Wage Transparency Laws Are Here to Stay

“Some employers wish to post job openings without providing a salary range. They also would like to ask applicants about their salary history. Although this may benefit the employer in the negotiation process, asking about an applicant’s salary history and not providing salary information may be unlawful. Legislators have been concerned that employers’ lack of transparency in job listings and inquiries about salary history may disproportionately impact women, people of color, or those from other underrepresented groups.”  Full Article

– Greenberg Traurig LLP

There and Back Again: Labor Department Issues New Proposed Non-displacement Regulation

“The U.S. Department of Labor has released a proposed regulation to reinstitute a requirement that contractors provide offers of employment to workers covered by the Service Contract Labor Standards, unless the contractor can establish an exception. The regulation would implement an executive order signed by President Joe Biden on Nov. 18, 2021, and comments on the rule will be accepted until Aug. 15, 2022. It is estimated that when the final rule is incorporated, it will affect between 74,000 and 329,000 small businesses.”  Full Article

– Holland & Knight LLP

Employment Law “Kitchen Fires” – Protecting Your Restaurant Against Sexual Harassment

“According to the federal Equal Employment Opportunity Commission (EEOC), the restaurant industry is the single largest source of sexual harassment claims in the U.S. Restaurant employers need to take action to protect their employees from harassment and their businesses from potentially costly lawsuits. Surveys show 90% of women and 70% of men working in restaurants have experienced some form of sexual harassment from either managers, co-workers or customers, and recent headlines support those statistics. On a regular basis, well-known restaurant companies and celebrity chefs are being hit with sexual harassment claims as well as high dollar judgments or settlements.”  Full Article

– Phelps Dunbar LLP

EEOC’S Updated COVID-19 Guidance Places Additional Restrictions on Employers

“For more than two years, employers have had to navigate a frequently changing landscape to ensure they complied with all of the laws relating to the COVID-19 pandemic. That landscape continues to change with two recent developments from the Equal Employment Opportunity Commission. On July 12, the EEOC updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” guidance to address topics including testing employees for COVID-19, hiring, and required reasonable accommodation. On July 11, the EEOC settled a case involving an allegation that an employer had violated the Genetic Information Non- Discrimination Act by collecting employees’ family members’ COVID-19 test results.”  Full Article

– Day Pitney LLP

Bonuses & Calculating an Employee’s Regular Rate of Pay for Overtime

“The Fair Labor Standards Act (FLSA) requires that non-exempt employees be paid no less than time and one-half their regular rate of pay for all hours worked over 40 hours in a workweek. How should an employer calculate an employee’s regular rate of pay? Under the FLSA, an employee’s regular rate of pay includes “all remuneration for employment paid to, or on behalf of, the employee,” less certain statutory exceptions. The regular rate is determined by adding the employee’s pay for the workweek and all other earnings and dividing the total by the number of hours the employee worked that week.”  Full Article

– Haynsworth Sinkler Boyd P.A.

Employers – Don’t Automatically Assume Prescription Meds Pose a Danger in the Workplace

“Have you read the warnings on prescription painkillers? They can be pretty scary – “May cause drowsiness.” “May cause dizziness.” “Do not operate a car or dangerous machinery.” (Or words to that effect). I think by now, everyone is aware of the risks associated with controlled substances. Certainly, the opioid epidemic did not earn its name lightly. So it’s not surprising that some employers are concerned when employees take prescription medications that come with those warnings – particularly when those employees are working with heavy machinery or sharp objects, or getting behind the wheel of a vehicle. But it is important for employers to understand when they can – and cannot – prohibit employees on such medications from working.”  Full Article

– Shawe Rosenthal LLP

Self-Insured Health Plans: August 1st PCORI Fee Due Date is Rapidly Approaching

“Dental plans and vision plans that are excepted benefits are not subject to PCORI fees. Similarly, health flexible spending accounts that are excepted benefits are not subject to PCORI fees. For plans with plan years that ended on or after January 1, 2021, through September 31, 2021, the fee is $2.66 per covered life. For plans with plan years that ended on or after October 1, 2021, through December 31, 2021, the fee is $2.79 per covered life.”  Full Article

– Jackson Lewis P.C.

HHS Issues Guidance on Post-Dobbs PHI Protections Under HIPAA Privacy Rule

“The HHS guidance outlines the types of non- healthcare disclosures of PHI that are permitted without an individual’s authorization. The guidance also describes how the Privacy Rule applies to such disclosures in the context of PHI that contains abortion and other sexual and reproductive healthcare information. For each such disclosure, HHS emphasizes that covered entities are permitted, but not required, to disclose the PHI.”  Full Article

– Ogletree Deakins

Health Plan’s Blanket Exclusion for Wilderness Therapy Violated MHPAEA

“Accepting the dependent’s argument, the court concluded that for parity analysis purposes, skilled nursing facilities were the medical/surgical analog to residential treatment centers for MH/SUD conditions. Next, the court noted that there was no evidence that the administrator would deny benefits in a skilled nursing facility (on the medical/surgical side) merely because the care occurred in a wilderness setting. According to the court, this tended to support the dependent’s argument that the administrator had created a wilderness treatment exclusion that applied only to behavioral health programs — in violation of MHPAEA.”  Full Article

– Thomson Reuters Practical Law

May Abortions Be Reimbursed on a Tax-Free Basis from a Health FSA, an HRA, or an HSA?

“The following expenses may be reimbursed from an FSA, HRA, or HSA under current federal tax law: [1] The cost of the abortion procedure, if legal; [2] Transportation expenses, if out-of-state travel is required; and [3] Lodging (up to $50 per night), assuming that the care is received from a physician in a hospital or an equivalent facility. Many issues will depend on the interpretation of the IRS or the courts.”  Full Article

– Dickinson Wright

Amendment to Group Health Plan Fee Disclosure Rules Can Reduce Plan Costs

“Now that plan fiduciaries have easier access to the compensation paid to these service providers, they can judge whether the compensation is reasonable and potentially cut costs by switching service providers…. Fiduciaries could also explore eliminating indirect compensation to service providers to save costs.”  Full Article

– Hall Benefits Law

Fourth Circuit Revives Retirees’ Claim of Vested Retiree Life Insurance Coverage

“The Fourth Circuit agreed with the plaintiffs that if their retiree life insurance coverage were ever a vested benefit, PPG could not rely on the later-added reservation of rights clause to terminate that coverage. If the removal of the prior reservation of rights clause in 1969 vested retiree life insurance coverage for Plan participants working between 1969 and 1984, then the 1984 reservation of rights clause only allowed PPG to modify or terminate retiree life insurance coverage for participants hired after the clause’s adoption.”  Full Article

– Roberts Disability Law

The Future of Hybrid Working: Full Steam Ahead or a Screeching U-turn?

“As various restrictions put in place during the global coronavirus pandemic have lifted across the world, many businesses have embraced hybrid working. However, as we look to the future, are these working arrangements of the so-called “new normal” really here to stay? We consider below whether there are already significant factors at play that could prompt many businesses to want to withdraw from hybrid working and, if so, what legal considerations this could entail.”  Full Article

– Seyfarth Shaw

EEOC Sanctions Employer for GINA Violations Relating to Collection of Employees’ Family Members’ COVID Test Results

“On July 6, 2022, the Equal Employment Opportunity Commission (EEOC) announced it has entered into a conciliation agreement with a Florida-based medical practice for violations of the Genetic Information Non-Discrimination Act (GINA) arising out of the practice’s collection of employees’ family members’ COVID-19 testing results.”  Full Article

– Proskauer Rose

What the Supreme Court’s Recent Decisions on Guns and Prayer Mean for Private Employers

“Two decisions handed down by the Supreme Court last month held that government actions were unconstitutional. In Kennedy v. Bremerton School District, the Court held that a public school district’s instruction to a high school football coach that he could not pray on the field after each game violated the First Amendment. A New York State law limiting individuals from carrying concealed weapons was found, in New York State Rifle & Pistol Ass’n Bruen, to run afoul of the Second Amendment. Central to both those decisions was that they involved state action – a government body telling individuals what they could not do.”  Full Article

– Levy Employment Law

Loss of Job Over Religious Vax Refusal ≠ Irreparable Harm

“In Halczenko v. Ascension Health, Inc., the doctor, who objected to the COVID vaccine on religious grounds, was terminated for failing to comply with the hospital’s vaccine mandate. He sought a preliminary injunction to reinstate him while his lawsuit was proceeding. In order to receive a preliminary injunction, a plaintiff must show that they will experience irreparable injury absent the injunction, among other things. The doctor argued that the termination caused him such injury because his professional skills would deteriorate within 6 months to the point he would no longer be able to work, and that he was unable to secure another position in the interim.”  Full Article

– Shawe Rosenthal

Event in Review: Navigating Internal Investigations at Nonprofits

“An allegation of misconduct or illegality can have very harmful effects for an organization: it can hurt staff morale, violate an organization’s mission, and, in extreme circumstances, can threaten a nonprofit’s exempt status. During a recent luncheon program, Venable partners George Constantine, Eric Berman, and Doreen Martin, along with Jesse Raben, general counsel and COO of The Trust, discussed how nonprofits should navigate internal investigations that can arise from whistleblower complaints, government inquiries, or any other violation of the organization’s policies.”  Full Article

– Venable

EEOC Issues First Guidance on Algorithm-Driven Employment Decisions

“The last several years have seen algorithm-driven technologies like artificial intelligence (AI) and other algorithmic or automated decision-making systems proliferate throughout nearly every industry, from managing the supply chain to detecting and preventing fraud and helping farmers decide what crops to plant. Employment-related decisions are no exception; employers are increasingly using algorithmic decision-making systems in the hiring and evaluation of employees, with an eye to eliminating bias and discrimination in these processes.”  Full Article

– Venable