Could Wellness Programs Be Making Your Company “Sick?” The Potential Perils of Collecting Biometric Data About Employees

Biometric data

Wearable devices that track and record personal biometric data are hardly new to the technology scene. In addition to the now-commonplace electronic pedometers and heart rate monitors, there are portable and wearable devices that, quite literally, do everything – from administering medical tests, like electrocardiograms, to analyzing the quality of one’s sleep based on user input. Never before, however, have employers had such ready access to this personal information about employees. It is this access – and the employer’s use of the gathered data – that can pose a legal trap for the unwary employer. Continue reading this entry

How Will the EEOC Change Under the Trump Administration?

EEOC Developments

Employers, human resource professionals, and employment attorneys all have the same burning question on their minds – what is the Trump administration’s Equal Employment Opportunity Commission (EEOC), with newly appointed Acting Chair Victoria A. Lipnic, going to do?

An important part of this conversation is understanding the ways in which the EEOC is able to wield its agency power. In other words, some EEOC actions and regulations are directly attributable to the agency itself, while other EEOC actions find support in our existing laws and their judicial interpretation.

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Federal Court Shoots Down EEOC Subpoena

EEOC Developments

Employers facing Equal Employment Opportunity Commission (EEOC) charge investigations may find themselves on the receiving end of overly broad, unduly burdensome and/or irrelevant information requests from the EEOC. If an employer refuses to comply with the requests, the EEOC has the authority to issue a subpoena.  However, the agency’s subpoena power is not without limitations.

A recent case decided by the Tenth Circuit Court of Appeals  (covering Colorado, Kansas, Oklahoma, New Mexico, Wyoming, and Utah) demonstrates the limits of EEOC subpoena power.  In that case an EEOC subpoena sought information regarding an employee’s charge of disability and pregnancy discrimination. The company refused to comply and the EEOC took the matter to court seeking enforcement of the subpoena.

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One of Our Employees Died at Work – Am I Going to Jail?

(OSH) Act

Most know that lawsuits against an employer based on an employee’s workplace injury are barred by the applicable State’s Worker’s Compensation Act. However, did you know that in some circumstances, an employer may be criminally liable for a workplace fatality?  It’s true.  Under the Occupational Safety and Health Act (OSH Act), when the cause of an employee’s death is determined to be directly related to a willful violation of an applicable health and safety regulation, criminal penalties can be assessed against the employer. The same is true (and to a typically more significant effect) under some state laws, as well.

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Right-To-Work Laws Continue to Gain Momentum at Federal, State, and Local Levels

da_hr

For nearly fifty years, the debate over “right-to-work” laws had largely been considered settled. The concept was popular in the south, where a number of states have had right-to-work-laws on the books since before the 1960’s, but had gained little traction elsewhere.  Though all states were free to pass laws adopting right-to-work, few states outside this initial core group did so.  In fact, between 1963 and 2012, only two additional states (Idaho in 1985 and Oklahoma in 2001) enacted right-to-work.  The last five years, however, have seen an explosion in right-to-work laws that shows no sign of slowing down.

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