The EEOC Catches the Flu: A Cautionary Tale for Employers With Mandatory Flu Vaccination Programs

Katherine M. Flett

By Katherine M. Flett

After enduring one of the worst flu seasons in nearly a decade, there is no question why more employers are instituting mandatory flu vaccination programs. In fact, mandatory flu vaccination programs are increasingly popular for healthcare employees.

No current laws in Missouri or Illinois mandate all health care employees to be vaccinated against the flu. That being said, nursing home employers in Missouri are required to either offer the flu shot to all employees and volunteers who have direct contact with residents, or provide the employees and volunteers with information about how they can obtain the flu shot independently. Similarly, health care employers in Illinois are required to provide all employees with education on influenza, as well as the opportunity to receive the vaccine. Some states, such as California and Maryland, require hospitals to publish their employee vaccination rates to the public.

When instituting a mandatory flu vaccination program, however, an employer should be aware of the possible ramifications of denying or terminating employment for refusal to comply with a mandatory flu vaccination program on the basis of religious beliefs.  Continue reading »

Employment News You Can Use

Laura Gerdes Long

By Laura Gerdes Long

Welcome to the inaugural issue of “Employment News You Can Use,” Danna McKitrick’s Employment Law Educational Alliance newsletter.

After a busy legislative session, employers may find several reasons to be encouraged.

Continue reading »

“Motivating Factor” Standard Replaces “Contributory Factor”

Laura Gerdes Long

By Laura Gerdes Long

Over the past decade, Missouri has been viewed as a plaintiff-friendly state in workplace discrimination lawsuits. Effective August 28, 2017, Senate Bill 43 was signed into law by Missouri Governor Eric Greitens, which amends the Missouri Human Rights Act (MHRA). The law changes the applicable standard for liability of an employer and more closely aligns Missouri law with federal policies and law. The standard for liability has moved from proof that the discriminatory conduct was a “contributing factor” to “the motivating factor.”

Under the more strict “motivating factor” standard, a plaintiff must prove, not only that the accused employer was unlawfully biased against the plaintiff’s protected classification, but also that this bias had a “determinative influence” on the employer’s decision to terminate the plaintiff. (Missouri Revised Statutes 213.010(19) 2017). The MHRA specifies that only employers are considered entities, not individuals, subject to liability for proven discrimination.

Also important, the MHRA changes language of the Act and now requires that a complaint must be formally filed by the victim within 180 days of any alleged discriminatory offense. Previously, in Missouri, a victim could file a complaint of discrimination within 300 days of the alleged discriminatory conduct. Continue reading »

Preventing Sex Discrimination: The Case for Implementing More Guard Rails

Ruth Binger

By Ruth Binger

One of the hottest topics today is the accusations of some form of sex discrimination – which includes sexual harassment and sexual assault – related to employment. From the entertainment industry to media organizations, professional services firms, restaurants, venture capital firms, legislative bodies, and many others, the problem is widespread – but it is not new. It is just an age-old story with new players.

Lawyers are brought in after the allegations are made. Those burning allegations must be dealt with very quickly under the law. The intent is to contain the fire by creating legal closure which, in most cases, involves settling the subject claim(s) through release agreements that contain confidentiality agreements and non-disparagement clauses. With respect to  advice to prevent sexual harassment in the future, lawyers often recommend a myriad of actions including  installing new leaders, overhauling management, conducing outside legal reviews into unreported claims, creating employee advisory committees, updating sexual harassment policies, offering  more employee services, and providing more training and education to employees. Depending on whether the ultimate decision maker sincerely “walks this talk,” this all could be simple symbolic noise.

Setting aside the allegations and rumored settlements, the common threads are as follows: Continue reading »

Is a LinkedIn Offer to Connect a Violation of a Non-Solicitation/Anti-Raiding Agreement?

Ruth Binger

By Ruth Binger

Today, marketing and sales are yoked through digital channels. Leads and customer relations are created and maintained on LinkedIn, Facebook, Twitter, Blogs, email, video calls, and chat rooms. Your salespeople use these tools to sell your products. Yet, change happens. Valuable salespeople with critical customer relationships and employee friendships will leave your company. Hopefully, when those employees leave your employ, you have non-competes and non-solicitation clauses in place which prohibit them from directly or indirectly soliciting employees or customers for a period of years after termination of employment.

You hear through the grapevine that your former super salesperson who just quit has an updated job status on LinkedIn. Now some of your employees and customers know where the former super salesperson is now employed. To add insult to injury, your former super salesperson has asked several of your employees to connect via LinkedIn. You are afraid of the Pied Piper effect and that more of your employees will leave you. Plus you paid good money for your lawyer to draft the darn non-solicitation agreement and you want your money’s worth!

How can you as an employer determine if your former salesperson is legally violating the non-solicitation agreement?

  1. Passive solicitation. Is the activity passive and what is the content and substance of the message conveyed? Most courts that have considered this issue have found that an update to an individual’s LinkedIn account is passive. But what about a new request to connect?In Bankers Life and Casualty Company v. American Senior Benefits, Bankers Life sued a former sales manager for updating his LinkedIn account and asking three former co-workers – current employees of his former employer – to connect. Bankers Life argued that asking existing employees to connect was targeted and it would uncover job listings of current employer. The sales manager argued that the connection request was a LinkedIn generic email simply asking to form a professional networking connection on social media. The court noted that the generic emails did not contain any discussion of Bankers Life, no mention of the new employer, and no suggestion that a job description be reviewed. Further, current Bankers Life employees had a choice whether or not to respond and connect, click on the former co-worker’s profile, or review job postings for the salesperson’s new employer. Accordingly, the mere act of asking someone to connect on a social network via a generic email generated by the network itself did not violate the non-solicitation agreement. In Pre-Paid Legal Services v. Cahill, the court held that posting on Facebook that an employee has moved and touting the new employer’s product did not constitute evidence of unlawful solicitation.Courts have also ruled that posting a job opportunity on a LinkedIn is not a solicitation and becoming “friends” with former clients on Facebook does not in and of itself violate a non-compete clause (Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp and Invidia and LLC v. DiFonzo).

Continue reading »

Working From Home as a Reasonable Accommodation Under the ADA: Credeur v. State of Louisiana

Laura Gerdes Long

By Laura Gerdes Long

Co-authored by Laura Gerdes Long and Katherine M. Flett

In today’s hyper-connected society, there are an increasing number of employers who have instituted policies permitting their employees to work from home in certain circumstances. The U.S. Court of Appeals for the Fifth Circuit, however, held that is not the case for litigation attorneys.  In-office attendance is an “essential duty” for a litigation attorney in the context of the American with Disabilities Act (ADA).”

Renee Credeur, a litigation attorney working in the Attorney General’s office in Louisiana was granted a temporary accommodation to work from home following a kidney transplant. After approximately six months, her supervisor denied her continuing request to work from home and Credeur filed a lawsuit alleging, among other claims, failure to accommodate under the ADA. The District Court for the Middle District of Louisiana granted summary judgment in favor of the Attorney General’s office and Credeur appealed. Continue reading »

EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited

Laura Gerdes Long

By Laura Gerdes Long

In its list of protections against discrimination, Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity. However, the Equal Employment Opportunity Commission (EEOC) interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

As its legal basis for concluding that sexual orientation and gender identity are covered by Title VII, the EEOC uses Supreme Court case Price Waterhouse v. Hopkins, which holds employment actions motivated by gender stereotyping are unlawful sex discrimination, along with more recent court decisions(Chavez v. Credit Nation Auto Sales, L.L.C.; Baker v. Aetna Life Ins., et al.; Fabian v. Hosp. of Central Conn; Lewis v. High Point Regional Health Sys.; Hively v. Ivy Tech Cmty. Coll. of Indiana). Although Congress has not amended Title VII to specifically include sexual orientation and gender identity as protected, the EEOC has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The EEOC states these protections apply regardless of any contrary state or local laws; however, the Missouri Court of Appeals appears unfazed. Continue reading »

Uncertainty Leads to Proposed Easing of Wellness Program Regulations

Laura Gerdes Long

By Laura Gerdes Long

Co-authored by Laura Gerdes Long and Katherine M. Flett

In response to many complaints about the trials and tribulations employers face when initiating a compliant wellness program due to the inconsistent requirements of HIPAA, EEOC, GINA, and the ADA, Congress has taken some corrective steps.  The House of Representatives reintroduced H.R. 1189, and the Senate reintroduced their own version of the bill, S.620.

The stated purpose of H.R. 1189 is to “clarify rules relating to nondiscriminatory employer wellness programs as such programs relate to premium discounts, rebates, or modifications to otherwise applicable cost sharing under group health plans.”  The bill declares that a workplace wellness program, by offering a reward to participants, does not violate the ADA or GINA, as long as the program complies with Public Health Service Act requirements.  These requirements can be found in 42 U.S.C. § 2705(j).

The bill also deems the collection of information about a family member’s manifested disease or disorder not an unlawful acquisition of genetic information with respect to another family member participating in a workplace wellness program. Continue reading »

New EEOC Rules Complicate Task of Designing a Compliant Employer Wellness Program

Laura Gerdes Long

By Laura Gerdes Long



Co-authored by Laura Gerdes Long and Katherine M. Flett

In 2016, after years of twists and turns, backs and forths, the Equal Employment Opportunity Commission (EEOC) issued final rules that went into effect in January 2017 and apply to all employer group health insurance plans that offer wellness programs.

The final rules follow the EEOC’s 2015 publication of two rules under the Americans with Disabilities Act (ADA) and Genetic Information Non-Discrimination Act (GINA) to address whether an employer offering an incentive to employees to provide health information would effectively render the program “involuntary” and consequently discriminating under the ADA.

In October 2016 AARP filed a challenge arguing that the requirements were arbitrary and capricious under the Administrative Procedures Act (APA) as having incentives that render the disclosure of GINA- and ADA-protected information involuntary and disclosure in violation of law. That challenge was rejected in the District Court of the District of Columbia, which ruled the information required by the regulations is not public disclosure and employers are statutorily forbidden from using it to discriminate against employees.

Categories of Employer Wellness Programs

Employer wellness programs generally fall into two categories: participatory programs and health-contingent programs. Participatory programs offer financial incentive for employee participation, but do not require the employee to satisfy any health-related condition to receive the incentive. Examples of this program include reimbursing for gym memberships and offering health education classes.

On the other hand, health-contingent programs generally require the employee to satisfy a health-related standard to obtain a reward. Within the category of health-contingent programs, there are two sub-groups:  activity-only programs and outcome-based programs. Activity-only programs require the employee to participate, but not to attain or maintain a specific health outcome.  Examples of activity-only programs include rewards for high step-counts and dieting. Outcome-based programs require the employee to attain a specific health goal, such as quitting smoking or lowering one’s body mass index (BMI).

Requirements for Health-Contingent Programs Under the ACA, GINA, and ADA Challenged by AARP

Prior to the new EEOC rules, employers sponsoring wellness programs were required to comply with the Affordable Care Act (ACA), ADA and GINA. Continue reading »

Uncertainty Regarding the Department of Labor’s Salary and Overtime Regulations

Employment Law Practice Group

By Employment Law Practice Group

A federal district court in Texas has delayed the enforcement of the Department of Labor’s changes in overtime regulations.

In May 2016, the Department of Labor published a final rule that has caused a fury of scrambling amongst employers, in both the public and private sectors, to review their employee’s salary levels and exempt statuses. This final rule relates back to the Fair Labor Standards Act (“FLSA” or the “Act”), enacted in 1938, which set minimum wages and provided for overtime pay for hours worked above 40 in a week. Section 213(a)(1) of the Act, however, exempted overtime provisions for any employee employed in a bona fide executive, administrative, or professional capacity. This is known today as the “EAP” or “white collar” exemption. The Act also gave the Department of Labor regulatory authority to “define and delimit” those exemptions.

The current regulations concerning the white collar exempt status, promulgated in 2004, required an employee to meet three criteria. First, an employee must be paid on a salary basis (the “salary-basis test”). Second, an employee must be paid at least the minimum salary level established by the regulations (the “salary-level test”). And third, an employee must perform executive, administrative, or professional duties (the “duties test”). See “It’s Almost Time: DOL Overtime Exemption Rules Effective Dec. 1, 2016” for more information on the current regulations.

The final rule, previously scheduled to be enforced December 1, 2016, revamped the white-collar exemption by increasing the salary-level test from $23,660 to $47,476. Any employee earning less than the new amount, but still paid on a salary basis and meeting the duties test, would be entitled to overtime pay at one and one-half times the employee’s regular rate of pay for all hours worked above 40 in a week.

Employers had a few options to become compliment with the final rule and avoid paying overtime, most popular were: Continue reading »