EEOC Scores First Victory in Sexual Orientation Discrimination Lawsuit

Score a victory for the Equal Employment Opportunity Commission (EEOC) in its effort to get courts to side with its position that Title VII of the Civil Rights Act prohibits discrimination based not only on sex but also on sexual orientation.

eeoc-wins-first-sexual-orientation-discrimination-lawsuitThe commission’s sexual orientation discrimination lawsuit against Scott Medical Health Center, P.C., was one of the first two it filed and has now become the first to result in a victory.  A federal district court in Pittsburgh recently awarded the EEOC, on behalf of Scott Medical employee Dale Massaro, more than $55,000 in damages, the statutory maximum.

The court also issued a permanent injunction barring Scott Medical from engaging in any further sex harassment and requiring it to report to the EEOC for five years on any sex harassment complaints it receives.

Massaro worked as a telemarketer at Scott Medical and was subjected by his supervisor to “derogatory comments, slurs, and offensive questioning about his personal relationships.” When Massaro reported the harassment to the CEO, the CEO informed him that the supervisor was “just doing his job” and took no corrective action. After about a month into the job, the employee couldn’t take it anymore and quit. The EEOC then filed a sexual orientation discrimination lawsuit on his behalf in March 2016.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Announces 18-Month Extension of Transition Period for Fiduciary Rule Enforcement

The Department of Labor (DOL) has announced an 18-month extension from Jan. 1, 2018, to July 1, 2019, of the special Transition Period for the Fiduciary Rule’s Best Interest Contract Exemption and the Principal Transactions Exemption, and of the applicability of certain amendments to Prohibited Transaction Exemption 84-24 (PTEs). This follows public comment on a proposed extension that was published in August.

dol-announces-extension-of-fiduciary-rule-transition-periodThe extension gives the department the time necessary to consider public comments submitted pursuant to the department’s July Request for Information, and the criteria set forth in the Presidential Memorandum of Feb. 3, 2017, including whether possible changes and alternatives to exemptions would be appropriate in light of the current comment record and potential input from — and action by — the Securities and Exchange Commission (SEC), state insurance commissioners and other regulators. The president directed the department to prepare an updated analysis of the likely impact of the Fiduciary Rule on access to retirement information and financial advice.

During the extended Transition Period, fiduciary advisers have an obligation to give advice that adheres to “impartial conduct standards.” These fiduciary standards require advisers to adhere to a best interest standard when making investment recommendations, charge no more than reasonable compensation for their services, and refrain from making misleading statements.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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EEOC Releases ‘Promising Practices’ for Preventing, Responding to Harassment

In advance of issuing revised sexual harassment guidelines — the first revision in two decades — the Equal Employment Opportunity Commission (EEOC) has issued a report by its Select Task Force on the Study of Harassment in the Workplace detailing five principles that have generally proven effective in preventing and addressing harassment.eeoc-issues-report-on-harassment-in-the-workplace

Called ‘Promising Practices,” the five principles are:

  1. Committed and engaged leadership
  2. Consistent and demonstrated accountability
  3. Strong and comprehensive harassment policies
  4. Trusted and accessible complaint procedures
  5. Regular, interactive training tailored to the audience and the organization

The report includes checklists based on these principles to assist employers in preventing and responding to workplace harassment. The promising practices identified in this document are based primarily on these checklists. Although these practices are not legal requirements under federal employment discrimination laws, they may enhance employers’ compliance efforts.

The report notes:

When evaluating the effectiveness of harassment prevention and correction strategies, it may be helpful for organizations to carefully analyze complaint trends. A relatively high number of internal complaints may signify that harassment has occurred or was perceived to have occurred, but may also indicate employees’ awareness of and confidence in the internal complaint process. A relatively low number of internal complaints may result from employees’ lack of awareness or trust in the complaint process, or, alternatively, from the absence of harassing conduct in the organization. Organizations may find it helpful to solicit information from employees in anonymous surveys, harassment training sessions, or other settings in which employees may feel comfortable, regarding their awareness of and confidence in the organization’s harassment policies and complaint procedures. Organizations could also solicit suggestions from employees about how to enhance employees’ knowledge of and faith in the organization’s harassment prevention and correction efforts.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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ICE to Target National Food Service Chain, Report Asserts

According to The Daily Beast, which claims to have obtained an internal Immigration and Customs Enforcement (ICE) memo, ICE agents will soon be targeting a “national food service chain.” The chain was unnamed in the report.

ICE-to-target-nationwide-food-chain-for-hiring-illegal-aliensStatistics indicate that the food service industry workforce in general consists of some 9 percent undocumented workers.

Tom Homan, acting ICE director, recently announced that his agents would be increasing their “worksite enforcement” rate by four- or five-fold and would be deporting any illegal aliens found at a business and also punishing owners who violate the law.

“Not only are we going to prosecute the employers that hire illegal workers, we’re going to detain and remove the illegal alien workers,” Homan said recently in a speech at the conservative Heritage Foundation.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Delays Compliance Deadline for ERISA Disability Benefits Procedure

The Department of Labor (DOL) has announced a 90-day delay – through April 1, 2018 – of the applicability date for ERISA plans to comply with a final rule amending the claims procedure requirements applicable to disability benefits.

labor-department-delays-erisa-disability-compliance-deadline

Labor Secretary Acosta

The three-month delay of the applicability date announced Nov. 24 is intended to give interested stakeholders the opportunity to submit, and for the department to consider, data and information related to concerns by some insurance industry and employer groups, and some members of Congress, that the claims procedure amendments will drive up disability benefit plan costs, cause an increase in litigation and, in so doing, impair workers’ access to disability insurance benefits.

The final rule amending the disability benefits claims procedure requirements for ERISA plans was published in the Federal Register on Dec. 19, 2016. The amendments were to become applicable to claims for disability benefits filed on or after Jan. 1, 2018.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Extends Deadline for Injury-Illness Electronic Filing

To allow affected employers additional time to become familiar with a new electronic reporting system launched on Aug. 1, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA)  has extended the  date by which employers must electronically report injury and illness data through the Injury Tracking Application (ITA) to Dec. 15, 2017.osha-extends-electronic-filing-deadline-for-injuries-illnesses

OSHA’s final rule to Improve Tracking of Workplace Injuries and Illnesses sets Dec. 15, 2017, as the date for compliance (a two-week extension from the Dec. 1, 2017, compliance date in the proposed rule). The rule requires certain employers to electronically submit injury and illness information they are already required to keep under existing OSHA regulations.

Unless an employer is under federal jurisdiction, the following OSHA-approved State Plans have not yet adopted the requirement to submit injury and illness reports electronically: California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming.  Establishments in these states are not currently required to submit their summary data through the ITA.

Similarly, state and local government establishments in Illinois, Maine, New Jersey, and New York are not currently required to submit their data through the ITA.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Releases Fact Sheet on Confined Spaces in Residential Construction

The Occupational Safety and Health Administration (OSHA) has developed a standard for Confined Spaces in Construction (29 CFR 1926 Subpart AA) that applies to spaces such as attics, basements, and crawl spaces. To help employers understand this standard, the agency has just released a Fact Sheet to go along with a set of FAQs.

A confined space that contains certain hazardous conditions may be considered a permit-required confined space under the standard. Permit-required confined spaces can be immediately dangerous to workers’ lives if not properly identified, evaluated, tested and controlled, according to OSHA.

Before beginning work on a residential homebuilding project, the Fact Sheet explains, each employer must ensure that a competent person identifies all confined spaces in which one or more employees it directs may work, and identifies each space that is a permit-required confined space.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Trump Nominates Pharma Exec to Head HHS

President Trump has nominated Alex Azar to head up the Department of Health and Human Services (HHS).

alex-azar-named-to-head-hhsAs recently as January of this year, Azar was president of the American wing of pharmaceutical giant Eli Lilly, where he served from 2012 in various posts. Under President George W. Bush, Azar served as deputy secretary of HHS from 2005 to 2007.

The post of HHS secretary has been vacant since Tom Price, M.D., resigned in September amid scrutiny of his use of chartered and military jets for transportation — to the tune of at least $1 million in taxpayer funding.

Azar was on a short list for the nomination. Two other  potential nominees — Veterans Affairs Secretary David Shulkin and FDA Commissioner Scott Gottlieb — said publicly they were happy in their current roles, leaving the field open.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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GOP Adds Obamacare Mandate Repeal to Senate Tax Bill

Eyeing to save $300 billion over 10 years to help finance individual tax cuts, Senate Republicans on Tuesday (Nov. 14) added repeal of the Affordable Care Act (ACA, or Obamacare) individual mandate to its tax legislation. The move also allows tax writers to up the child tax credit to $2,000, a goal of First Daughter Ivanka Trump.

GOP-eyes-repeal-of-Obamacare-individual-mandate

HealthCare.gov website

The Congressional Budget Office (CBO) estimates that ending the mandate will result in 13 million individuals dropping their health care coverage, and in the process will raise premiums by 10 percent for everyone remaining on the Obamacare exchanges.

“We’re optimistic that inserting the individual mandate repeal would be helpful,” Senate Majority Leader Mitch McConnell, R-Ky., said Tuesday after meeting with party members during a closed-door lunch.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Is Your State More Prone to Employee Discrimination Lawsuits?

Nationwide, according to a new study, American businesses face an average 10.5 percent chance of being sued by an employee for discrimination, or for retaliation for reporting discrimination. The District of Columbia leads all U.S. locations at a whopping 81 percent, but some states also present great odds, led by Nevada and Delaware at 55 percent.

discrimination-lawsuits-state-by-stateThe other states with higher-than-average odds are New Mexico (50 percent), California (46 percent), Mississippi (43 percent), Alabama (39 percent), Illinois (35 percent), and Georgia and Connecticut (19 percent).

The study, conducted by global insurer Hiscox, notes:

State laws on discrimination vary and many of the higher-risk states have laws that are more stringent than federal statutes, creating additional obligations and risks for employers. It’s critical for companies, especially those with operations in multiple states, to stay current on employment law and the related exposures. Some states (AK, DC, KY, LA, MI, MN, NE, NJ, NY, OH, OK, OR, VT and WA) allow employees to go to court without filing a federal or state charge.

And how about the cost of these lawsuits? Hiscox reports:

A representative study of 1,214 closed claims reported by small to medium-sized enterprises (SMEs) with fewer than 500 employees showed that 24% of employment charges resulted in defense and settlement costs averaging a total of $160,000. On average, those matters took 318 days to resolve.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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