Wyatt Employment Law Report


The Supreme Court of Kentucky Issues Guidance Regarding Upcoming Trials

By Marianna J. Michael

Shortly after releasing its guidelines for reopening courts in the Commonwealth, the Supreme Court of Kentucky provided further guidance in regards to upcoming trials. The Order builds in time for courts to prioritize criminal proceedings that have been delayed as a result of COVID-19. As such, the Order makes the following provisions: Continue reading


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HHS Issues Guidance Regarding Same-Sex Marriages and HIPAA

By Margaret Y. Levi

The U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) has issued guidance concerning how the U.S. Supreme Court’s decision recognizing same-sex marriages may affect certain provisions relating to “family members” in the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule.

The HIPAA Privacy Rule recognizes that spouses, dependents and other family members often need access to information about patients in order to participate in their care as well as have privacy rights of their own regarding genetic information. The definition of family member under the HIPAA Privacy Rule includes the terms “spouse” and “marriage” but does not further define those terms.

In United States v. Windsor, the Supreme Court held as unconstitutional the section of the Defense of Marriage Act (“DOMA”) that excludes a same-sex partner from the definition of “spouse.” In light of the Windsor ruling, OCR advises health care providers and insurance companies (and business associates, as applicable) that the term “family member” in the HIPAA Privacy Rule will include same-sex spouses who are lawfully married, whether or not the state in which they live or get services recognizes same-sex marriages, as well as their dependents. OCR points out that this affects two standards under HIPAA:

  • Standard: Uses and disclosures for involvement in the individual’s care and notification purposes. Under certain circumstances, covered entities are permitted to share an individual’s protected health information with a family member of the individual. Legally married same-sex spouses, regardless of where they live, are family members for the purposes of applying this provision. See 45 C.F.R. § 164.510(b).
  • Standard: Use and disclosure of genetic information for underwriting purposes. This provision prohibits health plans, other than issuers of long-term care policies, from using or disclosing genetic information for underwriting purposes. For example, such plans may not use information regarding the genetic tests of a family member of the individual, or the manifestation of a disease or disorder in a family member of the individual, in making underwriting decisions about the individual. This includes the genetic tests of a same-sex spouse of the individual, or the manifestation of a disease or disorder in the same-sex spouse of the individual. See 45 C.F.R. § 164.502(a)(5)(i).

OCR has announced it will also issue additional guidance or regulations to address same-sex spouses as personal representatives under the HIPAA Privacy Rule.


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EEOC’s New Guidance on Use of Criminal Records in Employment Decisions

By Rachel K. Mulloy

On April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) issued Guidance regarding the use of criminal records in employment decisions under Title VII of the Civil Rights Act of 1964.  The Guidance discusses whether an employer’s use of criminal history violates Title VII, focusing specifically on disparate impact claims based on neutral screening policies and practices that have the effect of disproportionately screening out a group protected under Title VII.  While having a criminal history is not a protected category under Title VII, given the increase over the past 20 years of people in the working-age population who have criminal records and given national data finding criminal record exclusions have a disparate impact based on race and national origin, the EEOC is concerned that using criminal records to evaluate employees could create barriers to employment that violate Title VII. 

Employers can avoid liability for disparate impact claims under Title VII by showing the policy or practice is “job related for the position in question and consistent with business necessity.” To establish that an exclusion based on criminal conduct that has a disparate impact is job related and consistent with business necessity, “the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”  The EEOC provides two circumstances in which it believes employers can “consistently meet the ‘job related and consistent with business necessity’ defense.” 

First, the employer can validate the exclusion based on criminal conduct “in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors).”

Second, the employer can use a “targeted screen.”  There are two steps to the “targeted screen” process: (1) the employer creates a targeted screen “considering at least the nature of the crime, the time elapsed, and the nature of the job,” and (2) the employer provides an opportunity for an “individualized assessment” of the employee.  An “individualized assessment” consists of notice to the employee that she has been screened out because of a criminal conviction, an opportunity for the employee to demonstrate the exclusion does not apply based on her particular circumstances, and consideration by the employer as to whether the information provided warrants an exception to the exclusion. The employee’s showing may include information indicating she was incorrectly identified in the criminal record, the record is inaccurate, facts surrounding the offense, the number of offenses for which she was convicted, older age at the time of conviction or release from incarceration, evidence that she performed the same type of work post-conviction without incident, the length and consistency of employment before and after the offense, her efforts at rehabilitation, any references, and whether she is bonded under a state or federal bonding program.  While an individualized assessment is not always required it may help employers avoid liability by allowing them to consider more complete information on individual employees.

The Guidance notes that even if an employer successfully demonstrates its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff could still prevail by demonstrating there is a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice but which the employer refused to adopt.

Additionally, the Guidance acknowledges that individuals with certain kinds of convictions may be barred by federal law from certain types of employment; compliance with such laws is a defense to discrimination. 

The Guidance concludes by offering the following best practice tips for employers who consider criminal records when making employment decisions:

  • Eliminate policies or practices that absolutely exclude people from employment based on any criminal record;
  • Train managers, hiring officials, and decisionmakers on Title VII and its prohibition on employment discrimination;
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct;
  • Limit inquiries about criminal records to those for which exclusion would be job related for the position in question and consistent with business necessity; and
  • Keep information about employees’ criminal records confidential and only use it for the purpose for which it was intended.

 


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Would the WARN Act Apply in the Event of a Federal Budget Sequestration?

By Edwin S. Hopson

On July 30, 2012, an Assistant Secretary of the U.S. Department of Labor issued an advisory and guidance to federal contractors concerning the applicability of the Worker Adjustment and Retraining Notification Act (WARN Act) to possible layoffs occasioned by federal government sequestration on January 2, 2013, under the Balanced Budget and Emergency Deficit Control Act of 1985, and the Budget Control Act of 2011, should the Congress and President not come to agreement on a federal budget.  That guidance was “no” — the WARN Act would not be triggered by such action and affected, covered federal contractors would not be in violation of the WARN Act for NOT providing 60 days’ notice of mass layoffs or a plant closing affecting at least 50 employees.

The issuance of this guidance has been criticized by the Republican House Education and Workforce Chairman, John Kline, and the Subcommittee on Workforce Protections Chairman, Tim Walberg, in a letter to Secretary of Labor Hilda Solis.  They argue that the Department of Labor’s guidance has no legal effect and may be misleading employers into not following the WARN Act’s requirements.

With the recent agreement on a short-term budget extension, this issue has now been pushed off for several months.

The Labor Department’s guidance can be found at: 

http://wdr.doleta.gov/directives/attach/TEGL/TEGL_3a_12.pdf

The Kline/Walberg letter may be found at:

http://edworkforce.house.gov/UploadedFiles/08-02-12_Letter_WARN_Act_Sequestration.pdf