The Occupational Safety and Health Administration recently issued a guidance memorandum clarifying its position on workplace safety incentive programmes and post-incident drug testing. Employers should review this memorandum, including the specific examples of lawful policies and programmes, in evaluating whether their policies and programmes are likely to have a negative impact on employees reporting workplace injuries or illnesses.
The past five years have seen a massive acceleration in the amounts of data being generated, processed and stored in virtually every industry, including insurance. However, there has been a growing trend of increasingly sophisticated cyberattacks which have, in many ways, outpaced current data security technology. It is no exaggeration to conclude that developing a coherent cybersecurity strategy is one of the most important challenges facing insurance industry participants today.
A unanimous panel of the Sixth Circuit recently held that the Fair Labour Standards Act does not prohibit employers from requiring employees to execute arbitration agreements with class or collective action waivers. The decision joins those from other federal courts of appeal in holding that claims under the Fair Labour Standards Act are subject to agreements to arbitrate on an individual basis.
The Ninth Circuit recently held that a settlement of class claims in an opt-out class action asserting only state law wage and hour claims also released the plaintiff's Fair Labour Standards Act claims arising from the same allegations on which her state claims had been predicated. The decision reinforces the importance of carefully crafting release language in all settlements, including class action settlements, and provides guidance on what language to include in such releases to preclude future claims.
The National Labour Relations Board (NLRB) recently issued a new guidance memorandum clarifying the standard that it will apply when interpreting employer workplace policies and handbooks following its recent decision in The Boeing Co. The guidance memorandum clarifies that post-Boeing, many employment policies and procedures that may have been deemed unlawful under the previous NLRB General Counsel memoranda will now be upheld.
A New York intermediate appellate court has handed Postmates a victory in the ongoing battle over employment status in the gig economy. Although this decision is not binding on courts outside of New York's Third Department, it provides useful information to gig economy companies on how to structure their operations in jurisdictions where classification status is largely determined by the employer's level of control.
Previously, there was some uncertainty among California state and federal courts about whether coverage for accidents under general liability insurance policies extended to claims for negligent employment practices. However, a recent California Supreme Court case makes clear that such claims are covered and expresses a strong policy preference in favour of that coverage.
The US Department of Health and Human Services (HHS) was to issue guidance by December 2017 clarifying when an individual's authorisation for a Health Insurance Portability and Accountability Act-covered entity to use or disclose their protected health information contains a sufficient description of the purpose for its use or disclosure. Having missed this deadline and presumably feeling pressure to issue some direction, HHS issued interim guidance in early June 2018.
The US Court of Appeals for the Second Circuit recently reversed its prior precedent and held that Title VII's prohibition on sex discrimination includes a prohibition on sexual orientation discrimination. For years, states and municipalities have been adding laws prohibiting discrimination based on sexual orientation. However, whether Title VII prohibits discrimination based on sexual orientation under federal sex discrimination prohibitions has been actively debated in both courts and administrative agencies.
The US Court of Appeals for the Sixth Circuit has held that a funeral home violated Title VII of the Civil Rights Act 1964 when it fired a director because she was planning to undergo sex reassignment surgery and had requested to dress in women's clothing at work. Employers – particularly those in the Sixth Circuit – should consider reviewing their employment policies and hiring practices to ensure that they are treating transgender status as a protected category.
The Fourth District of the California Court of Appeal recently ruled that a truck driver could not be compelled to arbitrate his claims in a state wage and hour class action against his staffing company employer, notwithstanding an arbitration clause in his employment contract that required individual arbitration rather than class actions. This ruling continues a line of California state court decisions giving a broad reading to the Federal Arbitration Act's transportation worker exception.
A recent California Supreme Court decision has had significant implications for employers when determining the regular rate of pay used to calculate overtime following the payment of flat-sum bonuses. The court held that employers must calculate the overtime rate of pay in pay periods in which an employee earns a flat-sum bonus by dividing the flat-sum by the non-overtime hours actually worked in that pay period, not the total hours worked (including overtime).
The National Labour Relations Board (NLRB) recently changed its joint-employer standard for the second time in the past three months, returning to the standard set in its 2015 decision in Browning-Ferris Industries. By reinstating Browning-Ferris, the current NLRB standard is that a joint-employer relationship exists whenever "two or more entities... share or codetermine those matters governing the essential terms and conditions of employment".
Certain captive insurers that lost or will lose membership in the US Federal Home Loan Bank (FHLB) system as a result of a 2016 rulemaking by the Federal Housing Finance Agency may get a reprieve under the Housing Opportunity Mortgage Expansion Act. A similar bill was also introduced in the House of Representatives. Significantly, the proposals provide only for the restoration of FHLB membership for captive insurers, not for new membership for those captive insurers that previously had no membership.
California has enacted two new pieces of legislation in order to improve job opportunities, for women in particular. SB-63 expands the California Family Rights Act to provide up to 12 weeks' unpaid parental leave for employees of companies with as few as 20 employees, while AB-168 prohibits employers from seeking or relying on a job applicant's salary history information when deciding whether to offer employment and what salary to offer.
The National Association of Insurance Commissioners recently adopted the Insurance Data Security Model Law. The model law builds on existing data privacy and consumer breach notification obligations by requiring insurance licensees to comply with detailed requirements regarding maintaining an information security programme and responding to and giving notification of cybersecurity events.