December 2016

The EEOC's 2017-2021 Strategic Enforcement Plan

The EEOC has issued its new Strategic Enforcement Plan for the fiscal years 2017 to 2021, which outlines the areas in which the EEOC will focus its litigation and investigation resources in the next four years. The Plan is focused on the “gig” workforce—that is, the short-term, temporary, or freelance workers who are typically classified as independent contractors rather than employees.

In the Plan, the EEOC identified the rise of the “gig” economy as an “emerging and developing issue” warranting increased focus, particularly with regard to “clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy . . . .”

Essentially, the Plan demonstrates the EEOC’s intent to crack down on the misclassification of workers as independent contractors rather than as employees. The EEOC’s designation of misclassification as an enforcement priority is not entirely surprising and is in keeping with the focus of other statutory and regulatory plans.

RLG Takeaway
In light of these developments, companies may wish to evaluate their independent contractor relationships to ensure that their independent contractors should not actually be classified as employees. Similarly, companies indirectly using independent contractors, through staffing or “temp” agencies, should review their agreements with these agencies to ensure that they contain appropriate protections (including guarantees of wage and hour compliance, and perhaps indemnification agreements) to guard against the risk of a finding of “joint employer” status.

Is it Over? (I'm talking about the FLSA revisions)

It is unlikely that we will see a resurrection of the FLSA wage revisions that were to take effect on December 1, 2016. However, we strongly suggest that if you’ve uncovered an employee that was misclassified, those employees must be reclassified. Please remember—the only thing that was changing was the salary. The duties test remains the same and anyone misclassified must be reclassified. Please feel free to call with any questions.

The More the Better?

In addition to all the other “craziness” of this election cycle, marijuana legalization initiatives were on the ballot in nine states on November 8, 2016. Four states—Arkansas, Florida, Montana, and North Dakota— approved measures providing for the medical use of marijuana, and four states—California, Maine, Massachusetts, and Nevada—approved initiatives allowing for its recreational use. The results in Maine were so close that opponents have requested a recount, which will likely start on December 5 and could take up to one month to complete. Only one state (Arizona) defeated a marijuana legalization initiative.

Not all of the approved initiatives contain express employment protections for marijuana users. Thus, employers must deal with the issues of enforcing a workplace drug policy amid state legalization of marijuana use. Because marijuana remains a controlled substance under federal law, maintaining a zero-tolerance drug policy is likely the best course of action. Interestingly, of all the cases considered by the courts thus far, the decisions have sided with employers’ rights to enforce drug-free workplace policies.

As more states pass marijuana-related laws, and as off-duty marijuana users are discharged for positive drug tests, employers’ drug-free workplace policies may come under additional scrutiny in those states that do provide express employment protections. Minnesota law, for example, prohibits employers from penalizing employees enrolled in the medical cannabis registration system for testing positive for marijuana unless the employee used, possessed or was impaired while working.

RLG Takeaway
Employers should consistently enforce their drug-free workplace policies. Employers should also continue to monitor those states providing express employment protections to marijuana users—on the off chance there is a decision that allows for an accommodation of an employee’s off-duty marijuana use when the employee is impaired on the job.

The New I-9 Form

United States Citizenship and Immigration Services (“USCIS”) released the new version of Form I-9 in mid-November, reminding us of the requirements of employment eligibility of new hires and verifying (or re-verifying) continued employment eligibility. Employers may continue to use the version dated 03/08/2013 through January 21, 2017.

Updates to the revised Form I-9 include interactive fields designed to ensure that information is entered correctly, on-screen instructions for completing each required field, drop-down lists, calendars when dates must be completed, and the addition of a separate section dedicated to information employers would otherwise have to add in the margins of the form. The revised form also includes the ability to access the instructions and to print or clear the form while remaining in the same screen. Once printed, the completed form will display a barcode readable by most QA readers.

The new Form I-9 is available here, and will be valid until August 31, 2019.

An Uptick in FLSA Claims

The U.S. District Court for the Northern District of Illinois has emerged as one of the nation’s busiest federal district courts with respect to wage-and-hour litigation. As reported by Crain’s Chicago Business, in 2015 alone, 542 Fair Labor Standards Act actions were filed in the Northern District of Illinois. Between 2011 and 2015, wage-and-hour actions filed with the Northern District of Illinois increased by 117%, and this upward trend in wage-and-hour litigation is likely to continue in the near future.

On a national basis, wage-and-hour filings increased by 9% from 8,066 filings in 2014 to 8,954 filings in 2015. Since 2000, wage-and-hour filings increased by 450%. Some of the top venues for wage-and-hour litigation include the federal district courts that encompass Miami, New York City, Orlando and Tampa. Last year, a combined 4,186 wage-and-hour cases, nearly half of the 8,954 wage-and-hour cases filed nationwide, were filed in the U.S. District Court for the Northern District of Illinois and district courts in New York andFlorida.

RLG Takeaway
Increased regulations and scrutiny by the U.S. Department of Labor will contribute to continued litigation in this area. If you’ve not had a legal audit, this is the time to do it. We anticipate this being a very hot litigation topic in the upcoming year.

OSHA Has Given Us Until Today (December 1)!

The Occupational Safety and Health Administration (OSHA) has agreed to delay, until December 1, 2016, enforcement of the controversial anti-retaliation provisions of its recent amendments to its Recording and Reporting Occupational Injuries and Illness regulation.

The amended rule:

Requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation;
Clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and
Incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

The rule prohibits employers from discouraging workers from reporting an injury or illness. Specifically, 29 C.F.R. 1904.35(b)(1)(iv), as amended, states, “You [the employer] must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” Post-accident reporting drug testing is not explicitly mentioned in the amendments but is discussed in the Federal Register notice, which states in part:

“[D]rug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.”

The anti-retaliation provisions of the rule became effective August 10, 2016, but OSHA initially delayed their enforcement until November 1, 2016. OSHA’s most recent extension was in response to a request by the U.S. District Court for the Northern District of Texas to allow additional time to consider a motion pending before the court in a case challenging the new provisions, TEXO ABC/AGC Inc. v. Perez, No. 3:16-cv-01998-D (N.D. Tex.).

On October 19, 2016, OSHA issued a memorandum intended to provide additional guidance on its new rule. The memorandum states that when OSHA evaluates the reasonableness of an incidence of post-accident drug testing, it will consider the following factors:

Whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred);
Whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness; and
Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due to the hazardousness of the work being performed when the injury or illness occurred.

While OSHA’s commentary does not have the force and effect of law, its October 19th memorandum makes clear its view that the regulation “prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.” It is unclear whether the new regulation preempts all state laws regarding employee drug testing, and we would be happy to discuss this issue with you further.

RLG Takeaway
Employers should review their post-accident drug testing policies to evaluate compliance with OSHA’s policy and interpretation of the regulation. This could mean a change from blanket post-accident drug testing, which is in most company policies.

This newsletter is provided for informational purposes only, not as legal advice. The reader of these materials should seek legal advice before using this or any other materials from this author.