On February 15, 2017, Mayor Muriel Bowser signed the “Fair Credit in Employment Amendment Act of 2016” (“Act”) (D.C. Act A21-0673) previously passed by the D.C. Council. The Act amends the Human Rights Act of 1977 to add “credit information” as a trait protected from discrimination and makes it a discriminatory practice for most employers to directly or indirectly require, request, suggest, or cause an employee (prospective or current) to submit credit information, or use, accept, refer to, or inquire into an employee’s credit information. As discussed in our earlier advisory, the Act will take effect following a 30-day period of congressional review per the District of Columbia Home Rule Act, and publication in the D.C. Register, and shall apply upon inclusion of its fiscal effect in an approved budget and financial plan. The latter may not occur until this summer
New Jersey’s Appellate Division recently held that a jury waiver provision was unenforceable as to a former employee’s statutory employment claims. In Noren v. Heartland Payment Systems, Inc., Docket No. A-2651-13T3, __ N.J. Super. __ (Feb. 6, 2017), plaintiff signed an employment agreement with his then-employer that provided:
HPS and RM [employee] irrevocably waive any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement.
Following his termination of employment, Noren sued Heartland alleging, inter alia, violation of the Conscientious Employee Protection Act (“CEPA”), New Jersey’s employment whistleblower law. The court denied Noren’s demand for a jury trial based on the jury-waiver provision in his employment agreement, and after a lengthy bench trial, dismissed Noren’s complaint. Noren appealed, challenging the application of the jury waiver provision to his CEPA claim.
On appeal, the court focused upon the fact that CEPA and the New Jersey Law Against Discrimination (“NJLAD”) expressly guarantee a right to a jury trial. Given the statutorily guaranteed right, the Appellate Court determined that in order for the waiver to be effective it must “clearly explain (1) what right is being surrendered and (2) the nature the claims covered by the waiver.” The court found that the jury waiver at issue was unenforceable because it did not make any “reference to statutory claims and did not define the scope of the claims as including all claims relating to Noren’s employment.”
The Court noted that while it is “preferable for a waiver of rights provision to explicitly . . . include statutory rights, it is possible to provide the clarity necessary for a valid waiver without such specific reference.” In doing so, the court relied upon the Court’s earlier decision in Martindale v. Sandvik, Inc., 173 N.J. 76 (2002), which upheld a mandatory arbitration provision because the language at issue – which provided for a waiver of any action or proceeding relating to individual’s employment, or the termination thereof – was clear, unambiguous and sufficiently broad to encompass plaintiff’s statutory claims.
In light of the Noren decision, New Jersey employers should review their jury waiver provisions to ensure that they clearly provide that an employee is waiving a right to a jury trial as to all claims relating to the individual’s employment and termination thereof, and consider referencing the statutory rights provided under CEPA and the NJLAD.
On February 1, the New York State Department of Labor (“NYSDOL”) adopted regulations (“Regulations”) clarifying the pay transparency provisions of Section 194(4) of the New York Labor Law. The pay transparency section was added to Section 194 as part of a broader amendment to New York State’s equal pay law in January 2016. This pay transparency section provides that employers may not prohibit employees from “inquiring about, discussing, or disclosing” the wages of that employee or another employee, and explains what any company policy on the topic can and cannot say.
In the Regulations, the NYSDOL clarified that any employer-instituted restrictions on such discussions must (a) be justified without regard to content, (b) be narrowly tailored to serve a significant interest, and (c) leave open ample alternative channels for discussion of the topic. Additionally, the NYSDOL clarified that an employer may prohibit employees from talking about what other employees’ wages are without express permission from that employee, and that such permission can be withdrawn at any time. Further, such permission need not be granted in writing.
Finally, the regulations clarify that, to the extent an employer wishes to implement a policy limiting employees from discussing wage information, such a policy cannot unreasonably or effectively preclude or prevent inquiry, discussion, or disclosure of wages at the worksite and/or during work hours, either directly or in practice. Indeed, such a policy would also likely be deemed to violate the National Labor Relations Act, which prohibits employers from restricting non-managerial and non-supervisory employees’ collective discussions regarding pay and benefits. The policy can, however:
- Provide for additional restrictions on the ability of certain employees (i.e., those who regularly have access to such information in connection with their jobs, such as Human Resources and Payroll employees) to share such information; and
- Establish reasonable workplace and workday limitations on the time, place and manner for such inquiries, as long as those limitations are consistent with standards promulgated with the Commissioner of Labor and other state and federal laws.
Finally, if an employer wishes to avail itself of the ability to use as an affirmative defense against a claim that it violated Section 194 or that the employee who shared or discussed his or her wages violated the company’s policy against same, the employer must demonstrate that employees were given the policy in accordance with the terms of Section 194.
Therefore, companies with policies and/or practices restricting employees’ rights to discuss their wage information that do not reflect the restrictions described above should be reviewed and revised.
Each year between October and May, millions of people contract the flu. Recent estimates suggest that up to 111 million workdays are lost during the flu season each year — at an estimated $7 billion per year in sick days and lost productivity. In light of the significant impact the flu can have on human capital and workplace productivity, many employers – especially those with employees who frequently interact with members of the public through the course and scope of their employment, such as health care providers, retailers, and educators – are beginning to implement policies mandating flu shots for all employees. The administration of an annual flu vaccine can substantially reduce the risk of contracting the flu and spreading it to others. During the 2015-2016 flu season, the Center for Disease Control estimates that flu vaccinations prevented approximately 5.1 million illnesses and 2.5 million flu-associated medical visits. However, as discussed in our HEAL Take 5 December 2016 newsletter and last month’s blog post, a recent influx of Equal Employment Opportunity Commission (EEOC) lawsuits alleging religious discrimination and failure to accommodate under Title VII highlight the challenges employers face when implementing mandatory flu vaccination policies.
On September 22, 2016, the EEOC filed a lawsuit against Saint Vincent Health Center in Erie, Pennsylvania alleging religious discrimination on behalf of six Saint Vincent former employees, asserting that the hospital refused to grant them religious-based exemptions from a mandatory flu vaccine policy and then discharged the employees when they refused the vaccination. EEOC v. St. Vincent Health Ctr., No. 16-224 (W.D. Pa. Sept. 22, 2016). In December 2016, Saint Vincent settled the suit for $300,000 and offered reinstatement to the terminated employees. Further, Saint Vincent agreed on a going forward basis to grant exemptions to its mandatory flu vaccine policy to all employees who request one due to sincerely held religious beliefs unless the hospital can demonstrate an undue hardship to its operations. The hospital agreed that it would not deny any accommodation requests solely because it disagrees with an employee’s stated beliefs, thinks the belief are unfounded, or that the beliefs are not based on an official religion or denomination. Additionally, Saint Vincent agreed to notify its employees of their right to request a religious exemption to any mandatory vaccination policy, implement appropriate procedures for considering such accommodation requests, and provide training regarding Title VII reasonable accommodation to certain personnel.
Saint Vincent is not the only employer to recently be targeted by the EEOC as a result of its mandatory flu vaccine policy. Two similar suits are pending in North Carolina and Massachusetts. See EEOC v. Mission Hosp., Inc., No. 1:16-CV-00118 (W.D.N.C. Apr. 28, 2016); EEOC v. Baystate Med. Ctr., Inc., No. 3:16-cv-30086 (D. Mass. June 6, 2016). In both of those suits, the EEOC has alleged similar violations of Title VII due to a failure to accommodate the religious practices of employees.
While it is uncertain how ardently the EEOC will pursue these cases under the new administration, individual employees remain able to pursue claims for religious discrimination on their own behalf. Moreover, in addition to Title VII compliance, employers risk running afoul of the Americans With Disabilities Act (ADA) and similar state laws if they do not consider accommodations for employees who choose not to be vaccinated as a result of existing medical conditions. The recent uptick in cases on this issue makes clear that employers should be cautious when developing mandatory flu vaccine policies and should consult legal counsel before implementing any such policy (or refusing to grant an exception to the policy) to insure its compliance with Title VII, the ADA, and comparable state or local law. Employers should also work with employees to think outside the box regarding possible accommodations when an employee expresses an objection to the policy due to a sincerely held religious belief or for medical reasons. Among the available accommodations a hospital may consider are the use of a surgical mask or transfer to a non-patient-facing position.
Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “New DOL FAQs Provide Additional Guidance (and Comfort) for Plan Sponsors.”
Following is an excerpt:
Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the conflict of interest rule released by the DOL in April 2016 (the “Rule”) on their plans. Even though it is widely expected that the Trump administration will delay implementation of the Rule, in mid-January 2017, the DOL released its “Conflict of Interest FAQs (Part II – Rule)”, which addresses topics relevant to ERISA Plan sponsors. As explained below, these FAQs indicate that the Rule, as currently designed, should not require a large number of significant changes in the administration of most ERISA Plans. …
In a notable recent court decision highlighting transgender issues and employer sponsored benefit plans, on January 13, 2017, in Baker v. Aetna Life Ins. Co., 2017 U.S. Dist. LEXIS 5665, 2017 WL 131658 (N.D. Tex.), Aetna Life Insurance Co. (“Aetna”) defeated a claim by a transgender employee of L-3 Communications Integrated Systems LP (“L-3”) who alleged that Aetna’s denial of her disability benefits constituted discrimination based on her gender identity. The plaintiff, Charlize Marie Baker (“Baker”), is a participant in L-3’s Employee Retirement Income Security Act (“ERISA”) covered group health plan and short term disability benefits plan (“STD Plan”). Aetna is the third party administrator (“TPA”) of the group health plan and the claim fiduciary and administrator of the STD Plan.
In 2011, Baker began transitioning from male to female, legally changing her name and gender designation on all government issued documents. In 2015, after a consultation with a health care professional who determined that breast implants were medically necessary to treat gender dysphoria, Baker scheduled surgery and sought benefits under the STD Plan to cover her post-surgery recovery. Coverage under the group health plan and benefit claims under the STD Plan were denied. Filing suit against Aetna and L-3, Baker alleged that Aetna and L-3 discriminated against her based on her gender identity in violation of Section 1557 of the Affordable Care Act (the “ACA”), that Aetna denied her benefits under the STD Plan in violation of ERISA, and that Aetna and L-3 violated Title VII by discriminating against her based on her sex.
The court held that there is no controlling precedent that recognizes a cause of action under Section 1557 for discrimination based on gender identity with Baker failing to cite any precedent that recognizes such a cause of action. The court also held that ERISA does not recognize such a claim. Specifically, the court concluded that it is up to Congress to decide whether it wants to create in ERISA a protection that the statute does not expressly provide. Lastly, regarding Baker’s Title VII claims, the court found that Aetna was not an employer of Baker under the “single employer” test or the “hybrid economic realities/common law control” test. However, the court declined to dismiss Baker’s Title VII claims against L-3, finding Baker did sufficiently argue that she was denied employee benefits due to her sex.
While the Northern District of Texas declined to find a cause of action for gender identity discrimination under Section 1557 of the ACA, there are several cases of gender identity or transgender discrimination pending that may further impact the law for these benefit claims under Section 1557. There is little likelihood, however, that a claim of gender identity discrimination will be successful under ERISA. If the ACA is repealed under the Trump administration, Section 1557 will no longer be available and transgendered employees would be limited to claims under Title VII, to the extent that employees are successful in arguing that discrimination on the basis of gender identity constitutes sex discrimination.
As part of a flurry of activity in the final days of the Obama Administration, the U.S. the Architectural and Transportation Barriers Compliance Board (the “Access Board”) has finally announced the release of its Accessibility Standards for Medical Diagnostic Equipment (the “MDE Standards”). Published in the Federal Register on Monday, January 9, 2017, the MDE Standards are a set of design criteria intended to provide individuals with disabilities access to medical diagnostic equipment such as examination tables and chairs (including those used for dental or optical exams), weight scales, radiological equipment, mammography equipment and other equipment used by health professionals for diagnostic purposes. (The Access Board was established in 1973 to develop and maintain standards for accessible design in the built environment, transit vehicles and systems, telecommunications equipment and electronic and information technology. It also functions as a coordinator among federal agencies.). It is important to note that at this time the MDE Standards are not technically binding on health care providers or medical equipment manufacturers and do not have the force of law until they are formally adopted by government agencies such as the U.S. Department of Justice and U.S. Department of Health and Human Services.
The MDE Standards were prepared by the Access Board’s 24 member MDE Accessibility Standards Advisory Committee, comprised of representatives from disability groups, equipment manufacturers, heath care providers, and other standard-setting organizations, and incorporates data based on research studies as well as comments received during several public comment periods.
A link to the final MDE Standards is provided here:
Effective Date and Current Enforcement
The final rule is set to become effective Wednesday, February 8, 2017. However, as noted above, as these Standards have not yet been adopted by any Federal enforcing authorities, the MDE Standards do not currently impose any mandatory requirements on health care providers or medical device manufacturers. (Moreover, it is worth noting on January 20, 2017, White House Chief of Staff Reince Priebus issued a memorandum from the White House to the heads of executive departments and agencies calling for a sixty (60) day postponement of the effective date of regulations that have been published in the Federal Registry but not yet taken effect. Therefore, this date may yet be delayed.)
Notwithstanding, during the Access Board’s briefing held on Tuesday, January 10, 2017, the MDE Accessibility Standards Advisory Committee noted that its mission was to develop technical accessibility requirements that would be adopted by Federal enforcing authorities (such as the DOJ, FDA, HHS, and VA), at which point health care providers subject to their jurisdiction will be required to acquire accessible medical diagnostic equipment that complies with the MDE Standards. Until then, the Access Board strongly recommends that health care providers incorporate the MDE Standards as part of its new equipment procurement policy. (And plaintiff’s counsel and disability rights advocacy groups bringing lawsuits against health care providers under accessibility laws are likely to rely on the MDE Standards to establish their view of what constitutes appropriate accessible medical equipment.)
It should be noted that the current version of the MDE Standards provide MDE technical requirements only. As stated in the Scoping section of the MDE Standards (Chapter 2), “The enforcing authority shall specify the number and type of diagnostic equipment that are required to comply with the MDE Standards”.
We will continue to provide updates as enforcing authorities adopt the MDE Standards.
In the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:
Our colleagues Judah L. Rosenblatt, Jeffrey H. Ruzal, and Susan Gross Sholinsky, at Epstein Becker Green, have a post on the Hospitality Labor and Employment Law Blog that will be of interest to many of our readers in the health care industry: “Where Federal Expectations Are Low Governor Cuomo Introduces Employee Protective Mandates in New York.”
Following is an excerpt:
Earlier this week New York Governor Andrew D. Cuomo (D) signed two executive orders and announced a series of legislative proposals specifically aimed at eliminating the wage gap in gender, among other workers and strengthening equal pay protection in New York State. The Governor’s actions are seen by many as an alternative to employer-focused federal policies anticipated once President-elect Donald J. Trump (R) takes office. …
According to the Governor’s Press Release, the Governor will seek to amend State law to hold the top 10 members of out-of-state limited liability companies (“LLC”) personally financially liable for unsatisfied judgments for unpaid wages. This law already exists with respect to in-state and out-of-state corporations, as well as in-state LLCs. The Governor is also seeking to empower the Labor Commissioner to pursue judgments against the top 10 owners of any corporations or domestic or foreign LLCs for wage liabilities on behalf of workers with unpaid wage claims. …
Our colleagues Adam C. Abrahms and Christina C. Rentz, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Rings In the New Year by Signaling It Will Continue Its Pro-Union Rulings.”
Following is an excerpt:
In yet another decision that exhibits the current Board’s overreaching and expansive view of its jurisdiction, the Board recently ruled that nurses who supervise and assign other hospital staff are not statutory supervisors.
A Position Expressly Created to be Supervisory is Not Supervisory, According to the Board
In 2016, Lakewood Health Center (“Lakewood”) restructured its staffing system and replaced charge nurses with a newly created position, Patient Care Coordinator (“PCC”). According to the uncontradicted testimony of Lakewood Vice-President of Patient Care Danielle Abel, the hospital created this new position for one specific reason – “to ensure accountability for shift-by-shift work flow of the department….in addition to supervising the employees on their shift.” According to the job description, a PCC “provides overall supervision of staff and patient care,” is “responsible for daily nursing assignments,” and “retains overall accountability for the work flow for their shift, and remains accountable if duties are delegated to another qualified staff member.” Abel testified, without contradiction, that PCCs must assess the patient’s needs and the nurses’ skills when assigning nurses to patient care tasks and are accountable for the nurses’ performance. The undisputed evidence further showed that PCCs were the highest ranking authority present evenings, nights and weekends and, for the majority of the time, the only person present with the authority to assign and direct nurses. The Minnesota Nurses Association filed an election petition asserting that the PCCs should be included in the bargaining unit, thereby adding one more dues-paying classification to the potential bargaining unit. …