Reference checking may be easier in the future:   In the near future, employers around the world will no longer worry about the length of time or paperwork required to verify a job applicant’s learning credentials. A new consortium is currently building a global clearinghouse or database, called the Learning Credential Network (LCN), which supports blockchain technology to store permanent, verifiable records of job seekers’ skills and academic qualifications.  The consortium was founded by five organizations: IBM; Central New Mexico Community College (CNM); an Australian University that prefers to remain anonymous; the National Student Clearinghouse, which provides educational reporting, data exchange, verification and research services; and VetBloom, which specializes in online veterinary courses and continuing education.   Besides mitigating the risk of fraud—applicants using fake credentials—the LCN can help employers produce a list of potential workers with desired skills, credentials, or qualifications. Among the key concepts behind the LCN is digital self-sovereignty.  Job candidates will own this information and have the power to decide what information they want to share with employers. Source:  HR Executive 11/25/19

Demotion as a reasonable accommodation:  The 7th U.S. Circuit Court of Appeals ruled that a demotion can be a reasonable accommodation under the Americans with Disabilities Act (ADA) if an employer cannot accommodate a disabled employee in current or prior jobs or an equivalent position (Ford v. Marion County Sheriff's Office, No. 18-3217 (7th Cir. Nov. 15, 2019)). Brigid Ford was a deputy in a county sheriff's office when her hand was badly injured in an on-duty car accident. She was on light duty for about a year, at which point she was told she would have to transfer to a permanent position that involved a pay cut or be terminated. Ford opted to accept a civilian job as a jail visitation clerk but claimed that better vacancies had been available.  The 7th Circuit noted that if Ford could show she was qualified for a vacant position that "more closely matched her previous job, the ADA would have obliged the Sheriff’s Office to offer it to her." But Ford failed to present evidence that this was the case.  Accordingly, the 7th Circuit affirmed a summary judgment ruling in favor of the sheriff's office.  Source:  HR Dive 11/25/19

Are your employment forms gender fluid? Many employers have inadvertent gaps in their diversity and inclusion efforts. Employers often fall short in their forms — particularly when it comes to options for gender non-conforming applicants and employees.  "Many employment forms ask the applicant or employee to designate whether they are male or female. For individuals who are non-binary, this doesn't give them an option to check," said Chai Feldblum, a partner at Morgan Lewis and former commissioner of the U.S. Equal Employment Opportunity Commission.  "Standard forms often reflect binary gender categories of 'man' and 'woman,'" noted Janine Yancey, founder and CEO of Emtrain, in an email. "For example, forms for employee benefits and payroll often request gender identification and do not allow for gender fluidity, which can unintentionally convey the wrong message about the employer and its commitment to inclusion." Mastroianni said there's no one-size-fits-all way the forms should read. "Forms are going to start including a lot of choices for employees to self-identify, including non-binary, transgender, a write-in option, or an option not to identify a gender at all."  Source:  HR Dive 11/27/19

Improper notification COBRA lawsuits on the rise:  In test cases in 2019, plaintiffs similarly allege that the COBRA election notice given by the employer to qualified beneficiaries following qualifying events was deficient. While the specific allegations vary, generally the complaints allege that (1) the employer failed to use the model COBRA election notice provided by the Department of Labor, (2) the notice used did not include all of the information described in the Department of Labor’s COBRA notice regulations, and (3) the notice was not drafted in a manner that was calculated to be understood by the average plan participant. If they win any of these suits, the floodgates will open.  It is now time to review the process with legal counsel.  For example, the model election notice does not address a number of items required. For example, it does not include a discussion of the special rule for health FSAs or a full discussion of electing COBRA continuation coverage, especially on behalf of other qualified beneficiaries. As a result, using the Department of Labor’s current model notice as the sole method of communicating COBRA election rights to qualified beneficiaries puts employers at risk of being wiped out by the wave of COBRA notice litigation.  Source:  Kilpatrick Townsend & Stockton LLP  11/18/19

New York State bans discrimination based on reproductive health decision making: On November 8, 2019, Governor Cuomo signed into law an amendment to the New York State Labor Law banning employment discrimination based on an employee’s “reproductive health decision making” or that of an employee’s dependents.  The new law defines “reproductive health decision making” as “including but not limited to, the decision to use or access a particular drug, device or medical service.” The law prohibits an employer from: Accessing an employee’s personal information regarding the employee’s reproductive health decisions or those of the employee’s dependents, without the employee’s prior informed affirmative written consent; discriminating or taking any retaliatory action against an employee based on the employee’s reproductive health decisions or those of the employee’s dependents; and requiring an employee to sign a waiver or other document which purports to deny the employee the right to make his or her own reproductive health care decisions.  The law allows employees to bring a civil action in court for any violation. Liquidated damages equal to 100% of any damages awarded may also be recovered, unless an employer proves a good faith basis to believe that its actions in violation of the law were in compliance with it.  Source: Phillips Lytle LLP 11/22/19

OFCCP will not use Component 2 EEO-1 data:  OFCCP via federal register officially announced that it will not request, accept, or use Component 2 data, as it does not expect to find significant utility in the data given limited resources and its aggregated nature, but it will continue to receive EEO-1 Component 1 data.  The notice is a welcomed confirmation for federal contractors that had concerns about OFCCP’s intentions with respect to the recently filed compensation data.  The notice reflects that OFCCP reviewed the parameters of the EEO-1 Component 2 data collection and has determined that it does not find Component 2 data necessary to accomplish its mission to ensure federal contractors are not engaged in unlawful pay discrimination.  Source:  Jackson Lewis 11/22/19