Wyatt Employment Law Report


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The AARP’s Position on EEOC Wellness Program Rules

insurance_photoBy Amanda Warford Edge

While the focus in the Bluegrass state over the past couple of weeks has been on horses and bourbon, a lobbying group for older Americans — the AARP — has asked a federal judge in Washington, D.C. to rule that the EEOC’s new guidelines for employee wellness programs are illogical and arbitrary.  According to the AARP, the guidelines allow companies to violate workers’ medical privacy rights.  The AARP filed its summary judgment motion on Friday, April 28.  The lawsuit was initially filed in October 2016.  Wellness programs, of course, include programs where an employer provides incentives for workers to quit smoking, lose weight or undergo preventative health screenings, among other things.  Workers who participate in such programs are usually asked by employers to provide certain confidential medical information.

Previously, the EEOC had maintained that any financial incentive rendered wellness programs involuntary.  In adopting new guidelines last year, the EEOC ruled that Continue reading


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New Legislation: Banning the Salary Question

By Amanda W. Edge

At a job interview, a candidate is often asked: “What’s your current or most recent salary?” Usually, this question is feared.  After all, a low figure could limit the candidate’s starting pay, but a high number could make the candidate seem expensive.  Now, in a growing number of states and cities, the question is off limits, as employers face legislation that bars them from asking job candidates about their salary history or benefits.

Proponents of the new legislation argue that banning the salary question is necessary to ensure pay equity for women.  The argument is that by basing future salaries on previous wages, employers have been perpetuating the earnings divide.  In other words, because employers have historically relied heavily on salary history, the gender pay gap has Continue reading


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H-1B Enforcement Stepped Up

By Glen Krebs

On April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures to further deter and detect H-1B visa fraud and abuse.  On April 4, 2017 the U.S. Department of Labor (DOL) announced plans to protect U.S. workers from H1B program discrimination by providing greater transparency and oversight.  These announcements have caused companies which regularly use H-1B workers to be concerned about their workforce in coming years.

The companies mostly affected by this policy change will be outsourcing firms – companies which hire H-1B workers and then place them at the worksite of other companies.  Many of the outsourcing firms are headquartered Continue reading


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Qualified Small Employer Health Reimbursement Arrangements

By Rachel K. Mulloy

Small employers now have the ability to assist employees with the cost of health care through a qualified small employer health reimbursement arrangement (QSEHRA).  Prior to the Affordable Care Act (ACA), small employers were able to offer stand-alone health reimbursement arrangements (HRAs) to help employees pay for medical care expenses, including health insurance premiums, on a tax-free basis.  This changed with the passage of the ACA, under which stand-alone HRAs were generally considered group health plans that violated the ACA’s annual dollar limit prohibition (some stand-alone HRAs, such as retiree-only HRAs, remained valid).  Consequently, employers who continued to offer such arrangements could face fines of up to $36,500 per employee per year (with a $500,000 total limit).  With the passage of the 21st Century Cures Act, which incorporates key components of the Small Business Healthcare Relief Act, small employers  may again offer this benefit to employees.

Eligible Employers   To be eligible to offer a QSEHRA, an employer (1) cannot be an “applicable large employer” under the ACA, i.e., had fewer than 50 full-time employees, including full-time equivalent employees, on average during the prior year, and (2) cannot offer a group health plan to any of its employees.  Qualified employers must offer the Continue reading


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New I-9 Form

By Glen Krebs

Photograph of a U.S. Department of Homeland Security logo.Beginning January 22, 2017, Employers must use the new Form I-9 when hiring a new employee. The new form is dated 11/14/2016. The old form (dated 03/08/2013) will not be acceptable for a date of hire after January 22, 2017. The old and new forms are not too different. Regarding the new form, United States Citizenship and Immigration Services (“USCIS”) states as follows:

“Among the changes in the new version, Section 1 asks for ‘other last names used’ rather than ‘other names used,’ and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other Continue reading


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United States Supreme Court to Resolve Class Action Waiver Issue

By Michelle D. Wyrick

In a matter of great interest to many employers, last week, the United States Supreme Court agreed to decide whether arbitration agreements that prohibit employees from pursuing class and collective remedies are enforceable. Courts are currently divided on the issue. The Supreme Court granted certiorari in three cases, Epic Sys. Corp. v. Lewis, from the Seventh Circuit, Ernst & Young LLP v. Morris, from the Ninth Circuit, and NLRB v. Murphy Oil, USA, from the Fifth Circuit, to resolve the question.

The dispute pits the savings clause of the Federal Arbitration Act (“FAA”), 9 U.S.C. §2, which allows invalidation of arbitration agreements only “upon such grounds as exist at law or in equity for the revocation of any contract” against employees’ rights to engage in protected, concerted activity under the National Labor Relations Act, 29 U.S.C. §157. The National Labor Relations Board (“NLRB”) takes the position that provisions in arbitration agreements requiring employees to waive their rights to pursue class or collective actions violate employees’ rights to engage in protected, concerted activity under the National Labor Relations Act (“NLRA”). In May 2016, the Seventh Circuit agreed and Continue reading


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Texas Judge Blocks Overtime Rule

By: Sharon Gold

In September, 21 states and numerous business groups sued the U.S. Department of Labor (DOL) in a Texas Federal Court attacking the DOL’s Final Rule that raised the salary minimum for workers to be exempt from overtime requirements under the Fair Labor Standards Act (FLSA).  The states filed a motion for preliminary injunction asking the judge to enjoin enforcement of the Final Rule pending a final resolution of their legal arguments against the Rule.  The businesses moved for summary judgment.  Continue reading