On May 8, the National Labor Relations Board (NLRB) issued an advice memorandum that further clarified its position regarding employees’ use of social media to make cybergripes pursuant to their Section 7 Rights.

In In re: Tasker Healthcare Group, d/b/a/ Skinsmart Dermatology, no. 04-CA-094222, Charging Party and a group of nine other current and former employees participated in a private Facebook group message.  While the discussion started off as purely social, the tone changed when Charging Party referenced with disapproval a former employee who was returning to the employer. Charging Party posted a string of expletives about the employer, stating that the employer was “full of s***” and the employer should “F***ING FIRE ME …Make my day…”  One of Charging Party’s coworkers who was part of the group message showed the message string to the employer and the employer terminated Charging Party’s employment, stating that it was “obvious” she no longer wished to work there.

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Medical testing giant Quest Diagnostics Inc. (42,000 employees worldwide) recently found out the hard way that government agencies across the country are ramping up enforcement of state and federal laws restricting the use of criminal convictions when making hiring decisions. While the Equal Employment Opportunity Commission (EEOC) uses Title VII’s prohibition against disparate impacts against employees relating to race or national origin to investigate companies’ hiring policies in relation to criminal records, many states, such as New York, have laws specifically limiting the use of such records when making hiring decisions.

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In a measure to keep up with the changes made by the Americans with Disabilities Amendments Act (ADAAA) in relation to what employees and applicants must show to establish that they have a “disability,” the Equal Employment Opportunity Commission (EEOC) has revised its informal “Question and Answer” guidance forms pertaining to four categories of medical conditions – cancer, diabetes, epilepsy, and intellectual disabilities – to provide clarification as to how employers should address such conditions and to confirm that individuals having each of the types of conditions discussed “should easily be found to have a disability” within the ADA’s initial prong of the definition of a disability. These revised forms can be found by clicking on the links above.

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The Office of Federal Contract Compliance Programs (OFCCP) has issued a notice regarding the date on which federal contractors must begin using the 2006-2010 EEO Tabulation (2010 EEO Tab), which was released to the public on Nov. 29, 2012. Effective Jan. 1, 2014, federal contractors must begin using the 2010 EEO Tab to develop all Affirmative Action Programs (AAPs) and the OFCCP, likely, will begin using the same at that time.

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Last Friday, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it was seeking public comment of its draft principles for the Quality Control Plan (Plan) which will revise the criteria for measuring the quality of the agency’s investigations and conciliations. The Plan was developed by an internal work group of EEOC front-line staff and managers, and addresses the issues of timeliness and quality.

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The U.S. Department of Labor Employee Benefits Security Administration (EBSA) recently issued Technical Release 2013-02, in which it provides employers with temporary guidance regarding the notice that must be provided to employees in relation to health care coverage options that will soon be available pursuant to Section 18B of the Fair Labor Standards Act (FLSA).

Specifically, beginning on Jan. 1, 2014, individuals and employees of small businesses will have access to coverage through a private health insurance market (referred to as the Health Insurance Marketplace), which shall provide a one-stop comparison of private health insurance options. With open enrollment for health insurance coverage through this Marketplace slated to occur beginning on Oct. 1, 2013, the EBSA received several requests from employers on the model notices that must be provided to employees in relation to these new options.

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New Jersey's legislature recently tried to make it the 8th state to restrict employers from requiring employees to provide social media passwords in the hiring and other employment processes. This trend, somewhat odd in that it addresses a problem that nobody seems to think actually exists (i.e. employers are not really requiring passwords of applicants), started approximately a year ago. New Jersey's legislation arguably would have been the most restrictive such legislation to date.

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On May 8, 2013, the Equal Employment Opportunity Commission (EEOC) hosted a meeting with a group of invited panelists on the treatment of wellness programs under federal law. According to the EEOC, the discussion will focus on various ways employer wellness programs may implicate the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other anti-discrimination statutes enforced by the EEOC. Whether this is a beginning of a new enforcement initiative remains to be seen.

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A recently filed Americans with Disabilities Act case alleges that an Iowa hospital refused to accommodate an applicant's shy bladder syndrome. The condition is an anxiety condition that makes it difficult or impossible for an individual to urinate in non-private or other conditions. Jennifer Connor alleges that she suffers from this condition and was a qualified applicant for a position at the defendant hospital. Ms. Conner would normally run water or flush the toilet in order to be able to use a public restroom. For a mandatory drug test, she was put in a room without running water, and the nurses administering the test allegedly refused her request to take the test in another room, and then exacerbated the situation by banging on the door to hurry her up. She offered to provide a drug test and that approach was rejected.

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