WHAT’S UP IN EMPLOYMENT LAW? Mary Stuart September 15, 2017 mary.stuart@huschblackwell.com MGMA CONFERENCE 2017

2016 2017

Job Descriptions Update regularly Essential functions New posting Restructuring Essential functions Onsite, regular attendance required Full time, shift work, weekends required Overtime, travel required Important for ADA analysis Difficult to add “essential functions” when considering accommodation Reassignment may only require meeting minimum qualifications “Required” versus “desired” Do not interview if do not meet “required Is “required” job related, e.g., language test

Performance Reviews Are they effective Are they harmful When Movement questioning annual performance reviews When What format Performance feedback important Improvement Compensation What is the purpose What’s in writing matters What’s not in writing didn’t happen Always review before taking action

Workplace Recordings Whole Foods v. NLRB (June 2017) Engaging in “protected activity” Still can ask

Trends Reports of substance use and abuse is rising Alcohol, marijuana and opioids Health care industry susceptible High profile Colorado cases OIG has suggested random testing Health care workers with access to drugs

Drug Testing (MSEC Survey 12.14.16) All Colorado (609) Colorado Health Care (44) Yes, tests 62% Never tested 38% Discontinued testing 1% Pre-employment 80% Random 39% Post-accident 68% Reasonable suspicion Return-to-work 20% Other 9% Yes, tests 77% Never tested 23% Discontinued testing -- Pre-employment 85% Random 21% Post-accident 38% Reasonable suspicion 74% Return-to-work 6% Other 3%

Drug Testing (MSEC Survey 12.14.16) All Colorado (609) Colorado Health Care (44) Marijuana/THC 94% Cocaine 95% Amphetamines/ecstasy Opiates/Opioids Phencyclidine 71% Synthetic cannabinoids 39% Other 12% Marijuana/THC 86% Cocaine 100% Amphetamines/ecstasy Opiates/Opioids Phencyclidine 81% Synthetic cannabinoids 29% Other 10%

MEDICAL MARIJUANA MEDICAL MARIJUANA

A Reasonable Accommodation? Trend may be otherwise under other state laws Arizona Massachusetts Connecticut (PUMA) Federal law not likely to change in near term Illegal substance No claim under ADA Not in Colorado Illegal under federal law Problem is determining impairment

Mixed Messages Polices Actions Halts collecting EEO-1 pay data Department of Justice siding with the baker in Supreme Court Department of Justice argues Title VII does not cover sexual orientation Zarda v. Altitude Express Investigations of systemic disparate pay practice Suit on underpaying female physicians, EEOC v. Denton County Pursuing claims in federal court to expand Title VII to LGBT individuals

Recent EEOC Cases ADA and interactive process EEOC v. Dependable Health Services Religious discrimination regarding schedule EEOC v. North Memorial Hospital

Mixed Messages Revisit workplace conduct rules Joint employer rule Arbitration stance Revisit Weingarten rights for non-union Care managers not supervisors

Fair Labor Standards Act White collar exemption Independent contractors Health care issues Revoked new salary requirements May revisit Misclassification Noncompete Rounding limited to 7 minutes Travel and training time Meal breaks (Colorado HCA/DOL case) On-call time

Deferred Action for Childhood Arrivals DACA Deferred Action for Childhood Arrivals Unknown impact Could extend time of those here Could end immediately if Congress doesn’t act Employers have to wait and see Don’t make guarantees Acknowledge that have to follow the law Don’t take action until law is clear

RAISE Act Reforming American Immigration for a Strong Economy End Diversity Visa Program (random lottery) Cap refugee green cards to 50,000 Eliminate preference for extended family Employment points based

RAISE ACT Employment visas capped at 140,000 Education Language ability Job offers Age Entrepreneurial initiative Extraordinary achievement

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