1. WHAT’S UP IN EMPLOYMENT LAW?
Mary Stuart
September 15, 2017
MGMA CONFERENCE 2017

2. 2016
2017

4. 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

5. 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

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

8. 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

9. 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%

10. 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%

11. MEDICAL
MARIJUANA
MEDICAL
MARIJUANA

12. 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

14. 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

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

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

19. 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

21. 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

22. 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

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

24. 2017
2018