Category Archives: Employment Practices Liability

Proposed Regs on Employer Wellness Programs

The vast majority of large employers offer some sort of wellness program, according to a recent survey. We've posted about the risks and benefits of these programs in the past. Now, more than ever, employers with such programs should take note. The EEOC recently issued its highly anticipated proposed regulations amending how the ADA applies to these increasingly popular programs. The proposed rule is designed to provide guidance on the extent to which the ADA permits employers to use incentives to encourage employees to participate in wellness programs. The proposed regulations identify employee health programs, define the nature of a voluntary program, clarify the permissible incentives an employer may offer, and explain the notice and confidentiality requirements.

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Anxiety Over the ADA

The Americans with Disabilities Act (ADA) is designed to protect people with disabilities from discrimination in the workplace. Under the ADA, an employer must provide a reasonable accommodation to an employee with a disability if the employee requests an accommodation. Employers should take note of a recent decision that includes a new class within the definition of disability. In Jacobs v. N.C. Administrative Office of the Courts, the court reversed the district court and found that social anxiety disorder is a protected disability under the ADA.

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Public and Private E-mails Don’t Mix

Hillary Clinton recently made headlines for using her personal email account for business purposes during her tenure as Secretary of State. This high profile example provides us with an opportunity to reflect upon what is commonplace for some. It can be tempting for employees to use personal email accounts to conduct corporate business, particularly when working remotely. However, the highly sensitive nature of Clinton’s job raised questions over the security of using a non-work email account to transmit information. Depending on the nature of your job or the emails that you send, there are risks when mixing personal and business e-mails.

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Court Adopts New Test in Harassment Cases

Professionals strive to maintain safe and welcoming workplaces for employees and guests. To further this goal, many firms have incorporated into their employment manuals anti-harassment policies and training. Yet, despite such precautionary steps, an employer cannot guarantee an environment free of wrongdoers. In the unfortunate event of a claim, it is up to the court to determine whether an employer that took proactive measures to protect employees is nonetheless liable in employment related harassment claims.

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Decision Limits Defenses to FLSA Overtime Claims

You've heard it before, here and likely elsewhere, of the risks of FLSA overtime lawsuits. Yet, these suits continue to make headlines. Simply put, qualified employers must pay employees at least 1.5 times their regular wage for every hour worked in excess of 40 hours per week. This applies to certain professionals who, of course, employee non-exempts personnel. Whether it's tax season, preparing for trial or meeting a tight deadline, professionals may ask employees to work beyond 40 hours and therefore may be subject to FLSA's requirements. But what if the employee is also to blame? In certain jurisdictions, employers defending FLSA suits have claimed that it was the employee who is responsible for violating the FLSA and therefore the employer is off the hook. A recent decision suggests that this defense may no longer be viable.

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Employer Liability for Privacy Breach?

Professionals are often entrusted with confidential information. Ethical rules as well as federal and state laws limit when such information may be accessed by professionals and under what circumstances it may be disseminated. Sure, professionals may be held accountable for errors that result in the unintended disclosure of confidential or sensitive data. However, liability is not limited to the professional directly responsible for the breach; rather, employers may be on the hook too. In fact, the employer may be responsible even if the employee’s conduct was illegal or in violation of company policy.

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Company Wellness Programs: More To Love or The Biggest Loser? 

Reportedly nearly 2/3 of us resolve each new year to improve our fitness level (yet ¾ of us don’t achieve that goal). Maybe our employers can help? Employers are beginning to offer financial incentives to workers who take part in wellness programs that include screenings for blood pressure, cholesterol and body mass index. But, these programs are under scrutiny by the EEOC, which recently filed suit targeting wellness programs deemed involuntary. The lawsuits bring into focus what seem consider an inconsistency between the Affordable Care Act (“ACA”) and the Americans with Disabilities Act (“ADA”).

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What is Work? New Definitions for the New Year

Under the Fair Labor Standards Act (“FLSA”), employees are entitled to compensation for “hours worked.” However, what is considered compensable work time is a contentious topic for many employers. A recent decision by the Supreme Court is likely to help clarify the test for compensable work under the FLSA and effectively end much of the current litigation faced by employers surrounding back wages and overtime pay. This month, in a rare unanimous decision, the Supreme Court held that employees’ time spent waiting for and undergoing security screenings is not compensable under the Fair Labor Standards Act.

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NLRB: Limiting Limits on Employee E-mails

If you frequent Professional Liability Matters than you’ve heard us rant about the importance of up-to-date computer use policies. An employee’s use of workplace computers and other company provided devices may trigger employer liability. As a result, employers must be careful to tailor policies that protect the employer but don’t go too far. It may be tempting for an employer to consider an outright ban of non-work related e-mail use by employees. Tempting, maybe, but improper according to the NLRB. The NLRB’s recent decision very well could have major implications on an employer’s right to restrict employee e-mail communications.

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Tis the Season of Gift Giving (Policies)

Whether it’s a fruit basket from a vendor or an employee gift exchange, it’s that time of year when the approaching holidays can stir up a frenzy of gift giving in the office. Many companies find themselves struggling to define what is appropriate, fair and festive when it comes to holiday gift giving. Certainly no one wants to be a Grinch, but creating a clear gift policy ahead of time is an easy way to avoid controversy and liability. Consider the following tips when creating a company gift policy.

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