EEOC Rescinds Financial Incentive Rules for Wellness Programs in 2019

       Employers that offer wellness programs with

 incentives should consult legal counsel.

The new year brings a major change that affects employer wellness programs – the EEOC is rescinding regulations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) relating to the use of financial incentives in employer-sponsored wellness programs.

The EEOC published notices in the Federal Register on December 20, 2018 stating that it was removing the financial incentive sections of the ADA regulations (29 CFR 1630.14(d)(3)) and the GINA regulations (29 CFR 1635.8(b)(2)(iii)) effective January 1, 2019.

The ADA and GINA regulations, which were issued by the EEOC in 2016, address how those two laws apply to employee health programs, including what constitutes a health program and what it means for a program to be voluntary.

The now EEOC-rescinded portion of regulations had set limits on incentives that could be offered by wellness programs that required employees to answer disability-related questions or undergo medical exams to earn a reward or avoid a penalty. The financial incentive rules were the subject of a federal lawsuit filed against the EEOC by the AARP. The court ultimately sided with AARP and held that the EEOC didn’t provide sufficient reasons justifying the financial incentive rules. The court ordered the EEOC to reconsider the rules, and set aside the existing rules effective January 1, 2019.

While the EEOC previously indicated that it would issue a notice of proposed rulemaking, it simply removed those portions of the regulations instead.

Because of this action by the EEOC, employers are left with no express guidance in the regulations as to how they may offer financial incentives in wellness programs, including what level of incentives may affect the voluntary nature of the program. Employers with wellness programs that include financial incentives should consult with legal counsel in light of this new development.

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Article written by: Ericka Pickles
Article Published by: HRWatchdog-Jan 3, 2018
Article Spotted by: Louise Burden

IBM Is Being Sued for Age Discrimination After Firing Thousands

                                Pedestrians walk past IBM offices in New York. Photographer: Craig Warga/

A lawyer known for battling tech giants over the treatment of workers has set her sights on International Business Machines Corp.

Shannon Liss-Riordan on Monday filed a class-action lawsuit in federal court in Manhattan on behalf of three former IBM employees who say the tech giant discriminated against them based on their age when it fired them. Liss-Riordan, a partner at Lichten & Liss-Riordan in Boston, has represented workers against Amazon, Uber and Google and has styled her firm as the premier champion for employees left behind by powerful tech companies.

“Over the last several years, IBM has been in the process of systematically laying off older employees in order to build a younger workforce,” the former employees claim in the suit, which draws heavily on a ProPublica report published in March that said the company has fired more than 20,000 employees older than 40 in the last six years.

The lawsuit comes as IBM faces questions about its firing practices. In exhaustive detail, the ProPublica report made the case that IBM systematically broke age-discrimination rules. Meanwhile, the Equal Employment Opportunity Commission has consolidated complaints against IBM into a single, targeted investigation, according to a person familiar with it. A spokeswoman for the EEOC declined to comment.

In the last decade, IBM has fired thousands of people in the U.S., Canada and other high-wage jurisdictions in an effort to cut costs and retool its workforce after coming late to the cloud computing and mobile tech revolutions. 

“Changes in our workforce are about skills, not age,” Ed Barbini, a spokesman for IBM said in an emailed statement. “In fact, since 2010 there is no difference in the age of our U.S. workforce, but the skills profile of our employees has changed dramatically. That is why we have been and will continue investing heavily in employee skills and retraining -- to make all of us successful in this new era of technology.’’

If the judge allows a class action lawsuit to proceed, it could result in a drawn-out and costly court battle, and potentially end with IBM paying hundreds of millions of dollars to its former employees, according to Michael Willemin, an employment lawyer with Wigdor LLP who isn’t involved in any IBM-related cases.

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Article written by: Gerrit De Vynck/ Bloomberg

Article published on: Sept 17, 2018

Article spotted by: Nunzio Presta/posted by: Louise Burden

Flurry of EEOC harassment suits names United Airlines, Piggly Wiggly

Dive Brief:

• The U.S. Equal Employment Opportunity Commission (EEOC) has announced another series of lawsuits alleging workplace harassment. The latest charges are aimed at seven employers and represent the second such effort in as many months.
• Five of the suits involve sexual harassment allegations, two are racial harassment claims and one also alleges harassment based on national origin. Five of the seven lawsuits include claims that the employees were retaliated against for reporting the harassment.
• One of the suits, filed against United Airlines, alleges that a captain frequently posted sexually explicit images of a flight attendant to various websites, and that United failed to correct the pilot's behavior, despite complaints. Another, filed against Piggly Wiggle, alleges that two employees were subjected to a sexually hostile work environment and suffered retaliation when they opposed the harassment.

Dive Insight:

As the EEOC cracks down on harassment, the spotlight shines brightly on HR and the role it should play in these cases. The best HR departments will foster an environment where these issues rarely arise and, when they do, tackle the problem proactively before it turns into crisis.

EEOC noted that this series of suits is just the latest in its attempt to crack down on harassment. The agency has said that the number of sexual harassment claims hasn't increased following the #MeToo movement, but that it might be too early to see the full effects of it. Even so, employers would be wise not to wait around for a movement or a lawsuit to address workplace harassment.

Managers should know and understand what's required of them. And employers should make sure that employees are aware of policies, and know that they'll be enforced. Employers who ignore or accept harassment as normal workplace behavior not only risk a lawsuit, but also risk losing their best performers. A new Gartner survey found that employees who witness misconduct are twice as likely to leave their jobs.

This means that HR needs to treat every allegation of harassment seriously and carefully consider which requires a formal investigation, experts have told HR Dive. Thank employees for coming forward with a complaint to avoid even an inferenc

e of retaliation, and then work swiftly to investigate the situation, documenting every step along the way.

If egregious conduct is happening regularly, as described in EEOC's allegations, a total culture overhaul might be necessary. A culture that values respect, civility, high ethical standards, tolerance and inclusion won't happen overnight, but it can be done.

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Recommended Reading : EEOC Files Seven More Suits Against Harassment

Article Written by: Valerie Bolden-Barrett/ HR Drive

Article published on: August 14, 2019

Article spotted by: Louise Burden