Taking a page from the fiduciary rule playbook, today the U.S. Department of Labor (DOL) proposed a 90-day delay of the implementation of the amended ERISA claims procedure rule for employer-sponsored disability plans (“Final Rule”). The Final Rule was scheduled to take effect for ERISA disability benefits claims on January 1, 2018. The proposed delay would postpone the Final Rule’s application to April 1, 2018, giving the DOL time to decide whether to amend, modify or rescind the Final Rule.

If not delayed (and ultimately amended or rescinded), the Final Rule would make sweeping and costly changes to the current claims procedure for ERISA disability plans. Some of the most substantial changes of the Final Rule include: new conflict of interest rules, burdensome changes to disability benefit denial notices, the unfettered right of plan participants to review and respond to all new information generated in the appeal process, and a procedure pursuant to which plan participants could proceed straight to federal court without fully exhausting their disability plans’ appeal process. For a comprehensive discussion of the Final Rule read our recent article in DRI’s For The Defense Magazine here.

The DOL’s proposed delay was prompted by valid concerns raised by various stakeholders and Congress that the Final Rule will increase the cost of offering disability benefits plans to employees, increase litigation, and ultimately result in employees having less access to disability benefits. This is less than ironic given that part of the rationale for adopting the Final Rule was a stated belief that the incidence of disability benefits litigation was “too high.”

In any event, the proposed extension will provide the public additional time to submit comments and information on the New Rule to allow the DOL to more fully and fairly evaluate its necessity – or lack of necessity as the case may be. If recent history is a guide, it is relatively safe to assume that the delay will result in a substantial modification and/or rescission of the Final Rule.

Comments on the proposal to extend the Final Rule are due to the DOL on or before October 27, 2017. Any data or other pertinent information to examine the merits of changing, amending or rescinding the Final Rule is due on or before December 11, 2017.

If you have questions about the proposed extension or how the Final Rule could impact your disability plan if it is not modified or rescinded, please contact the attorneys in our Employment & Labor Group or Employee Benefits Group.

With flu season right around the corner, employers may be starting to wonder what steps can be taken to ensure that the workplace remains productive and flu-free. Here are answers to some common questions about what employers can and cannot do with regard to flu shots for employees, as well as our recommendations for some best practices.

Q: As an employer, can I require that my employees get flu shots?

A: Generally, yes. Employers can make flu shots mandatory for employees. However, as described in more detail below, there are certain circumstances under which employees must be exempt from this rule and provided an accommodation.

Q: What if one of my employees says they cannot get a flu shot for religious reasons?

A: Employees who refuse to get a flu shot based on religious grounds must be provided a religious accommodation, as long as the accommodation would not pose undue hardship to the employer. For example, the employee could wear a mask covering her mouth and nose in lieu of having the flu vaccination.

As highlighted by recent EEOC litigation on this subject, is important that the employer and employee work together to find a feasible and reasonable accommodation. Employers also cannot require certification for confirmation from a religious organization that the employee is indeed an adherent. The employee’s sincerely held religious belief is enough for protection.

Q: What if one of my employees says they cannot get a flu shot because of a medical reason?

A: An employee who cannot get a flu shot because of an ADA disability is entitled to an exemption. In this situation, employers should engage in the same interactive process described above to find a reasonable accommodation for the employee.

Q: If an employee refuses to get a flu shot but does not request a religious or medical accommodation, can they be terminated?

A: As long as the employer is acting pursuant to its mandatory flu vaccination policy, and that policy is enforced evenly for all employees, an employer could technically terminate an employee who refuses to have the mandatory flu shot.

Q: I’m a health care employer. Do the same rules still apply for my workforce?

A: Health care employers are generally concerned about the possibility that an unimmunized employee could transmit the flu virus to a patient. There are not currently any laws in Missouri or Illinois mandating that all health care employees be vaccinated against influenza. To the extent a health care employer elects to make the flu shot mandatory, the same rules described above will apply.

Health care employers in Illinois are required to provide all employees with education on influenza, as well as the opportunity to receive the vaccine. Any employee who declines the vaccination must sign a statement stating that he or she received education about the benefits of the flu shot but declined to receive the vaccination.

Similarly, nursing home employers in Missouri must either offer the flu shot to all employees and volunteers who have direct contact with residents, or provide the employees and volunteers with information about how they can obtain the flu shot independently. These employers should also document that all employees and volunteers were offered assistance with obtaining the vaccine and should note whether each individual accepted or declined the vaccination.

Q: What best practices can I implement to keep my workplace flu-free?

A: The EEOC recommends encouraging employees to get flu shots, rather than making flu shots mandatory. To make this easier for employees and encourage more employees to have the vaccine, employers should consider bringing a mobile flu shot clinic into the workplace or providing employees with information about where flu shots are available locally.

Employers who choose to require mandatory flu shots, rather than just encourage them, should be sure to take any religious accommodation requests seriously and should truly engage in the “interactive process” with any employees who refuse the vaccination on religious or medical grounds.

For more information about flu shots or other employee health matters, or to inquire about how to best address the flu shot issue for your workplace, please contact the attorneys in our Employment & Labor practice group.

Over the summer, the Missouri legislature took action to invalidate or cut back two ordinances passed by the city of St. Louis, causing the city’s minimum wage to revert to the statewide minimum of $7.70 per hour and making it unlawful for cities to adopt laws that would interfere with the free-speech rights of any “alternative to abortion agency” (e.g., a pregnancy resource center) or employees with objections to abortion.

Minimum Wage

In May, the Missouri legislature passed a bill banning cities from adopting minimum wage rates in excess of the state’s minimum wage. Gov. Eric Greitens took no action on the bill before a constitutional deadline, allowing it to automatically take effect. As a result, the city’s minimum wage returned to $7.70 per hour on Aug. 28, 2017, after having been set at $10 per hour when the city’s ordinance setting its own minimum wage was found valid by a Missouri court. Opponents and proponents of the minimum wage increase have clashed since the ordinance was signed by then-Mayor Francis Slay over two years ago. The Missouri Supreme Court eventually decided that the city was within its authority to set a minimum wage higher than the state’s. The state bill now supersedes that determination and will also affect Kansas City, which recently passed an ordinance that increased its minimum wage.

Employers in St. Louis and Kansas City that have raised their wage rates to comply with the municipal minimums may voluntarily continue paying those higher rates. However, employers who choose to reduce rates in light of the state bill should be aware that Missouri law requires companies to give employees 30 days’ notice of any reduction in wages.

Reproductive Care Nondiscrimination

Earlier this year, St. Louis adopted an ordinance that protected employees against discrimination on the basis of their “reproductive health decisions,” making it unlawful for employers to take adverse employment actions against individuals due to their use of drugs or medical services related to reproductive health, including contraceptives and abortion. On July 26, 2017, Greitens signed into law a bill that will likely curb those protections by prohibiting municipalities from passing ordinances that would restrict the free speech rights of alternatives to abortion agencies or require individuals to act against their sincerely held religious beliefs or moral convictions. The bill also included a variety of other measures modifying the state’s abortion statute unrelated to the nondiscrimination provision.

After the city adopted its ordinance, several employers filed suit against the city, alleging that the ordinance violated the Constitution. Specifically, the businesses argued that the ordinance fails to provide exemptions for individuals with “sincere religious, moral or ethical objections to abortion” or for any non-religious organization whose purpose is to provide alternatives to abortion. That litigation is ongoing.

Employers should keep in mind that any employment decision should be based upon a legitimate, nondiscriminatory rationale regardless of an employee’s protected characteristics.

For more information about compliance or how these actions may affect your business, please contact the attorneys in our Employment & Labor practice group.

A Texas district court judge struck down the Obama administration’s overtime rule on Aug. 31, 2017, finding that the Department of Labor (DOL) had exceeded its authority in adopting a new salary threshold that would have entitled an estimated 4.2 million workers to overtime compensation.

As Judge Amos Mazzant noted in his opinion, Congress intended eligibility for overtime to be primarily based upon whether workers perform certain “white collar” duties. While the DOL has authority to determine the essential qualities of the duties that exempt workers from overtime eligibility, Mazzant stated that the department may not use a salary-level test that essentially eliminates the duties test. He found that the DOL did just that by more than doubling the salary threshold to over $47,000.

Mazzant had previously issued a preliminary injunction halting the implementation of the overtime rule. An appeal of that decision is pending before the Court of Appeals for the Fifth Circuit, although it should be rendered moot by the Aug. 31 final judgment.

Meanwhile, the Trump administration has signaled it will attempt to revise the overtime rule, likely setting the salary threshold somewhere between the current level and the level set by the Obama administration. In July, the DOL released a Request for Information, seeking public input on revising the Obama-era rule.

If you have questions about how Mazzant’s ruling affects your workforce, please contact the attorneys in our Employment & Labor group.

This summer, Missouri Gov. Eric Greitens signed into law Senate Bill 43, which substantially changes the way the Missouri Human Rights Act (MHRA) will be administered and interpreted. The MHRA’s core purpose is to prohibit employers from basing employment decisions on a person’s race, color, religion, national origin, sex, ancestry, age or disability, and it prohibits retaliation for engaging in protected activities covered under the act.

Employers and many conservative lawmakers have been pushing for an overhaul of the MHRA for the past decade as the act has received increasingly employee-friendly interpretation in the Missouri courts. Below are some of the major amendments to the law, which took effect Aug. 28, 2017.

The definition of employer and elimination of individual liability

The definition of “employer” is now more specific and is defined as “a person engaged in an industry affecting commerce who has six or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” This provides some clarity as to when small employers become covered by the act.

The definition of “employer” also now expressly excludes an individual employed by an employer. This means supervisors and other employees can no longer be held personally liable for acts taken “in the interest of the employer.” Only the entity is subject to liability for MHRA discrimination.

Motivating factor standard – increased burden of proof

To succeed at trial, an employee must now prove that his or her protected classification, such as age, race or disability, was “the motivating factor” in the adverse employment decision. Motivating factor means “the employee’s protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action.” This brings the MHRA back in line with most federal employment laws, whereas the previous contributing factor standard was a much lower burden of proof and led many courts to permit cases to go to trial rather than summarily disposing of them earlier in the litigation.

Caps on damages

Missouri employers can breathe a sigh of relief because there are now set damage caps under the MHRA. Before these amendments, the Missouri cap on punitive damages was floating, and if awarded, the plaintiff could recover the greater of $500,000 or five times the actual damages recovered (including back pay, emotional distress, front pay and attorneys’ fees). Additionally, given the Missouri Supreme Court’s determination that attorneys’ fees should be included in the “actual damages” calculation, MHRA judgments have been quite large and virtually unrestrained, in contrast to the caps under federal employment laws. The new amendments change that.

Damages available under the MHRA are now capped on a sliding scale, depending on the number of employees of the defendant. Exclusive of attorneys’ fees, damages under the MHRA cannot exceed: (1) actual back pay and interest on back pay and (2) where the employer has:

• More than five employees, but fewer than 100 employees: $50,000
• More than 100 employees, but fewer than 200 employees: $100,000
• More than 200 employees, but fewer than 500 employees: $200,000
• More than 500 employees: $500,000

Charges of discrimination

Pursuant to the Missouri Supreme Court’s decision in Farrow v. Saint Francis Medical Center, 407 S.W.3d 579 (Mo. en banc 2013), employers were required to challenge a charge of discrimination’s timeliness with the Missouri Commission on Human Rights (MCHR) and then by action for judicial review. If the timeliness issue was not pursued in those two ways, the employer lost the ability to challenge a charge filed out of time. The MHRA amendments cure these procedural hurdles and greatly simplify the process.

An employer can now raise a timeliness defense at any point in the administrative process or during litigation. Whether a complainant files a timely charge is now a jurisdictional prerequisite to filing a lawsuit. If the complainant does not file a charge of discrimination within 180 days of the alleged discriminatory act, the MCHR lacks jurisdiction to investigate the charge or take any other action other than dismissal. Similarly, Missouri courts lack jurisdiction to hear a lawsuit if the charge was not timely filed. Additionally, the MCHR is now prohibited from issuing a Notice of Right to Sue unless it is requested by the charging party.  

Whistleblower Protection Act

Missouri common law wrongful termination “whistleblower” actions are now codified in the MHRA as the Whistleblower Protection Act (WPA). This new WPA prohibits an employer from terminating an employee who is a “protected person,” defined as a person who:

• reports an employer’s unlawful act to the proper authorities;
• reports to the employer serious misconduct of the employer in violation of a clear mandate of public policy as articulated in a constitutional provision, statute or regulation promulgated under statute; or

• refuses to carry out an employer’s unlawful directive.

The WPA does not provide protection to a manager whose job is to report or provide a professional opinion on the conduct in question. It also does not protect employees who report alleged unlawful conduct to the person the employee claims acted unlawfully.

The WPA will also apply the “motivating factor” standard explained above. A successful complainant will be able to recover damages in the form of back pay and medical bills, liquidated damages (i.e., double damages), and attorneys’ fees.

The amendments make clear that the WPA, the MHRA and Missouri workers’ compensation laws provide the exclusive remedies for all claims of unlawful employment practices in Missouri.

Abrogation of certain decisions and other changes

In addition to abrogating Farrow with respect to timeliness issues, the amendments also abrogate other anti-employer judicial decisions. Missouri courts should now heavily rely on the judicial interpretations of Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. The amendments also require Missouri courts to give a jury instruction stating that the jury is not to second-guess a business decision made by the employer as long as it was made for a non-discriminatory reason, if such an instruction is requested by the employer. Finally, the amendments encourage Missouri courts to summarily dispose of cases that lack sufficient facts before trial and apply the U.S. Supreme Court’s burden shifting framework used in Title VII cases.

These changes should make employment litigation a less desirable avenue for disgruntled employees and provide a clearer path for litigation of legitimate claims. However, as with any new legislation, there are questions about how these changes will be interpreted and applied by the courts. We will closely monitor new MHRA cases and expect there will be some growing pains.

If you have questions regarding how to the MHRA changes affect your business, please contact the attorneys in our Employment & Labor Group.

Greensfelder summer associate Brianna Lockridge also contributed to this blog post.

The U.S. Department of Labor (DOL) published a request for information (RFI) in late July seeking comments, data, ideas and information on an appropriate salary level for exempt employees under the Fair Labor Standards Act (FLSA).

A Texas federal district judge issued an order last November to stop the DOL’s new overtime rule from taking effect on Dec. 1, 2016, and questioned whether the DOL had the authority to raise the minimum salary level. The DOL appealed the order to the Fifth Circuit Court of Appeals, and in its June 30 reply brief, the department argued that while it does have authority to set a minimum salary threshold for the exemptions, it has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time. The DOL further said it intends to undertake additional rulemaking to determine what the salary level should be.

The DOL’s RFI, published in the Federal Register on July 26, 2017, requests responses to 11 sets of comprehensive questions including:

• Would updating the 2004 salary level ($455 per week) for inflation be an appropriate basis for setting the standard salary level and, if so, what measure of inflation should be used?
• Should the regulations contain multiple standard salary levels? If so, how should these levels be set: by size of employer, census region, census division, state, metropolitan statistical area, or some other method?
• To what extent did employers, in anticipation of the 2016 Final Rule’s effective date on Dec. 1, 2016, increase salaries of exempt employees in order to retain their exempt status, decrease newly non-exempt employees’ hours or change their implicit hourly rates so that the total amount paid would remain the same, convert worker pay from salaries to hourly wages, or make changes to workplace policies either to limit employee flexibility to work after normal work hours or to track work performed during those times?
• Would a test for exemption that relies solely on the duties performed by the employee without regard to the amount of salary paid by the employer be preferable to the current standard test?

The DOL allowed for a comment period of 60 days from the date of publication in the Federal Register, so the comment period ends Sept. 25, 2017. By issuing the RFI, the DOL has indicated it wants to rework the exemption tests and seeks input from businesses, employees and interested associations and groups on what those tests should be.

The RFI also provides an excellent opportunity for employers and other interested parties to be heard. Those who want to read more about the RFI or submit information in response to it can do so here. If you have any questions about the RFI and what this could mean for implementation of the final overtime rule, please contact one of the attorneys in our Employment & Labor Group.

Update: This post has been updated to correct a reference to the National Right to Work Legal Defense Foundation’s appeal. The Missouri workers represented by the National Right to Work Legal Defense Foundation are suing not to prevent a public vote but to ensure that the summary of the proposition that appears on the ballot in 2018 does not confuse or mislead voters.

Missouri Gov. Eric Greitens earlier this year signed into law a bill that prohibits requiring employees to join a union or pay union fees. The law was set to become effective Aug. 28, 2017. However, while the governor signed the bill, Missouri allows for a party to petition for a referendum to put the issue before voters. Mike Louis, President of the Missouri AFL-CIO, submitted a request to the Missouri Secretary of State for a referendum whereby the issue would be submitted to the voters for their approval or rejection.

On July 28, 2017, the Missouri Court of Appeals reversed a trial court decision that had found the summary language of the proposed referendum to be insufficient. The appeals court concluded that the unions could continue their efforts to obtain the necessary signatures from the citizens of Missouri to place the right-to-work law on the November 2018 ballot, so as to determine whether the law will become effective. To place the issue on the ballot, the unions must obtain approximately 100,000 signatures from Missouri residents by Aug. 28, 2017.

The Missouri AFL-CIO announced that it was fully in agreement with the Missouri Court of Appeals decision, and the organization advocated that there should be a public vote. In response to the announcement by the Missouri AFL-CIO, the National Right to Work Legal Defense Foundation is planning on appealing the issue to the Missouri Supreme Court to ensure that the summary of the proposition that appears on the ballot in 2018 does not confuse or mislead voters.

We will keep you posted on the right-to-work law as it relates to the appeal to be filed by the National Right to Work Legal Defense Foundation. If you have questions about the right-to-work law, please contact the attorneys in our Employment & Labor group.

On July 17, 2017, U.S. Citizenship and Immigration Services (USCIS) issued a new version of the Form I-9, Employment Eligibility Verification. Changes to the Form I-9 instructions are fairly minimal and include:

• The Department of Justice “Office of Special Counsel for Immigration-Related Unfair Employment Practices” is now called the “Immigrant and Employee Rights Section.”
• The words “the end of” have been removed from the phrase “the first day of employment” in the description of the day on which the Form I-9 completion is required.

The USCIS also made the following revisions to List C of the List of Acceptable Documents:

• The Consular Report of Birth Abroad (Form FS-240) was added.
• The certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FW-240) were combined into List C number 2.
• All documents in List C were renumbered except for the Social Security Card.

Through September 17, employers may use the new form (rev. 07/17/17 N) or the prior form (rev. 11/14/16 N). The new form must be used beginning on September 18, 2017. There is no reason to wait to start using the new form, which can be downloaded from www.uscis.gov/i-9. 

If you have any questions about the new I-9 form or your obligations under the employment verification laws, please contact the attorneys in our Employment & Labor Practice Group.