Employers finally have some guidance regarding the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023. On August 11, 2023, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking to implement the law. The proposed rule will now enter a 60-day comment period, during which interested parties can submit feedback to the EEOC regarding the rule. The EEOC will take the comments into consideration when finalizing the rule, and we should expect a final rule to be in place in December 2023.

As a refresher on the PWFA, it is modeled after the Americans with Disabilities Act (ADA) and requires employers to make reasonable accommodations based on known limitations related to pregnancy, childbirth, or related medical conditions. Employers are not required to grant an accommodation request if it imposes an undue hardship. The terms “reasonable accommodation” and “undue hardship” have the same meaning as under the ADA. Additionally, employers should follow the interactive process after receiving a request for an accommodation, just like under the ADA.

The full text of the EEOC’s proposed rule is available here. However, answers to your most important questions are outlined below.

  • What is a “known limitation?”

A limitation is known to the employer if the employee or her representative has communicated it to the employer.

A limitation is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. One major difference between the PWFA and the ADA, is that a limitation does not need to rise to the level of a disability to trigger an employer’s duty to accommodate. A limitation can be a “modest, minor, and/or episodic impediment or problem.”

  • What are “related medical conditions?”

The proposed rule lists several potential issues that could be considered “related medical conditions,” including, for example: 1) termination of pregnancy (miscarriage, stillbirth, or abortion); 2) infertility/fertility treatments; 3) anxiety, depression, psychosis, or postpartum depression; 4) menstrual cycles; 5) use of birth control; 6) and lactation. This is not an all-encompassing list, and the proposed rule lists out additional “related medical conditions.”

  • Can I request medical documentation from an employee who requests an accommodation during the interactive process?

The EEOC suggests that the need for documentation should not be common because most accommodation requests will be “simple and straightforward.” In the event that an employer has “reasonable concerns” about whether the employee has a limitation, whether the employee’s limitation is caused by pregnancy, childbirth, or a related medical condition, and/or whether the accommodation is necessary, it may request medical documentation. In short, requesting medical documentation should be the exception, not the rule.

  • What is a reasonable accommodation under the PWFA?

The EEOC presumes that the following accommodations are reasonable: 1) allowing an employee to carry and drink water during the workday; 2) allowing an employee additional restroom breaks; 3) allowing an employee breaks to eat and drink; and 4) allowing an employee to sit or stand when necessary. The EEOC states that these accommodations will not cause undue hardship in virtually all cases.

Additional examples provided by the EEOC of possible accommodations are: 1) light-duty assignments; 2) providing an employee with different equipment, uniforms, or devices; 3) closer parking; 4) schedule changes/flexible hours; 5) temporarily suspending one or more essential functions; and 6) teleworking. A leave of absence (paid or unpaid) is also a reasonable accommodation, but it should only be offered as an accommodation if there is no other reasonable accommodation available.

  • What if an employee is unable to perform the essential functions of her job due to pregnancy, childbirth, or a related medical condition?

In the second major difference from the ADA, the EEOC suggests that temporarily excusing an employee from an essential function of the job is a reasonable accommodation, unless it would impose an undue hardship. Employers only need to excuse an employee from an essential function if the employee’s inability to perform the duty is 1) temporary, 2) the essential function can be performed “in the near future,” and 3) the inability to perform the essential function cannot otherwise be reasonably accommodated. The EEOC defines the phrase “in the near future” to generally mean 40 weeks.

The EEOC began accepting charges based upon the PWFA on June 27, 2023. Therefore, although the EEOC’s rule has not yet been finalized, employers should begin implementing policies and procedures in line with the proposal now. As the EEOC noted, voluntary compliance with the proposed rule and communication between employer and employee are key to the success of PWFA. We will continue to monitor the status of the proposed rule, and employers should keep a look out for updates on the final rule in December 2023.

In a huge victory for organized labor earlier today, the National Labor Relations Board paved the way for unions to represent workers even without holding a formal representation vote. The NLRB did this through a decision by its Democratic majority in a case involving Cemex Construction Materials Pacific LLC.

The NLRB’s Cemex Construction decision resurrected parts of a representation framework that it originally developed in 1949. The current framework will now involve the following steps:

  • A union can request that an employer recognize it as the employees’ bargaining representative. A union can make this request on the basis that a majority of employees in an appropriate bargaining unit signed authorization cards.
  • Once the employer receives this request, it must either: (1) recognize and bargain with the union; or (2) promptly file a petition with the NLRB seeking an election. 

Importantly, if an employer files a petition seeking an election and then commits certain types of unfair labor practices, the NLRB can dispense with the election altogether and simply order the employer to recognize and bargain with the union. 

The NLRB justified imposing this framework on employers by concluding that it will better enable the NLRB to deter employers from interfering with union elections.

If you have questions about this or other Labor and Employment issues, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.

We previously reported in May of 2022 that the U.S. Equal Employment Opportunity Commission (“EEOC”), in conjunction with the U.S. Department of Justice, issued guidance to employers, employees and applicants on the use of artificial intelligence tools.  We also reported in February of this year about the public hearing held by the EEOC in January, which lasted almost four hours, was attended virtually by almost 3,000 members of the public, and had testimony from 12 witnesses, including experts from the American Civil Liberties Union, the U.S. Chamber of Commerce, and the American Association of Retired Persons, as well as witnesses from law firms and universities. 

The EEOC has now reached a tentative settlement of its first discrimination suit based on the use of AI software.  In the EEOC v. iTutorGroup, Inc., E.D.N.Y., No. 22-cv-02565,  the EEOC alleged that iTutorGroup, which provides English-language tutoring services to students in China, was using AI software that automatically rejected applicants based upon their age.  The discriminatory practice was discovered after one of the rejected applicants resubmitted their application using a different birth date and was accepted for the position.

The EEOC and iTutorGroup have entered into a consent decree that needs to be approved by Judge Pamela K. Chen.  Under the terms of the consent decree, iTutorGroup will provide $365,000 to be distributed to more than 200 applicants who were denied jobs in violation of the Age Discrimination in Employment Act.  The Company must invite all applicants previously rejected between March and April 2020 to reapply, and it also must adopt anti-discrimination policies and conduct anti-discrimination training.  If approved, the consent decree will remain in effect for a period of five years.

This case highlights the aggressive stance that the EEOC is taking and will continue to take against companies that utilize AI software in their recruiting.  Examples of some of the AI tools that concern anti-AI advocates and the EEOC are: “resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test.”

If you have questions about the EEOC’s guidance on and examination of artificial intelligence, or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.

Pay transparency is on the rise. To date, eight states and multiple cities and localities have already enacted pay transparency statues – and several more jurisdictions have pending legislation. What do these laws require, and what should employers expect if they become subject to them?

Generally, these laws have three different components. They could have all three components or just one, depending on the individual statute:

  1. Employers are prohibited from considering a candidate’s salary history when making hiring or compensation decisions.
  2. Employers must disclose compensation information (usually in the form of a salary range) to job candidates. Employers typically must do this during the hiring process upon a candidate’s request, or publicly disclose a salary range by including it in a job posting. The amount of information employers must disclose can also vary – in some states, employers must disclose a general description of all benefits and other compensation in addition to a salary range.
  3. Employers must maintain records or report on historical salaries for various positions.

Currently, Ohio does not have a state-wide pay transparency statute. However, city ordinances in Toledo and Cincinnati require that certain employers provide the pay scale to an applicant who has received a conditional offer of employment.

What does it mean for your organization if you are subject to pay transparency laws or become subject to one in the future? Keep the following practical considerations in mind:

  • Multi-state employers. Employers with locations in multiple states should stay up to date on new and pending legislation. Additionally, be mindful of the differences between the laws – what do you have to disclose, at what point in the hiring process do you have to disclose it, etc.? Consider whether you should implement state-specific practices to comply, or create a nationwide policy to comply with the most restrictive laws for jurisdictions in which you operate.
  • Remote-only positions. Pay transparency poses a particularly challenging question for remote-only postings, which could be theoretically filled by a candidate from any state. So, what if an employer is based in a state without pay transparency laws, but an applicant lives in a state with pay transparency requirements? Some states have resolved that employers must take notice of a remote applicant’s physical location to ensure compliance with laws that apply to the applicant. In other words, if the applicant lives in a jurisdiction with pay transparency laws, the employer must comply with those laws regardless of where the employer is based. But in other states, this is still unclear.
  • Training. Employers should train HR staff, managers, and others who are interviewing applicants to make sure they are aware of and complying with these laws, particularly in jurisdictions where employers are only required to disclose pay upon an applicant’s request.
  • Discrimination claims. Along with the rise of pay transparency laws, employers may see an increase in discrimination litigation based on inequitable pay. So, employers should be proactive and consider implementing routine audits into their pay practices and compensation structures to identify these potential areas of inequity and work to rectify them – instead of discovering them for the first time in a lawsuit.
  • Reporting obligations. Employers should keep detailed records of job titles, responsibilities, and salaries in the event they are called on to report on this data.
  • Be proactive. Avoid perpetuating pay inequities when determining compensation by focusing on salary expectations and job responsibilities – instead of salary history.

Any of the attorneys in Frantz Ward’s Labor & Employment group are happy to assist you with monitoring pay transparency legislation, or any of the other action items above. If you have any questions, please contact Katie McLaughlin or any other Frantz Ward Labor & Employment attorney.

In Glacier Northwest, Inc., v. International Brotherhood of Teamsters the Supreme Court recently ruled that employers can seek tort claims against unions who purposefully destroy employer property during labor disputes.

Glacier Northwest is a concrete company in Washington state, and had a collective bargaining agreement (“CBA”) with the International Brotherhood of Teamsters Local Union No. 174 (the “Union”). After the CBA between Glacier and the Union expired, the Union called for a work stoppage on a morning it knew the company was in the midst of mixing substantial amounts of concrete and making deliveries. On the day of the work stoppage, the Union directed its members to deliberately ignore Glacier’s instructions to complete the concrete deliveries in progress, leaving uncured concrete in varying trucks. It is well known that if uncured concrete is not properly handled, it can harden and cause significant damage to trucks and other property. While Glacier was able to take steps to offload concrete from the trucks in question, the offloaded concrete quickly became useless, resulting in financial harm to Glacier.

Glacier initially sued the Union for damages in state court, claiming that the Union intentionally destroyed the company’s concrete and that this conduct amounted to common-law conversion and trespass to chattels. The Union moved to dismiss Glacier’s tort claims on the ground that the National Labor Relations Act (NLRA) preempted them. The Washington trial court dismissed the lawsuit on preemption grounds, and the Washington Supreme Court later affirmed the decision, holding that “the NLRA preempts Glacier’s tort claims” because the loss “was incidental to a strike arguably protected by federal law.”

Strike misconduct has typically been considered protected activity pursuant to the NLRA, and thus generally immune from tort claims. However, in an 8-1 decision, the Supreme Court ruled that The NLRA did not preempt Glacier’s tort claims alleging that the Union intentionally destroyed the company’s property during a labor dispute. The Court found that the Union’s coordinated strategy of deliberately refusing to deliver concrete created both a foreseeable and serious risk to Glacier’s equipment and its concrete, and was deliberately designed to cause such harm. Because the Union failed to “take reasonable precautions to protect” against the foreseeable and imminent danger, such tactics were not considered protected activity and thus, not protected by the NLRA.

The Supreme Court’s ruling makes clear that employers who face intentional destruction of property by Unions, where the Union did not take reasonable precautions to stop such behavior, can seek damages. The issue of what constitutes “reasonable precautions” will likely be litigated in the future, but the Court’s decision brings a sense of relief to employers subjected to strike misconduct.

If you have questions regarding Glacier Northwest, Inc., v. International Brotherhood of Teamsters, contact Jonathan Scandling or any other Frantz Ward Labor & Employment attorney.

Videoconferencing made many employee onboarding tasks easier under COVID-related rules, including the inspection of passports, birth certificates and other I-9 documents. Those COVID-related rules are ending, however, and employers now have to conduct an in-person inspection of all I-9 documents that they examined virtually.

Federal law has long required employers to complete a Form I-9, Employment Eligibility Verification, for each employee within 3 business days of the employee’s first day of work. As part of this process, the employee’s passport, driver’s license or other I-9 documents had to be physically inspected in the employee’s presence, and the person who conducted the inspection had to complete the employer’s portion of the I-9 form. Due to health concerns during COVID, the U.S. Department of Homeland Security (DHS) announced temporary rules, under which employers could inspect I-9 documents virtually, by videoconference or otherwise, rather than in person.

When DHS issued these rules, it made it clear that it was simply deferring, and not eliminating, the employer’s obligation to conduct an in-person inspection of the I-9 documents. Although DHS extended the deferral period for an in-person inspection several times, it recently confirmed that the deferral period is ending on July 31, 2023, with a 30-day grace period until August 30, 2023.

In order to comply with the recent guidance from DHS, employers should therefore do all of the following no later than August 30: (1) identify all I-9 forms that were completed with a virtual inspection of the supporting documents; (2) arrange for an appropriate in-person inspection of the supporting documents; and (3) make the necessary notations on the I-9 forms to confirm the in-person inspection. If an employer fails to complete these steps, it could face consequences in the event of a DHS audit or other compliance proceeding.

If you have questions about this or other Labor and Employment issues, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.

On May 1, 2023, the Occupational Safety and Health Administration (“OSHA”) announced its second National Emphasis Program (“NEP”) in three months, this time addressing the leading cause of fatal workplace injuries and the most frequently cited health and safety standard during construction industry inspections: falls.

According to a statement released by Assistant Secretary for OSHA, Doug Parker, the release of the NEP intentionally coincided with last week’s 10th annual National Safety Stand-Down to Prevent Falls in Construction week. In the same statement, Assistant Secretary Parker cited to Bureau of Labor Statistics and OSHA data documenting 5,190 fatal workplace injuries in the year 2021, 680 of which were associated with falls from elevations that represent 13% of all deaths.

While it is anticipated that most inspections will occur in the construction industry (all of which will be conducted under the NEP), the NEP applies to all industries and identifies the following non-construction activities being targeted:

  • Roof top mechanical work/maintenance (e.g., HVAC)
  • Utility line work/maintenance (electrical, cable)
  • Arborist/tree trimming
  • Holiday light installation
  • Road sign maintenance/billboards
  • Power washing buildings (not connected to painting)
  • Gutter cleaning
  • Chimney cleaning
  • Window cleaning
  • Communication towers

Significantly, the NEP will focus on reducing fall-related injuries and fatalities for people working at all heights, including those less than four feet (the height threshold referenced in several OSHA general industry standards). The NEP also permits compliance officers to initiate inspections “whenever they observe someone working at heights,” as well as in response to reportable incidents, referrals and complaints. The NEP takes immediate effect and contains no date of expiration. As such, employers in construction and non-construction industries should expect and prepare for an increase in on-site inspections relating to fall hazards in 2023 and beyond.

Employee handbooks are vital tools employers use to communicate expectations for employee conduct, company culture and core values, policies, and procedures. However, when drafted poorly, handbooks can create confusion and legal liability. Below are some of the most common mistakes employers make in their employee handbooks, and how to fix them.

  1. Inadvertently creating an employment contract. Employee handbooks should include a disclaimer stating that employees are at-will, and that the handbook does not create a contract of continued employment between the employer and employee. If the handbook does not contain such a disclaimer, it could create an employment relationship terminable only for cause. Similarly, language that creates “probationary” periods for employees in the first months of their employment could also alter the at-will employment relationship. Employees may wrongly assume that they are no longer at risk for termination based on performance after they have completed their probationary period, which can lead to potential lawsuits if they are later terminated.
  2. Restricting employees’ discussion of terms and conditions of employment. Under Section 7 of the National Labor Relations Act, employers (union and non-union) may not interfere with, restrain, or coerce employees in exercising their right to engage in concerted activities. Employers commonly run afoul of the NLRA by prohibiting employee discussion of terms and conditions of employment, including wages. In turn, an employer’s social media policy that broadly prohibits any and all posts about these issues could implicate the NLRA. To avoid this, advise employees that, if they chose to post about work on social media, they should include a disclaimer clarifying that their opinions are their own and do not reflect the company’s viewpoints. However, employers can still require confidentiality in other areas like corporate information and customer data.
  3. Including a half-baked harassment policy. Handbooks must define workplace harassment, require employees to report harassment if they experience or witness it, and clearly outline the procedure for doing so. Spell out harassment reporting procedures, including to whom the employee should make a report (and an alternate in the event that the designated person is the alleged harasser). Not only will an effective anti-harassment policy protect employees, but it is also a requirement of the Faragher/Ellerth affirmative defense to sexual harassment claims.
  4. Failing to periodically update the handbook. While employers shouldn’t rewrite their handbook after every minor amendment to state law, they should periodically re-evaluate whether it comports with the laws of the states they operate in. This is especially true for policies implicating recent hot-button employment issues like non-compete and non-disclosure agreements, drug testing, pay transparency, etc. Similarly, employers should re-evaluate handbooks after significant company changes, like mergers/acquisitions, downsizing, or rapid workforce growth. State and federal employment laws apply to employers based on number of employees (among other factors). For example, an employer who recently grew from 40 to 60 employees could now be subject to the Family and Medical Leave Act, which applies to employers with 50 or more employees (among other requirements). Employers should make sure they have the proper policies in place to maintain compliance with state and federal laws.
  5. Drafting handbooks in inaccessible legalese. If employee policies are needlessly complicated and hard to understand, employees are less likely to carefully read the handbook, and in turn less likely to follow policies. Keep language simple and concise. Handbooks should be practical, approachable guides for employees – not just policies in boilerplate language to help mitigate risk in the event the employer gets sued.

An experienced employment lawyer can evaluate your employee handbook for compliance and update it based on your unique business needs. If you have questions about this or other Labor and Employment issues, contact Katie McLaughlin or another member of the Frantz Ward Labor and Employment Practice Group.

Prescription medications are a necessary, albeit expensive component of any self-insured workers’ compensation program. Unfortunately, injured workers are often prescribed unnecessary prescription drugs which can lead to dangerous health conditions and increased complexity of workers’ compensation claims. Physicians continue to prescribe and dispense opioids which are the most expensive therapy class in workers’ compensation. Studies show that injured workers with longer-term opioid prescriptions result in three times longer disability than for injured workers with similar injuries who did not receive opioid prescriptions. In the world of workers’ compensation, the medical benefits portion of a claim may be open for a number of years or even a lifetime of an injured worker. As the years progress, prescription medications become a bigger portion of the medical expense which is especially true if the injured worker has become dependent or addicted to opioid medication to control pain. In short,  increasing use of prescription medications imposes unique challenges on self-insured workers’ compensation programs.

What, if anything, can be done to control these escalating costs? By closely monitoring their workers’ compensation claims, self-insured employers can help control prescription medication costs and drive better overall workers’ compensation claims outcomes. In fact, the Ohio Administrative Code (O.A.C.) §4123-6-21.1  sets forth the procedures whereby self-insured employers can unilaterally terminate reimbursement for ongoing prescription medications under specific circumstances by:

  • Providing written notice to the injured worker, their authorized representative and the physician who is prescribing the medication that the self-insured employer will be obtaining a review from an independent physician to address the necessity and appropriateness of the continued use of prescription medications.
  • The written notice must inform all parties to the claim and the prescribing doctor that they have twenty one days to provide additional information justifying the need for ongoing medications.
  • The employer must wait until the twenty one days elapses before sending the documents  (including the information provided on behalf of the injured worker) to an independent doctor to review and address the issue of the medical rationale, necessity and appropriateness of the current prescription drugs.

In the event the independent physician reviewer’s report indicates that the prescription drugs are not necessary or appropriate for the treatment of the conditions allowed in the workers’ compensation claim, the employer may terminate the reimbursement for the medications upon receipt of the report, unless the drug is in a class that requires a “weaning-off” period as set forth in the appendix to O.A.C. §4123-6-21.5, or such other date as agreed to by the prescribing physician and the self-insuring employer. The employer must provide all parties and the prescribing doctor with a copy of the independent physician’s report and written notice of its decision to terminate. The employer must also advise the parties that the injured worker has the right to request a hearing before the Industrial Commission.

Please keep in mind that self-insuring employers may continue to deny INITIAL requests for a drug as not being reasonably related to, or medically necessary for the treatment of the allowed conditions in the claim in accordance with Paragraph J of O.A.C. §4123-6-21.1.

Based on the foregoing, Ohio self-insured employers should regularly review their workers’ compensation claims which have continuing prescription bills and implement the foregoing procedures to control their claim costs.

If you have any questions regarding the termination of reimbursement of prescription medications, please contact Maris McNamara or any of Frantz Ward’s other workers’ compensation attorneys.

On Wednesday, the Supreme Court ruled in Helix Energy Solutions Group, Inc. v. Hewitt that an employee who earned more than $200,000 a year was not exempt from overtime pay under the FLSA’s highly compensated employee exemption.

The highly compensated employee exemption applies to employees who meet all the following criteria:

  • Perform office or non-manual work;
  • Receive total annual compensation of $107,432 or more, which must include at least $684 per week paid on a salary basis; and
  • Customarily perform at least one of the duties of an exempt executive, administrative, or professional employee.

The Court’s decision in Helix hinged upon the “salary basis” test set forth in the FLSA regulations. In summary, an employee is paid on a salary basis if he or she receives a predetermined and fixed payment on a weekly or less frequent basis that does not vary with the quality or quantity of work.

In Helix, although the employee was very highly compensated, he was paid a daily rate, meaning that he was paid only for days on which he worked, and he was never guaranteed a minimum weekly pay. In contrast, an employee paid on a salary basis is guaranteed his or her entire salary for any week in which work is performed, regardless of how many days the employee worked that week. The Court explained that although the employee in Helix received his paycheck every two weeks and the paycheck exceeded the salary level required by the exemption, this was not sufficient to meet the exemption, and he was entitled to overtime pay.

The Helix case is an important reminder to employers to review their job descriptions and pay practices to ensure all elements of the FLSA exemptions are met. Employers are encouraged to consult with counsel for assistance in performing regular FLSA audits. For more information, please contact Megan Bennett or any member of Frantz Ward’s Labor & Employment Group.