive 2014 data breach that exposed the email addresses and other personally identifiable information (“PII”) of approximately 500 million accountholders derailed its proposed merger with Verizon and sent Yahoo! stock prices plummeting. Mere months later, in December, 2016, Yahoo! announced a second attack in which hackers exposed or stole information for another 500 million users. The United States Department of Justice has announced the indictment of two Russian hackers believed to be responsible for the security breach. Continue Reading

REGISTRATION OPEN! 27th Annual Labor & Employment Law Seminar

2017 labor seminarI cannot believe another year has come and gone! We are quickly approaching our 27th Annual Labor & Employment Law Seminar.

Join us Friday, May 19th from 8am-4pm at the JW Marriott Marquis Miami as we “Predict the Future” and discuss what awaits employers in 2017.

Mark your calendars now because this year’s seminar is not to be missed!

The lineup, with speakers from our Labor & Employment group and guest speaker, cybersecurity expert Edward M. Stroz, will cover the following topics: Continue Reading

Theft of Confidential Information: Pfizer’s Wiser, Are You?

trade secret2Did she really think she’d get away with misappropriating 600 files from her former employer by surreptitiously downloading them onto a USB drive?  That’s what a former global marketing executive for Pfizer recently did just before she resigned.  Oh, and she apparently also sent to her personal email account a few dozen emails containing Pfizer’s trade secrets and other confidential information such as strategic marketing plans, sales information, marketing budget data and market research.  As you can imagine, Pfizer didn’t take kindly to her actions.  The company sought and obtained, within 24 hours, an ex parte temporary restraining order from a federal court enjoining the employee from using or destroying Pfizer’s confidential information.  Employee theft of confidential information is a serious issue and employees continue to do it, perhaps unaware they often leave behind their digital fingerprints.  So what’s a company to do to protect itself? Here are a few practical tips. Continue Reading

Just Who is Using All those H-1B Visas?

shutterstock_133290101As we approach another H-1B filing season this April, we thought it would be interesting to look at the types of occupations and employers that take advantage of both the H-1B visa and permanent residence process.  The U.S. Department of Labor (DOL) recently released data shedding light on who is taking advantage of our lawful immigration process.

To hire an H-1B employee, a company must promise the DOL, in a labor condition application, that it will pay the H-1B employee wages that will not undercut the wages of U.S. workers.   The labor condition application identifies the name of the employer, the work location, and the occupation in question.

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Employer’s Honest Mistake Bests FMLA Retaliation Claim

shutterstock_337312496 (1)We all know that honesty is the best policy but what about an honest mistake?  Can an honest mistake save you from liability in a retaliation lawsuit under the Family and Medical Leave Act (FMLA)? Just last month, federal appeals court in Pennsylvania said – Yes.

In Capps v. Mondelez Global, LLC, the federal 3rd Circuit Court of Appeals noted Fredrick Capps suffered from arthritis in his hips and periodically took FMLA leave.  He called out on February 12 and 14 due to leg pain.  On the night of February 14, Capps met some friends at a local pub for dinner because his wife was out of town and he did not know how to cook.  He had three beers and three shots.

On his drive home, Capps was stopped by the police and arrested for having a blood alcohol reading four times the legal limit.  The police released him the next morning, and he called out for his 1 p.m. shift because of leg pain.  Capps returned to work on his next scheduled shift.

About a year later, Mondelez, the employer, learned of the incident. The HR department investigated whether any of Capps’ absences occurred during the time of his arrest and subsequent conviction for DUI.  The HR department believed that Capps had several FMLA absences that corresponded with his arrest and court proceedings.

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Ambushed by Public Records Act Trolls: The Risk of Exposure for Private Companies

public recordsIt’s Friday, nearly 5 o’clock and you’re getting ready to go home. A stranger appears at your office waiving a copy of the Florida Public Records Act, demanding to see your company’s records. You explain that “this is a private company and not subject to the Public Records Act”. You send him away.

The following week, you are served with a lawsuit alleging that you violated the Public Records Act and seeking fees and costs. After your attorney explains how and why you are subject to the Act, you produce the requested records – no harm, no foul, right? WRONG!

The court will still hold a hearing to determine whether you unlawfully refused to produce the records (even though the records have now been produced). If your initial refusal is found unlawful, you will have to pay the requestor’s attorney’s fees and costs for the suit. Under current law, the award of fees and costs – which can be thousands of dollars (not including your own defense costs) – is mandatory. For example, a public records custodian was ordered to pay a requestor’s fees and costs, even though the custodian produced the requested records prior to the Public Records Act hearing and even though the custodian delayed the production because it thought it had a good faith basis to withhold the documents. Continue Reading

Employee Smart Phones: Smile, Your Meeting is Streaming Live and In Color

facebook phoneLet’s go back to happier times … for Pittsburgh Steelers fans, that is. On January 15, 2017, the Steelers won the AFC Divisional playoff, moving the team to the AFC Championship game against the New England Patriots the following Sunday. (Cue the “Boos”).  The players were elated.  The post-game speech in the locker room from Coach Mike Tomlin was rousing, sprinkled with some “colorful” comments about the Patriots. He also directed the players to keep a “low profile” and their mouths shut, and to focus on preparing for the next game.  An unidentified person added, “Keep cool on social media – this is about us, nobody else.”

So how do I know about this? Steelers Wide Receiver Antonio Brown captured it all on Facebook Live as the events occurred from the locker room. Now for the technologically challenged, Facebook Live is a live streaming app that allows the user to broadcast audio and video of a live event; essentially a personal television channel.  While many players knew that Brown was live streaming and performed for the “camera” (i.e., Brown’s cell phone), others clearly did not (that perhaps explains, the one player seen on video without a towel).  Most importantly, Coach Tomlin did not know that Brown was broadcasting what he thought was a “team only” event.  Brown’s video had 1.1 million views and 20,000 shares. Continue Reading