On July 5, 2014, Governor Cuomo signed the Compassionate Care Act, making New York the twenty-third state to legalize medical marijuana. This new law creates a medical marijuana program for individuals suffering from certain severe, debilitating, or life-threatening conditions (e.g., cancer, ALS, Parkinson’s disease, epilepsy, etc.). The goal of the program is to ensure that medical marijuana is available for certified patients with “serious conditions” and is administered in a manner that protects the public health and safety. To that end, the law will be regulated by the New York State Department of Health, which will certify physicians to administer the drug, register organizations to provide the drug, issue identification cards to qualifying individuals, establish the list of “serious conditions,” and regulate the price of the drug. This program is expected to be up and running within the next 18 months. In the meantime, employers should become familiar with the ways in which this law may impact the workplace.
The Affordable Care Act creates new incentives to promote employer wellness programs. However, employers should not rush to establish such programs without first considering the implications of the Americans with Disabilities Act. Why? The Equal Employment Opportunity Commission has not yet issued guidance on how employers may structure their wellness programs to avoid violations of the ADA, despite placing this issue on its Semiannual Regulatory Agenda in May 2014. In fact, the EEOC does not anticipate that any administrative direction on this issue will be forthcoming in the immediate future. Despite a lack of guidance, the EEOC is actively pursuing litigation in this area. In this regard, the EEOC recently filed two cases against employers, claiming that their wellness programs violated the ADA.
On October 1, the U.S. Department of Labor announced the issuance of its final rule implementing Executive Order 13658, which establishes a minimum wage requirement for certain federal contractors. The final rule was published in the Federal Register today, October 7.
A recent Second Circuit case highlights the potential perils of basing employment decisions upon subjective judgments which are susceptible to multiple interpretations. In Abrams v. Department of Public Safety, the court reversed a summary judgment decision granted to an employer based upon the hiring supervisor’s assessment that a non-minority applicant for a detective position in a special major crimes group would “fit in better” than a minority applicant for that position.
On September 11, 2014, the U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”), announced a final rule amending its injury and illness recording and reporting requirements. Although the rule has not yet been published in the Federal Register, it has been submitted for publication. The final rule will be effective on January 1, 2015.
On August 22, 2014, the National Labor Relations Board (“NLRB”) issued companion decisions in Three D, LLC d/b/a Triple Play Sports Bar and Grille, holding that the employer violated the National Labor Relations Act (“NLRA”) by terminating two employees for participating in an online discussion on Facebook. The Triple Play decision is yet another reminder to employers to exercise caution in imposing discipline against employees for conduct that takes place on social media. The decision also underscores the need for employers to review their existing social media policies to ensure that the policies are not so overly broad that employees might interpret them to prohibit complaints and conversations about their terms and conditions of employment.
The Second Circuit’s recent decision in Moll v. Telesector Resources Group, Inc. is a good reminder to employers that a sexually hostile work environment claim can be based on more than just sexually explicit or sexually offensive statements and conduct. Such a claim can also be established by facially sex-neutral statements and conduct under certain circumstances.
On August 6, 2014, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a proposed rule requiring covered Federal contractors and subcontractors with more than 100 employees to submit an annual Equal Pay Report on employee compensation. Prior to this proposed rule, President Obama signed a Presidential Memorandum on April 8, 2014, instructing the Secretary of Labor to propose a rule within 120 days to collect compensation data from Federal contractors and subcontractors.
Sun Tzu’s seminal work “The Art of War” has long been required reading in leading business schools. As a definitive work on strategy, the impact of “The Art of War” crosses a great many sectors. In its most basic sense, Sun Tzu has a great deal of wisdom to offer anyone charged with motivating a workforce, changing a culture, achieving collective goals, and negotiating with and/or defeating hostiles.
This leads us to the Art of War’s relevance to litigation, and in particular, employment litigation. Of course, we do not equate the trials and tribulations of employment litigation with the sacrifice and horrors of actual war, but we use Sun Tzu merely as a guide to the importance of strategy in litigation. As we are all keenly aware, profligate employment claims bring with them attendant legal fees, in terrorem settlements, potential runaway juries, and loss of time and energy. For every in-house counsel and human resources executive overseeing such claims, reference to this ancient text can serve as a valuable guidepost to effectively manage the case from the proverbial “General’s” chair.
On July 15, 2014, the Occupational Safety and Health Administration (“OSHA”) issued a policy memorandum to its Regional Administrators, explaining in greater detail the agency’s Temporary Worker Initiative (“TWI”). The TWI, which was launched on April 29, 2013, is an initiative intended to prevent work-related injuries and illnesses among temporary workers. Employers who have temporary employees hired through staffing agencies should be aware that OSHA has a particular focus on the health and safety of those temporary employees, and should ensure that those temporary employees are provided with proper protective equipment and training to minimize any potential workplace hazards.