Category Archives: Workplace Problems

“Ceasing the CSR’s: Once a Threat, Now A Promise”

Late in the evening of October 12, 2017, word leaked that the Trump Administration planned to finally carry out its threat to stop the Cost-Sharing Reduction Payments (“CSRs”) under the Affordable Care Act (“ACA”). The Administration confirmed the decision to cease the CSRs and published a memorandum from the Office of the Attorney General to the Secretaries of Treasury and Health and Human Services setting out the legal and policy underpinnings of that decision. Brief Background The ACA establishes two mechanisms to help defray the costs of health insurance premiums in the Healthcare Marketplace (“Marketplace”) for lower income individuals: (1) …

[ CONTINUE READING ]

“A Strong Pull on the Threads Holding Obamacare Together:” President Trump’s October 12, 2017 Affordable Care Act Executive Order

President Trump’s Executive Order titled “Promoting Healthcare Choice and Competition Across the United States” seeks to reform certain aspects of the Affordable Care Act (“ACA” or “Obamacare”) by Executive Agency action rather than Congressional legislation. It takes specific aim at three areas: 1). Expanding small employer access to association health plans; 2). Extending the availability and duration of Short-Term Limited Duration Insurance coverage; and 3). Removing the current bar on employees using employers’ Health Reimbursement Arrangements to purchase individual health insurance. Note that any such change requires action by various federal agencies, either by rulemaking or written guidance or both. …

[ CONTINUE READING ]

Is Gender Identity a Protected Class?

The Obama era Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) would have said, “YES.”  Yesterday, the Trump Administration’s DOJ answered that question with a “NO,” reversing the federal government’s stance regarding whether gender identity is a protected class under Title VII of the Civil Rights Act of 1964 (Title VII). Attorney General Jeff Sessions communicated in a letter to all U.S. Attorneys on October 4, 2017 that Title VII does not cover bias based on transgender status.  The letter reverses a position taken by former Attorney General Eric Holder in December 2014.  Attorney General Sessions wrote, “This …

[ CONTINUE READING ]

“Workplace Now”™

“Workplace Now” is a new quarterly report concerning the rapid changes occurring in today’s workplaces.  We will identify key areas that General Counsel, HR Professionals, Corporate Risk Managers and Insurance Professionals should consider in evaluating workplace concerns. This four part series will examine future issues that we predict will become major areas of discussion in the years to come. Our first discussion will cover the expansion of local and state workforce laws and how employers, particularly those with national workforces, have quite literally been overtaken by these dynamic changes at the local level. The second report will identify the expected …

[ CONTINUE READING ]

To Dream the Impossible Dream…

On September 5, 2017, President Trump ordered an end to DACA, the Obama-era program that shields young undocumented immigrants from deportation. President Trump called DACA, the Deferred Action for Childhood Arrivals, an “amnesty-first approach.”  He urged Congress to pass a replacement before his administration begins phasing out DACA’s protections in 6 months. The DREAM Act (Development, Relief, and Education for Alien Minors Act) was a bipartisan bill first introduced in Congress by Senators Durbin and Hatch in 2001. The original DREAM Act was created to assist individuals who originally entered the United States as children, without documentation or permission. These …

[ CONTINUE READING ]

One Racial Slur is One Too Many, Rules Third Circuit

Is a single racial slur by an employee’s supervisor enough to create a hostile work environment under § 1981 of the Civil Rights Act of 1866?  The answer is yes according to the Third Circuit Court of Appeal’s decision in Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017). In Castleberry, two African American males were employed as general laborers.  They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “n[****]r-rigged” the fence.  The incident was confirmed by their coworkers and reported thereafter by the employees to a superior.  Two weeks …

[ CONTINUE READING ]

Mixed Messages on LGBT Protections

NYC Guidelines Strengthen Transgender Protections in Employment; NC Law Eliminates Local LGBT Protections Altogether.  Confused, Anyone? I don’t envy employers these days. It ain’t easy staying on top of all of the federal, state, and local employment laws and regulations out there at the moment. And if you’re an employer with employees in multiple states across our great country, forget about it. (On second thought, don’t forget about it, just delegate figuring that mess out to your favorite employment lawyer.) Case-in-point, the many and varied laws out there regarding the protections afforded LGBT employees.

I Resolve . . . Not to Get Sued for Religious Discrimination and Harassment

As we close the books on 2015, fueled in no small part by the terrorist attacks in Paris and San Bernardino, the immigration crisis in Europe, our own crazy election-cycle politics, etc., etc., there is a palpable anti-Muslim rhetoric that’s plowing its way through social media and, quite possibly, making its way right to your company water cooler. And, as if we needed more fuel for the fire, religious awareness (and sometimes, real or perceived religious intolerance) is heightened during the holiday season. It’s an employer’s perfect [snow]storm. As put mildly by the Society for Human Resources Management (SHRM), terrorist …

[ CONTINUE READING ]

Calling all Office Romeos…to Sexual Harassment Training

In television courtroom drama style, all over the legal news this past week we’ve seen updates from the trial in Marchuk v. Faruqi & Faruqi (Case No. 1:13-cv-01669, S.D.N.Y), a case brought by a junior female associate against her former law firm.  In an ode to what we would like to think as “days [long] gone by,” the associate alleged that in the few months she was employed with the firm, a firm partner engaged in repeated sexual harassment of her and then sexually assaulted her at the firm holiday party.  Faruqi defended on the grounds that all sexual interaction …

[ CONTINUE READING ]

Who? Me? Individuals Not Just Companies Can Be Held Liable For Retaliation

In an issue of first impression, the United States Court of Appeals for the Seventh Circuit held in Smith v. Bray, 681 F.3d 888 (7th Cir. May 24, 2012) that individuals with a retaliatory motive can be held liable for causing the employer to retaliate against another employee. Just after the Civil War, Congress enacted the Civil Rights Act of 1866 which protects the right of all persons “to make and enforce contracts” regardless of race. A cause of action for retaliation under this statute exists if one person takes action against another for asserting the right to this contractual …

[ CONTINUE READING ]