Cell phones. Video games. YouTube. TV. iPads. Kindles. Online Gaming. Netflix. Hulu. Amazon Prime. Stream, click, stream, repeat.
As the years go on, so too does the list of things to which people become addicted. Emerging front and center as a relatively new but common modern addiction—to which employers are having difficulty responding—is the concept of a digital addiction. A digital addiction, also referred to as a gaming addiction, internet addiction, smartphone addiction, and/or social media addiction, is more than a mindless but incessant checking of one’s cell phone, more than browsing Facebook while taking a break from company-focused work. It is a complete disruption to and dysregulation of the daily life of an individual, due to compulsions to engage in the addictive and cyclical behaviors.
Digital Addictions
Like other, better understood addictions, a digital addiction essentially renders an “addict” unable to perform a major life activity, such as sleeping, eating, or, better yet, working. Although the behaviors themselves (use of electronic devices) may seem more benign than drugs, alcohol, or sex, the personal impact is no less severe.
And perhaps even more concerning is the fact that digital addictions can be hard to spot and even harder to stop: we live in a day and age that virtually necessitates constant and unwavering digital and electronic connection. Behaviors that may be dangerous for a minority of the population with a digital addiction are entirely socially acceptable for the majority of individuals, rendering the line between an addiction and a habit blurrier than ever.
Organizations worldwide have begun conducting investigations and research into the impact of a digital addiction upon both the quality and productivity of life. Despite the fact that these studies are in the early phases, the results ought to be taken seriously, as they mirror those of better understood addictions.
By way of example: a high school student reported being unable to live without his cell phone and used it so frequently that he became hospitalized due to lack of exercise and movement. While in the hospital, he was told he had the lungs of someone nearly four times his age—the direct result of an addiction to his phone at the expense of other, healthier coping mechanisms. Multiple recent deaths in South Korea have been directly blamed on an incessant addiction to gaming, as the victims lost track of the real world and their personal needs. And, for the first time in 28 years, the World Health Organization has gone so far as to revise its International Classification of Diseases. What made the cut? “Gaming disorder,” a sub-type of a disorder arising from behavioral addictions.
Treatment For Digital Addictions
As the prevalence and understanding of digital and gaming addictions rises, so too does an understanding of the disorder and its treatment. Rehabilitation facilities are developing specialized tracks focusing on gaming addictions. One such center is The Edge, located in Thailand, touting its programs designed to break digital addictions, treat the root causes leading to the addictive behaviors, and reprogram and repair relations to the digital world and its technology. A Place of Hope in Washington State boasts another similar program, as do countless centers from California to Florida. Although this addiction is not yet recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), treatment programs are seeing the growing need for programs specifically tailored to digital and gaming addictions.
As with other addictions, a digital or gaming addiction often arises out of feelings of discontent, stress, pressure, anxiety, depression, or other underlying mental health conditions. The co-occurrence of one or more disorder is often present, making the addiction more difficult to treat. Similarly, and as with other addictions, the behaviors (here, gaming or compulsive use of the internet) are but a symptom of a deeper cause; typically, the behavior itself serves to either avoid, ignore, or “numb out” from more complicated inter and intrapersonal issues. In other words, the presentation itself may not be the cause, but the presentation may be the first behavior to “fix.”
What Does This Mean For Employers?
What does this mean for you as an employer? The Mental Health Parity and Addiction Act of 2008 requires health insurers and group health plans to provide parity between its coverage of mental health treatment and medical or surgical care, a dramatic shift that allowed hundreds of thousands of individuals to seek the mental health treatment they so desperately needed. It increased the prevalence of treatment facilities and rehabilitation programs focusing on a variety of mental health issues, as they are now able to receive funding through insurance companies when treatment otherwise would not be covered.
Although a digital addiction may not officially be recognized in the DSM-5, that does not make it any less severe or serious. Furthermore, because individuals often have co-occurring disorders or conditions, it is likely that an individual with a digital addiction may also be suffering from at least one other mental health condition. This, in turn, increases the chance that they would be accepted into a treatment program funded by their health insurance.
In recent years, employers have come to understand their obligations related to mental health issues and disabilities; employees are to be granted reasonable accommodations for mental health disorders the same as they would be for a physical disorder or illness. This includes, when applicable, leave to attend treatment on an inpatient, partial hospitalization, intensive outpatient, or outpatient basis under federal laws like the Family Medical Leave Act or Americans with Disabilities Act, as well as state laws, like the California Family Rights Act and California’s Fair Employment and Housing Act. What, then, is an employer’s obligation if an employee exhibits a digital addiction?
It is prudent to accommodate an individual with a digital addiction the same way you would accommodate any other individual: engaging in the interactive process, and reviewing and discussing any restrictions, limitations, or accommodations that may be needed. While there may be concerns regarding an employee’s ability to return to work in the digital age after receiving treatment for a directly related addiction, this concern cannot be used as a basis to engage in an adverse action against an employee.
This remains the case even if the disorder is not officially “diagnosable.” In other words, an employer must take a digital addiction seriously, even if it does not understand the addiction or personally believe the addiction is legitimate.
Where Do We Go From Here?
For now, there are several best practices employers can use concerning digital addictions. An up-to-date compliant handbook with policies addressing leaves and accommodations goes a long way. A handbook creates the foundation for your policies and procedures. If your handbook is wrong, or if you (gasp) do not have a handbook at all, your internal policies and procedures are much more likely to be problematic and subject to tougher scrutiny.
Your handbook also needs to be acknowledged by your employees. You can use an employee’s acknowledgement to show they were well aware you were more than willing to reasonably accommodate them and welcomed any and all accommodation requests.
Document, document, document. We cannot say it enough: document notice of an employee’s alleged disability; meetings and communications discussing the alleged disability; and requested, offered, or denied accommodations. This helps paint a picture that you took the alleged disability seriously and tried to reasonably accommodate. Without documentation of this interactive process, it may as well have never happened.
Train your managers and supervisors. They can make or break your defense. They typically receive notice of an alleged disability or requested accommodation first. If they fail to take this seriously and begin the interactive process, your defense can be severely undermined. They need to know what constitutes “notice,” that the company has interactive process obligations, and how to handle accommodation requests.
Not so fast…do not be too quick in denying accommodations (even if you want to). The law requires that you participate in a “good faith” interactive process, which means considering each and every possible reasonable accommodation in “good faith.” Document any legitimate reasons why an accommodation may not be “reasonable,” but understand that not everything is “unreasonable.” While employers do not have to provide accommodations that are unduly burdensome, “undue burden” is an extremely tough standard to meet and is looked at primarily in financial terms by courts. So, unless a particular accommodation costs you some serious money, results in a loss of serious money through disruption to your operations, or is a direct threat to the health and safety of others, you are probably going to have to provide it.
Watch the timing of adverse actions. Retaliation claims are on the rise and are currently the number one charge filed with the Equal Employment Opportunity Commission. Retaliation largely focuses on timing – how long after an employee engaged in “protected activity” (like requesting a reasonable accommodation) did they suffer an “adverse action” (like termination). The closer in time, the more retaliation seems plausible. To combat this, make sure you properly manage bad employees, have the documentation to support your story, and terminate as soon as termination is legitimately warranted.
Finally, stay up-to-date on changes in the law concerning digital addictions. A critical part of avoiding future claims is being aware of your ever-changing legal obligations.
Conclusion
The times continue to change, and so too does our understanding of modern addictions. Video conferencing and cloud hosting have begun to replace in-person meetings and file rooms. iPads and tablets have begun to replace notebooks and pads of paper. Cell phones have rendered landlines all but obsolete.
Although new technology may be initially feared, with time comes understanding. This age-old maxim holds true with respect to digital and gaming addictions, as well: although it may not be well known as of present, awareness begets recognition, and recognition begins understanding. Patience, an open mind, and a good labor and employment attorney will take care of the rest.
Despite a 10 percent overall drop in the number of charges of employment discrimination, the EEOC recently reported that sexual harassment charges filed with the agency jumped by 13.6% from the previous year. The 7,609 sexual harassment charges received clearly demonstrate that the #MeToo movement is in no way slowing down. What do employers need to know about this development?
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We have awaited to see where the U.S. Department of Labor would land with its much anticipated revised “overtime rule” and late yesterday the agency delivered. The USDOL released its long-awaited proposed rule which, if adopted, would set the minimum salary threshold at $679 per week, or $35,308 per year. For now, the proposed rule does not include an automatic update provision (which many were concerned would simply serve to periodically inflate the threshold level), nor does it revise the duties test that accompanies the rule.
Once published in the Federal Register, the public will have 60 days to submit comments regarding, among other things, the proposed minimum salary threshold.
Proposed Rule In A Nutshell
A federal judge in Washington D.C. sent shockwaves through the employment law community late on March 4th by reinstating a revised version of the EEO-1 report, which is now once again set to gather compensation information from employers across the country. The resurrection of the controversial revisions, which had been cast aside by the White House shortly after President Trump took over, will almost certainly be challenged by an appeal and could also lead to further agency maneuverings. While we have not yet seen the final chapter of this controversy, employers need to prepare for the possibility that their pay practices could soon be placed under a federal microscope like never before.
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As has been reported in various news outlets, new rules issued last year now require hospitals to post their standard charges for various services on their websites. This is part of a move toward greater hospital pricing transparency in the health care provider market. The requirement to post these amounts comes from the Affordable Care Act.
However, the posted prices are likely to be of limited use. First, the amounts on their websites are the “full price” amounts, sometimes referred to as “rack rates” or the “chargemaster”, but almost no one actually pays these prices. Insurance companies and third-party administrators negotiate discounts off of these prices. Furthermore, consumers who are covered by insurance may only pay a portion of these rates through copayments or coinsurance. Even uninsured consumers may negotiate discounts off of these prices.
In many cases, the items or services listed on their websites are given highly technical, often confusing names. Even an experienced health care professional may have trouble understanding them. Additionally, a single hospital procedure may involve multiple services and therefore include several listed amounts, so the total charge for a procedure or visit may require some sleuthing around on the website to figure it out.
The Takeaway
It seems unlikely that most employees will get much use out of these posted hospital prices. However, to the extent employers receive questions from their employees, the employers should be prepared to respond. Specifically, employers should point out that the charges on the website do not reflect the discounts negotiated by their insurance carrier or TPA.
If an employee wants to know what he or she will be charged for an item or service, the employer should suggest that they contact the carrier with their questions. Many carriers are also offering price transparency tools that reflect the discounts of the employer’s plan. If those tools are available, the employer may want to mention that as well.
Employers that participate in E-Verify, the government’s electronic employment eligibility verification program, have until Feb. 11 to create and enter cases into the system for all hires made during the 35-day partial government shutdown.
U.S. Citizenship and Immigration Services (USCIS), which manages the program, announced that E-Verify has resumed operations, but patience will be required from users as the service is restored.
“Expect delays due to the sheer volume of past E-Verify cases that need to be created, in addition to the fact that employers continue to hire every day and that adds to the queue of cases being created,” said Montserrat Miller, a partner in the Atlanta office of Arnall Golden Gregory. “Employers, you only have a little over two weeks to bring yourself into compliance with the E-Verify requirements given the Feb. 11, 2019 deadline.”
Miller reminded HR professionals that “a case needs to be created for all employees you hired for whom a Form I-9 was completed but you could not create a case in E-Verify because the system was offline due to the shutdown.”
USCIS instructed that employers use the hire date from the employee’s Form I-9 when creating an E-Verify case. If the case creation date is more than three days following the worker’s start date, select “Other” from the drop-down list asking for an explanation and enter “E-Verify Not Available” as the reason.
“Any pending tentative nonconfirmation (TNC) that you and/or your newly hired employee were not able to resolve due to the shutdown needs to be resolved at this time,” Miller said.
If an employee has received a TNC and notified HR of his or her intention to contest it by Feb. 11, employers must add 10 federal business days to the date on the worker’s “Referral Date Confirmation” notice. That’s the date by which the employee must contact the Social Security Administration or Department of Homeland Security to begin resolving the TNC.
Federal business days are Monday through Friday and do not include federal holidays.
There’s no need to add days to the referral date for TNC cases after E-Verify resumed operations. “If your employee decided to contest the TNC when E-Verify was unavailable, you should now refer the employee’s case and follow the TNC process,” Miller said.
Federal contractors should contact their contracting officer for more information about the impact of the government shutdown on their operations related to E-Verify.
Leaders motivate and inspire respect by supporting employees, listening and showing they care. There is no need to rack our brains to figure out how to motivate others when simple things done in kindness and selflessness inspire our employees to do their best.
“Think about it,” said Heather Kruse, chief human resources officer at Viewpoint School in Calabasas, Calif. “Books are published focusing on hundreds or thousands of ways of motivating employees, but the truth is that workers motivate themselves. Your job isn’t so much to motivate your employees as it is simply to create a work environment in which they can motivate themselves.”
Workplace Wisdom
“What you want for yourself, give to another” is simple wisdom that is sometimes missing in corporate America. No matter where you work or what you do, you can be the best boss your staffers have ever had. “You can be that person who influenced and supported them to become better people and stronger contributors. You can be that caring [listener] that encourages, that experienced mentor who guides, and that engaged leader who motivates,” Kruse said. Ask yourself two questions:
What Being Someone’s ‘Favorite Boss’ Really Means
When someone describes his or her favorite boss, the description typically sounds something like this: “She always made me feel included. She challenged me to do things I didn’t even think I was ready for. She always had my back, and she was kind and fair but had really high standards.” Descriptions like these speak to that boss’s character, empathy and genuine concern to help the employee help herself. And while you may not have had many great bosses throughout your career, there’s nothing stopping you from becoming this type of influence on the people on your team right now.
Don’t overthink this. “People don’t typically describe their favorite boss by what [that boss does]; it’s really much more about who they are. ‘Beingness’ trumps ‘doingness’ in the world of inspirational leadership, and this critical insight will help your leaders focus on themselves and their own professional and career development, which will in turn benefit their subordinates as well as your company,” Kruse said.
It may be easy to simply write off the idea of inspirational leadership. You may reason that you work in a cutthroat industry in which people are out for themselves. And to a certain degree, this point may be valid.
But that doesn’t mean it has to be your experience. Change your perspective and you’ll change your perception. Look at the world through a different lens and, while the objective outcomes of your reality may not change, the way you experience those outcomes can change immensely.
“This doesn’t mean sticking your head in the sand and refusing to recognize reality,” said Robin Darmon, senior director of the career development center at the University of San Diego. “It does mean, however, that despite the supercompetitive nature of your industry or line of business, the challenges or disappointments with your own bosses throughout your career, or the constant pressure you face to produce greater volumes at faster speeds, you can shield your people from many of those complexities.”
You can reason that the buck stops with you. You can be the line of demarcation between the drama above you and what your team members get to experience under your leadership.
Change your mindset about who you are as a leader, motivator and talent developer. Make bringing out the best in each of your subordinates your goal—not to fix all their shortcomings but to harvest the best of the strengths they have to offer.
“You know intuitively that successful leadership focuses on building on strengths rather than shoring up weaknesses, so find new ways of bringing out those strengths and inspiring employee engagement,” Darmon said. “Have fun. Consider lightening up just a bit. Understand that life is a gift, and for a significant portion of your lifetime, working with others will engage you, frustrate you, disappoint you, exhaust you, and fascinate and inspire you.”
Work will touch all those emotions through your various experiences. But nothing will stick with you more than the people you’ve helped, the careers you’ve nurtured, and the people along the way who thanked you for all you did to help them excel and become their best. That’s why leadership is a profound gift that the workplace offers—because it enables you to touch lives and make the work world a better place.
Here’s the secret about inspirational leadership: It’s not the end that is most meaningful; it’s your experiences along the way. Make the most of your career and work life through people, not despite them. Teach what you choose to learn. Encourage others to take healthy risks. Be there when they make mistakes, and offer support when they feel vulnerable. Understand that your employees’ mistakes are likely not made deliberately, but when in doubt, err on the side of compassion. You can be the first domino in a chain of events that can change someone’s life for the better.
So go ahead and reinvent yourself. The world’s waiting to see—and receive—that gift of selfless leadership, personal and career development, and workplace wisdom that you’re about to display.
Courtesy of Paul Falcone (SHRM)
Courtesy of Fisher Phillips LLP
2018 has seen quite a few changes in labor and employment law. But with the New Year having just rung in, it’s time to look forward rather than backward. The question on the tip of everyone’s tongue is: what’s next? Here are our predictions for what to expect in 2019 when it comes to workplace law.
Expect More Class Actions
We’re going to start out with the bad news. Because of the potential for a big payout, class and collective actions are a favorite for plaintiffs’ attorneys. You should not expect that to change in 2019.
The California Supreme Court’s decision in Troester v. Starbucks Corporation has opened up even more avenues for potential wage and hour claims in the Golden State, and the trend could hit the rest of the country, too. In July 2018, the California Supreme Court narrowed the scope of the de minimus doctrine under state law and held that employees must be paid for off-the-clock work that regularly lasts several minutes per day. While the California Supreme Court refused to shut the door entirely on the de minimus doctrine, it noted that technological advances should help employers track small bits of time, and that employers can restructure work to avoid off-the-clock time.
Employers outside of California may see plaintiffs’ attorneys attempting to use the same rationale employed by the California Supreme Court to argue that the de minimus doctrine should not apply in the circumstances of their case. Moreover, with more employees having remote access to emails and other mobile platforms, the number of ways for employees to argue that they were working off the clock has increased.
The Ascendance Of Arbitration Agreements
One way for employers to avoid class actions is through arbitration agreements. Last May, the Supreme Court ruled in Epic Systems Corporation v. Lewis that mandatory class action waivers in arbitration agreements are enforceable. As a result, you can expect to see an increase in the number of companies rolling out updated agreements to include class action waiver language. (Note: if you have not had your arbitration agreement reviewed since May when Epic Systems came out, make it your New Year’s Resolution to do so.)
However, while popular with employers, arbitration agreements are decidedly not so with the plaintiffs’ bar. Expect to see plaintiffs’ counsel becoming more creative in challenging arbitration agreements on grounds related to unconscionability.
We may even be starting to see a backlash against arbitration agreements. Most recently, some law students have been pressuring big law firms to do away with them when it comes to their own hires. And last year, the California legislature passed a law banning mandatory employment arbitration agreements for claims arising out of alleged violations of the Fair Employment and Housing Act or California Labor Code. Although the bill was ultimately vetoed by outgoing Governor Jerry Brown, expect to see the fight continue in 2019.
Don’t Look To Congress To Lead The Way
With Democrats controlling the House, and Republicans controlling the Senate and Executive Branch, you can expect that most employment legislation will be dead on arrival. When it comes to innovative legislation impacting the workplace, you should look to the states to lead the way. This is not to say that there won’t be any changes to labor and employment law on the federal level in 2019. However, we expect the most significant changes to be made by agencies (such as the National Labor Relations Board, the Department of Justice, the Equal Employment Opportunity Commission, etc.) rather than Congress.
NLRB Will Narrow The Definition Of Joint Employer
One of those agencies—the NLRB—made noise last year when it published a proposed rule that would alter the definition of joint employment to make it more difficult to hold multiple businesses responsible for alleged labor and employment law violations by staffing companies, franchisees, and other related organizations. Expect to see continued movement and updates on this proposed rule in 2019.
But before getting too excited at any potential changes, you should keep in mind that states may have their own rules regarding joint employment that could differ from what the NLRB comes up with. Any new rules may not affect your organization’s liability under state law.
USDOL Has A Full Plate
Another agency you should keep an eye on is the U.S. Department of Labor (USDOL). Not only is the USDOL considering its own joint employment rule, but the agency has proposed regulations regarding the regular rate of pay and white collar exemptions (also known as the “overtime” rule).
The regular rate of pay is of particular importance to employers because it is used to calculate the overtime rate of non-exempt employees. While we know that changes to the proposed regulations are targeting sections 7(e)(2) and 7(g)(3) of the Fair Labor Standards Act, the USDOL has been rather vague about what the proposed regulations will look like. The USDOL states that they aim to “provide employers more flexibility in the compensation and benefits packages they offer employees” and “lessen litigation regarding the regular rate.”
The regulation relating to the white collar exemption is less opaque. As employers may recall, the minimum salary threshold for white collar exemptions was supposed to increase from $455 per week (or $23,660 annually) to $913 per week (or $47,476 annually), with the amount to be updated every three years. However, right before these changes were scheduled to take effect in December 2016, a federal court blocked their implementation. Under a new administration, we expect that we will see a more modest proposed increase in the white collar exemption in 2019—perhaps in the low $600s per week.
Paid Sick Leave Will Continue To Be On Trend
Although there are no federal laws mandating paid sick leave (yet), you can expect that paid sick and family leave will continue to be a big issues, with states and localities picking up the slack. Right now, 11 states and the District of Columbia require paid sick leave. Additionally, various cities and counties have stepped in where states have not provided for such leave or to give more generous benefits than the state.
You generally should anticipate an expansion of paid sick leave benefits in 2019. The New Jersey Paid Sick Leave Act went into effect October, while Michigan, Washington, and Westchester County (NY) have paid sick leave laws going into effect this year.
While some municipalities in Texas want to get in on this trend, a Texas appeals courtruled the Austin Paid Sick Leave Ordinance violates the state constitution because it preempts the Texas Minimum Wage Act. San Antonio passed its own sick leave ordinance in 2018, but it may only be a matter of time before it, too, is challenged in court.
Privacy Issues Remain Paramount
The EU General Data Protection Regulation (GDPR) went into effect in May 2018, ushering in sweeping reforms for companies that do business in the EU or employ EU residents. The GDPR threatens strict penalties for non-compliance—up to the greater of 20 million Euro or 4 percent of global annual turnover in the prior year. Having been in effect less than a year, it is still not clear how fines will be assessed and what the potential exposure will be for companies that are found to be non-compliant. As 2019 progresses, you can expect to see many investigations that began in 2018 come to a close, and we’ll begin to get a better idea of how regulatory authorities will assess fines for non-compliance—including whether the fearsome 4 percent penalty will be assessed.
Lest you think the major developments in privacy are safely across the ocean in Europe, you can be sure there will be plenty of action closer to home in 2019. The Illinois Supreme Court currently has a case before it over whether a technical violation of the Illinois Biometric Information Act (BIPA) gives standing to sue absent a person suffering a concrete injury. If the court answers in the affirmative, you can expect to see a continued proliferation of BIPA class actions.
Further, California passed the California Consumer Privacy Act (CCPA) in 2018, which goes into effect at the beginning of 2020. While the law is not as comprehensive as the GDPR, California employers will soon need to figure out this year if it applies to them. You should take compliance seriously: the CCPA allows consumers whose rights have been violated under the Act to bring suit for actual damages or statutory penalties (whichever is greater) under a mechanism somewhat akin to a California Labor Code Private Attorneys General Act. You can expect the proliferation of CCPA lawsuits will be on next year’s list of predictions.