Employment

With just days to go before the 2018 midterm elections, candidates are sending out their final pleas for voters’ endorsements and employers are taking steps to ensure that their employees have the ability to voice their choice. According to electionday.org, nearly 60% of voting-eligible Americans did not vote in the last midterm elections, with 35% of those nonvoters reporting that “scheduling conflicts with work or school” kept them from getting to the polls.

As of October 15, 2018, New York City employers are now required to engage in a “cooperative dialogue” when an employee requests a workplace accommodation. In a development that may have been overshadowed by the New York State sexual harassment prevention law, the New York City Council amended the New York City Human Rights Law (NYCHRL) in December 2017 to institute this requirement. Similar to, but more demanding than the “interactive process” contemplated by the federal Americans with Disabilities Act, this requirement imposes significant new duties on employers in New York City.

This month’s Bubbler highlights our upcoming Boston Employment Law Summit. On November 7, 2018, Mintz will bring together thought leaders to discuss a wide spectrum of timely issues impacting employers.

Alden Bianchi explains the benefits Association Health Plans (AHPs) provide to small employers as well as the concerns they raise for states regarding their impact on the markets.

The wait is over.  The New York State Department of Labor (DOL) just released its final guidance with respect to New York State’s new anti-sexual harassment law.  The release includes final templates for the model sexual harassment prevention policy, complaint form, and harassment prevention training program.

In a summary of the recently issued Association Health Plan (AHP) final regulations, the U.S. Department of Labor (DOL) rightly observed that AHPs are a species of multi-employer welfare arrangements, or MEWAs, that are subject to regulation under both federal and state laws. The insurance regulators in a handful of states have recently issued guidance that, in most cases, purports to prohibit AHPs from operating as “large group” plans. (The attached table summarizes and provides links to the guidance, state-by-state.) A common, though not universal, theme is that in no case may a collection of small employers be combined to form a large group. Certain states address collateral issues. Pennsylvania, for example, makes the further claim that in no case may a self-employed individual with no employees participate in an AHP. We think that the states have overreached. This post explains why.

Responding to widespread resistance—principally on the part of small businesses—to the increase in the Employer Medical Assistance Contribution (“EMAC”) contributions and the addition of an EMAC supplemental contribution, Massachusetts lawmakers amended the EMAC rules in 2017 to add hardship waiver provisions. (Click here for a summary of the EMAC rules.) The Massachusetts Division of Unemployment Assistance (DUA) recently issued a proposed regulation implementing the hardship waiver rules. This post examines those proposed regulations.

Until a few cases over the last year, courts appeared to be just fine maintaining the paradox that while individuals could lawfully treat their disabilities with licensed medical marijuana use, employers could choose to pass on employing medical marijuana users by relying on the illegality of marijuana under federal law. Before last year, courts in Oregon, California, Colorado, Michigan, and New Mexico all rejected employment claims brought by plaintiffs under state marijuana legalization and lawful off-duty conduct laws. Last year in Massachusetts and Rhode Island, state courts challenged that paradox, and this month, in Connecticut, a federal court did the same.

Earlier this month, the Consumer Finance Protection Bureau (CFPB) issued updated model disclosure forms required under the federal Fair Credit Reporting Act (FCRA). The updated “Summary of Your Rights Under the Fair Credit Reporting Act” form, which became effective on September 21, 2018, is one of many notices employers must provide under the FCRA when using a consumer reporting agency (CRA) to run a background check during the hiring process. The revised form is located here along with a revised Summary of Consumer Identity Theft Rights form.

Welcome to this month’s edition of the Bubbler! Now that fall is fast approaching we’re refreshing your memory of some key recent developments as we head into the new season:

Adherence to the COBRA health care continuation rules is not always high on an employer’s list of priorities. Compliance is often “outsourced,” and even when handled “in-house,” it rarely consumes much attention. A recent case, Hager v. DBG Partners, Inc., illustrates that inattention can be costly for employers. This post explains why.

Now that Labor Day is behind us, we are looking ahead to the various compliance deadlines facing New York State and New York City employers this fall.

In our sister blog, ADR: Advice from the Trenches, Gil Samberg explains the Sixth Circuit’s ruling, applying the Supreme Court’s reasoning in the recent Epic Systemscase, that the “collective action” provision of the FLSA does not render a collective action waiver in an arbitration agreement unenforceable.

Jen Rubin explains the need for employers to build trust in the workplace in the wake of the #MeToo movement by properly training HR professionals and regularly communicating policies.

Jen Rubin explains that while a private employer can set its own rules regarding what an employee can and cannot say in the workplace, there are some restrictions on a private employer’s ability to take an adverse employment action against an employee based upon certain speech.

Jen Rubin discusses state and municipal legislation that prohibits employers from asking applicants about their salary history. These laws are intended to prevent employers from artificially setting salaries based upon what the individual earned in the past, but rather, their qualifications for the position.

Jen Rubin takes a look at both the benefits and costs of employing arbitration as a mechanism to resolve employment disputes.

Jen Rubin discusses the key things employees need to understand in the wake of the #MeToo movement including reasonable expectations for the handling of a complaint of harassment or other misconduct and any subsequent punishment.

Jen Rubin explains the need for employers to ensure that their interviewers are properly trained to avoid running afoul of state and municipal legislation regarding salary history as well as what a candidate should do if they are asked about their salary history in a jurisdiction in which such an inquiry is prohibited.