Category Archives: EEOC

GOVERNOR WALKER PROPOSES TO ELIMINATE THE LABOR AND INDUSTRY REVIEW COMMISSION

By:  Jonathan T. Swain

February 13, 2017

In his recently published proposed biennial budget for fiscal years 2018 and 2019, Governor Walker has proposed to eliminate the Wisconsin Labor and Industry Review Commission (LIRC).  LIRC is an independent three member commission appointed by the Governor that currently handles all appeals of Administrative Law Judge (ALJ) decisions for unemployment compensation cases, worker compensation claims, as well as state fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  LIRC would be phased out over the next three fiscal years.

Presently, LIRC has the authority to affirm, overturn and remand ALJ decision in these areas.  LIRC decisions are appealable to the State’s circuit courts.

Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators.  In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly.

Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.  Further, stakeholders in the business, labor and legal community have yet to weigh-in on the Governor’s proposal.  As this issue advances, we will keep you up to date and informed.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CHANGES COURSE ON RELEASING EMPLOYER POSITION STATEMENTS TO CHARGING PARTIES

By: Daniel Finerty & Oyvind Wistrom

Employers that have endured the Equal Employment Opportunity Commission’s charge process concerning allegations of discrimination, harassment or retaliation know that an effective, persuasive position statement responding to a charge is critical to securing a successful outcome. For years, employers could be assured that the EEOC would not share its position statement or attachments with a charging party. In doing so, this procedure complied with Section 709(e) of Title VII, which provides:

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.

Notwithstanding this statute, the Commission announced a reversal of course, as of January 1, 2016, and advised that it intends to release employer position statements:

EEOC has implemented nationwide procedures that provide for the release of Respondent position statements and non-confidential attachments to a Charging Party or her representative upon request during the investigation of her charge of discrimination. … These procedures apply to all EEOC requests for position statements made to Respondents on or after January 1, 2016. … The new procedures provide for a consistent approach to be followed in all of EEOC’s offices, which enhances service to the public. The procedures will also provide EEOC with better information from the parties to strengthen our investigations.

In contrast to this new practice, the Commission will not share the charging party’s position statement with the employer. While the Commission has recognized that employer EEO-1 reports are confidential under Section 709(e) (“[a]ll reports and information from individual reports will be kept confidential, as required by Section 709(e) of Title VII. Only data aggregating information by industry or area, in such a way as not to reveal any particular employers statistics, will be made public.”), it has not explained this new interpretation or how Section 709(e) permits its one-sided disclosure of employer position statements.

The protections for information and documents deemed “confidential” by an employer is limited. The Commission’s clear delineation of the information it will consider confidential is limited to sensitive medical information, social security numbers, confidential commercial or financial information, trade secrets information; non-relevant personally identifiable information of witnesses, comparators or third parties (for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.), and any reference to charges filed against the employer by other charging parties. “Sensitive medical information” excludes the charging party’s medical information relating to the investigation. It is critical for employers to consult with labor and employment counsel to correctly categorize confidential information and justify such designation(s) to ensure confidentiality can be secured. “[T]he agency will not accept blanket or unsupported assertions of confidentiality.”

Further, upon receipt of information deemed confidential by an employer, the Commission has indicated that it will not withhold; rather, “EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.”

Employers need to be mindful of the Commission’s new procedure when responding to EEOC discrimination charges. Confidential information should be withheld (when permissible) or should be designated as “confidential.” Additionally, employers should keep in mind, when drafting position statements, that a charging party or his or her attorney may receive a copy of the position statement and any attachments.

If you have questions about this new practice by the EEOC, please contact Daniel Finerty, Oyvind Wistrom, or your Lindner & Marsack contact attorney at 414-273-3910.

Lindner & Marsack Successfully Represents Local School District in Federal Court

As labor and employment attorneys, we often sound like broken records in counselling our clients on the importance of documenting the performance deficiencies of poor performing employees. It cannot be overstated how compelling strong and contemporaneous documentation can be to demonstrate the actual reason an employer disciplines, demotes or terminates an employee who is not performing to the employer’s legitimate expectations. A recent lawsuit filed by a former African American principal at the Oak Creek-Franklin Joint School District provides another vivid illustration.

The plaintiff was a previous principal at one of the elementary schools within the school district. Following her removal from her position, she filed a lawsuit in U.S. Court for the Eastern District of Wisconsin claiming that her removal from the district was motivated by her race, as well as in retaliation for her opposing discrimination in the workplace and raising concerns that she claimed were protected by the free speech guarantees of the First Amendment. While the federal district judge dismissed her race discrimination claim prior to trial, her claims of unlawful retaliation under both Title VII and the First Amendment were tried to a jury earlier this week.

At trial, Oyvind Wistrom represented the school district. Using the district’s detailed and contemporaneous documentation of the performance concerns, we were able to successfully show the jury that her complaints of discrimination and protected speech were not the reasons for the principal’s removal. We showed that her removal would have occurred regardless of her complaints and protected speech. After more than two days of testimony, it took the jury less than one hour to determine that the school district was justified in taking the steps it took to remove the principal. The successful defense of this case could not have happened without the testimony of several key district employees and the presence of clear and contemporaneous performance documentation by the school district.

SUPREME COURT CLARIFIES RELIGIOUS ACCOMMODATION OBLIGATION

On June 1, the United States Supreme Court issued its decision in EEOC v. Abercrombie & Fitch Stores.  The issue in the case was the scope of an employer’s obligation to accommodate the real or perceived religious beliefs and practices of employees and applicants.

Samantha Elauf was a practicing Muslim who wore a headscarf to her interview with Abercrombie.  During the interview there was no discussion of her headscarf or her religious beliefs.  The interviewer assumed Ms. Elauf wore the headscarf for religious reasons.  Abercrombie determined the headscarf would violate its dress code and rejected Ms. Elauf’s application for that reason.

The Supreme Court ruled that Abercrombie’s decision was religious discrimination prohibited by Title VII.  Religious discrimination occurs if the real or perceived need for a religious accommodation is a motivating factor in an employer’s decision.  It does not need to be the sole reason.  It is not necessary for an employer to have actual knowledge of the religious beliefs or practices of the employee or applicant.  An employer’s perception that the relevant behavior is religious will be enough.  The Supreme Court also stated that employers must accommodate the religious beliefs or practices of applicants and employees unless the accommodation would create an undue hardship.

Following this decision, employers may want to treat real or perceived religious practices and beliefs the same way they treat real or perceived disabilities.  For example, employers may want to present applicants with all relevant job requirements and expectations, including such expectations as adhering to a dress code policy or working on Saturdays and Sundays.  Employers can ask applicants if there is any reason he/she cannot perform these job duties.  Employers can also ask whether an applicant believes he/she will need an accommodation.

When an applicant or employee has a religious belief or practice which is inconsistent with his or her job duties, employers must explore possible accommodations.  If no accommodation is possible, employers should consider how they can prove the necessary accommodation would create an undue hardship.

If you have any questions about how this decision may impact your organization’s hiring or accommodation practices, please contact John Murray or any other Lindner & Marsack attorney.

 

PROPOSED EEOC WELLNESS PLAN REGULATIONS FOCUS ON COVERAGE, INCENTIVES AND VOLUNTARINESS OF PARTICIPATION

On April 20, 2015, the Equal Employment Opportunity Commission published its proposed regulations regulating employer wellness plans under the Americans with Disabilities Act.  The proposed rules attempt to strike a balance between allowing wellness plans to offer incentives for employee participation while, at the same time, limiting incentives to defined percentages in order to prevent economic coercion that could render a participant’s provision of medical information involuntary.

While the proposed rules will be reviewed in depth on April 28, 2015 at our Annual Compliance/Best Practice Seminar (please register by clicking here), here are some of the basics regarding the proposed rules:

  • The proposed rules re-assert the EEOC’s position that employee health programs that include disability-related inquiries or medical examination (including inquiries or medical examinations) that are part of a health risk assessment or medical history must be voluntary in order to comply with the Americans with Disabilities Act. By contrast, employee health programs that do not include disability-related inquiries or medical examinations are not covered by the proposed rules. While a smoking cessation program that asks participants if they smoke and provide information regarding how to quit is not subject to the proposed rules, a biometric screening or other medical examination that tests for nicotine or tobacco is a medical examination.
  • The proposed rules adopt the already existing HIPAA limitation, as amended by the Affordable Care Act, on wellness plan incentives. The proposed rules clarify that an employer may offer limited incentives up to a maximum of 30% of the total cost of employee-only coverage to promote an employee’s participation in a wellness program that includes disability-related inquiries or medical examinations as long as participation is voluntary. Note that the EEOC does not distinguish between whether the incentive is provided in the form of a reward or penalty. While the proposed rules acknowledge the HIPAA/ACA limitation which permits plans to offer incentives as high as 50% of the total cost of employee coverage for tobacco-related wellness programs, such as smoking cessation programs, the proposed rules are clear that such programs are not covered by the regulations. Again, programs that do not contain disability-related inquiries or medical examination are not covered by the proposed rules.
  • The proposed rules specifically define “voluntary,” a critical term to the ADA analysis. Companies should ensure their wellness plans that includes disability-related inquiries or medical examinations are be voluntary and comply with the ADA by ensuring the plan:
    • Does not require employees to participate;
    • Does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation or limit the extent of such coverage (except pursuant to allowed incentives); and
    • Does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA, at 42 U.S.C. 12203.
  • In addition, in order to be voluntary, a plan must provide notice to participants that:
    • Is written so that employees from whom the information is being gathered are reasonably likely to understand it;
    • Describes the type of medical information that will be obtained and the specific purpose for which it will be used; and,
    • Describes the restrictions on disclosure of the employee’s medical information, the employer representatives with whom the information will be shared and the methods the employer will employ to prevent improper disclosure of the medical information including HIPAA-related protections.
  • Employer wellness plans should provide opportunities for reasonable accommodation for employees with disabilities to fully participate and earn any reward or avoid any penalty offered by the plan, absent undue hardship, by providing a reasonable alternative standard for the employee or providing an individual waiver. For example, if an employer’s wellness plan’s outcome-based program requires employees to achieve an average blood sugar level of 140 or less, the employer may have to provide a reasonable alternative standard to allow participation by diabetic employee for whom that goal is not achievable.

More information regarding the proposed rules and best practices for ensuring your Company’s wellness plan complies with the proposed rules will be provided on April 28, 2015. We will also present an annual review of developments in labor and employment law and discuss the National Labor Relations Board’s “quickie” election rules which went into effect on April 15, 2015, among other topics. Please register to join us for the half-day educational seminar by clicking here.

Registration is Still Open!

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

April 28, 2015

8:00 a.m. – 12:00 p.m.

Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road, Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits and worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

Registration is now open for our Annual Compliance/Best Practices Seminar!

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

April 28, 2015

8:00 a.m. – 12:00 p.m.

Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits and worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

Save the Date!

 Please mark your calendar for Lindner & Marsack, S.C.’s Annual Compliance/Best Practices Seminar 

When:  April 28, 2015

Time:  8:00 a.m. – 12:00 p.m.

Where:  Sheraton Milwaukee Brookfield Hotel – 375 South Moorland Road, Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits & worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

 SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

Watch your inbox as well as our Facebook, LinkedIn and Twitter pages for more detailed information about session topics and a link to register for this free seminar.

What to Expect from the EEOC in 2015: A Renewed Focus on Workplace Harassment

By: Oyvind Wistrom

It has now been 50 years since the passage of the Civil Rights Act of 1964 and the creation of the Equal Employment Opportunity Commission.  At its first meeting of the new year earlier this month, the EEOC Chair Jenny R. Yang, who presided over her first Commission meeting, pledged a renewed focus on curbing the persistent problem of workplace harassment.  “By identifying underlying problems in workplaces and industries where we see recurring patterns of harassment, we are developing strategies that focus on targeted outreach and education, as well as systematic enforcement to promote broader voluntary compliance,” Yang said in her remarks.

In order to achieve the goal of reducing workplace harassment, the EEOC will create a task force that will convene experts from the employer community, workers’ advocates, human resources experts and academics in an effort to identify effective strategies that will help prevent harassment in the workplace and to ensure that employees understand their right to work in a harassment free environment.

As this task force is launched, it is now more important than ever for employers to ensure that they are doing everything possible to avoid harassment charges and to ensure that the EEOC’s enforcement initiative will be targeted elsewhere.  What can you do now?

Harassment Policy:  Ensure that your harassment policy is current and in compliance with state and federal law.  Among its provisions, the harassment policy should specifically identify the types of harassing conduct that is prohibited under the policy; it should provide for an effective method for employees to report incidents of harassment; it should provide for a prompt and effective remedial investigative process; and it should stress that retaliation against those that report harassment will not be tolerated.

Communication:  The dissemination of your harassment policy is equally important.  It should be posted electronically, if possible, and also included in your employee handbook and policy manual.  It should be disseminated to all new employees, along with a signed acknowledgement form confirming they received the handbook and the harassment policy.

Training:  All employers should consider periodic harassment training in the workplace.  This is important to instill in the workplace and upon supervisors that harassment of any sort will not be tolerated and will be met with swift and effective punishment.  Training is also critical to ensure that management personnel understand the parameters of the law and their responsibility to report incidents and complaints of harassment brought to their attention.

Effective Investigation:  If a complaint is received, it is critical that the complaint be promptly addressed, which may include suspending the alleged harasser or separating the victim from the harasser.  The investigation should be conducted by someone who can be impartial and should include interviews with everyone with knowledge about the allegations, ensuring that witnesses with first-hand information is distinguished from gossip and rumors.  Whatever punishment is imposed on the alleged harasser, it must be effective in remedying the situation and stopping the alleged harassment.

As was once famously said, “an ounce of prevention is worth a pound of cure.”  This is the time for your company to do everything possible to ensure that if the EEOC’s new enforcement initiative is directed at you, your company is in the best possible position to defend itself.

EEOC Challenges Employer Wellness Programs

November 13, 2014

By: Alan M. Levy and Samantha J. Wood

The Affordable Care Act (ACA) has recently popularized employer wellness programs. The Department of Labor and Health and Human Services are presenting the ACA as promoting such programs by encouraging employers to offer “rewards” for participation. According to the final regulations, such “rewards” can include obtaining a benefit (such as a discount or rebate of a premium or contribution, or any financial or other incentive) and/or avoiding a penalty (such as the absence of a surcharge or other financial or nonfinancial disincentive). But the Equal Employment Opportunity Commission (EEOC) is now acting to remind employers that their programs’ “rewards” must comply with other laws.

In the past few months, the EEOC has challenged three employer wellness programs alleging that the programs, which offer financial incentives to those who participate, violate the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The EEOC reasons that the programs’ financial incentives constitute unlawful penalties and inducements.

The ADA prohibits employers from requiring their employees to submit to medical examinations or answer medical inquiries, unless such exam or inquiry is shown to be job-related and consistent with business necessity. However, the ADA permits employers to conduct medical exams and activities without having to satisfy the job-related/business necessity components as long as participation is voluntary, the information is kept confidential, and the information is not used to discriminate against employees. The EEOC has taken the position that a wellness program is “voluntary” as long as an employer neither requires participation nor penalizes employees who do not participate. In the recent litigation, the EEOC has maintained that large financial incentives affect the voluntariness of the programs.

GINA prohibits plans and issuers from collecting genetic information (including family medical history) prior to or in connection with enrollment, or at any time for underwriting purposes. A plan cannot offer rewards or inducement in return for genetic information. Accordingly, in the recent litigation, the EEOC has maintained that programs which offer financial incentives in exchange for spousal health information are unlawful inducements for one’s family medical history.

The EEOC brought its first lawsuit in the Eastern District of Wisconsin, challenging Orion Energy Systems, Inc.’s wellness program. Orion’s program required employees to complete a health risk assessment, to self-disclose their medical histories, and to have blood work performed. If the employees participated in the program, Orion would cover the entire amount of the employee’s health care costs. However, if an employee declined participation, s/he would be required to pay the entire premium cost for coverage ($413.43/month for single coverage or $744.16/month for family coverage), as well as a $50 non-participation fee. The EEOC has alleged that such financial incentive/disincentive is so great that it constitutes a penalty in violation of the ADA.

On September 30, 2014, the EEOC challenged Flambeau Inc.’s wellness program in the Western District of Wisconsin. Flambeau’s wellness program required employees to complete biometric testing and a health risk assessment, which required the employees to self-disclose their medical histories and have blood work and measurements performed. Employees who completed the testing were only obligated to pay 25 percent of the premium cost of their health insurance. However, employees who did not complete the testing were subjected to termination of health insurance and were required to pay the entire premium cost for COBRA health insurance coverage. As in the Orion Energy Systems case, the EEOC has alleged that Flambeau’s program is not job-related or consistent with business necessity and is not voluntary due to the financial penalty.

The EEOC’s most recent attack was brought October 27, 2014, against Honeywell International Inc., in the District Court of Minnesota. Honeywell’s wellness program required its employees and their spouses to undergo biometric testing. If the employees and their spouses did not take the biometric test, the employees risked losing the employer’s contributions to their health savings accounts (which could be up to $1500); would be charged a $500 surcharge that would be applied to their 2015 medical plan costs; would be charged a $1000 tobacco surcharge even if the employee chose not to undergo the testing for reasons other than smoking; and would be charged another $1000 tobacco surcharge if his/her spouse did not participate. In total, an employee could suffer a penalty of up to $4000. Again the EEOC has alleged that the wellness program is not job-related or consistent with business necessity and is not voluntary due to the large financial penalties. In addition, the EEOC has alleged that the program violates GINA’s proscription against providing inducements to an employee to obtain that employee’s family medical history.

Honeywell disputes that its financial incentives are in violation of the law, as such incentives/disincentives are allowed under the ACA. Indeed, prior to the ACA, the maximum financial incentive that could be offered for health-contingent wellness programs could not exceed 20 percent of the health plan’s premiums. However, the ACA increased the financial incentive allowance, permitting financial incentives of up to 50 percent of the premium for health-contingent wellness programs designed to prevent or reduce tobacco use, and 30 percent of the premiums for all other health-contingent wellness programs. Accordingly, if the EEOC’s position is adopted, which states that such financial incentives are penalties under the ADA and unlawful inducements under GINA, it would diminish the DOL and HHS’s final regulations affecting the financial incentive allowance.

Accordingly, employers offering health-contingent wellness program incentives should watch for the resolution of this litigation while keeping in mind their obligations to comply with other laws. Employers should be aware that offering large wellness program incentives could not only violate the ADA and GINA, but could also make their health plans unaffordable or inadequate under the ACA, which requires large employers to offer coverage that provides minimum value and affordability. Coverage is affordable if the employee’s required contribution to the plan does not exceed 9.5 percent of the employee’s household income; and a plan provides minimum value if the plan’s actuarial value is at least 60 percent. If an employer offers a premium discount for participation in a wellness program (that is not connected to tobacco use), employers must remember that the determination as to whether the plan is affordable and offers the minimum value, will be based on the higher deductible that applies to non-participating individuals.

If you have questions about this material, please contact Alan M. Levy or Samantha J. Wood by email at alevy@lindner-marsack.com or swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.