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EEOC files historic lawsuit challenging biometric testing by employers

It’s no secret that health insurance costs are out of control. To help combat this surge, many employers have turned to biometric testing for their employees. Biometric testing is part of corporate wellness programs where employees measure certain levels, such as blood pressure and cholesterol, for breaks on insurance premiums under the Affordable Care Act.

If the Affordable Care Act expressly permits this testing, then why is the EEOC claiming that Honeywell’s biometric testing program violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act?

On Monday, the EEOC filed a lawsuit seeking a temporary restraining order declaring Honeywell’s biometric testing illegal. According to the EEOC’s lawsuit, ­Honeywell’s program creates up to $4,000 in penalties for employees unless they and their spouses take blood and medical tests that can identify smoking, diabetes, high blood pressure, obesity and other health problems. The Minneapolis Star Tribune quotes an EEOC attorney, who said, “Honeywell’s tests and threatened penalties go too far because they are not job-related and are not consistent with any business necessity…. They can only do that in ­situations where it’s ­voluntary for the employee to answer.”

For its part, Honeywell has called the lawsuit “frivolous”

The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace…. The incentives we provide are specifically sanctioned by two separate Federal statutes—HIPAA and the ACA. Honeywell’s wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs. No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs…. We’re proud to provide employees with the opportunity to lead healthier lifestyles and are disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.

Because the EEOC is seeking a TRO, I would expect this case to unfold quickly. I will keep everyone updated as this important story develops. Special thanks to Kate Bischoff for brining this to my attention.

Court of appeals decision highlights risk of (mis)classifying employees

I once handled a wage-and-hour investigation in which the employer, before retaining my services, hired an HR consultant to help classify its employees as exempt or non-exempt. The DOL, however, disagreed, and reclassified half of the company’s employees (with corresponding back pay awards for unpaid overtime for those employees moved from exempt to non-exempt).

FLSA exemptions are highly fact specific and highly subjective. One person’s exempt manager is another’s non-exempt clerk. Case in point? Little v. Belle Tire Distributors (6th Cir. 10/23/14) [pdf].

Little concerns a first assistant manager at a tire store. As a “manager,” the employer had the employee classified as exempt under both the executive and administrative exemptions. The employer’s written job description defined the first assistant manager position as requiring proficiency in “Professional Selling Skills,” “inventory control and pricing,” and “knowledge of location payroll control.” The job description further states that the employee have “necessary supervisory skills” and “managerial skills,” and be “fully knowledgeable” of “hiring and termination procedures.”

The court of appeals concluded that the employer’s determination that this employee was exempt was not dispositive, and sent the case back to the district court for trial on the issues of whether the employee qualified as exempt under either the executive or administrative exemption:

Belle Tire seeks to paint Little as influential in hiring and as actively leading employee training and other management tasks. Little, on the other hand, seeks to characterize himself as a salesman who provides clerical-type assistance to his store manager….

Though it is clear Little played some role in interviewing job candidates, preparing work schedules, and conducting training, questions remain concerning the exact nature of the work Little performed and the level of discretion that Little exercised. Such questions are suitable for a factfinder’s determination….

Although Little engages in office and non-manual tasks such as typing up the schedule and preparing purchase orders, Little testified that he spends eighty to ninety percent of his time engaged in sales duties. Time spent on a task is not the sole determinant of a primary duty, but the fact that Little spent the vast majority of his time on tasks he could not do concurrently with administrative tasks creates a genuine dispute as to whether his administrative responsibilities were his “primary duty.” Additionally, Little’s deposition—the most detailed account of his day-to-day activities—suggests that Little’s discretion was highly constrained.

The lesson here is not a happy one. No matter how reasonable or rational you think you are being in classifying employees, a court may second-guess you down the road. In close cases, err on the side of caution and classify as non-exempt. You will end up paying more overtime as you go, but will avoid the windfall (and related legal fees) if a court later re-classifies an employee or group or employees.

The times they are a changin’ for LGBT discrimination

Last week, the The U.S. Office of Special Counsel announced a landmark determination that the Department of the Army engaged in “frequent, pervasive and humiliating,” gender-identity discrimination against an Army software specialist who had transitioned from male to female.

According to a press release issued by the OSC, the employee

experienced a significant change in working conditions when the Army improperly restricted her restroom usage, repeatedly referred to her by her birth name and male pronouns, and excessively monitored her conversations with coworkers. In response, the Army agreed to provide training to correct and prevent future discrimination. The Army already had permitted Ms. Lusardi to use the restroom associated with her gender identity.

You can download the full decision here.

Congress has been slow to amend Title VII expressly to prohibit LGBT discrimination. Yet, courts, agencies, the White House and, now, the U.S. military, continue to fill in the gaps.

The time will come when it becomes per se illegal for all employers to discrimination against an employee’s sexual orientation or gender identity. Until that time, we will have to rely on courts’ creative solutions to fit these claims under Title VII’s general prohibitions against sexual stereotyping and sexual discrimination. Nevertheless, employers should not wait for Title VII to include LGBT as a protected class. Instead, employers can, and should, do right by all of their employees by adopting progressive anti-discrimination policies that make it clear that they are employers are inclusion for all employees, even if Title VII still permits discrimination against some.

Does social media hold the cure for your malingering, hooky playing employees?

In one of the better earlier episodes of The Office, the Assistant to the Regional Manager, Dwight Schrute, thinks that one of his co-workers is faking an illness to get out of work. So, he stakes out the employee’s house to investigate and uncover the truth.
According to a recent Harris Poll (h/t: Cleveland.com), figuring out if your employees are cheating on their sick leave is no longer as complicated as a stake out, and is only as far away as a few clicks of your mouse. According to the poll, nearly a quarter of employers have caught their employees lying on social media about being sick. Of those caught, a quarter were fired, while half were disciplined or reprimanded.
Three observations—
     1. If you think an employee is abusing sick leave or other time off, a little investigation on social media appears to go along way to ferreting out the truth. You no longer need to go the Dwight-Schrute route to determine if an employee is lying to you about the reason he or she isn’t at work. You should be adding social media to your quiver of investigatory tools. Otherwise, you could be missing a key (and easy) piece of the puzzle.

     2. The employment relationship is based on trust. Once that trust disintegrates, the relationship is almost certainly unsalvageable. I’m almost as shocked that only 25% of employers who have caught an employee lying about sick leave fired the offending employee, as I am that that another 25% appear to ignore the indiscretion completely. While I agree that we need better time-off policies in this country, it is still no excuse for lying.

     3. Then again, if an employee is so reckless (or senseless) as to tell an employer one thing, and then post the exact opposite on Facebook or Twitter an hour later, maybe I don’t want that employee working for me anyway. Just saying.

WIRTW #342 (the “family photo” edition)


Photo by Jenny Gildea Photography (who I cannot more highly recommend).

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