Since 2009, many large retailers in California have been sued for failing to provide “suitable seating” in accordance with the state’s wage orders. Some of those employers have recently been forced to pay significant settlement awards, providing another cautious reminder to employers of the importance of complying with California’s suitable seating requirements.
In an article published by SHRM online, Bass, Berry & Sims attorney Doug Dahl discussed protected genetic information and wellness program design. The article outlines recent legislation proposed by the House Education and Workforce Committee that intended to clarify differences between the wellness program rules under several federal statutes and regulations. The bill subsequently stalled in the House of Representatives because many opponents believe the legislation allowed businesses to use the genetic information employees provided through wellness programs in negative ways.
While the definition of genetic information is broad, as Doug points out in the article, “[t]he disease of a family member, including a spouse or adopted child, and how it is manifested is considered genetic information. Obesity is the primary issue many wellness programs are designed to help. Heart health is another focus, as are smoking cessation and mental health issues.”
The full article, “Bill to Harmonize Wellness Program Requirements May Have Stalled,” was published by SHRM online on April 20, 2017, and is available online.
In an article published by Law360, Bass, Berry & Sims attorney Tim Garrett provided insight on the continued increase in employment discrimination lawsuits, which may be due in part to fee-shifting in such lawsuits. Fee-shifting is a mechanism by which a prevailing party in a lawsuit can require the losing party to pay the reasonable attorneys’ fees of the prevailing party. The concept sounds fair, but in employment discrimination cases the only party who benefits from fee-shifting is the employee. Employers are hopeful that a new law recently passed in Ohio will start a new trend to reverse what employers perceive as unfairly one-sided fee-shifting. Time will tell whether a new trend has begun, and the new law at least may spark an interesting public policy debate.
The full article, “A New Fee-Shifting Trend In Employer Discrimination Cases?,” was published by Law360 on April 18, 2017, and is available online.
Additional insights can be found in my earlier blog post on the topic, “Employer Recovery of Fees and Costs in Discrimination Cases – Is There a Trend Starting?,” published on March 31, 2017.
In an unsurprising move, the Department of Labor (DOL) postponed the applicability date of the fiduciary rule on April 4 for an additional 60 days. The new applicability date for the rule is June 9, 2017, although the DOL may choose to push that date back even further. The extra time was added just days before the fiduciary rule was set to go into effect and gives the DOL additional time to consider revisions. The agency was ordered to re-evaluate the rule by President Trump back in February.
On March 31, 2017, the United States Civilian Board of Contract Appeals (CBCA) dismissed a contractor’s claims against the Department of Veterans Affairs (VA) for a lack of jurisdiction, stating that the contractor should have secured a final decision from the General Services Administration (GSA) prior to filing its claim. According to the CBCA, since the dispute was over the terms of a GSA Schedule contract and not over contract performance, proper procedures call for a decision from the GSA Schedule contracting officer before the CBCA can weigh in on the dispute.
Noted healthcare observer/thought leader Paul Keckley – who provided private-sector input on the Affordable Care Act – breaks down the “need to know” facts of its potential successor, the American Health Care Act, and discusses some of the big bets it makes about the future.
The full article, “The American Health Care Act: What You Need to Know and What You Need to Watch,” was published by The Keckley Report on March 13, 2017 and is available online.
Bass, Berry & Sims attorney Doug Dahl authored an article discussing the various ways in which employers seek to decrease risk associated with defined benefit pension plans and what HR and benefit professionals should know about the process. As Doug points out in the article, once an employer decides to engage in a de-risking strategy, HR and benefit professionals who understand de-risking and the importance of communication throughout will be in a good position to help their employers navigate the process.
The full article, “Pension De-Risking: What is It and Why is It So Popular?,” was published in the April 2017 issue of HR Professionals and is available online.
Ohio just passed a new law that could begin a trend favorable to employers. The new law allows Ohio’s Civil Rights Commission, in its discretion, to award attorneys’ fees and costs to employers who are found not to have unlawfully discriminated against an employee. Why is this important?
In an article published by the Society for Human Resource Management (SHRM), I provided insight on a proposed amendment to the Family and Medical Leave Act (FMLA) that would allow time off for a child’s death. Since 2012, the chairmen of the board of directors of the Sarah Grace-Foundation for Children with Cancer have been calling for the FMLA to be modified. I pointed out that “while bereavement is not generally covered by the FMLA, the law mandates leave to address issues that arise when an employee’s covered family member (spouse, son, daughter or parent) dies on active military duty.”
The full article, “FMLA Bill Would Require Child Bereavement Leave,” was published by SHRM on March 24, 2017, and is available online.
As we previously reported, Congress has taken its final steps in repealing Obama’s Fair Pay & Safe Workplaces rule, one of the most controversial rules enacted by the Federal Acquisition Regulatory (FAR) Council under President Obama. On February 6, the Senate gave the final vote of approval of the House Resolution overturning the rule, and on March 27, President Trump, unsurprisingly, signed the Resolution into law. At the same time, he also signed legislation overturning three other rules, including the U.S. Bureau of Land Management’s land use planning rule and two rules issued by the U.S. Department of Education. Though much of the Fair Pay rule had never been implemented due to a court injunction, this legislation formally revokes the rule and ensures that the FAR Council cannot enact a similar rule without Congressional approval.