Audit, Compliance and Risk Blog

On January 30, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a proposal to revise its requirements for covered Federal Government contractors and subcontractors, including federally assisted construction contractors and subcontractors. This proposal would implement provisions in Executive Order (EO) Number 13672, which President Obama issued on July 21, 2014 (I blogged about the E.O. here). These revisions expand anti-discrimination responsibilities of federal contractors and federal grant recipients, to cover “sexual orientation” and “gender identity.” Once implemented, employment practices in these workplaces will match private employers’ responsibilities under a growing number of state laws, and under some federal court cases interpreting Title VII of the Civil Rights Act of 1964 (Title VII).

The Occupational Safety and Health Administration (OSHA) has updated its recordkeeping rule to expand the list of severe injuries (including amputations) that all employers must report. An increase in good reporting and recordkeeping is a best management practice and an essential part of helping employers ensure and maintain the safest working environments for their employees.

On July 31, President Obama issued Executive Order (EO) Number 13673, establishing a series of reporting and procedural requirements for federal contractors, inducing them to provide “Fair Pay and Safe Workplaces” to their employees. Beginning in 2016, these new requirements will apply to contracts and subcontracts to provide more than $500,000 in services and/or non-standard goods to federal agencies. Some requirements are specific in the EO, while others will become clearer after revisions to the contracting standards codified as the Federal Acquisition Regulation (FAR).

Bridget Gordon (“Gordon”) appealed a district court’s summary judgment in favor of Deloitte & Touche, LLP Group Long Term Disability Plan (the “Plan”), which is insured by Metropolitan Life Insurance Company (“MetLife”). The summary judgment was granted based on Gordon’s failure to file the action within the applicable limitation period. In Bridget Gordon, Plaintiff v. Deloitte & Touche, LLP Group Long Term Disability Plan, No. 12–55114, United States Court of Appeals, Ninth Circuit (April 11, 2014) the Ninth Circuit Court of Appeal was called upon to determine what statute of limitation, if any, applies to an ERISA claim.

The workers’ compensation system is based on a trade-off between employers and employees. Employees are entitled to receive prompt, effective medical treatment for on-the-job injuries or illnesses no matter who is at fault and, in return, are therefore prevented from suing employers over those injuries. As a result, California employers, as in other states, are required by law to have workers’ compensation insurance, even if they have only one employee. And, if employees get hurt or sick because of work, the employer is required to pay for workers’ compensation benefits. Workers’ comp insurance provides six basic benefits: medical care, temporary disability benefits, permanent disability benefits, supplemental job displacement benefits, or vocational rehabilitation and death benefits.

In 1990, the Americans with Disabilities Act (ADA) was enacted to protect the employment rights and opportunities of people with disabilities, and ensure their access to public services and accommodation. In September 2008, the ADA Amendments Act of 2008 repudiated several U.S. Supreme Court decisions interpreting ADA narrowly, and provided additional clarifications intended to ensure the broad availability of ADA’s protections. The U.S. Equal Employment Opportunities Commission (EEOC) develops and applies employer standards, facilitates lawsuits by aggrieved employees, and can enforce ADA directly by filing its own lawsuits.

When an employer becomes concerned that an employee may be incapable of performing his or her job, one response is formal evaluation of that employee’s “fitness for duty (FFD).” Although most cover physical abilities, referrals are also made for psychological FFD evaluations, to determine whether an employee has a psychological impairment that makes him or her unable to perform effectively and safely. These may be triggered when an employee is exhibiting signs of psychological or emotional stress, including those that manifest in hostile or threatening behaviors, or in other behaviors that lead co-workers, or the employer, to be concerned for their safety.

Disability insurers are often chastised for not accepting an insured’s disability claim and denying them insurance benefits. At the same time, some individuals attempt to recover from their disability insurer even when they are able to perform the duties of their occupation. And when contracts are written in such a way that even the most erudite advocate cannot determine their meaning unequivocally, it is no wonder so many such cases end up in litigation, as in the following case from Arkansas.