The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the federal law that protects employees who serve in the military and requires employers to re-employ military members after service. In Torres v. Texas Department of Public Safety, No. 20-603, 2022 WL2334306 (June 29, 2022), the Supreme Court of the United States (SCOTUS) held that an individual employee can bring a lawsuit against a state under USERRA.
The case involved an employee who was a military veteran. After returning from military service, the employee sought to return to his job at the Texas Department of Public Safety but sought re-employment in a different role to accommodate a disability related to his service in the military. The Department denied his request for re-employment in a different role. Texas asked the court to dismiss the suit under the doctrine of sovereign immunity. The lower court agreed and held that Congress could not authorize private suits against nonconsenting states.
The United States Supreme Court reversed and held that states may not use sovereign immunity to avoid liability under USERRA. The Court held that the states had agreed to yield their sovereignty to the federal policy of building and keeping a national military and USERRA supports national military readiness.
If you have employees who are serving in the military, please consult counsel regarding your legal obligations.
EEOC Brings Rare Case Under GINA
You may not be familiar with the federal Genetic Information Non-Discrimination Act (GINA) because it is not often used. GINA, among other things, prohibits employers from discriminating against employees based on genetic information. Recently, the Equal Employment Opportunity Commission (EEOC) investigated a Florida medical practice under GINA.
The Florida medical practice had allegedly requested and collected employees’ family members’ COVID-19 test results. It does not appear that the company used the information to discriminate against employees, but simply requesting the information (despite the fact that the family members did not work at the company) violated GINA. After investigating the matter, the EEOC and the medical practice entered into a conciliation agreement. The medical practice agreed to stop collecting employees’ family members’ COVID-19 testing results and to review its policies. Such conduct violates the GINA, which prohibits employers from requesting, requiring or purchasing genetic information about applicants or employees and their family members, except in very narrow circumstances. GINA defines “genetic information” to include the manifestation of a disease or disorder in an employee’s family members. The EEOC has authorized companies to ask questions of employees who come on site about COVID symptoms and COVID testing. But the medical practice went beyond this and asked for tests of family members.
For more information on discrimination based on genetic information, you can visit https://www.eeoc.gov/genetic-information-discrimination.
Redefining Independent Contractors
With each new president of the United States, there are shifts in how the federal government defines independent contractors. The Biden administration is no exception and it has used its executive power to limit the definition of independent contractors in favor of employees. Recently, the U.S. Department of Labor sent a proposal to the White House to clarify how independent contractors are classified under the Fair Labor Standards Act. This regulatory review is the last step before the agency can publish the proposed rule. We have not yet seen the rule, but it is expected to be pro-employee.
If you have questions about which workers qualify as independent contractors, please consult counsel.
Independent Contractor Status in California
The United States Supreme Court has issued a ruling that allows California to continue to use the strict “ABC test” for independent contractors. Under the California ABC test, a company can only classify a worker as an independent contractor if the company shows the worker meets three criteria: (1) that the worker is free from the company’s control and direction; (2) that the worker performs work outside the company’s regular business; and (3) that the work is done by a worker who has his or her own independent business or trade performing that kind of work.
Unhappy with the strict ABC test, the California Trucking Association argued that the law was preempted by a federal law, the Federal Aviation Administration Authorization Act (the “FAAAA”). The California appellate court found that the FAAAA did not preempt the ABC test. Quickly and without analysis, the U.S. Supreme Court denied the California Trucking Association’s petition to review the lower court ruling, confirming that the California ABC test can be used.
Five Tips for Summer
As I am writing this, it is 100 degrees outside and summer is on my mind. Summer is a good time for employers to consider the following:
1. Is your sexual harassment policy up to date and ready for use at summer parties?
2. Is your vacation leave policy up to date? Do you have a plan for making sure everyone is not out on vacation at the same time, leaving the company in a lurch?
3. Are you planning on Fridays off or other special arrangements for summer? Have these plans been carefully documented and communicated?
4. Will you allow employees more remote work options in the summer? If so, have you updated your policies?
5. Is your dress code up to date and consistent with actual practice? Tank tops? Shorts? T-shirts? You decide, within legal limits.