June 2016 / Vol. 6 No. 3

In This Issue

Overtime Rules
Hospital Sued for Religious Discrimination
OSHA Issues New Electronic Recordkeeping Requirements
New ADA Resource Document
Defend Trade Secrets Act
Final Rules on Employer Wellness Programs

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DOL Issues New Overtime Rules

Note: Healthcare Council invites members to attend an Issues Briefing on the new overtime regulations. The briefing will be held on June 29th from 9:30 a.m. until 11:30 a.m. at Healthcare Council's Conference Center. There is no charge to attend but registration is required. Contact Pat Raffaele for more information.

The US Department of Labor has issued its final updated regulations governing the exemption of executive, administrative, and professional employees from the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA). The final rule sets the standard salary level at the 40th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region, currently the South. The effective date of the final rule is December 1, 2016. The initial increases to the standard salary level (from $455 to $913 per week) and Highly Compensated Employees total annual compensation requirement (from $100,000 to $134,004 per year) will be effective on that date. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020. The table below provides a comparison of the existing and new FLSA regulations.

Current Regulations / New Regulations
Salary Level / $455 weekly / $913 weekly
HCE Total Annual Compensation Level / $100,000 annually / $134,004
Automatic Adjusting / None / Every 3 years
Bonuses / No provision to count non- discretionary bonuses and commissions toward the standard salary level / Up to 10% of standard salary level can come from non-discretionary bonuses, incentive payments, and commissions, paid at least quarterly.
Standard Duties Test / See WHD Fact Sheet #17A for a description of duties. / No changes to the standard duties test.

Online Resources:

Fact Sheet summarizing the rules

Questions and Answers on the new overtime rules

North Carolina Hospital Sued by EEOC for Religious Discrimination Over Flu Vaccination Policy

The Equal Employment Opportunity Commission (EEOC) has charged Mission Hospital, Inc. with violating federal laws by failing to accommodate employees and firing them because of their religious beliefs. According to the EEOC, the hospital requires employees to receive a flu vaccination annually no later than December. An employee may request an exemption based on religious beliefs, but that request must be made by September 1, or it is subject to being denied. EEOC claims that several employees requested religious exemptions to the vaccination requirement after the deadline, and were denied. The hospital subsequently fired them. Title VII of the Civil Rights Act of 1964 requires employers to make a reasonable accommodation for an employee's sincerely held religious beliefs as long as doing so does not pose an undue hardship on the employer. EEOC filed suit in the US. District Court for the Western District of North Carolina (EEOC v. Mission Hospital, Inc.) after attempting to reach a settlement through its conciliation process. The agency seeks back pay, compensatory damages, punitive damages and reinstatement or front pay. The complaint also seeks injunctive relief.

OSHA Issues New Electronic Recordkeeping Requirements; Creates Cause of Action for Employees

The Occupational Safety and Health Administration (OSHA) has amended its recordkeeping regulation to require many employers to submit OSHA 300 Logs, OSHA 301 forms, and OSHA 300A summaries to the agency electronically. The amendments, which were published in the Federal Register, also prohibit employers from retaliating against employees for reporting work-related injuries or illnesses, giving the agency the power to order employers to reinstate employees or provide back pay. The changes allow OSHA and other stakeholders to access injury and illness data and create a new cause of action for employees who claim their employer retaliated against them for reporting a work-related injury or illness.

The new rule takes effect January 1, 2017. The new electronic reporting requirements will be phased in over two years. Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. The electronic system will allow OSHA, as well as any member of the public, to access the injury and illness data of any establishment that must report electronically.

EEOC Publishes New ADA Resource Document

In May, the Equal Employment Opportunity Commission (EEOC) issued a resource document, Employer-Provided Leave and the Americans with Disabilities Act, that addresses "the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation," which the agency contends serve as barriers to the employment of workers with disabilities. According to EEOC, "this document seeks to provide general information to employers and employees regarding when and how leave must be granted for reasons related to an employee's disability in order to promote voluntary compliance with the Americans with Disabilities Act (ADA). It is consistent with the EEOC's regulations enforcing Title I of the ADA, as well as the EEOC's 2002 Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. Noting the increase in charges of discrimination that allege violations of the ADA, the EEOC believes this resource document "explains to employers and employees in a clear and practical way how to approach requests for leave as a reasonable accommodation so that employees can manage their health and employers can meet their business needs." Although the resource document does not carry the weight of official guidance issued by the agency, the expectation is that it should guide employer decision-making when considering leave as an ADA reasonable accommodation. The publication addresses a number of topics including: equal access to leave under an employer's paid leave policies; granting leave as a reasonable accommodation; communication after an employee requests leave; communication during leave and prior to returning to work; maximum leave policies; types of maximum leave policies; return to work and reasonable accommodation; and undue hardship.

New Law Could Impact Nondisclosure Agreements

The new Defend Trade Secrets Act (DTSA) requires employers to comply with a notice requirement in new and existing contracts or agreements with employees that govern "the use of a trade secret or other confidential information," such as nondisclosure agreements, providing for a whistle-blower's right to disclose trade secret information to federal enforcement authorities. Specifically, Section 7(b) of the Act entitled Immunity from Liability for Confidential Disclosure of a Trade Secret to the Government or in a Court Filing states:

"1) Immunity-An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that-(A) is made-(i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(2) Use of Trade Secret Information in Anti-Retaliation Lawsuit-An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual-(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order."

According to legal experts, using the language from the statute is one way to ensure compliance. Paraphrasing is another option. Or an employer might choose to include either the statute's language or the paraphrased language in its whistle-blower policy and then refer to the policy in a nondisclosure agreement. Furthermore, organizations should consider taking the opportunity to educate employees about what constitutes a trade secret and how trade secrets are protected, remind departing employees of their continuing duties to protect trade secrets, and look for any signs of trade secret theft.

EEOC Issues Final Rules on Employer Wellness Programs

The Equal Employment Opportunity Commission (EEOC) has issued new final rules that describe how employer-provided wellness programs can comply with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The rules clarify limits on financial incentives that may be included for participants in voluntary programs. The rules also address how ADA and GINA compliant wellness programs can maintain consistency with the Health Insurance Portability and Accountability Act (HIPAA) as amended by the Affordable Care Act. The rules set limits on financial incentives applicable to the cost of health premiums and for tobacco cessation programs. They also require employers to provide reasonable accommodations to employees with disabilities so that all employees can participate in wellness programs unless doing so would create an undue hardship.

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