Transportation55

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued important new guidance impacting the way employers use criminal arrest and conviction records of prospective employees to make hiring decisions.  Motor carriers (including last-mile carriers, household goods carriers, and couriers) dealing directly with homeowners, residents, and retail consumers are quite often required by their retailer customers to perform criminal background checks.  Although the EEOC’s guidance applies to “employers” as opposed to contractors of owner/operators, caution and attention are warranted.  Employers seeking to avoid liability for claims of discrimination under the disparate impact and disparate treatment prohibitions contained in Title VII are advised to evaluate their application and hiring policies to ensure compliance with the EEOC’s new guidance.

Under the EEOC’s new guidance, an employer’s (e.g. motor carrier) blanket policy or practice of excluding applicants with criminal records from employment may violate Title VII to the extent the policy strays far from Federal Motor Carrier Safety Regulations and the commercial motor vehicle driver disqualifications listed at 49 U.S.C. § 31310.  Instead, the EEOC now requires narrowly-tailored individualized assessments, or “targeted screens,” of applicants that consider the nature of the crime, the time elapsed since the arrest or conviction, and the specific responsibilities of the job for which the applicant is applying. 

With the new guidance in place, employers should expect the EEOC to step up its investigative and enforcement efforts, particularly to the extent blanket criminal background policies raise the “pattern or practice” flags most noticeable to the EEOC.  Motor carriers that “employ” drivers and helpers to conduct in-home deliveries should therefore evaluate their application and hiring policies related to the use of criminal arrest and conviction records to ensure narrow tailoring and individualized assessments in light of the new EEOC guidance.  Even contractor-model motor carriers should use reasonable efforts to avoid overly-broad screening of owner/operators.  For additional information on the new EEOC guidance, or to discuss implementing a policy that minimizes your company’s exposure on a claim of discrimination in its hiring practices, contact Greg Feary, Jim Hanson, David Robinson, or Jack Finklea in the Firm’s Indianapolis office at (317) 637-1777.
 

Last week, the Occupational Safety and Health Administration (“OSHA”) placed the Office of the Whistleblower Protection Program under the direct supervision of the agency’s head, Assistant Secretary of Labor Dr. David Michaels.  The move strongly emphasizes the heightened priority OSHA and the U.S. Department of Labor placed on employee whistleblower protections last year.

Among the whistleblower laws enforced by OSHA that are critical to motor carriers is the Surface Transportation Assistance Act, or STAA.  The STAA protects drivers and other employees from adverse employment action taken in response to complaints related to commercial motor vehicle safety.  Motor carrier liability under the STAA is significant and may include back pay, reinstatement, compensatory and punitive damages, and attorney’s fees.  OSHA’s efforts to strengthen whistleblower protections, as indicated by yesterday’s announcement, signals a continuation of the increased government scrutiny motor carriers have faced in recent years.

Today, the General Assembly passed a bill to make Indiana the 23rd right-to-work state.  Governor Mitch Daniels has promised to immediately sign the bill into law.  The law will make Indiana the first state in the nation’s traditionally union-heavy manufacturing region—or “rust belt”—to pass such a law. 

Labor organizations, including trucking and transportation unions like the Teamsters, fiercely opposed the bill because it prohibits union security provisions in collective bargaining agreements entered into, modified, renewed, or extended after March 14, 2012 and carries criminal penalties.  Union security provisions require employees to (1) become or remain a union member, (2) pay union dues, fees, assessments, or other charges to the union, or (3) pay the equivalent of union dues, fees, assessments, or other charges to a charity or third party.  The new prohibitions stand to greatly affect the way unions attempt to organize workers, a company’s response to organizing efforts, and how contracts are negotiated.

Under the health care reform legislation signed into law in March 2010, a number of changes in the way employers and the group health plans they sponsor administer benefits take effect on January 1, 2011.  Employers are well-advised to evaluate their plans now to ensure they are in compliance with the new law. 

Among the changes taking effect on January 1, 2011, employers with group health plans operating on a calendar-year basis must (1) eliminate pre-existing condition exclusions for dependent children who are under age 19; (2) allow coverage for adult dependent children up to age 26; (3) restrict annual limits on coverage in accordance with the regulations and eliminate lifetime maximum limits on coverage of essential benefits; and (4) eliminate coverage rescissions in cases not involving fraud.  Regulations published by the Departments of Treasury, Labor, and Health and Human Services also require plans to give notice by January 1, 2011 of a re-enrollment opportunity to those dependents under age 26 whose group health coverage was terminated because of an age restriction.

Although many of the more highly-publicized changes to group health plan administration take effect beginning in 2014, employers should become familiar with the new requirements now to ensure their plans comply with the more immediate deadlines. 

 

The U.S. Department of Labor recently issued an Administrator's Interpretation that expands employees’ entitlement to leave under the Family and Medical Leave Act (“FMLA”).  The FMLA grants up to 12 weeks of job-protected unpaid leave per 12-month period to certain employees in companies that have 50 or more employees working within a 75-mile radius of the work site.  Under Administrator’s Interpretation No. 2010-3, covered employees eligible for leave under the FMLA now include those employees who assume the role of caring for a child, even if no legal or biological relationship exists between the employee and the child. 

The interpretation, made for the purpose of clarifying the term “son or daughter” under the FMLA, came after what the DOL called “several requests for additional guidance” to the Wage and Hour Division as to whether an employees without a biological or legal relationship with a child may take FMLA leave for birth, bonding, or to care for the child.  In answering the question affirmatively, the DOL attempted to clarify the circumstances that should be considered when determining whether an employee stands in the position of a parent, otherwise known as “in loco parentis.”  The interpretation makes clear that, for the purposes of the FMLA, even the existence of a biological parent in the child’s home will not prevent a finding that the child is still the son or daughter of an employee who has no biological or legal relationship with the child, if the employee intends to assume the responsibilities of a parent. 

The DOL stated “It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.”  The full text of Administrator’s Interpretation No. 2010-3 is available at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm.