On October 23, 2019, the Department of Labor (DOL) published a proposed rule that, if finalized in its current form, would make it easier for retirement plan administrators to use electronic media to furnish information to participants and beneficiaries. The proposed rule would create a new, optional safe harbor that permits plan administrators to furnish required disclosures through electronic delivery to participants and beneficiaries with valid email addresses or smartphone numbers, unless the participant or beneficiary affirmatively opts out of electronic delivery.

The proposed rule was developed in response to Executive Order 13847, issued by the White House in August 2018, which instructed the DOL to review whether actions could be taken to improve the effectiveness of retirement plan disclosures required under the Employee Retirement Income Security Act of 1974 (ERISA) and reduce costs to employers. Note that employers may not rely on the proposed rule until it is published in final form.

Continue Reading DOL Proposed Rule on Electronic Disclosures Could Help Alleviate Costs and Burdens on Employers and ERISA Plan Administrators

I’m excited to be speaking next week at the 2019 MidSouth Employment Law Conference. My session entitled, “Anatomy of an Employment Lawsuit,” will provide attendees with an informative, step-by-step breakdown of the employment lawsuit process, practical guidance for managing litigation, and best practices to foster a company culture which limits the occurrence of such suits and mitigates employer liability.

Topics will include discovery issues and HR’s role in preserving electronically stored (ESI) information, settlement consideration, and trial preparation.

For more information regarding this event please visit the event information web page. If you’ll be at the conference next week, please stop to say hello!

Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of a disability and requires employers engage in an interactive process and provide reasonable accommodations. A failure to do so may result in liability.

The ADA requires employers to provide reasonable accommodations to qualified applicants or employees. A “reasonable accommodation” is defined as assistance or a change to a position or workplace that accommodates employees with disabilities so they can do the job without causing the employer undue hardship, such as too much difficulty or expense.

Use the Interactive Process to Determine Reasonable Accommodation

In order to determine the appropriate reasonable accommodation, employers and employees must engage in the interactive process, which requires communication and good-faith exploration of possible accommodations. An employer that acts in bad faith in the interactive process may be liable if it can be reasonably concluded that the employee would have been able to perform the job with a reasonable accommodation.

It’s a two-way street: an employee must also make a good faith effort to comply with any of the employer’s reasonable requests.

Continue Reading What Are the Employer’s Obligations When Engaging in the ADA Interactive Process?

We recognize that many of our readers sponsor ERISA welfare benefit plans and are currently undergoing their open enrollment process and issuing related participant communications. To assist with that process, we have prepared an Automatic Participant Disclosures Checklist for use during open enrollment and throughout the plan year.

If you have questions regarding the information in this checklist, please contact any of the attorneys in our Employee Benefits Practice Group.

 

I recently discussed the disadvantage of having a partial panel of commissioners at the U.S. Equal Employment Opportunity Commission (EEOC). Historically, the EEOC is comprised of five commissioners; however, the current panel only has three. Some argue this has hindered the EEOC’s ability to adequately investigate and file lawsuits to combat discrimination among the nation’s employers.

I warned that having a panel at the EEOC “that is less than full, we’re not getting the most out of it. How that plays out, I don’t know, but it is important, I think, for the commission to be at its full complement.”

The full article, “EEOC Mandate Stalled by Lack of Commissioners,” was published by Business Insurance on September 24, 2019, and is available online.

We are excited to share the first installment of our newest video series,
10 Steps Every Company Should Take When Conducting Workplace
Investigations. This series is intended to guide HR leaders faced with investigating a complaint between coworkers, such as harassment or inappropriate conduct, through the investigation process.

Each video in this series will offer practical tips on everything from
creating the investigation plan; interviewing relevant parties; and dealing
with the aftermath of the investigation, including potential disciplinary
actions taken against an employee.

To kick off the series, Bass, Berry & Sims attorney Tim Garrett takes
companies through the process of receiving the complaint. Employee
complaints can come anonymously, directly from an employee feeling
mistreated by a coworker or from a supervisor who witnesses inappropriate
behavior. Tim explains how to handle each type of complaint and tactics for
understanding as much information as possible in this initial stage of the
process.

Several attorneys in our Labor & Employment Practice Group are featured
in the series and offer great recommendations for navigating this tricky
process. To guarantee you don’t miss any videos in the series, be sure to
subscribe to this blog or follow us on Twitter.

Can language in the workplace, even if uttered during otherwise protected conduct, lose its “protected” status under the National Labor Relations Act (NLRA) because the language is too offensive?  The answer is, generally, yes.

Prior NLRB Rulings Protected Offensive Language

However, in several rulings, the Obama-era National Labor Relations Board (NLRB) ruled that certain speech, which was patently offensive, nonetheless retained its protected status.  On September 5, 2019, the current NLRB invited briefs on the proper legal standard for when extremely profane or offensive language loses its protection.

Continue Reading NLRB Seeks Public Comment on Offensive Language in the Workplace

Register for the Labor & Employment Seminar on October 2Join us for a complimentary seminar where we will review a broad range of topics pertaining to accommodation issues under the ADA and provide guidance for employers managing these issues.

7:30 a.m. – 8:00 a.m. Registration and Breakfast
8:00 a.m. – 10:30 a.m. Program

Our panels will cover a broad range of topics, including:

  • How to identify (and help supervisors identify) when an employer’s obligations under the ADA may come into play
  • Engaging in the interactive discussion with employees regarding their accommodation requests
  • Requesting medical information in response to such requests
  • Whether an employee who has asserted the presence of a disability may still be disciplined
  • Marijuana and opioid use at work
  • Direct threat issues
  • Addressing mental health issues under the ADA

Please RSVP by September 26

HRCI and Tennessee CLE credit (2.25 hours)

Register Now

I recently provided insight for an article in HR Dive on ageism in the workplace and how employers can address these stereotypes.

Ageism can come in many forms in the workplace. For example, a typical stereotype can include expecting an older employee to have a problem adjusting to the new computer system, believing they will be resistant to change or wondering how an older employee is going to “keep up” with the job’s demands.

Continue Reading Ageism in the Workplace

Bass, Berry & Sims attorney Tim Garrett discussed a case currently under review by the Eleventh Circuit Court that should provide clarity on whether, and under what circumstances, a licensed professional counselor or therapist can be a “healthcare provider” - and therefore qualified to verify a need for leave - under the Family & Medical Leave Act (FMLA). I recently discussed a case currently under review by the Eleventh Circuit Court that should provide clarity on whether, and under what circumstances, a licensed professional counselor or therapist can be a “healthcare provider” – and therefore qualified to verify a need for leave – under the Family & Medical Leave Act (FMLA).

The case centers around an employee who was fired from her job the same day she met with a licensed counselor who recommended leave after determining the employee had depression and anxiety. While the timing and specific circumstances of the case are unusual, the case does call into question the larger issue of who can be considered a healthcare provider under the FMLA.

Continue Reading Can a Therapist Visit Trigger FMLA Leave?

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

Thought Leadership by our Attorneys.