HUMAN RESOURCES FORUM for in House Attorneys, Managers and Human Resources Professionals November 14, 2019 8:00 A.M

Home , Jurist

HUMAN RESOURCES FORUM For In House Attorneys, Managers and Human Resources Professionals November 14, 2019 8:00 a.m. – Noon

Eckert Seamans Cherin & Mellott, LLC U.S. Steel Tower, 44th Floor 600 Grant Street Pittsburgh, PA 15219 412.566.6000 – phone 412.566.6099 – fax

www.eckertseamans.com

AGENDA

8:00 – 8:45 a.m. REGISTRATION AND BREAKFAST

8:45 a.m. WELCOME & INTRODUCTIONS Clare M. Gallagher

8:45—9:30 a.m. IT’S PRIME TIME FOR A PRIMER ON HRAs, HSAs, AND FSAs Presented by Sandra R. Mihok and Christine B. Bowers

9:30—10:00 a.m. KEY CONSIDERATIONS FOR YOUR NEXT WORKPLACE INVESTIGATION Presented by Renee Mattei Myers

10:00—10:15 a.m. Break

10:15—10:45 a.m. IT’S NOVEMBER, BUT THESE LEAVES ARE NOT FALLING Presented by William S. Myers

10:45—11:15 a.m. THE CHANGING LANDSCAPE OF EMPLOYMENT‐BASED IMMIGRATION Presented by Derek Illar

11:15 a.m—Noon NEWS YOU CAN USE Presented by Lindsey Conrad Kennedy and Taylor N. Brailey

/d͛^WZ/Dd/D&KZWZ/DZKE,ZƐ͕,^Ɛ͕E&^Ɛ WƌĞƐĞŶƚĞĚďǇ͗ ^ĂŶĚƌĂZ͘DŝŚŽŬ DĞŵďĞƌĂŶĚŚĂŝƌŽĨdĂǆ͕ƐƚĂƚĞƐΘ ŵƉůŽǇĞĞĞŶĞĨŝƚƐ ĐŬĞƌƚ^ĞĂŵĂŶƐŚĞƌŝŶΘDĞůůŽƚƚ͕>> ϲϬϬ'ƌĂŶƚ^ƚƌĞĞƚ͕ϰϰƚŚ&ůŽŽƌ WŝƚƚƐďƵƌŐŚ͕WϭϱϮϭϵ ;ϰϭϮͿϱϲϲͲϲϬϵϱ ƐŵŝŚŽŬΛĞĐŬĞƌƚƐĞĂŵĂŶƐ͘ĐŽŵ

ŚƌŝƐƚŝŶĞ͘ŽǁĞƌƐ DĞŵďĞƌ ĐŬĞƌƚ^ĞĂŵĂŶƐŚĞƌŝŶΘDĞůůŽƚƚ͕>> ϲϬϬ'ƌĂŶƚ^ƚƌĞĞƚ͕ϰϰƚŚ&ůŽŽƌ WŝƚƚƐďƵƌŐŚ͕WϭϱϮϭϵ ;ϰϭϮͿϱϲϲͲϲϭϴϭ ĐďŽǁĞƌƐΛĞĐŬĞƌƚƐĞĂŵĂŶƐ͘ĐŽŵ

PITTSBURGH, PENNSYLVANIA 600 Grant St. 44th Floor Pittsburgh, PA 15219 P: 412.566.1903 F: 412.566.6099 [email protected] Sandra R. Mihok PRACTICE AREAS: MEMBER-IN-CHARGE Employee Benefits & Executive CHAIR, TAX, ESTATES & EMPLOYEE BENEFITS Compensation CO-CHAIR, WOMEN’S INITIATIVE AT ECKERT Health Care Sandra Mihok acts as outside benefits counsel for plan sponsors Health Insurance Portability & and fiduciaries, advising on special projects and day-to-day matters Accountability Act – HIPAA involving employee benefit plan administration and tax, Employee Tax Retirement Income Security Act (ERISA), and Health Insurance Data Security & Privacy Portability and Accountability Act (HIPAA). She plays a key role in Artificial Intelligence, Robotics, her clients’ fiduciary compliance management by regularly and Autonomous Transportation attending plan committee meetings and providing training, Systems education, and advice. She specializes in matters ranging from qualified retirement plans STATE ADMISSIONS: and executive compensation to health and welfare and retiree Pennsylvania medical benefits. Sandra regularly represents clients in matters involving the Internal Revenue Service (IRS), Department of Labor COURT ADMISSIONS: (DOL), Pension Benefit Guaranty Corporation, and Department of U.S. Court of Appeals for the Health and Human Services (HHS) on issues such as government Third Circuit audits, voluntary corrections under the IRS and DOL correction programs, and HIPAA investigations. EDUCATION: J.D., magna cum laude, Duquesne University School of REPRESENTATIVE MATTERS Law Provides plan sponsors and fiduciaries with consulting, B.A., summa cum laude, advice, and practical solutions for the design, drafting, University of Pittsburgh operation, and communication of tax-qualified retirement plans, including defined pension plans; cash balance plans; 401(k) plans; profit sharing plans; employee stock ownership plans; health, disability, life, severance and other welfare benefit programs; nonqualified deferred compensation arrangements; and governmental plans of state and local governments. Provides fiduciary training, education, and advice to plan administration and investment committees. Provides plan sponsors, fiduciaries, and health care providers with counseling and advice on privacy and data security issues under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for employers and health care providers including negotiating business associate agreements. Has successfully resolved IRS, DOL, and HHS audits and investigation resulting in abated or significantly reduced penalties. Assists the firm’s litigation department in ERISA litigation matters, including matters involving federal bankruptcy court, the federal district courts, and federal courts of appeals.

PROFESSIONAL AFFILIATIONS Duquesne University School of Law, Adjunct Professor of Law Pittsburgh Business Group on Health (PBGH), Member and Speaker PBGH Global Benefits Task Force Women’s Bar Association of Western Pennsylvania Worldwide Employee Benefits Network National Center for Employee Ownership

COMMUNITY INVOLVEMENT Reading is FUNdamental Pittsburgh, elementary school reading mentor

AWARDS AND RECOGNITION Selected for inclusion in The Best Lawyers in America – Employee Benefits (ERISA) Law

NEWS AND INSIGHTS PUBLICATIONS “ERISA’s impact on data breach lawsuits,” HR.BLR.com, April 2016. “Affordable Care Act Update: Healthcare reporting for employers,” Eckert Seamans’ Construction Law Update, Fall 2015. “Honeywell Lawsuit Takes Aim at Biometric Screenings,” Workforce Magazine, December 2014. “Defense of Marriage Act affects benefits,” co-author, Allegheny County Bar Association’s Lawyers Journal, November 2012. “Forum selection challenged by recent litigation and Department of Labor efforts,” co-author, Eckert Seamans’ Legal Update, Fall 2012. “Beyond I Do: The Defense of Marriage Act, same-sex marriage and employee benefits,” co-author, Eckert Seamans’ Legal Update, Fall 2012. “IRS proposal considers the meaning of ‘governmental plan,'” Eckert Seamans’ Legal Update, Spring 2012. “New requirements for pension plans,” co-author, Eckert Seamans’ Construction Law Update, Spring 2011; Eckert Seamans’ Legal Update, Summer 2011. “Does your health and wellness plan violate GINA?” Eckert Seamans’ Legal Update, Spring 2010. “The Most Common HIPAA Privacy Mistakes Employers Make,” Workforce Management Magazine, July 2008.

MEDIA COVERAGE “New leader at Eckert Seamans’ Pittsburgh office,” Pittsburgh Business Times, October 2019.

SPEAKING ENGAGEMENTS “Welfare Benefit Plans and Form 5500,” Pittsburgh Business Group on Health webinar, June 2018. “Repeal and Replace? An Update on the Affordable Care Act,” co-presenter, Eckert Seamans’ Continuing Legal Education Seminar, August 2017. “Legislative Updates Forum: A View from Washington,” co- presenter at the Pittsburgh Business Group on Health seminar, April 2017. “The Latest Word on Employee Benefits: Update on Affordable Care Act and Wellness Programs,” co-presenter, Eckert Seamans Human Resource Forum, May 2016. “The Affordable Care Act: Understanding Employer Shared Responsibility and Information Reporting Requirements,” co- presenter, 2015 Employment Law Institute, Pennsylvania Bar Institute (PBI), November 2015. “Beyond the Biometrics II,” Eckert Seamans Human Resources Forum, May 2015. “Protect My Data: Protection of Confidential Employee Information Under the Health Insurance Portability and Accountability Act,” co-presenter , Eckert Seamans Human Resources Forum, May 2014. “Affordable Care Act: Where Are We Now?” co-presenter, Eckert Seamans’ Continuing Legal Education Seminar, August 2014. “The Affordable Care Act Revisited: What’s Hot Now,” co- presenter, Eckert Seamans’ Human Resources Forum, November 2013. “Health Care Reform: What Employers Need to Know Now,” Eckert Seamans’ Continuing Legal Education Seminar, August 2013. “Update on Affordable Care Act and Wellness Programs,” Pittsburgh Business Group on Health, July 2013. “HIPAA Revisited: New Regulations Impact Privacy Rules and Wellness Programs,” Eckert Seamans Human Resources Forum, June 2013. “Affordable Care Act/Health Care Update: What’s Next?” Eckert Seamans Human Resources Forum, April 2013. “Assessing the Health/Welfare Plan Environment,” co- presenter, PBI ERISA Update, March 2013. “Health Care Reform: Recent Developments & Guidance,” co- presenter, Pittsburgh Business Group on Health, March 2013. “Health Care Reform: Cost and Benefit Considerations and Implications,” co-presenter, Pittsburgh Business Group on Health, February 2013. “Health Care Reform: What’s Next,” co-presenter, Pittsburgh Business Group on Health, July 2012. “Hot Topics in Health Insurance,” co-presenter, PBI 16th Annual Insurance Institute, May 2012. “Beyond the Biometrics,” co-presenter, Eckert Seamans Human Resources Forum, November 2011. “Multiemployer Plans: a Legal Perspective,” co-presenter, Pennsylvania Institute of Certified Public Accountants (PICPA) Construction Industry Conference, October 2011. PITTSBURGH, PENNSYLVANIA 600 Grant St. 44th Floor Pittsburgh, PA 15219 P: 412.566.6181 F: 412.566.6099 [email protected] Christine Boronyak Bowers PRACTICE AREAS: MEMBER Tax Christine Boronyak Bowers utilizes her broad tax experience to Employee Benefits & Executive provide businesses, individuals, and nonprofit organizations with Compensation domestic and international tax planning advice and employee Opportunity Zones benefit plan counseling. STATE ADMISSIONS: Christine advises clients on a variety of tax-planning issues involving Pennsylvania the formation and operation of corporations and pass-through entities, real estate development activities, like-kind exchanges, Virginia financing, withholding, tax incentives and credits, and tax reporting COURT ADMISSIONS: and compliance. She also has experience with the tax aspects of structuring mergers, acquisitions, dispositions and reorganizations. U.S. Tax Court In addition, Christine counsels clients on the design and EDUCATION: administration of tax-qualified retirement plans, non-qualified LL.M, New York University deferred compensation plans, equity compensation plans, School of Law, 2003 employee stock ownership plans (ESOPs), health and welfare plans, and cafeteria plans. She also works with public charities and private J.D., magna cum laude, Order of foundations on obtaining and maintaining tax-exempt status, the Coif, University of Pittsburgh School of Law, 2002 corporate governance issues, unrelated business income tax (UBIT), fundraising and joint ventures. Christine regularly represents clients B.A., cum laude, Boston before the IRS and DOL. University, 1999 Prior to joining Eckert Seamans, Christine served as a law clerk to the Hon. L. Paige Marvel of the United States Tax Court in Washington, D.C., was an international tax manager at a Big Four accounting firm and practiced tax law at large law firms based in Richmond, Virginia, and Pittsburgh, Pennsylvania. It’s Prime Time For A Primer on HSAs, HRAs, and FSAs

Sandra R. Mihok, Esq. and Christine B. Bowers, Esq.

www.eckertseamans.com

Types of Account-Based Health Plans

www.eckertseamans.com

1 Health Reimbursement Arrangements

• Allows employers to reimburse the medical expense of employees or former employees (including retirees), spouses and tax dependents – Allowable medical expenses are defined by Code §213(d) • HRAs may ONLY be funded with employer contributions • Unused money may be rolled over (not required) • Benefits paid from an HRA are non-taxable to the employee and are deductible by the employer • HRAs are considered to be self-funded group health plans • HRAs can operate in conjunction with health FSAs, however, the plans documents must specify which program pays first • Employer is required to adjudicate claims and appeals

www.eckertseamans.com

HRAs – Added Complexity Post-ACA

• Post-ACA and prior to January 1, 2020, there are three types of HRAs: – Integrated HRAs – may be used for active employees – Stand-alone HRAs – generally may be used only for retirees or must be restricted – Qualified small employer health reimbursement arrangement – stand-alone for small employers • Final regulations create two more categories, beginning January 1, 2020: – Individual coverage HRA – Excepted benefit HRA • The ACA included insurance reform mandates for group health plans: – Must provide preventative care with no cost-sharing – No annual dollar limits on essential health benefits • By design, HRAs do not satisfy these rules unless integrated with other group health plan coverage that satisfies these requirements • Post-ACA agency guidance: – Required HRAs to comply with group health plan rules – Provided that HRA integration with individual market coverage or an employer plan that provides coverage through individual policies will not satisfy the ACA insurance reform mandates. • This guidance was intended to prohibit employers from shifting employees on to the Exchanges, especially high-claim employees, and reimbursing them for premiums through an HRA

www.eckertseamans.com

2 Integrated HRAs

• The employer must offer group health coverage (other than the HRA) that does not consist solely of excepted benefits – Coverage must be ACA compliant and may include a high deductible health plan – Excepted benefits such as dental and vision coverage, most health flexible spending accounts, fixed indemnity coverage, long-term care insurance, or Medicare supplemental coverage, are not considered to be other group health coverage • Employees and dependents receiving the HRA must actually be enrolled in another group health plan that does not consist solely of excepted benefits – Other group health plan does not have to be offered by the employer – could be the plan of the employee’s spouse or dependent – Requires attestation by employee • Terms of the HRA must limit HRA access to the employees and dependents actually enrolled in the other group health plan • Employees and former employees must be offered the opportunity to opt-out of the HRA and waive future reimbursements – At least on an annual basis, and – Upon termination of employment • ACA Violations for offering HRA without integrated coverage is $100/day for each affected employee, which is an annual penalty of $36,500 per employee

www.eckertseamans.com

Stand-Alone HRAs and QSEHRAs

• Retiree-Only HRA (Stand-Alone HRA for Retirees) – HRAs that provide benefits only upon retirement may stand alone – Retirees must be given the opportunity to opt out, as HRA coverage will disqualify them from getting a tax credit if they purchase coverage on an insurance Exchange

• Limited-Use HRA (Stand-Alone HRA for Active Employees or Retirees) – An HRA that only reimburses for dental and vision expenses or other excepted benefits

• Qualified Small Employer Health Reimbursement Arrangement (QSEHRA) – New option passed under 21st Century Cures Act – Not a group health plan – Permits small employers (under 50 full-time employees, including full-time employee equivalents) to reimburse individual health insurance premiums – The employer may not sponsor another group health plan – Nondiscrimination rules apply – Affects employee’s entitlement to a tax credit – Somewhat onerous notice requirements apply

www.eckertseamans.com

3 Excepted Benefit HRAs (2020)

• Excepted benefit HRAs are non-integrated HRAs that can be used to reimburse excepted benefits and certain other medical expenses – Not subject to the ACA prohibition on lifetime and annual dollar limits and preventative care mandates – May reimburse out-of-pocket Code §213(d) medical expenses and premiums for coverage consisting solely of excepted benefits – Premiums for short-term limited-duration insurance coverage can also be reimbursed but may be subject to limitations

• To qualify, the excepted benefit HRA must: – Not be an integral part of a group health plan – employer must provide other ACA compliant group health plan coverage – Provide benefits that are limited in amount – $1,800 per plan year for 2020 – Not reimburse for premiums for individual health coverage, group health plan coverage (other than COBRA coverage) or Medicare Parts A, B, C, or D, but may reimburse cost-sharing for these types of coverage – Be made available under the same terms to all similarly situated individuals in an employee class, regardless of any health factor – Comply with nondiscrimination rules

www.eckertseamans.com

Individual Coverage HRAs (2020)

• HRA can now be integrated with individual health insurance coverage (ICHRAs) – Individual health insurance coverage refers to coverage in the individual market and fully-insured student health insurance that are ACA compliant, and Medicare (Parts A and B or Part C) but does not include short-term, limited duration insurance or coverage consisting solely of excepted benefits – ICHRA can be used to pay premiums for individual coverage, but is not required to do so, and can specify which medical expenses are eligible for reimbursement, such as premiums only, cost-sharing, or particular medical expenses; existing HRA rules govern the types of expenses that can be reimbursed – May be offered to current and former employees and their dependents – Can also be used with an HSA if the ICHRA reimburses solely for individual coverage premiums but not if the ICHRA reimbursed for first-dollar cost sharing

• Basic Requirements – Participant must actually enroll individual health insurance that is ACA-compliant – Employer cannot offer both a traditional group health plan and an ICHRA to the same class of employees but may create subclasses for new hires – Once coverage under the individual policy ends, ICHRA must stop reimbursements for expenses incurred after coverage ends, and any remaining balance must be forfeited, unless COBRA applies

www.eckertseamans.com

4 Other Requirements for ICHRAs (2020)

• ICHRA must be offered on the same terms to all employees within a class – Rules provide for 10+ employee classifications, determined at the common-law employer level – Minimum class sizes may apply and are based on the size of the employer – Higher contributions are permissible based on age and family size – No requirement to offer to all former employees in the same class, but must be provided on same terms within the class • Annual opt-out and waiver of future reimbursements must be provided – ICHRA coverage prohibits eligibility for the premium tax credit • Employer must adopt procedures for annual and ongoing verification that ICHRA participants are enrolled in qualifying coverage – Could include third-party documentation, such as submission of insurance card, explanation of benefits, evidence of plan selection on an Exchange or the participant’s attestation of coverage – Enrollment must also be verified at the time of each reimbursement • ICHRAs must provide detailed written notices to each participant at least 90 days before the beginning of each plan year – Required information includes, among other things, maximum dollar amount for each participant, requirement of enrollment in individual coverage, explanation of impact on premium tax credit eligibility, contact information for HRA-related questions, special enrollment dates, ICHRA coverage effective dates, ability to opt out – Does not require information to be provided on affordability

www.eckertseamans.com

The ACA’s Employer Mandate “Pay or Play” §4980H Penalties

§4980H(a) – The “A Penalty” §4980H(b) – The “B Penalty”

Must offer “minimum essential coverage” to at least The offer of coverage must: 95% of full-time employees a) Be affordable; and 2020 A Penalty liability is $2,750 annualized b) Provide minimum value (MV) multiplied by all full-time employees (reduced by first 30)  2020 B Penalty liability is $3,860 annualized multiplied by each such full-time employee who ICHRA: An HRA, including an individual coverage enrolls in subsidized Exchange coverage HRA, is an eligible employer-sponsored plan. Therefore, if an ALE were to offer an eligible  ICHRA: Minimum Value: An individual coverage employer-sponsored plan (including an individual HRA that is affordable would be treated as coverage HRA) to at least 95 percent of its full-time providing MV employees (and their dependents), the ALE would not be liable for a payment under section 4980H(a) for the month. Affordability: See following slides

www.eckertseamans.com

5 General ACA Affordability Safe Harbors

For 2020, the applicable percentage decreases to 9.78% (down from 9.86% in 2019).

• 2020 Federal Poverty Line Safe Harbor: 9.78% of the Federal Poverty Line Federal Poverty Line (Continental U.S.): $12,490 2020 Monthly Employee-Share of Premium for Lowest-Cost Plan Limit: $101.79

• 2020 Rate of Pay Safe Harbor: 9.78% of Rate of Pay Hourly Employees: 9.78% of Employee’s Hourly Rate of Pay x 130 Salaried Employees: 9.78% of Employee’s Monthly Salary

• 2020 Form W-2 Safe Harbor : 9.78% of Box 1 Wages

Box 1 does not include many forms of compensation, including 401(k) deferrals and Section 125 salary reductions for health and welfare plan coverage

www.eckertseamans.com

ICHRA ACA Affordability Safe Harbors

The IRS has proposed three additional safe harbors in Notice 2018-88 to address the challenges that employers will face with respect to ICHRAs. These are based on the “HRA affordability plan,” which is the lowest cost silver plan for the employee for self-only coverage offered by the Exchange for the rating area in which the employee resides. 1) Proposed Worksite Location Safe Harbor • HRA affordability plan may be based on the lowest cost silver plan on the Exchange in the rating area of the employee’s primary worksite • Not required to use plan in rating area of employee’s place of residence • IRS requests comments on potential age-based safe harbors because cost varies based on the employee’s age (e.g., age bands or otherassumptions) 2) Proposed Calendar Plan Year Safe Harbor • Employers with a calendar plan year ICHRA may base HRA affordability plan cost on the premium in effect for the prior calendar year • Designed to address the fact that Exchange plan premiums are not available until October, which would not provide sufficient planning time for employers 3) Proposed Non-Calendar Plan Year Safe Harbor • Employers may rely on the cost of the HRA affordability plan in thefirst month of the plan year for the remainder of the plan year

www.eckertseamans.com

6 Individual Coverage HRAs: Estimated Effects The Departments Anticipate ICHRA Transitions from 2020-2028 – ICHRA expected to increase from 1.1 million to 10.9 million by 2024; Traditional group health major medical plan coverage will decline by ~7 million by 2024

www.eckertseamans.com

Health Savings Accounts

• HSAs accept both employee and employer money. – HRAs cannot accept employee money; FSAs can accept both but most employers design programs that accept only employee money • HSAs take both pre-tax and after-tax (deductible) contributions. – Unlike HRAs and FSAs. • HSAs hold real dollars, which in some cases are actually invested. • Unlike vast majority of HRAs and FSAs, which are bookkeeping accounts. • Maximum annual contribution – $3,550 if eligible individual single HDHP coverage, $7,100 family HDHP coverage (for 2020) – $1,000 catch-up contribution if age 55 or over (for 2020)

www.eckertseamans.com

7 Health Savings Accounts

• HSA dollars may be withdrawn for any reason, at any time. – Only issue is taxation…tax free for withdrawals to reimburse medical expenses, otherwise usually taxable and subject to additional excise tax. • Unused dollars roll over from year to year. – Unlike FSAs (except for 2½-month grace period or $500 carryover). • HSA accounts are completely portable, after employment. – Unlike FSAs and HRAs (except to the extent COBRA applies). • Employer or TPA/administrator does not adjudicate claims. – Unlike FSAs and HRAs • Participants determine when to obtain a reimbursement from their HSAs, for what purpose, and whether to pay tax on the withdrawal.

www.eckertseamans.com

Eligible Individual

• HSAs can only be established by an “eligible individual” • To be considered an “eligible individual,” and employee must: – Be enrolled in a qualifying high deductible health plan (HDHP) – NOT BE enrolled in most other, non-HDHP coverage, either through the employer or elsewhere (e.g., as a covered spouse under a spouse’s health plan). – Not be covered by Medicare – Not be another’s tax dependent

www.eckertseamans.com

8 HDHP Coverage

• HDHP coverage must: – Provide significant medical benefits • Excepted benefits (e.g., most dental and vision) do not qualify – Mere eligibility for other coverage, or Medicare is okay, but coverage is not. • Spouse or dependent’s eligibility or enrollment in other coverage or Medicare is okay too…as long as it doesn’t cover the employee • Specific minimum deductibles: • $1,400 for individual coverage (for 2020) • $2,800 for family coverage (for 2020) – Have out-of-pocket maximums that don’t exceed: • $6,900 for individual coverage (for 2020) • $13,800 for family coverage (for 2020) • Some other coverages are Permitted Insurance – Dental, vision – Coverage for accidents – Indemnity insurance plans paying a fixed amount per day of hospitalization • But other coverages are prohibited: – FSAs (unless “limited” or high deductible) • Mid-year HSA implementations pose problems • Note: You have FSA “coverage” means ability to access HRA or FSA funds

www.eckertseamans.com

HDHP Coverage

• HDHP coverage must comply with the Deductible rules: – No reimbursements/payments below the high deductible (e.g., no Rx, no office visits) – Exception for some “preventive care.” Preventive care benefits include: • All of the preventive services that plans and issuers are required to provide at first dollar under the Patient Protection and Affordable Care Act. • Drugs or medications when they are taken by a person who has developed risk factors for a disease that has not manifested itself or become clinically apparent or to prevent the reoccurrence of a disease from which a person has recovered. • Preventive care benefits do not include any service or benefit intended to treat an existing illness, injury, or condition. – NEW: Notice 2019-45 Expands the scope of “preventive care” to certain treatments for chronic conditions, because of the clinical evidence that such items or services will prevent the exacerbation of a chronic condition or the development of a secondary condition that requires significantly higher cost treatments. Examples: insulin for diabetics, beta-blockers for coronary artery disease, statins for heart disease, SSRIs for depression.

www.eckertseamans.com

9 Permitted Insurance and Permitted Coverage

• Permitted Insurance includes fixed cost hospital indemnity coverage or specified disease coverage (i.e. cancer coverage). These must be fully insured.

• An individual may have certain other types of permitted coverage in addition to permitted insurance. Permitted coverage includes coverage (whether provided through insurance or otherwise) for accidents , disability, dental care, vision care, or long-term care.

• Check voluntary benefits that offer additional benefits

• Watch for riders or options that may include additional medical care (i.e. business travel accident plans).

• Telemedicine can pose issues if not coordinated

www.eckertseamans.com

Questions?

Sandra R. Mihok, Esq. (412) 566.1903 | [email protected]

Christine B. Bowers, Esq. (412) 566.6181 | [email protected]

www.eckertseamans.com

10 Types of Account-Based Health Plans Health Savings Account (HSA) Health Reimbursement Flexible Spending Account (FSA) Arrangement (HRA)

Who Owns Account Individual (Member) Owned Employer Owned Employer Owned

Employer-funded, tax-advantaged Member-owned, tax-advantaged bank account Tax-advantaged account established through an arrangement which reimburses employees that allows members to pay for IRS-qualified, employer to pay for IRS-qualified, out-of-pocket Account Overview for IRS-qualified, out-of-pocket medical out-of-pocket medical expenses medical expenses expenses

Member, Employer, Third Party (i.e., Spouse, Who Can Contribute Employer only Employee and Employer Parent, etc.)

Substantiation of Third Party (required for payment unless Third Party (required for payment unless auto- Member Expenses auto-substantiated) substantiated)

Yes, an HRA must be integrated with Yes, other group health plan coverage, not limited Yes, qualified high deductible health plan group or individual coverage unless to excepted benefits, must be made available to Health Plan Required (HDHP) whether through employer or not limited to specific purpose benefits such employees as vision and dental

Other Health Plan Only certain permissible coverage such as Yes Yes Allowed dental or limited purpose plan(s)

Deposits, earnings, and distributions for IRS- Employer contributions and claim Contributions and claim reimbursements are tax- Tax Benefits qualified medical expenses are tax-free reimbursements are tax-free free

Rollover of Unused Yes, funds always belong to the member If allowed by plan Up to $500 if allowed by plan Dollars

When an employee terminates, he/she Yes, when a member terminates or retires, When an employee terminates, he/she does not Access After does not typically retain access to an HRA he/she continues to maintain ownership of their remain eligible for an FSA, though limited COBRA unless COBRA continuation coverage is Termination HSA rights may be available elected $3,550 – Self-Only (2020) $1,800 – Excepted Benefit HRAs (2020) Contribution Limits $7,100 – Family (2020) $5,150 – QSEHRAs (Self-Only 2019) $2,750 (2020) $1,000 – Catch-Up (2020) $10,450 – QSEHRAs (Family 2019)

<zKE^/Zd/KE^&KZzKhZEydtKZ/Es^d/'d/KE WƌĞƐĞŶƚĞĚďǇ͗ ZĞŶĞĞDĂƚƚĞŝDǇĞƌƐ DĞŵďĞƌ ĐŬĞƌƚ^ĞĂŵĂŶƐŚĞƌŝŶΘDĞůůŽƚƚ͕>> ϮϭϯDĂƌŬĞƚ^ƚƌĞĞƚ͕ϴƚŚ&ůŽŽƌ ,ĂƌƌŝƐďƵƌŐ͕WϭϳϭϬϭ ;ϳϭϳͿϮϯϳͲϳϭϲϯ ƌŵǇĞƌƐΛĞĐŬĞƌƚƐĞĂŵĂŶƐ͘ĐŽŵ

HARRISBURG, PENNSYLVANIA 213 Market St. 8th Floor Harrisburg, PA 17101 P: 717.237.7163 F: 717.237.6019 [email protected] Renee C. Mattei Myers PRACTICE AREAS: MEMBER Labor & Employment CHAIR, ASSOCIATES COMMITTEE STATE ADMISSIONS: Renee Mattei Myers focuses her practice on a wide variety of labor Pennsylvania and employment matters in state and federal trial and appellate courts throughout Pennsylvania. She has experience defending COURT ADMISSIONS: employers against discrimination claims under Title VII, Americans U.S. District Courts for the Middle with Disabilities Act, Age Discrimination in Employment Act, Family District of Pennsylvania and Medical Leave Act, and Pennsylvania Human Relations Act. U.S. District Court for the Eastern Renee represents employers before administrative agencies District of Pennsylvania including the Pennsylvania Human Relations Commission, Equal U.S. District Court for the Employment Opportunity Commission, and the Pennsylvania Western District of Pennsylvania Department of Labor. She also designs and implements training U.S. Court of Appeals for the sessions for managers and supervisors on employment law issues, Third Circuit conducts audits of employer policies, and provides general U.S. Supreme Court employment advice to human resource managers in a wide range of industries on matters including hiring, discipline and discharge, EDUCATION: family and medical leave issues, wage and hour issues, and J.D., magna cum laude, reductions-in-force. University of Pittsburgh School of Renee serves as the chair of the firm’s Associates Committee. Law, 1994 B.A., magna cum laude, King’s REPRESENTATIVE MATTERS College, 1991 Represented a newly elected district attorney in an age discrimination lawsuit and received summary judgment ruling that was affirmed in the Third Circuit Court of Appeals. Received a summary judgment ruling in a race discrimination and harassment lawsuit for a central Pennsylvania entertainment establishment. Represented a national educational technical institute in age discrimination and whistleblower lawsuit and was successful in receiving a summary judgment ruling which was affirmed in the Third Circuit Court of Appeals. Represented a national communication company in religious discrimination lawsuit in federal court and was granted summary judgment on all claims. Successfully represented a large multi-state insurer in state and federal court regarding claims of disability discrimination and ERISA violations. Successfully represented a municipality in a series of claims by former employees before the Pennsylvania Human Relations Commission following the sale of the municipality’s nursing home facility. Designed and implemented a series of full-day training sessions for a private educational institution for all managers and supervisors.

PROFESSIONAL AFFILIATIONS Pennsylvania Bar Association (PBA), Member PBA Commission on Women in the Profession, Co-Chair of Executive Council PBA Commission on Women in the Profession Mentoring Program, Mentor PBA House of Delegates, Former Member James S. Bowman American Inn of Courts, Alumnus Dauphin County Bar Association (DCBA), Board Member, Personnel Committee Chair, and Past President DCBA Young Lawyers Division, Former Chair

COMMUNITY INVOLVEMENT Salvation Army Harrisburg, Women INvolved United Way, Women’s Leadership Network National Multiple Sclerosis Society Leadership Council, Former Member Central Pennsylvania Food Bank, Volunteer and Former Board Member Girl Scouts in the Heart of Pennsylvania, Service Unit Co- Director, Troop Leader, and Volunteer Dauphin County Children and Youth Gifts for Kids Program Coordinator for Eckert Seamans, helping provide Christmas gifts to over 30 children in the foster care system (2002- Present)

AWARDS AND RECOGNITION Selected for inclusion as The Best Lawyers in America 2020 Litigation – Labor and Employment “Lawyer of the Year” in Harrisburg Recognized by Harrisburg Magazine as a “Legal Leader” in Central Pennsylvania Recognized by Susquehanna Style magazine as a “Select Lawyer” in Central Pennsylvania Recognized by the Dauphin County Bar Association with the DIVA Award for her mentoring, leadership, and involvement with women in the association Recognized by the Central Penn Business Journal as one of Central Pennsylvania’s Women of Influence Chosen as one of the YWCA of Greater Harrisburg’s Women of Excellence Selected for inclusion in Pennsylvania Super Lawyers Selected for inclusion in The Best Lawyers in America Recognized by the Central Penn Business Journal as one of Central Pennsylvania’s “40 under 40” National MS Society Leadership Class Peer-rated by Martindale Hubble as AV Preeminent

NEWS AND INSIGHTS PUBLICATIONS “The Virtual Work Space: What Are the Benefits and Risks?” HR Daily Advisor, September 2019. “Guest view: In face of gender pay gap, revisit questions about salary history,” Central Penn Business Journal, November 2017. “Let’s Talk About Sex … and Salary History,” HR Daily Advisory, September 2017. “Don’t Believe the Hype — The Real Effect of Hobby Lobby on Employers & Employees,” Jurist, July 2014. Frequent speaker and author on employment law related topics including the ADA, FMLA, sexual harassment, and employee privacy rights.

SPEAKING ENGAGEMENTS “Gender, Equal Pay and Salary History,” webinar, Pennsylvania Bar Institute, February 2018. “Employees Behaving Badly: Mistakes Employers Make and How to Fix Them,” co-presenter, Eckert Seamans’ Continuing Legal Education Seminar, September 2015. “The Confluence of Issues Between the Americans with Disabilities Act and the Family Medical Leave Act,” co- presenter, Eckert Seamans Human Resources Forum, April 2014. “Managing Time and Attendance: FLSA, FMLA, Sick Leave,” co-presenter, Pennsylvania State Association of Township Supervisors Human Resources and Labor Management Institute, December 2013. “Social Media for Municipal Employers,” co-presenter, Pennsylvania State Association of Township Supervisors Human Resources and Labor Management Institute, December 2013. “Overcoming Obstacles to Success ,” panelist, Pennsylvania Bar Association Women in the Profession annual retreat, November 2013. “Hot Issues in Social Media — Handling Gripe Content,” co- presenter, Pennsylvania Bar Institute’s 19th Annual Business Lawyer’s Institute, November 2013. “The Americans With Disabilities Act and How the Rules of the Game Have Changed for Employers: What the Case Law Is Now Telling Employers,” co-presenter at the Eckert Seamans Human Resources Forum, April 2013. “Social Media Use in the Workplace,” presented to the York County Chapter of the Society for Human Resource Management, September 2012. “Social Media and Employment Law: Recipe for Disaster or Helpful Tool?,” co-presenter at the Eckert Seamans Human Resources Forum, May 2012. “Sexual Harassment, The Basics and Beyond,” Dauphin County Bar Association Lunch and Learn CLE series, March 27, 2012. “Unemployment Insurance 101: Assessing and Responding to Claims for U.I. Benefits,” Pennsylvania Bar Institute seminar, December 2010. Key Considerations for Your Next Workplace Investigation

Renee C. Mattei Myers, Esq.

www.eckertseamans.com

Investigation Sequence

Something happens l Investigations/Interviews l Loudermill*/Due Process/Double Check Your Facts l Imposition of Discipline

www.eckertseamans.com

1 Something Happens

• Potential Rule Violation? • Internal Complaint?

www.eckertseamans.com

Internal Complaint

• Investigate if:

– Complaint brought directly to HR by employee

– Manager reports complaint from employee

– Anonymous complaint capable of investigation

www.eckertseamans.com

2 Potential Rule Violation

• Was Employee given Notice of Rule? • Where is Rule?

– CBA

– Employee Handbook • Is Rule reasonable?

www.eckertseamans.com

Investigation Issues

• Who is the investigator? • Personnel department, solicitor, private investigator, special counsel? Advantages/disadvantages? • Any potential conflicts (real or perceived). • Privilege issues.

www.eckertseamans.com

3 Investigation

• Map out a strategy for who participates in collecting information and who participates in policy decisions. • Interview the employee accused of misconduct. This must be done at some point. • What if employee refuses to attend? • Can I interview the employee more than once?

www.eckertseamans.com

Investigation

• Prepare ahead of time. • What’s your batting order for interviews? • How are you going to record information? • Notes, summaries, declarations, statements. Never tape or video!

www.eckertseamans.com

4 Investigation

• A unionized/statutory employee has the right to a Weingarten representative and Garrity warnings during the investigation process, and before the employee is deprived of property or money, a Loudermill notice. – Weingarten – When an employee is compelled to answer questions that may implicate him/her and cause harm (i.e. discipline), employee has a right to union representation during interview. – Garrity - (public sector only) When an employee is compelled to answer questions that would implicate him/her in a crime, the employer cannot turn over the statements/information to police.

www.eckertseamans.com

Investigation

• Two people at each interview. • Tell them why the interview is happening and what their role is going to be. • Tell them who you are and why you are here. • Explain how the information gathered will be used. • Do not promise complete confidentiality. • Explain the consequences if the truth is not told.

www.eckertseamans.com

5 Investigation

• What, when, where and how. • Who was involved or present? Who knows what happened, even if not present? • Chronological sequence of events. Could it have been avoided? Were rules being followed? • Does this happen often or in a pattern? Describe prior incidents. • Any notes, records, or other evidence? • What else should I know about this event?

www.eckertseamans.com

Investigation

• One question at a time and no compound questions. • Make the employee go through the sequence of events and evaluate how credible his/her information is. • Ask the really tough questions at the right time. • Ask questions that can be substantiated by other testimony. • You can interview more than once, if necessary.

www.eckertseamans.com

6 Proof

• Its not the employee you know, it’s the employee you can prove exists! • How can you prove what you know? – Rock – Witnesses. – Paper- Documents/Statements. – Scissors- Records, receipts, swipe card entries. • Don’t build your house on one foundation. Don’t build a case on one witness.

www.eckertseamans.com

Outcome

• Possible Conclusions: – Behavior occurred and is rule violation. – Behavior occurred and is not rule violation. – Behavior did not occur. – No idea what occurred or didn’t occur.

• Document Conclusions: – Include credibility determinations where appropriate. – “He Said/She Said” does not mean you can’t draw a conclusion.

www.eckertseamans.com

7 LOUDERMILL Notice (Or It’s Equivalent)

• Union/Statutory employees (Civil Service, etc.). • Notice. • Explanation of the evidence. • Opportunity to respond. • Can be conducted face to face or in writing.

In certain situations, can be a good personnel practice even where no union employees are involved. “Tell me why I'm wrong.”

www.eckertseamans.com

Appropriate Penalty

• Considerations: – Don’t pile on discipline. – Review work rules. – Review and consider the facts and any mitigating circumstances. – Review comparable cases. – Review prior discipline. – Consider years of service.

www.eckertseamans.com

8 Post-Investigation Notice

• Provide notice to complainant and alleged bad actor as to conclusion of investigation. • Retaliation considerations:

– Unfounded vs. Frivolous Complaints.

www.eckertseamans.com

Questions

Renee C. Mattei Myers, Esq. 717.237.7163 | [email protected]

www.eckertseamans.com

9 IT’S NOVEMBER, BUT THESE LEAVES ARE NOT FALLING Mandatory Leaves of Absence Beyond the FMLA and ADA Presented by:

William S. Myers (Bill) Member

Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44th Floor Pittsburgh, PA 15219

(412) 566‐1938 [email protected] PITTSBURGH, PENNSYLVANIA 600 Grant St. 44th Floor Pittsburgh, PA 15219 P: 412.566.1938 F: 412.566.6099 [email protected] William S. Myers PRACTICE AREAS: MEMBER Labor & Employment Bill Myers has been a labor and employment lawyer for three Litigation decades. He is both an advocate and a counselor, and he carries Appellate both sets of tools to work on every client matter. STATE ADMISSIONS: Bill is experienced in the full range of federal law governing Pennsylvania employment and labor relations, as well as the spectrum of similar state laws and the growing body of workplace regulation by cities. Georgia Bill has advised countless companies, large and small, and has COURT ADMISSIONS: represented them—as both defendant and plaintiff—in state and federal courts and trial and appellate courts throughout the country, Supreme Court of the United States and in mediation and arbitration in a variety of settings. U.S. Court of Appeals for the Bill also has extensive experience advising and representing clients Third Circuit on regulatory matters before the many federal, state, and local U.S. Court of Appeals for the agencies that address labor and employment issues, with a special Fourth Circuit emphasis in workplace safety and health (OSHA) in both general industry and construction, and on wage and hour matters involving U.S. Court of Appeals for the Seventh Circuit overtime compensation and exemptions. U.S. Court of Appeals for the Ninth Circuit REPRESENTATIVE MATTERS U.S. Court of Appeals for the Defended employers in employee lawsuits for discrimination Eleventh Circuit and harassment, overtime and other compensation, U.S. District Court for the employee benefits, wrongful discharge, retaliation, and other Northern District of Georgia employment law claims in individual actions, Rule 23 class U.S. District Court for the Middle actions, and Section 16(b) collective actions. District of Georgia Defended employers in lawsuits by former employees U.S. District Court for the seeking to invalidate restrictive covenants and other contract Southern District of Georgia terms prohibiting post-employment competition. U.S. District Court for the Western District of Pennsylvania Defended employers in lawsuits by other employers for hiring their former employees, including tortious interference, U.S. District Court for the Middle misappropriation of trade secrets, unfair competition, and District of Pennsylvania related claims. U.S. District Court for the Western District of Michigan Pursued claims for employers against former employees and their new employers for breach of restrictive covenants and EDUCATION: other contract provisions, tortious interference, J.D., University of Pittsburgh misappropriation of trade secrets, breach of duty of loyalty, School of Law, 1983; Pitt Law unfair competition, and related claims. Review Advised employers on federal and state laws affecting A.B., Franklin & Marshall College, wages, hours and overtime pay, employee safety and health, 1980 individual employment decisions and reductions in force, employee handbooks and policy manuals, and individual employment contracts. Assisted employers in responding to investigations, inspections, and audits by federal, state, and local regulatory agencies under laws governing wages, hours, and overtime pay, discrimination and harassment, retaliation and whistleblower claims, and affirmative action. Represented employers in occupational safety and health inquiries, inspections, citations, and litigation involving OSHA, MSHA, and approved state agencies. Conducted internal client investigations involving claims of retaliation, harassment, and other misconduct, both at corporate offices and in remote facilities. Advised transaction lawyers on labor and employment aspects of mergers, acquisitions, and other corporate deals and documents. Negotiated collective bargaining agreements for employers under Sections 8(f) and 9(a); filed and defended claims and charges under Sections 301 and 302; filed and defended unfair labor practice charges for employers and handled related investigations, hearings, and appeals; and worked on national, corporate, and single-site representation cases and election campaigns.

PROFESSIONAL AFFILIATIONS Pennsylvania Bar Association

COMMUNITY INVOLVEMENT Guyasuta Area Football Association, Board of Directors Keystone Bantam Youth Football, Board Representative

AWARDS AND RECOGNITION Attained an AV® Preeminent™ rating from Martindale- Hubbell

NEWS AND INSIGHTS PUBLICATIONS “Are they or aren’t they? Noel Canning and the status of the NLRB,” Eckert Seamans’ Legal Update, Spring 2013.

SPEAKING ENGAGEMENTS “OSHA Inspections: A Stitch in Time Saves Nine,” presenter, Eckert Seamans’ Continuing Legal Education Seminar, August 2019. “OSHA Investigation: How to prepare for and handle an OSHA inspection,” presented at Eckert Seamans’ Human Resources Forum, April 2019. “FLSA White Collar Exemptions: Where They’ve Been, Where They’re Going,” Eckert Seamans Human Resources Forum, May 2014. It’s November, But These Leaves Are Not Falling Mandatory Leaves of Absence Beyond the FMLA and ADA

William S. Myers, Esq.

www.eckertseamans.com

Employee Leaves of Absence

• Elephant in the Room – Americans With Disabilities Act  Mandatory leave of absence as reasonable accommodation for a disability – Family and Medical Leave Act  Mandatory unpaid leave of absence for personal health or family care • Explicit Mandatory Leaves of Absence • Implicit Mandatory Leaves of Absence • At-Work Leaves of Absence: Break Times • Absent Leaves of Absence: Not Required in PA

www.eckertseamans.com

1 Explicit Mandatory Leaves

• Military Service — Federal (USERRA: 38 U.S.C. §§4301, et seq) • All categories of military training and service for the uniformed services • Leave for training and active duty (voluntary and involuntary) • Generally unpaid—unless employer pays for comparable leaves • Continuation of health benefits up to 24 months • Reemployment and discharge rights after completion of service  Escalator principle: Pay and perquisites “that he or she would have attained” • Posted notice of USERRA rights

• Military Service—Pennsylvania (51 Pa. C.S. §§7301, et seq.) – Compliance with USERRA satisfies state statute  Except health benefit costs must be paid for first 30 days of active duty

www.eckertseamans.com

Explicit Mandatory Leaves

• Jury Duty — Federal (28 U.S.C. §1875) – Protects employees serving on federal court juries – Prohibits discharge, intimidation, coercion by employers – Allows penalties, injunction, civil damages, attorneys fees – No duty to pay employees while on jury duty

• Jury Duty — Pennsylvania (42 Pa. C.S. §4563) – Protects employees serving on Pennsylvania court juries – Prohibitions for employers similar to federal jury protection law – Exempts retail and service employers (< 15 ees) – Exempts manufacturing employers (< 40 ees) – Excuses employees of exempt employers from jury service

www.eckertseamans.com

2 Explicit Mandatory Leaves

• Crime Victim or Witness Duty — Pennsylvania (18 Pa. C.S. §4957) – Requires leave for employee who attends court because:  Employee is a direct victim of a crime  Employee is witness to a crime  Employee’s family member is victim of a crime – Prohibits adverse action against employees who exercise this right – Covers stated intention to attend future court proceedings

www.eckertseamans.com

Explicit Mandatory Leaves

• Emergency Response Duty — Pennsylvania (35 Pa. C.S. §§7421, et seq.) – Protects volunteer firefighters, fire police, ambulance, rescue squad – Prohibits discharge or discipline due to:  Lost work time from responding to a call in the line of duty  Injury suffered in the line of duty

• State of Emergency Absence — Pennsylvania (43 Pa. C.S. §1482) – Protects employees who stay home during declared emergencies  If roads closed in local county due to Governor’s declaration of emergency  Exceptions for certain emergency service jobs (police, firefighters, hospitals, etc.)  Does NOT protect no-shows and early-outs unless in declared emergency

www.eckertseamans.com

3 Explicit Mandatory Leaves

• Personal and Family Sickness — Pittsburgh PSDA – Paid Sick Days Act  Enacted 2015, Struck down 2015, Revived 2019  Awaiting announcement of NEW effective date – Requires accrued paid sick leave for up to 40 hours per year – May be used for personal or family health condition • Personal and Family Sickness — Philadelphia PHFW – Promoting Healthy Families and Workplaces Act  Enacted 2015, no court challenges – Requires accrued paid sick leave for up to 40 hours per year – May be used for personal or family health condition or domestic abuse

www.eckertseamans.com

Implicit Mandatory Leaves

• Religious Observance — Federal, Pennsylvania (Title VII, PHRA) – Prohibits discrimination based on religion or creed – Interpreted to require leave for religious observance – Not available if imposes undue hardship on conduct of business

• Maternity — Federal, Pennsylvania (Title VII, PHRA) – Prohibits discrimination based on pregnancy – May require leave if it is granted for similar temporary conditions – NOTE: FMLA and ADA heavily implicated here

www.eckertseamans.com

4 At-Work Leaves: Break Times

• Lactation Breaks — Federal (29 U.S.C. §207) – Requires “reasonable break time” to express breast milk  Applies only to FLSA nonexempt employees  Applies only if the mother is breast feeding  Must provide private place other than bathroom  Available until child’s first birthday  Breaks need not be paid

• Meal and Rest Breaks — Federal (29 C.F.R. §785.18, 785.19) – NOT required, but if you allow them:  Rest breaks of 20 minutes or less are worktime for OT purposes  Meal breaks are not worktime for OT purposes—if mostly uninterrupted – State law note: Avoid Braun v. Wal-Mart

www.eckertseamans.com

Absent Leaves: Not Required in PA

• Vacation • Voting in Elections • Bereavement • Sick Leave • State or Federal Holidays • School Activities • Organ and Bone Marrow Donation • Victims of Domestic Abuse

www.eckertseamans.com

5 Questions?

William S. Myers (Bill) (412) 566.1938 | [email protected]

www.eckertseamans.com

6 d,,E'/E'>E^WK&DW>KzDEdͲ^/DD/'Zd/KE WƌĞƐĞŶƚĞĚďǇ͗ ĞƌĞŬ/ůůĂƌ DĞŵďĞƌ ĐŬĞƌƚ^ĞĂŵĂŶƐŚĞƌŝŶΘDĞůůŽƚƚ͕>> ϲϬϬ'ƌĂŶƚ^ƚƌĞĞƚ͕ϰϰƚŚ&ůŽŽƌ WŝƚƚƐďƵƌŐŚ͕WϭϱϮϭϵ ;ϰϭϮͿϱϲϲͲϲϳϳϭ ĚŝůůĂƌΛĞĐŬĞƌƚƐĞĂŵĂŶƐ͘ĐŽŵ

PITTSBURGH, PENNSYLVANIA 600 Grant St. 44th Floor Pittsburgh, PA 15219 P: 412.566.6771 F: 412.566.6099 [email protected] Derek Illar PRACTICE AREAS: MEMBER Labor & Employment Derek Illar focuses his practice on labor and employment and Litigation business matters. He has significant experience representing Business Counseling clients in court proceedings and before administrative agencies, such as the Equal Employment Opportunity Commission (EEOC), STATE ADMISSIONS: the Pennsylvania Human Relations Commission (PHRC), the New York Department of Labor (DOL), the Department of Labor and Industry Pennsylvania (DLI), and the Unemployment Compensation Board of Review Virginia (UCBR). In addition to litigation, Derek counsels clients to ensure their COURT ADMISSIONS: compliance with federal, state, and local laws, represents them U.S. District Court for the during administrative audits and investigations, assists them with Western District of Pennsylvania internal audits and investigations, and advises them on the EDUCATION: implementation of best practices. L.L.M., commendation, He also complements his practice by representing employers with Nottingham Trent University, respect to a variety of employment authorization matters and 2018 obtaining various employment-based visas, such as H-1Bs, Ls, Os, J.D., cum laude, University of and Ps. Pittsburgh School of Law, 2009; Derek also represents and advises businesses and non-profit Certificate of International & organizations in connection with their formation, dissolution, and Comparative Law reorganization; governance matters; commercial transactions; and B.A., magna cum laude, financial transactions. Washington & Jefferson College, 2005 He also serves as a private mediator and as an Instructor in the Professional Studies Department at California University of LANGUAGES: Pennsylvania. Italian Spanish REPRESENTATIVE MATTERS Obtained summary judgment in a federal civil rights litigation. Jones v. Trese et al., 2018 WL 4344979 (W.D. Pa. 9/11/18) Obtained summary judgment in a FMLA and ADA discrimination, retaliation, and interference case. Colonna v. UPMC Hamot, 2017 WL 4235937 (W.D. Pa. 9/25/2017) Obtained summary judgment on behalf of the employer in a FMLA retaliation and ADA discrimination and failure to accommodate case. Lavorgna v. Norfolk Southern Corp., 2017 WL 5006430 (W.D. Pa. 10/31/17) Obtained summary judgment in a PAHRC age discrimination case. Martin v. Henry F. Teichmann, Inc., 2015-3329 (4/28/2017) Defended a regional restaurant and catering company against claims of sexual discrimination and retaliation and obtained dismissal of the case Represented a regional pediatric practice in connection with allegations of national origin and religious discrimination and resolved the matter before litigation commenced Defended and advised a regional trucking company in connection with a wage and hour audit by the Department of Labor and reduced its liability Represented a regional holding company in a stock option and breach of contract case against a publically traded company and three national corporations and secured a favorable resolution for his client Represented two regional coal companies in a breach of contract, promissory estoppel, and quantum meriut case and secured payment for his clients Represented a private, charter airline in two separate, but related breach of contract actions and secured judgments on behalf of his client

PROFESSIONAL AFFILIATIONS Pennsylvania Bar Association

COMMUNITY INVOLVEMENT La Scuola d’Italia Galileo Galilei, President of the Board

AWARDS AND RECOGNITION CILE Fellowship, University of Pittsburgh Nordenberg Fellowship, University of Pittsburgh Public Interest Fellowship, K&L Gates

NEWS AND INSIGHTS PUBLICATIONS “Labor & Employment Alert: Recent Significant NLRB Decisions”, Eckert Seamans' Labor & Employment Alert, January 2018.

“The Pennsylvania Construction Workplace Misclassification Act: What You Need to Know,” Construction Business Owners, July 2019. “News on Pennsylvania’s Construction Workplace Misclassification Act,” Eckert Seamans’ Construction Law Update, Spring 2019. “Cyber Fatwas and Classical Islamic Jurisprudence,” John Marshall Journal of Information Technology and Privacy Law, 2010. “Unraveling International Jurisdictional Issues on the World Wide Web,” University of Detroit Mercy Law Review, 2010. SPEAKING ENGAGEMENTS “I-9 Audits and ICE Investigations: ICE is conducting I-9 audits at unprecedented rates, which can result in significant liability for employers. How to conduct self-audits and prepare for ICE investigations,” presented at Eckert Seamans’ Human Resources Forum, April 2019. “Sexual Harassment,” South Pointe, 2017. “From the Classroom to the Courtroom: Trial Tactics for Young Attorneys,” Uniontown, Pennsylvania, 2013. “Life after Unemployment: Unemployment Compensation Benefits,” Uniontown, Pennsylvania, 2012. “Early Intervention Services in Public Education,” Pittsburgh, Pennsylvania, 2008. The Changing Landscape of Employment-based Immigration

Derek J. Illar, Esq.

www.eckertseamans.com

Data: H1-Bs – Specialty Occupations

Fiscal Year Initial Denial RFEs Approval Rate after RFEs 2015 4.3% 22.3% 83.2%

2016 6.1% 20.8 % 78.9%

2017 7.4% 21.4% 73.6%

2018 15.5% 38% 62.4%

2019 (Q1 – Q3) 16.1 % 39.6% 62.7%

www.eckertseamans.com

1 Data: Ls – Intercompany Transfers

Fiscal Year Initial Denial RFEs Approval Rate after RFEs 2015 16.3% 34.3% 53.5%

2016 15% 32.1% 55.6%

2017 19.2% 36.2% 49.4%

2018 21.2% 45.6% 52.9%

2019 (Q1 – Q3) 28% 53.7% 50.7%

www.eckertseamans.com

Data: TNs – NAFTA (Canada & Mexico)

Fiscal Year Initial Denial RFEs Approval Rate after RFEs 2015 7.7% 17.3% 74.8%

2016 9.9% 23.6 % 64.2%

2017 8.4% 22% 64.7%

2018 11.7% 28.2% 59.9%

2019 (Q1 – Q3) 10.4% 23.7% 63.7%

www.eckertseamans.com

2 How did we get here?

• Buy American, Hire American Executive Order – April 18, 2017 – In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad… • USCIS Policy Memo – October 23, 2017 • USCIS Additional Guidance - Wage Level Determinations • USCIS Chart - Specialty Occupation and Wage Level Issues • USCIS Policy Memo - Implementation of the March 31, 2017 Memo • USCIS Policy Memo – February 22, 2018 • USCIS Policy Memo – July 13, 2018

www.eckertseamans.com

Process

Approval

Petition Denial Appeal Approval Request for Notice of Evidence Approval Motion to Intent to Give more Evidence Reconsider Deny Denial Motion to Reopen Refile the Petition

www.eckertseamans.com

3 H-1Bs - Specialty Occupations

• What are H-1B Visas? • Why are there Requests for Evidence (“RFEs”)? – The position is not a specialty occupation – The foreign national’s qualifications are insufficient – There is a lack of a traditional employer-employee relationship – The prevailing wage on the Labor Condition Application does not demonstrate a specialty occupation

www.eckertseamans.com

Ls – Intercompany Transfers

• What are Ls Visas? • Why are there RFEs? – The petitioner is not a qualifying organization – The beneficiary does not qualify as an executive or a manager – The beneficiary lacks specialized knowledge

www.eckertseamans.com

4 TNs - NAFTA Professionals

• What are TN Visas? • Why are there RFEs? – The position is not a profession – The beneficiary does not have the appropriate credentials

www.eckertseamans.com

Questions?

Derek J. Illar, Esq. (412) 566.6771 | [email protected]

www.eckertseamans.com

5 Presidential Executive Order on Buy American and Hire American | The White House Page 1 of 5

EXECUTIVE ORDERS

Presidential Executive Order on Buy American and Hire American

ECONOMY & JOBS

Issued on: April 18, 2017

★★★

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure the faithful execution of the laws, it is hereby ordered as follows:

Section 1. Definitions. As used in this order:

(a) “Buy American Laws” means all statutes, regulations, rules, and Executive Orders relating to Federal procurement or Federal grants including those that refer to “Buy America” or “Buy American” that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods.

(b) “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

(c) “Petition beneficiaries” means aliens petitioned for by employers to become nonimmigrant visa holders with temporary work authorization under the H-1B visa program.

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/ 11/8/2019 Presidential Executive Order on Buy American and Hire American | The White House Page 2 of 5

(d) “Waivers” means exemptions from or waivers of Buy American Laws, or the procedures and conditions used by an executive department or agency (agency) in granting exemptions from or waivers of Buy American Laws.

(e) “Workers in the United States” and “United States workers” shall both be defined as provided at section 212(n)(4)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(n) (4)(E)).

Sec. 2. Policy. It shall be the policy of the executive branch to buy American and hire American.

(a) Buy American Laws. In order to promote economic and national security and to help stimulate economic growth, create good jobs at decent wages, strengthen our middle class, and support the American manufacturing and defense industrial bases, it shall be the policy of the executive branch to maximize, consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States.

(b) Hire American. In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).

Sec. 3. Immediate Enforcement and Assessment of Domestic Preferences According to Buy American Laws. (a) Every agency shall scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law.

(b) Within 150 days of the date of this order, the heads of all agencies shall:

(i) assess the monitoring of, enforcement of, implementation of, and compliance with Buy American Laws within their agencies;

(ii) assess the use of waivers within their agencies by type and impact on domestic jobs and manufacturing; and

(iii) develop and propose policies for their agencies to ensure that, to the extent permitted by law, Federal financial assistance awards and Federal procurements maximize the use of materials produced in the United States, including manufactured products; components of manufactured products; and materials such as steel, iron, aluminum, and cement.

(c) Within 60 days of the date of this order, the Secretary of Commerce and the Director of the Office of Management and Budget, in consultation with the Secretary of State, the Secretary of Labor, the United States Trade Representative, and the Federal Acquisition Regulatory Council, shall issue guidance to agencies about how to make the assessments and to develop the policies required by subsection (b) of this section.

(d) Within 150 days of the date of this order, the heads of all agencies shall submit findings made pursuant to the assessments required by subsection (b) of this section to the Secretary of Commerce and the Director of the Office of Management and Budget.

(e) Within 150 days of the date of this order, the Secretary of Commerce and the United States Trade Representative shall assess the impacts of all United States free trade agreements and the World Trade Organization Agreement on Government Procurement on the operation of Buy American Laws, including their impacts on the implementation of domestic procurement preferences.

(f) The Secretary of Commerce, in consultation with the Secretary of State, the Director of the Office of Management and Budget, and the United States Trade Representative, shall submit to the President a report on Buy American that includes findings from subsections (b), (d), and (e) of this section. This report shall be submitted within 220

days of the date of this order and shall include specific recommendations to strengthen implementation of Buy American Laws, including domestic procurement preference policies and programs. Subsequent reports on implementation of Buy American Laws shall be submitted by each agency head annually to the Secretary of Commerce and the Director of the Office of Management and Budget, on November 15, 2018, 2019, and 2020, and in subsequent years as directed by the Secretary of Commerce and the Director of the Office of Management and Budget. The Secretary of Commerce shall submit to the President an annual report based on these submissions beginning January 15, 2019.

Sec. 4. Judicious Use of Waivers. (a) To the extent permitted by law, public interest waivers from Buy American Laws should be construed to ensure the maximum utilization of goods, products, and materials produced in the United States.

(b) To the extent permitted by law, determination of public interest waivers shall be made by the head of the agency with the authority over the Federal financial assistance award or Federal procurement under consideration.

(c) To the extent permitted by law, before granting a public interest waiver, the relevant agency shall take appropriate account of whether a significant portion of the cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured goods or the use of injuriously subsidized steel, iron, or manufactured goods, and it shall integrate any findings into its waiver determination as appropriate.

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof;

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or

(iii) existing rights or obligations under international agreements.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE, April 18, 2017.

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/ 11/8/2019

HR FORUM November 14, 2019

The Changing Landscape of Employment-Based Immigration - Additional Resources

• Buy American, Hire American Executive Order – April 18, 2017:

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american- hire-american/

• USCIS Policy Memo – October 23, 2017:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10- 23Rescission-of-Deference-PM6020151.pdf

• USCIS Additional Guidance - Wage Level Determinations:

https://www.aila.org/File/Related/19091601e.pdf

• USCIS Chart - Specialty Occupation and Wage Level Issues:

https://www.aila.org/File/Related/19091601ab.pdf

• USCIS Policy Memo - Implementation of the March 31, 2017 Memo:

https://www.aila.org/File/Related/19091601w.pdf

• USCIS Policy Memo – February 22, 2018:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-22-PM- 602-0157-Contracts-and-Itineraries-Requirements-for-H-1B.pdf

• USCIS Policy Memo – July 13, 2018:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_ RFEs_and_NOIDs_FINAL2.pdf

• USCIS Data:

https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immi gration%20Forms%20Data/BAHA/H-1B_Quarterly_Request_for_Evidence_RFE_FY2015- FY2019_Q3.pdf

Et^zKhEh^ WƌĞƐĞŶƚĞĚďǇ͗ >ŝŶĚƐĞǇŽŶƌĂĚ<ĞŶŶĞĚǇ ƐƐŽĐŝĂƚĞ ĐŬĞƌƚ^ĞĂŵĂŶƐŚĞƌŝŶΘDĞůůŽƚƚ͕>> ϲϬϬ'ƌĂŶƚ^ƚƌĞĞƚ͕ϰϰƚŚ&ůŽŽƌ WŝƚƚƐďƵƌŐŚ͕WϭϱϮϭϵ ;ϰϭϮͿϱϲϲͲϮϭϬϱ ůŬĞŶŶĞĚǇΛĞĐŬĞƌƚƐĞĂŵĂŶƐ͘ĐŽŵ dĂǇůŽƌE͘ƌĂŝůĞǇ ƐƐŽĐŝĂƚĞ ĐŬĞƌƚ^ĞĂŵĂŶƐŚĞƌŝŶΘDĞůůŽƚƚ͕>> ϲϬϬ'ƌĂŶƚ^ƚƌĞĞƚ͕ϰϰƚŚ&ůŽŽƌ WŝƚƚƐďƵƌŐŚ͕WϭϱϮϭϵ ;ϰϭϮͿϱϲϲͲϭϵϰϮ ƚďƌĂŝůĞǇΛĞĐŬĞƌƚƐĞĂŵĂŶƐ͘ĐŽŵ

PITTSBURGH, PENNSYLVANIA 600 Grant St. 44th Floor Pittsburgh, PA 15219 P: 412.566.2105 F: 412.566.6099 [email protected] Lindsey Conrad Kennedy PRACTICE AREAS: ASSOCIATE Labor & Employment Lindsey Conrad Kennedy helps employers navigate the labor and Litigation employment laws governing their relationships with their workforce. STATE ADMISSIONS: Whether she is counseling multi-state employers on leave of Pennsylvania absence management, litigating a restrictive covenant case seeking emergency relief, investigating an internal #metoo complaint, or New York negotiating an executive employment agreement, Lindsey takes a COURT ADMISSIONS: proactive, business-minded approach to addressing these and other complex problems. Her experience includes both counseling U.S. District Court for the Eastern and litigation under the major federal and state laws governing District of Pennsylvania employment relationships. In addition to employment-related U.S. District Court for the Middle matters, she has also represented management in traditional labor District of Pennsylvania matters. U.S. District Court for the Western District of Pennsylvania Lindsey has practiced in both New York and Pennsylvania, representing a variety of employers in a variety of industries—from U.S. District Court for the Eastern one of the world’s largest insurance brokers to a boutique spa. She District of New York regularly defends employers in court and agency proceedings but U.S. District Court for the appreciates the need to avoid litigation before it arises and, where Southern District of New York appropriate, to resolve disputes without costly court intervention. EDUCATION: J.D., magna cum laude, REPRESENTATIVE MATTERS University of Pittsburgh School of Select representative matters include: Law, 2010; University of Pittsburgh Law Review Advising a Fortune 500 company in the life sciences industry regarding implementation of new paid leave policies and B.S., summa cum laude, University of Pittsburgh, 2007 compliance with various state and local laws. Defending two large, international employers in employment discrimination cases brought by senior executives. Representing insurance broker in obtaining temporary and preliminary restraints enjoining insurance producers from violating their restrictive covenant agreements. Counseling higher education clients with respect to disability accommodations and the interplay between the Americans with Disabilities Act and the Family and Medical Leave Act. Investigating workplace harassment complaint and working with human resources and business leaders on remediation plan. Refreshing technology-related policies—e.g., social media, bring-your-own-device—for various employers. Defending multi-state healthcare organization in hybrid collective/class action under the FLSA and two state statutes. Counseling employer on workplace violence avoidance and precautionary measures in light of threats from former employee.

PROFESSIONAL AFFILIATIONS Allegheny County Bar Association, Member ACBA’s Women’s Institute for Leadership in Law (WILL) Pittsburgh Human Resources Association

COMMUNITY INVOLVEMENT Women’s Center and Shelter of Greater Pittsburgh Pennsylvania Women Work Reading is Fundamental Greenfield Community Association

NEWS AND INSIGHTS PUBLICATIONS “Thinking About an Unlimited PTO Policy? Ask These Questions First,” Bloomberg Law, March 2019. “Does ADA Cover Accommodations For Transgender Workers?” Law360, January 2019.

MEDIA COVERAGE “Best practices for crafting a PTO policy – and getting workers to use it,” HR Dive, May 2019. “Young In BigLaw: How To Use It To Your Advantage” quoted, Law360. March 2016.

SPEAKING ENGAGEMENTS “Disability Discrimination in Employment & Beyond: What You Need to Know,” presenter, Eckert Seamans’ Continuing Legal Education Seminar, August 2019. “Violence in the Workplace: The legal framework and best practices for preventing, investigating, and responding to employers’ worst fear: violence and threats of violence at work,” presented at Eckert Seamans’ Human Resources Forum, April 2019. “How to Conduct Effective (and Legal) Internal Investigations,” presented at Pittsburgh Human Resources Association’s HR Academy, March 2018. “News You Can Use,” co-presenter, Eckert Seamans’ Human Resources Forum, May 2016. “The Potholes, Pitfalls, and Perils of Employment Policies, and How to Avoid Them,” co-presented with Clare Gallagher, Eckert Seamans’ Human Resources Forum, May 2015. “News You Can Use: A review of recent judicial, legislative, and regulatory developments of significance to employers,” co-presented with Clare Gallagher, Eckert Seamans’ Human Resources Forum, January 2015. PITTSBURGH, PENNSYLVANIA 600 Grant St. 44th Floor Pittsburgh, PA 15219 P: 412.566.1942 F: 412.566.6099 [email protected] Taylor N. Brailey PRACTICE AREAS: ASSOCIATE Labor & Employment Taylor focuses her practice in labor and employment matters. Litigation Taylor defends employers before federal and state administrative STATE ADMISSIONS: agencies and courts against claims alleging violations of Title VII, Pennsylvania the ADA, the ADEA, the FMLA, and related state laws, and has experience litigating restrictive covenant disputes. Taylor COURT ADMISSIONS: additionally provides advice to employers to ensure compliance U.S. District Court for the with the major federal and state employment laws. Western District of Pennsylvania While in law school, Taylor served as a summer associate at Eckert U.S. Court of Appeals for the Seamans, as well as a judicial intern for the Honorable Lisa Pupo Third Circuit Lenihan of the United States District Court for the Western District of Pennsylvania. She also served as a legal intern for a privately- EDUCATION: held management company, where she gained first-hand insight J.D., cum laude, University of into employment matters from the client perspective. Pittsburgh School of Law, 2017; Editor-in-Chief, Journal of Law PROFESSIONAL AFFILIATIONS and Commerce B.A., Psychology, The Allegheny County Bar Association Pennsylvania State University, 2014

COMMUNITY INVOLVEMENT Big Brothers Big Sisters of Greater Pittsburgh Reading is FUNdamental Pittsburgh, elementary school reading mentor

AWARDS AND RECOGNITION CALI Excellence for the Future Award for Employment Discrimination CALI Excellence for the Future Award for Law and Human Behavior William H. Eckert Award for superior paper in the upper division J.D. program

NEWS AND INSIGHTS PUBLICATIONS Discrimination in the Age of Social Media: The New Dangers of Cat’s Paw Liability, 35 J.L. & Com. 271 (2017). SPEAKING ENGAGEMENTS “News You Can Use: A review of recent judicial, legislative, and regulatory developments of significance to employers,” co-presented at Eckert Seamans’ Human Resources Forum, April 2019. News You Can Use

Lindsey Conrad Kennedy, Esq. and Taylor N. Brailey, Esq.

www.eckertseamans.com

Agenda

• Overtime Update • NLRB Update • Title VII Update • State Discrimination Law Update • Whistleblower Law Reminder • Future Employment Law Updates to Watch

www.eckertseamans.com

1 Overtime Update: New DOL Overtime Rule • Affects the salary basis test under the FLSA (federal). • Raises salary threshold to $684/week or $35,568/year for white-collar exempt employees. – Previously, threshold was $455/week or $23,660. • Salary threshold for “highly compensated employees” is now $107,431. – Previously, threshold was $100,000. • Takes effect January 1, 2020.

www.eckertseamans.com

Overtime Update: Pennsylvania Overtime Rule • PA Dept. of Labor & Industry submitted its own proposed final regulation. • Would raise salary threshold to $875/week or $45,500/year. – Previously, PA followed the federal threshold. – Threshold would be phased in over several years. • Stay tuned!

www.eckertseamans.com

2 NLRB Update: Mandatory Arbitration Agreements

• Last year, the US Supreme Court upheld individual arbitration agreements containing class/collective action waivers. • Enter: Cordúa Restaurants, 368 NLRB 43 (Aug. 14, 2019). – Employers may issue a mandatory arbitration policy to non-union employees even in response to employees who have joined a class/collective action. – Employers may advise employees they will be subject to adverse action if they refuse to sign an arbitration agreement.

www.eckertseamans.com

NLRB Update: Employer Property Rights • The Board has issued several recent decisions protecting employer property rights. • Enter: Kroger Limited Partnership, 368 NLRB 64 (Sept. 6, 2019). – Supermarket permitted to eject non-employee union representatives from its parking lot. – Unlawful discrimination limited to instances where employer prohibits non- employee union reps from its private property, but, on the other hand, permits similar activities from other non-employees.

. . . is different than . . .

www.eckertseamans.com

3 NLRB Update: Employee Handbook Standard

• In late 2017, the Board announced a new standard for evaluating employer handbook rules. • Enter: LA Specialty Produce Co., 368 NLRB 93 (Oct. 10, 2019). – Upheld confidentiality rule aimed at protecting confidentiality of “client/vendor lists” maintained by the company. • But employers may not prohibit employees from talking to the employer’s clients or vendors. – Upheld media contact rule prohibiting employees from providing news media with information but instead designating an internal media contact at the company. • “there is no Section 7 right to speak to the media on behalf of the employer”

www.eckertseamans.com

Title VII Update: EEOC & Parental Leave Policies • EEOC: providing more leave to women than men following birth of a child may be discriminatory. • $5 million class action settlement with JPMorgan Chase in May 2019 involving policy providing more leave to “primary caregiver” than “non-primary caregiver.” • EEOC draws distinction between pregnancy-related leave and parental leave. . . . but remember that EEOC Guidance ≠ Law!

www.eckertseamans.com

4 State Discrimination Law Update: Hair Discrimination

• Title VII does not explicitly prohibit hair discrimination. – Discrimination based on immutable characteristics (e.g., afros) is actionable as race discrimination. – Discrimination based on mutable characteristics (e.g., dreadlocks, braids, cornrows) is not actionable as race discrimination. • July 2019: CA and NY state laws prohibit hair discrimination. – No distinction between mutable vs. immutable characteristics. • Several other states and localities have proposed legislation to ban race-based hair discrimination. – NJ, TN, MI, WI, IL. – Montgomery County, MD; Cincinnati, OH. – Most modeled off of CA’s “CROWN Act.”

www.eckertseamans.com

State Discrimination Law Update: Hair Discrimination (cont.) • Grooming Policies – Consider the impact the rules have on employee demographics. – Ensure the rules are race-neutral and uniformly enforced. – Avoid requirements that allow for interpretation that is entirely subjective. • Accommodations – Offer accommodations to would-be violators. • E.g., for religious prohibitions on cutting one’s beard or hair.

www.eckertseamans.com

5 Update on Whistleblower Protections

REMINDER: Private employees are protected, too! • Pennsylvania Whistleblower Law – Recipient of public funding = public body. – Prevailing plaintiff is entitled to both actual and non-economic damages. • Other laws that provide private employees with protections: – Pennsylvania Minimum Wage Act. – Pennsylvania Construction Workplace Misclassification Act. – OSHA-enforced federal protections.

www.eckertseamans.com

Future Employment Law Updates…

• Supreme Court to answer the following questions: – Is sexual orientation and/or gender identity included in the definition of “sex” under Title VII? • 3d Circuit: Sexual orientation discrimination is only actionable as a gender stereotyping claim. • 2d, 6th, 7th Circuits: Sexual orientation/gender identity discrimination is sex discrimination, period.

– Is “but for” causation standard required for race discrimination claims under Section 1981? • 9th Circuit: Mixed-motive framework from Title VII applies to Section 1981 despite absence of “motivating factor” language in Section 1981.

www.eckertseamans.com

6 Future Employment Law Updates…

• Increase in gender dysphoria disability discrimination claims. • Why? (Transgender individuals are not disabled by virtue of status.) – Gender dysphoria (AKA gender identity disorder): a condition of distress because of a significant incongruence between the gender with which one personally identifies and the gender with which one was born. • How? (ADA currently excludes from its coverage those gender identity disorders that do not result from a physical impairment.) – State of being “transgender” is not protected as a disability. – Gender dysphoria may be. • See Blatt v. Cabela’s Retail, Inc., No. 5:14-CV-04822 (E.D. Pa. May 18, 2017). • But see Doe v. Northrop Grumman Sys. Corp., No. 5:19-CV-00991 (N.D. Ala. Oct. 22, 2019).

www.eckertseamans.com

Future Employment Law Updates…

• Potential Expansion of Rights for Marijuana Users at the Federal Level. – July 2019: Marijuana Opportunity Reinvestment and Expungement Act (MORE Act). • Aims to correct injustices of drug policies that have disproportionately impacted communities of color and low-income communities.

• Would require resentencing and expungement of prior marijuana-related convictions at the federal level. . . . but this is expansive proposed legislation; no guarantee that it will be passed.

www.eckertseamans.com

7 Questions?

Lindsey Conrad Kennedy, Esq. (412) 566.2105 | [email protected]

Taylor N. Brailey, Esq. (412) 566.1942 | [email protected] www.eckertseamans.com