As we begin 2016, it is a good time to look back at 2015 labor and employment law developments that employers must keep in mind during the new year. 2015 was indeed a busy year.
AFFORDABLE CARE ACT
In 2015, the U.S. Internal Revenue Services issued final reporting forms and electronic filing guidance for employers subject to Affordable Care Act (ACA). On December 28, 2015, the IRS announced that the deadlines for complying with the new reporting requirements under ACA will be temporarily extended for purposes of 2015 coverage. The deadline extension is welcome news to many employers that are still grappling to understand and collect the information necessary to complete the new forms associated with the reporting requirements in advance of the looming deadlines.
DEPARTMENT OF LABOR
- New regulations largely eliminate exemption for agency home healthcare workers
The Department of Labor (DOL) revised its regulations applicable to home health care workers. Those regulations, which related to domestic workers who provide “companionship services,” narrowed significantly the classes of workers who were exempt from the minimum wage and overtime protections of the FLSA by removing the ability of home health care agencies to claim any exemption, as well as redefining which activities constitute “companionship services.” The regulations were a sweeping change in the industry, especially after nearly forty (40) years of the availability of the exemption for these workers.
- Salary for white collar exemptions raised from $23,660 to $50,440
The DOL also issued its long-awaited Notice of Proposed Rulemaking, which updates the Fair Labor Standards Act (FLSA) regulations relating to white collar employees. The proposed regulation would raise the salary threshold from $455 a week (the equivalent of $23,660 a year) to about $970 a week ($50,440 a year) in 2016. The DOL also proposed to increase the total annual compensation requirement needed to exempt highly compensated employees (HCEs) to the annual value of the 90th percentile of earnings of full-time salaried workers ($122,148 annually), and establish a mechanism for automatic updates of the salary and compensation levels to ensure that they will continue to provide a useful and effective test for exemption.
- Interpretation Letter: Independent contractors are misclassified; presumption is employee status and test strictly construed
The DOL issued an “Administrator’s Interpretation” and declared that most workers who are classified as independent contractors are actually employees. The DOL emphasized that problems and complaints involving minimum wage, overtime compensation, unemployment insurance, and workers’ compensation have increased significantly in light of the misclassification of workers. The DOL also maintained that the multi-factorial “economic realities” test provides key guidance in reaching this ultimate determination, and that it will strictly interpret the six requirements of the economic realities test.
- Issues updated FMLA notices and medical certification forms
The DOL also issued updated FMLA notices and medical certification forms. The new forms contain the Genetic Information Nondiscrimination Act (GINA) disclosure language that directs medical providers not to provide information about genetic tests, genetic services, or the manifestation of disease or disorder in the employee’s family members. Similar language now exists in other medical certification forms issued by the DOL as well.
- Title VII protects discrimination against lesbian, gay and transgender employees
The EEOC found that workplace discrimination against lesbian, gay, and bisexual workers violates Title VII of the Civil Rights Act of 1964 by reversing the dismissal of a sex discrimination complaint filed by an air traffic controller against the U.S. Department of Transportation’s Federal Aviation Administration. The complainant claimed that he was not selected for a permanent managerial position because he is gay.
- Updated Enforcement Guidance on Pregnancy Discrimination
Following the U.S. Supreme Court’s ruling in Young v. United Parcel Serv., Inc., the EEOC issued revised pregnancy discrimination enforcement guidance setting forth a framework for assessing how far employers must go in accommodating pregnant employees. In Young, the U.S. Supreme Court held that, although a policy of providing light duty only to certain workers was facially neutral, it could still violate the Pregnancy Discrimination Act in some circumstances when the employer does not provide the same accommodations to pregnant workers as to other similarly situated employees.
- Supreme Court: EEOC v. Abercrombie & Fitch
An employer may not make a religious practice, confirmed or otherwise, a factor in employment decisions. In EEOC v. Abercrombie & Fitch, the U.S. Supreme Court held that to prevail in a Title VII disparate-treatment (i.e., intentional discrimination) claim, a job applicant need only show that his need for a religious accommodation was a motivating factor in the employer’s decision. An applicant does not need to show that the employer had knowledge of his need for the religious accommodation.
GAY MARRIAGE RULING
In Obergefell v. Hodges, the U.S. Supreme Court ruled that gay marriage is a constitutional right. This landmark decision certainly impacts various employment benefits, such as FMLA leave, health insurance, COBRA, retirement plans and other benefits. The case means that same-sex spouses could now qualify as beneficiaries, and employers cannot discriminate. Self-insured health insurance plans will also be subject to discrimination charge for not covering same-sex spouses.
In a Memorandum issued on March 18, 2015, the National Labor Relations Board’s Office of the General Counsel offered guidance on employee handbook rules governing confidentiality, employee conduct, personal electronics, social media, and solicitation/distribution.
The NLRB’s “quickie” election rules also went into effect on April 14, 2015. One of the significant changes resulting from the enactment of the new rules is the shortening of the timeline for union elections, which the NLRB asserts “modernize[s] the representation case process and fulfill[s] the promise of the National Labor Relations Act.”
In the Browning-Ferris case, the NLRB also issued a landmark decision changing its current standard for assessing “joint employer” status in both unionized and non-union workplaces. This is significant, because, even if the company is not the actual employer of workers, the company may be required to bargain with a Union and held liable for unfair labor practice charges if found to be a “joint employer.” As a result of the decision, two or more entities can now be considered as “joint employers” if: (1) the entities are both employers within the meaning of common law; and (2) the entities share or codetermine matters governing the essential terms and conditions of employment. To note, the Green Jobworks case decided on October 21, 2015 was first application of the Browning-Ferris decision, where the NLRB held that a contractor was not a joint employer of its staffing agency.
The NLRB also declared that employers must permit employees to use their e-mail system for unionization and other concerted activities during non-working time Company must permit e-mail for non-business on non-working time, and that blanket confidentiality of investigation policy violates the NLRA.
OSHA issued guidance on best practices regarding restroom access for transgender workers. All employees, including transgender employees, should have access to restrooms that correspond to their gender identity, even if that identity is different than their gender assignment at birth. OSHA’s guidance also outlines model practices regarding restroom access for transgender employees.