Bernstein Shur’s Labor and Employment Practice Group Highlights Legal Issues to Watch in 2015

HIPAA in the Workplace
by Ron Schneider

In late 2013, the Office of Inspector General issued a report critical of the Office of Civil Rights’ enforcement of the Health Insurance Portability and Accountability Act. OCR enforcement of HIPAA has since increased in response, including a 2014 $215,000 settlement aid by a county government for HIPAA breaches. Private enforcement of HIPAA standards is also increasing with the assistance of creative plaintiffs’ lawyers, including a recently upheld $1.4 million jury verdict for an employee’s improper access of HIPAA protected health information. The applicability of HIPAA is often not obvious, especially when the employer is not a health care institution. When HIPAA does apply, such as to an employer administering a self-insured health plan, a municipality with EMS or a university with a clinic, it is important that employers provide HIPAA training to their employees and have appropriate HIPAA policies, including a sanctions policy that operates in conjunction with employee disciplinary policies. Employers need to know when HIPAA applies to them and act accordingly.

Reasonable (and Public) Accommodations
by Matthew Tarasevich

By now most employers are familiar with their obligations to provide “reasonable accommodations” to their employees if the employee has a disability. Less familiar, however, are the obligations that businesses must comply with in providing “public accommodations” to their customers and guests. The ME Human Rights Act, and the regulations that govern it, contain scores of rules and requirements when dealing with a customer or guest who has (or claims to have) a disability. Businesses should not assume that their good faith efforts to provide public access accommodations are enough. Indeed, when reviewing a claim against a business for public access discrimination, the ME Human Rights Commission does not consider the intent of the business to comply with the law, but rather whether there was actual compliance. A recent case before the MHRC illustrates this point. The Commission found that a medical practice’s failure to provide an interpreter for a scheduled surgery was enough to find the practice had discriminated against the patient, even though the practice had scheduled an outside interpretation service for such services, the scheduled interpreter failed to show up, and the patient thereafter gave the practice written consent to proceed with the (ultimately successful) surgery without an interpreter. If your business deals with the public, make sure you understand your obligations and the risks of non-compliance.

Leveling the Field – Equal Pay Law Enacted in New Hampshire
by Emily Gray Rice & Naomi Butterfield

Effective January 1, 2015, New Hampshire updated its laws regarding pay equity. Under the new law, businesses are prohibited from paying employees different wages for the same work based solely on their sex. Employers are also prohibited from discharging, or in any other manner discriminating against any employee because the employee files a complaint about pay discrimination, or participates in the investigation or prosecution of such a complaint, or because the employee discloses their wages or those of another employee.

Although the revised law seeks to level the playing field for employees of the same sex doing equal work, employers are not required to reduce the wage rate of any employee in order to comply. The new law provides exceptions to the equal pay mandate, where different rates are paid pursuant to:

• A seniority system.
• A merit or performance-based system.
• A system which measures earnings by quantity or quality of production.
• Expertise.
• Shift differentials.
• A demonstrable factor other than sex, such as education, training or experience.

Previously, employers could also vary rates if the variance was provided for in a contract between the employer and the recognized bargaining agent of the employees, or where there was no bargaining agent, if the variance was provided for by a written agreement or contract between the employer and at least five employees. This exception is noticeably absent from the revised law.

Finally, the law directs employers to prominently display a mandatory poster informing employees of their rights under New Hampshire’s equal pay laws.

New Hampshire Businesses Prohibited from Discriminating and Retaliating Against Domestic Violence Victims
by Talesha Caynon

On July 11, 2014, the New Hampshire Legislature passed a new law prohibiting discrimination against victims of domestic violence. Effective September 9, 2014, it is an unlawful employment practice for a New Hampshire employer to refuse to hire an otherwise qualified individual because he/she is a victim of domestic abuse, harassment, sexual assault or stalking. The law further prohibits employers from discharging, threatening to discharge, demoting, suspending, or in any other manner discriminating or retaliating against an individual with regard to promotion, compensation or other terms, conditions, or privileges of employment because the individual is a victim of domestic violence, harassment, sexual assault or stalking. Finally, the law establishes a committee to study the protection of employees from domestic violence. Violations of the law are subject to civil penalties, to be imposed by the labor commissioner.

Unfortunately, incidents of domestic violence are all too common. Thus, businesses must be mindful of the impact of domestic violence in the workplace and should consider the protection of their employees from domestic violence when developing a workplace safety plan. If you suspect a worker may be a victim of domestic violence, consult counsel to avoid violating the statute’s prohibitions and incurring a civil penalty.

No More Delays
by Steven Gerlach

For many employers, the ACA pay-or-play rules become effective in 2015, and once effective, these rules may result in penalties for employers who fail to comply. For some employers, the effective date was January 1. For those eligible for non-calendar year transition relief, however, the effective date will be at the beginning of the 2015 plan year. Many employers will also be required to report to the IRS on the health coverage they offer to their employees, and the reporting will be done in early 2016 for all calendar months in 2015. Employers that are affected should begin tracking the required information now so as not to be rushing at the end of the year. Accordingly, the time to act— and to consult with counsel— is now.

DOL on the March
by Glenn Israel

In 2015, wage and hour will pack a one-two punch. First, a left jab comes from the Department of Labor, which has received directive from the president to step up enforcement efforts. Then, a right cross from the plaintiffs’ attorneys who continue to file class action lawsuits to collect unpaid wages and overtime. Recently, misclassified interns at NBC received $6.4 million to settle a claim that they should have been classified as employees. In another case, exotic dancers at a New York club were awarded $10.9 million by a New York federal court. Closer to home, a class action suit recently cost a company almost $50,000. We have assisted a number of other clients in conducting Fair Labor Standards Act audits and correcting misclassification errors. If you have not reviewed your company’s exempt/non-exempt and employee/independent contractor classifications lately, you should do so immediately.

Retaliation Claims – Prevention is the Cure
by Linda McGill

Prediction: In 2015 retaliation will win the “most favored workplace claim” contest yet again. Retaliation claims continue to be the most commonly reported form of discrimination in the workforce and account for the largest percentage of claims brought to the MHRC and the Equal Employment Opportunity Commission. Retaliation claims may be brought under the ME Whistleblower Protection Act or as stand-alone claims under Title VII, the ADA, ADEA, FMLA, OSHA, FLSA and virtually any other employment law. Judging from the outcomes in employment law litigation, it is relatively easy for jurors or judges to believe that a manager who has been complained about is striking back, even when they find that the company has not discriminated based on race, gender, age or other protected characteristics. Retaliation claims are difficult to get dismissed before trial and settlement value and jury awards tend to be high. Naturally, the success of retaliation claims means that more of them will continue to be filed. Therefore, preventing retaliation claims altogether is the gold standard for employers. Here are some guidelines for retaliation claim-proofing:

• Having a strong anti-retaliation policy.
• Investigating every employee complaint, no matter how thin it may seem.
• Affirmatively monitoring a work group where an employee has made a complaint or engaged in other protected activity.
• Recognizing that an employee’s “gripe” or mere inference that the employer is doing something illegal or causing a health or safety risk may be legally protected whistleblower activity.
• Consulting employment counsel for review before taking any serious adverse action, especially (but not only) demotion or termination toward an employee.

Family Medical Leave
by Kai McGintee

Employers often ask how long they have to hold open a position when an employee is out on medical leave. We know, of course, that employees eligible for Family Medical Leave must be given at least 12 weeks of job-protected leave under federal law and in New Hampshire, and 10 weeks under ME state law. Whether the job has to be held open after the employee’s FMLA leave expires—and for how long—is a tougher question from both a workforce management and legal perspective. The U.S. Equal Employment Opportunity Commission has long taken the position that employers have an obligation under the Americans with Disabilities Act to offer extended unpaid medical leave as a reasonable accommodation. However, two recent cases highlight how employers continue to grapple with these issues.

In June 2014, the EEOC entered into a consent decree with Princeton HealthCare System in New Jersey to settle a lawsuit alleging that the hospital automatically fired disabled employees after 12 weeks of FMLA leave. The settlement amount was $1.35 million. Similarly, on Nov. 4, 2014, the EEOC entered into a consent decree with Doumak Inc., a Chicago manufacturing company. In that case, the challenged leave policy that required automatic discharge was actually contained in a collective bargaining agreement and the settlement amount was $85,000. In light of the EEOC’s recent spotlight on this issue, it is important to remember that requests for extended medical leaves should be considered on an individual basis through the interactive process, and not be summarily denied and should not be automatic under any policy.

Measles and the Workplace
by Pat Peard

At this time of this publication there are no reported cases of measles in ME. However, the widely reported outbreak that started in California has some of our clients asking if they can, or should, mandate that their employees get a measles vaccination. Health care workers are legally required to have the measles vaccine but outside of these workers, it is not a good policy to require vaccinations. Such mandates have, in many cases, resulted in discrimination lawsuits and cases where employees assert their privacy has been violated. There is a risk in even asking employees about their vaccination status or the vaccination status of their children. Here is what employers can do:

• Encourage workers to determine their vaccination status and their possible need for the vaccination which they should do through their physician.
• Communicate to employees the benefits of voluntary vaccinations.
• Remind their employees that just as with the flu, they should stay home from work if they are ill.

NLRB Expected to Continue Pro-Union Rules and Decisions
by Terry Shumaker

With a complement of five members appointed by President Obama, three of whom worked for unions in prior jobs, the National Labor Relations Board, which regulates private sector union elections and collective bargaining is expected to continue expanding union and employee rights under the National Labor Relations Act. In the election arena, areas to watch carefully include whether the courts strike down the “quickie election” rules issued by a 3-2 vote by the board last year. These new rules would require elections to be held sooner than ever before and hamper employers from running a campaign for staying union free. They would also restrict the ability of employers to litigate crucial issues before the election, as to who are non-supervisory employees eligible to vote and the scope of the proposed bargaining unit within the workplace. When coupled with the board’s recent decisions allowing unions to seek small groups of employees, these new rules, if upheld, will likely result in unions winning far more representation elections.

In the past few years the NLRB has also struck down numerous workplace rules and policies regulating employee use of social media and discussion of wages and workplace conditions over email and the internet. These cases are now finding their way into the courts and some, like one invalidating a rule requiring only company logos on baseball caps worn at work, have been struck down. Observers are very carefully watching to see what the NLRB does with the broadening of the rights of employees to use company email systems for union organizing or other union activities. These trends are expected to continue for as long as the Obama appointees remain in place, which will continue even past his administration.

State of the Union: Highlights Affecting the Workplace
by Kelsey Wilcox

During the State of the Union address in January, President Obama spoke about several legislative goals that, if adopted, could have a direct bearing on the workplace. These include:

• Changes to federal wage and hour laws, including an increase the federal minimum wage and ensuring payment of overtime pay where due. The President specifically referenced his directive to the federal Department of Labor to revise its regulations in order to expand and clarify the pool of workers who are eligible for overtime pay under the Fair Labor Standards Act’s exemption structure. Rulemaking on those regulations is currently underway.

• Provisions for paid sick leave and paid maternity leave.  Specifically, the President asserted that all employees should be entitled to seven days of paid sick leave per year and acknowledged the states’ ability to legislate the issue, as Massachusetts did in 2014.

• Gender equity in pay. The President urged for further legislation to close the “gender pay gap,” which he characterized results in women earning 77 cents to a man’s dollar.

Whether 2015 witnesses any action in these areas remains to be seen. The President has touted similar proposals in prior State of Union addresses, but then did little to actually push legislation. With the results of the 2014 congressional elections and the loss of the Democratic Senate, chances of federal legislative action on any of these proposals is unlikely. However, the President’s party still controls many key states, and that may have been the actual target audience for his proposals. In addition, we will likely see continued federal enforcement from the DOL, the NLRB and other federal agencies that affect employers. We will continue to keep an eye on these and other developments in Washington and their potential impact on the workplace.