Rebecca Silk

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A recent federal Appellate Court decision offers employers greater flexibility and decision making authority in considering job reassignments for qualified disabled employees.  In EEOC v. St. Joseph’s Hospital, a case decided by the Eleventh Circuit Court of Appeals (which covers Georgia, Florida and Alabama), an employee sought a job reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA).  The employer allowed the employee thirty days to apply for vacant positions, but did not automatically grant her a new position.  Rather the employer required the employee to compete for a new position pursuant to its best qualified applicant hiring policy – she would be given the job only if she was the best qualified applicant for the position.

The press has been filled with stories about the new Fair Labor Standards Act (FLSA) regulations which raise the minimum salary level required for employees to be exempt from overtime pay.  Specifically, the new regulations — currently set to take effect on December 1, 2016 — raise the minimum salary level required for exempt employees under the executive, administrative and professional exemptions from $455 per week to $913 per week, or from roughly $23,660 annually to $47,456 annually. Often overlooked, however, is the fact that the new regulations also significantly affect the “highly compensated employee” (“HCE”) exemption, as well.

The Eleventh Circuit Court of Appeals (which handles federal court appeals from Georgia, Florida and Alabama) recently issued a surprising and first of its kind decision holding that applicants may not bring a disparate impact claim under the Age Discrimination in Employment Act (“ADEA”).  The ADEA prohibits employers from intentionally discriminating against employees 40 or older due to their age.  Any such “disparate treatment” (another way of saying intentional discrimination) violates the ADEA.  But the ADEA is also usually understood to also prohibit unintentional discrimination on the basis of employees’ age (over 40), such as a rule or policy or practice that while non-discriminatory on its face has the real, if unintended, effect of discriminating against older workers.  This concept is known as “disparate impact” discrimination.  As the ADEA (and most employment discrimination laws) applies to both employees and applicants for employment, most assume that the disparate impact theory of discrimination also applies to applicants as it does to employees.  The Eleventh Circuit, however, said it does not.

Did you know that at the beginning of 2016, the EEOC rolled out Phase I of its Digital Charge System, which provides an online portal system for employers to access and respond to a Charge of Discrimination? If you didn’t know, you are not alone. Many employers have been surprised to receive an email from the EEOC stating that a Charge has been filed and providing a password to access the EEOC’s secure online portal. The email provides a deadline for the employer to log in to the portal. Once logged in, the employer may view and download the Charge, respond to mediation requests and upload position statements it creates for the EEOC to review. (The EEOC asserts that information uploaded to the portal are encrypted and protected by proper security controls.) The EEOC’s plan is to no longer send hard copies of these documents to employers.

Last month the EEOC issued its Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employers from obtaining medical information from employees unless those inquiries are part of a voluntary employee health program. Under the ADA an employee wellness program must also offer reasonable accommodations to individuals with disabilities so they have equal access to program fringe benefits.