Court orders DOL ARB to rule on whether federal contractors may initiate administrative action against OFCCP
Putting the brakes on federal court proceedings in two consolidated cases involving a dispute between the OFCCP and a group of related federal contractors, a federal district court in Louisiana has remanded one of the cases back to the Department of Labor’s (DOL) Administrative Review Board (ARB) to consider the contractors’ argument that the Administrative Procedure Act (APA) provides private parties with the right to initiate the administrative proceedings authorized by the regulations implementing Executive Order (EO) 11246. In a ruling last year, the ARB found that the DOL’s Office of Administrative Law Judges (OALJ) lacked subject matter jurisdiction to address claims under the laws enforced by the OFCCP that are brought by any party other than the OFCCP. After dismissing a portion of the claims brought by the companies, and remanding the issue of whether the APA authorizes the OALJ to hear actions initiated by federal contractors, the court administratively closed both cases in the consolidated action pending the ARB’s resolution of that issue. (Entergy Servs, Inc v OFCCP, December 22, 2014, EDLa, dkt nos 14-1524 and 14-1644)
The federal contractor group involved in these two consolidated actions consists of subsidiaries of Entergy Corporation (collectively, “Entergy”), including lead plaintiff Entergy Services, Inc, a Delaware corporation headquarted in New Orleans, that provides administrative services for Entergy Corporation and some of the Entergy subsidiaries. The other Entergy plaintiffs include rate-regulated utilities and rate-regulated producers that supply electricity and gas to customers in Louisiana, Mississippi, Texas, and Arkansas.
Entergy lawsuit. In July 2014, six Entergy subsidiaries sued the DOL and the OFCCP in federal court alleging that the manner in which the OFCCP selected 11 of their establishments for audits violated their Fourth Amendment rights to be free from “unreasonable searches and seizures” because the establishments at issue were selected without reference to a “neutral administrative plan” and without evidence of a current violation of any of the laws enforced by the agency – Executive Order 11246, Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 – or corresponding regulations. In addition, Entergy sought review of the ARB’s May 2014 decision which held that only the OFCCP, and not federal contractors such as the plaintiffs, can initiate an action with the OALJ.
Administrative proceedings. The ARB ruling at issue was the result of an administrative complaint filed with the OALJ by Entergy on October 26, 2012. In that complaint, Entergy sought declaratory relief, on Fourth Amendment grounds, from compliance reviews at certain of their establishments selected for audit by the OFCCP in May 2012.
Due to various perceived anomalies in the selection of sites for potential audit, Entergy grew concerned that their Fourth Amendment rights were in danger of infringement. Therefore, they objected to each of the OFCCP’s audit scheduling letters and requested that the agency administratively close the audits. In July 2012, Entergy made requests to meet with the OFCCP to express their concerns, but the agency refused to meet with the contractors, and to date, the audits have not been closed. Entergy maintains that the OFCCP has refused to advise them of either the neutral administrative plan which led the OFCCP to select the establishments at issue for potential audit or to advise Entergy of the evidence the OFCCP had, if any, that the companies engaged in conduct that violated one or more of the laws or regulations enforced by the OFCCP.
On August 29, 2012, the OFCCP advised Entergy of the agency’s position that its requests for affirmative action programs and other documents in the scheduling letters are consistent with the Fourth Amendment’s requirements because the requests are limited in scope, relevant in purpose, and specific in directive. Between September and the end of December 2012, the OFCCP issued “notices to show cause” for the establishments at issue. Per the agency’s standard practice, these notices to show cause demanded the contractors to “show cause” as to why the OFCCP should not file an administrative complaint within 30 days that seeks to compel the audits.
On November 27, 2012, a DOL Administrative Law Judge (ALJ) dismissed Entergy’s administrative complaint for lack of subject matter jurisdiction (ALJ No 2013-OFC-1). The ALJ determined that the contractor’s arguments asserting that the OALJ had subject matter jurisdiction over the action, pursuant to the APA and the regulations governing the adjudication of OFCCP matters before the OALJ, were unavailing.
On May 19, 2014, the ARB ruled that the ALJ correctly determined that Entergy’s complaint for declaratory relief was not properly before the OALJ; the ARB found no authorization in the laws enforced by the OFCCP or their implementing regulations empowering any party other than the OFCCP, represented by the DOL Solicitor’s Office, to file a complaint under these laws (ARB No 13-025).
On June 17, 2014, the Department of Justice (DOJ) sent a letter to Entergy’s counsel notifying them that the OFCCP had referred to the matter to the DOJ for consideration of judicial enforcement, unless the Entergy companies indicated that they would acquiescence to a consent decree on specified terms by July 16, 2014.
The Entergy companies did not agree to the consent decree, and filed their federal court compliant on July 1, 2014. In their lawsuit, Entergy asked the court to vacate the ARB’s ruling and remand the matter to back to the department for a hearing and consideration of the claims for declaratory relief on the merits. In the alternative, Entergy requested that the court itself consider their claims for declaratory relief on the merits.
DOJ lawsuit. Sixteen days after the Entergy plaintiffs filed their suit, the DOJ announced its filing of a lawsuit in the same federal district court against Entergy Corporation and seven of its subsidiaries alleging these companies violated the laws enforced by the OFCCP. The DOJ lawsuit, filed on July 17, 2014, alleges that since May 2012, Entergy has refused the OFCCP’s repeated requests to turn over its written affirmative action programs and other records requested as part of the compliance reviews of 11 Entergy locations in Texas, Mississippi and Louisiana. The DOJ seeks a permanent injunction requiring Entergy to comply with the OFCCP’s document requests and related audit obligations.
The Entergy lawsuit against the DOL/OFCCP and the DOJ lawsuit against Entergy were consolidated by the court sua sponte on July 21, 2014. The DOL/OFCCP then moved to dismiss Entergy’s lawsuit, and on December 15, 2014, the court issued a decision addressing this motion. On December 22, 2014, the court issued a follow-up order citing the earlier decision.
Standing to pursue APA claim. The DOL/OFCCP’s first argument for dismissal was based on their assertion that the Entergy plaintiffs’ lacked standing to seek judicial review of the ARB’s ruling denying them an administrative forum to resolve their Fourth Amendment challenge to the OFCCP’s compliance reviews. The government defendants argued that the plaintiffs failed to establish an actual or imminent injury necessary for standing because they have not, so far, been forced to submit the requested audit documents or otherwise comply with the administrative evaluation and, thus, no “actual” injury resulted. Moreover, the defendants pointed out, in the context of the judicial enforcement action, Entergy will have the opportunity to raise (and, in fact, have done so) whatever defenses it considers appropriate, including its Fourth Amendment claim.
However, the court disagreed. It found that Entergy suffered a procedural injury-in-fact due to the ARB’s failure to provide Entergy a forum to consider their Fourth Amendment challenge to the OFCCP’s conduct in initiating allegedly anomalous (and, thereby, overly burdensome) compliance reviews. Although the DOL/OFCCP attempted to minimize this procedural harm by characterizing it as a “novel” application of standing based on conjecture, the court found that Entergy demonstrated an actual, concrete injury. “That their injury is procedural does not remove it from the reach of constitutional standing where, as here, they allege a constitutional right that is affected by the deprivation of process,” the court wrote. “And the government cannot hide behind its enforcement action.”
Failure to state a claim. In the alternative, the DOL/OFCCP argued that Entergy’s APA claim should be dismissed for failure to state a claim upon which relief may be granted because the ARB’s ruling that it lacked the authority to entertain Entergy’s administrative complaint was correct. Yet, Entergy argued that the ARB’s ruling was erroneous because: (1) the ARB erred in applying 41 C.F.R. §60-30.5(a); (2) the failed to consider Section 208 of EO 11246; and (3) the APA authorizes the administrative adjudication of the Entergy plaintiffs’ action. Noting that, under the APA, an agency’s decision is afforded a strong presumption of validity, the court found that the ARB ruled correctly as to items (1) and (2), but the court remanded the case back the ARB for consideration of Entergy’s argument the APA authorizes federal contractors to initiate a claim with the OALJ.
First, the court found that the plain language of 41 C.F.R. §60-30.5, which governs commencement of administrative complaints, supported the ALJ’s conclusion, affirmed by the ARB, that it lacked subject matter jurisdiction. The regulation provides that, “[t]he Solicitor of Labor, Associate Solicitor for Labor Relations and Civil Rights Regional Solicitors and Regional Attorney upon referral from the Office of Federal Contract Compliance Programs, are authorized to institute enforcement proceedings by filing a complaint and serving the complaint upon the contractor which shall be designated as the defendant. The Department of Labor, OFCCP,  shall be designated [as] plaintiff.” Since this regulation expressly grants only the OFCCP the authority to file a complaint, the ALJ and ARB did not err in determining that the OALJ lacked subject matter under this regulation to entertain an administrative complaint filed by the target of an OFCCP compliance review seeking declaratory relief from that compliance review.
Second, the court rejected Entergy’s contention that Section 208 of EO 11246 grants the OALJ subject matter jurisdiction to consider administrative complaints filed by federal contractors. The plaintiffs asserted that because Section 208(a) provides that the OALJ, through the Secretary of Labor, has discretion to hold a hearing “for purposes of ‘compliance,’” that section plainly allows for an administrative hearing to adjudicate Entergy’s Fourth Amendment rights. But Entergy offered no authority for their reading of Section 208, and the court concluded that “compliance” appears to refer to hearings instigated by the agency at different stages of the administrative process.
As to the third assertion of error, the court agreed with the plaintiffs, and remanded back the case back to the ARB for consideration of the Entergy’s argument that the APA’s authorizes the OALJ to hear actions initiated by federal contractors. According to Entergy, the APA (at 5 U.S.C. §554(b)) authorizes “private persons” to be “moving parties” that may initiate administrative adjudication, and this APA authorization extends to “every case of adjudication required by statute….” (see, 5 U.S.C. §554(a)). That APA authorization applies here because EO 11246 authorizes adjudication for both enforcement and compliance purposes, the plaintiffs’ argued. The DOL/OFCCP countered that the APA authorization cannot apply here because EO 11246 is not technically a “statute” as expressly required by the language of the APA. In any event, the court ruled that “[t]his argument clearly needs to be more thoroughly considered by the ARB.”
Judicial declaration on Fourth Amendment claim. Aside from their APA claim, Entergy also sought a judicial declaration that the OFCCP’s compliance reviews and their attendant requests for information violate the Fourth Amendment. But the DOL/OFCCP asserted that the court lacked jurisdiction to issue such a declaration, and put forth two arguments in support of their assertion: (1) sovereign immunity applies, and (2) the plaintiffs lack Article III standing.
Sovereign immunity. Section 702 of the APA generally waives sovereign immunity for suits against the United States that, like this one, seek “relief other than monetary damages.” Although the DOL/OFCCP did not dispute that an express waiver of sovereign immunity exists in the APA at §702, they argued that, under Fifth Circuit precedent, the APA’s waiver of sovereign immunity does not apply to a constitutional claim absent final agency action, and that such action has not occurred in this case because the DOL ARB did not reach a final decision regarding the constitutionality of the compliance reviews or attendant document requests. Entergy countered that, even if the government’s interpretation of Fifth Circuit precedent were correct, the OFCCP’s “notices to show cause” constitute a final agency action.
Following a lengthy discussion of how Fifth Circuit precedent is split and “confusing” regarding whether a final agency action (and what constitutes such action) is required in order for a waiver of sovereign immunity under the APA to occur, the district court found resolution of that issue was not necessary because Entergy presented a persuasive alternate argument to show that sovereign immunity had been waived. Citing the Fifth Circuit’s 1980 decision in United States v Irby, the court explained that, when the sovereign sues, it waives immunity as to claims of the defendant arising out of the same transaction or occurrence which is the subject matter of the government’s suit. Thus, by the DOJ’s filing of an enforcement action, the government waived its sovereign immunity related to claims based on the same transactions, the district court ruled. The DOL/OFCCP argued that Irby should be not extended to cases where, as here, a court sua sponte consolidates a lawsuit initiated by a private party (the Entergy action) with an enforcement action filed by the government (the DOJ lawsuit). But the court found that it was not credible for the DOL/OFCCP to assert that the Entergy plaintiffs’ declaratory judgment claim is not part of the same transaction as those defenses Entergy has raised in response to the DOJ’s enforcement action on behalf of the OFCCP.
Standing to pursue judicial declaratory relief claim. Turing to the government defendants’ challenge to the plaintiffs’ standing to pursue their alternative claim for judicial declaratory relief, the court first noted that the same constitutional standing principles discussed earlier in regard to the APA claim applied equally here. However, the nature of the injury for the purposes of the request for declaratory relief differs from the procedural injury alleged with respect the APA claim.
Entergy argued that the government’s repeated threats to immediately file suit if the plaintiffs failed to comply with its demands created a prospective injury sufficient to establish Article III standing, even though the DOL/OFCCP has not yet filed an administrative action against Entergy. They were not required to expose themselves to liability before bringing suit to challenge the basis for the threat, the plaintiffs asserted. Agreeing, the district court cited the U.S. Supreme Court’s 2014 decision in Susan B. Anthony List v Driehaus for the proposition that the mere threat of enforcement action is sufficient to establish an injury-in-fact for the purpose of Article III standing. In this case, Entergy’s course of conduct in the face government threats of enforcement action – their refusal to comply with the audit review demands on the ground that the compliance would violate and waive their Fourth Amendment rights – was sufficient to constitute an injury-in-fact, the court concluded.
Order. In sum, the court denied the DOL/OFCCP’s motion to dismiss in part finding that (1) the Entergy plaintiffs had standing to pursue both their APA claim and their declaratory relief claim, and (2) sovereign immunity had been waived with respect to the declaratory relief claim. The motion was denied without prejudice with respect to the APA authorization aspect of the APA claim pending the ARB’s resolution. The motion to dismiss was granted in part because (1) Entergy failed to state an APA claim, insofar as the ARB did not act contrary to law in its application of 41 C.F.R. §60-30.5(a); and (2) the ARB did not err in failing to consider Section 208 of EO 11246. Furthermore, the court remanded the Entergy suit back to the ARB to consider Entergy’s argument that the APA provides private parties with the right to initiate the administrative proceedings authorized by EO 11246. The court directed the ARB to issue, following its consideration of the parties’ arguments, a written decision specifying in full the reasons for its determination. Finally, the court administratively closed the consolidated cases pending the ARB’s resolution of the APA authorization issue.
Public employers note SCOTUS ruling that prison policy barring ½-inch beard violates religious exercise statute
By Joy P. Waltemath, J.D.
A unanimous Supreme Court found that a state department of corrections’ grooming policy for inmates could not show that its substantial burden on the religious exercise of the claimant, a Muslim prisoner who sought to grow a ½-inch beard, was the least restrictive means of furthering a compelling government interest. The case is of interest to employment lawyers in the public sector primarily because of the court’s analysis of the Religious Land Use and Institutionalized Persons Act, a “sister statute” to the Religious Freedom Restoration Act, and one which allows individuals “to seek religious accommodations pursuant to the same standard as set forth in RFRA,” in light of the similarities to employers seeking to apply a grooming and appearance policy to their employees (Holt v Hobbs, January 20, 2015, Alito, S).
Reminder: These statutes provide greater protections than First Amendment. Congress enacted the RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. The RLUIPA mirrors the RFRA and provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
Grooming policy contained medical exception. Notably, the prison’s facial hair and grooming policy in question barred facial hair other than a mustache and made no exception for inmates who objected on religious grounds, but it did contain an exemption for prisoners with medical needs, allowing them to grow a beard of no more than ¼ inch in length. [Employers: Are you listening? What kinds of exceptions, if any, are in your policy?] The Muslim inmate believed his faith required him to grow an untrimmed beard but he offered a compromise of growing only a ½ inch beard, which the department refused.
Substantial burden. In the Supreme Court’s view, the department had not challenged the sincerity of the inmate’s religious belief, and its grooming policy substantially burdened this belief. Although the district court did not find a substantial burden because the department provided “alternative means” of practicing his religion, the availability of alternative means of practicing religion is not a relevant consideration under the statutes. The question was whether the government had substantially burdened religious exercise (here, growing a ½-inch beard), not whether the individual was able to engage in other forms of religious exercise.
In addition, it did not matter whether the inmate’s religion would “credit” him for having tried to follow his religious beliefs by growing a beard. Finally, the religious protections were not limited to beliefs that are shared by all members of a religion, so the fact that not every Muslim believes all men must grow beards was not determinative.
Burden on the government now. At this point, the burden shifted to the department to show its grooming policy as applied to the Muslim inmate furthered a compelling governmental interest and was the least restrictive means of furthering that interest. This it had not done, said the Court. This required a more focused inquiry than just the department’s asserted interest in safety and security; the Court had to scrutinize the asserted harm of granting a specific exemption to a particular religious claimant—or preventing the inmate from growing a ½-inch beard.
Preventing contraband not enough. Clearly, the department had a compelling interest in preventing contraband coming into its facilities, the High Court agreed, but it pointed out that “the argument that this interest would be seriously compromised by allowing an inmate to grow a ½-inch beard is hard to take seriously.” Since the department did not demand that inmates have shaved heads or extremely short hair, reasoned the Court, it was hard to see why an inmate would seek to hide contraband in a ½-inch beard rather than in the longer hair on his head.
Could the department not satisfy its security concerns by simply searching the inmate’s beard, since the department already searched prisoners’ hair and clothing? Essentially, the department offered no sound reason why hair, clothing, and 1⁄4-inch beards (for medical exemptions) can be searched but ½ -inch beards could not.
Disguised identity. It was also true that a prisoner who had a beard when he was photographed for identification purposes might confuse guards by shaving his beard, but this problem could largely be solved by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically afterwards. In fact, the department (like many other states) already had a policy of photographing a prisoner both when he enters an institution and when his “appearance changes.” Because there was no evidence that that “the risk that a prisoner will shave a 1/2-inch beard to disguise himself is so great that 1⁄2-inch beards cannot be allowed, even though prisoners are allowed to grow mustaches, head hair, or 1⁄4-inch beards for medical reasons,” the Court found the department could have achieved its safety and security goals in a way that didn’t conflict with the inmate’s religious beliefs, especially since many other state prison systems had done so.
Guidance for employers. For public employers, the analogies are clear with respect to how courts might analyze not only dress and appearance policies, but also any policy that could impact employees’ free exercise of religion. Those employers might want to re-evaluate policies for which medical exemptions, for example, are spelled out, since those exemptions may be interpreted as evidence that the policy may not be the least restrictive means to achieve policy goals. For private employers, the parallels are less clear, but for purposes of accommodating religious beliefs under Title VII and similar state laws, the opinion provides some nuggets revealing just how carefully this Court treads when it comes to religious practices.
In a move unsurprising to most High-Court watchers, the Justices on Friday, January 16, agreed to take up the question of whether states can lawfully bar same-sex marriages, granting and consolidating four petitions they considered during their conference. A round of earlier petitions, filed before a federal appeals court created a circuit split, missed the mark.
The Justices granted cert and consolidated four petitions seeking review of the Sixth Circuit’s consolidated ruling upholding same-sex marriage bans in Kentucky (Bourke v. Beshear), Michigan (DeBoer v. Snyder), Ohio (Obergefell v. Hodges), and Tennessee (Tanco v. Haslam). According to Sixth Circuit, the man-woman marriage laws in these states did not violate the Fourteenth Amendment—even in the wake of the Supreme Court’s landmark decision in United States v. Windsor, which invalidated the Defense of Marriage Act’s definition that limited marriage to a man-woman union for purposes of federal law.
The Sixth Circuit’s ruling is contrary to the conclusions of every other Circuit Court of Appeals that has decided the same-sex marriage issue.
That appeals court also ruled that states do not run afoul of the Fourteenth Amendment by refusing to recognize same-sex marriages performed elsewhere. As the appeals court put it, “If it is constitutional for a State to define marriage as a relationship between a man and a woman, it is also constitutional for the State to stand by that definition with respect to couples married in other States or countries.”
The Sixth Circuit predicted that America would ultimately permit gay couples to marry; it’s merely a question of when and how that will come about. “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers,” wrote Judge Jeffrey Sutton. “Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
Judge Martha Craig Daughtrey dissented.
High-Court query. The Justices have granted cert on two questions:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Ninety minutes of oral argument is allotted on the first question, and one hour is allotted for the second. The parties are permitted to file briefs on the merits and give oral argument only on the questions presented in their respective petitions. Petitioners’ briefs are due February 27; Respondents’ briefs are due March 27, 2015; reply briefs are due April 17.
Idaho petition presents additional questions. The Justices have not yet decided whether to review the validity of same-sex marriage bans in Idaho—a case that raises issues not present in the cases now consolidated for scrutiny by the Court. Governor “Butch” Otter filed a petition for cert seeking review of the Ninth Circuit’s ruling that invalidated Idaho’s laws limiting marriage to a man-woman union. The State of Idaho has filed a separate petition for cert in the case. The petition has not yet been set for conference.
What makes the petition in Otter v. Latta stand out from the others is that the Ninth Circuit saw the man-woman marriage laws in both Idaho and Nevada as discriminating based on sexual orientation, and thus applied heightened scrutiny in assessing whether the states’ motivations were sufficient to overcome the resulting inequality. Other appeals court rulings have not relied on the sexual-orientation argument and have applied only rational-basis scrutiny.
On January 9, the Bureau of Labor Statistics reported that total nonfarm payroll employment rose by 252,000 in December, and the unemployment rate declined to 5.6 percent from 5.8 percent the previous month. Good news, if only the other side of the coin didn’t reflect such a stunningly different picture of the American workforce.
Besides an unexpected drop in hourly average pay, the latest statistics also indicated that a record 92.9 million are no longer in the labor force, as the labor participation rate pegged a 38-year low – 62.7 percent. Included in the number are 55.8 million women who did not have a job and did not actively seek one in the past four weeks – a 26-year low.
The Bureau’s “U-6″ statistic (total unemployed, plus all persons marginally attached to the labor force, plus total employed part time for economic reasons, as a percent of the civilian labor force plus all persons marginally attached to the labor force) indicated that unemployment in December was 11.2 percent, seasonally adjusted.
The Bureau publishes six levels of unemployment, but only the “U-3″ unemployment rate gets the headline. The U-3 rate does not count as unemployed the discouraged jobless who have not looked for work in the past four weeks because they believed no jobs were actually available. Further, since 1994, long-term discouraged workers, those who have been discouraged for more than 12 months, have been excluded from all government data.
One could argue, then, that the headline unemployment rate, the U-3 rate, has stayed relatively low because it excludes all discouraged workers. Gauging the headlines with each new unemployment report, it’s clear that may news outlets are taking a deeper dive into “the numbers.” A brief look under the covers typically reveals surprising details not conveyed in the headlines.
By Lorene D. Park, J.D.
In a perfect world, employees maintain a healthy weight, exercise, refrain from smoking or drinking alcohol, properly manage their health conditions, never lose productivity or miss a day of work due to illness, and cost little in terms of healthcare. This is not a perfect world, however, and employers are increasingly relying on wellness programs (according to a 2014 SHRM/EBRI survey, among other indicia) to encourage employees to improve their health. Usually this is done as a cost-saving measure, and it is certainly encouraged by the Patient Protection and Affordable Care Act, as noted by a DOL fact sheet. But are wellness programs worth it?
Effectiveness of wellness programs questioned. According to a 2014 Chief HR Officer Data Survey compiled by Consero Group, nearly half of HR chiefs reported that their wellness programs are ineffective and more than half indicated the programs have not significantly reduced costs. In addition, a study released by the RAND Corporation, which investigated the experiences of over 67,000 employees of PepsiCo over the course of seven years, suggested that while wellness programs may reduce health care costs for employees who have chronic illnesses, the lifestyle management aspects of the programs do not exhibit a similar return.
Medical inquiries challenged by EEOC. In addition to these reports, which call into question the effectiveness of wellness programs, the EEOC has been giving wellness programs special attention—and not in a good way. The latest challenges have taken issue with their “involuntary” nature. Basically, medical inquiries of current employees that are part of wellness programs are acceptable under the ADA if they are voluntary and if the results are kept confidential and separate from personnel records. But the ADA and its implementing regulations do not define “voluntary,” leaving room for doubt—expensive, lawsuit-worthy doubt. According to an EEOC guidance, a “wellness program is ‘voluntary’ so long as an employer neither requires participation nor penalizes employees who do not participate.” But penalties come in a variety of forms.
In EEOC v. Honeywell, the EEOC has alleged that biomedical testing associated with a wellness program violates the ADA because employees face penalties to induce them to go through screening for health risks like high blood pressure and high cholesterol. The EEOC further alleged that Honeywell violated the Genetic Information Nondiscrimination Act (GINA) by penalizing employees whose spouses did not complete the screening. Among other penalties, employees who do not participate face the withholding of health savings account contributions. Moreover, employees (and spouses) who refuse to undergo biomedical testing are presumed to be tobacco users and face a $1,000 nicotine surcharge. The court in Honeywell recently denied the EEOC’s motion for a preliminary injunction barring the penalties at issue because it found no risk of irreparable harm (employees could be compensated monetarily) and noted that the likelihood of success on the merits was an open question.
In addition to Honeywell, the EEOC issued an October 2014 press release announcing a suit against Flambeau, Inc., a plastics manufacturing company. The Flambeau complaint alleged that the company violated the ADA by requiring medical testing and assessment in connection with its wellness program at the risk of “dire consequences,” including unspecified “disciplinary action.” The agency also recently announced a similar suit filed against Orion Energy Systems. The Orion complaint alleged that the company violated the ADA by requiring medical exams that were not job-related and consistent with business necessity as part of its wellness program and then firing an employee when she objected.
Based on the foregoing, it appears that wellness programs are moving to the forefront of the EEOC’s enforcement efforts.
Are wellness programs worth it? Given the studies questioning whether wellness programs are having the desired results; the potential for liability under the ADA, GINA, HIPAA, and other applicable law; and the apparent uncertainty in what exactly is expected from employers in this evolving area of law, the question is: Are wellness programs worth it? Obviously, individual employers must answer that question for themselves. But it clearly is a question they should be asking.
One would hope the proposed rules that the EEOC plans to publish in February 2015 for the ADA and for GINA will provide further guidance in evaluating a future course of action. In the meantime, employers should assess existing wellness program requirements to ensure that the program is voluntary, that it imposes no penalties on those who do not participate, that any medical inquiries are job-related and consistent with business necessity, and that results of medical inquiries are kept confidential and separate from personnel records.