Virginia Employment Law Blog
This week’s post features an eclectic mix of stories,
including a controversial policy mandated by CVS, a court decision from New
York that limits the ability of employees to opt out of arbitration agreements,
and an interesting look at how some employees are banding together to purchase
group healthcare.
First, CVS drew attention (perhaps unwanted) for its new policy
requiring employees to submit information regarding their weight and body fat
to CVS’s insurance provider. Some have
questioned whether the program is overly intrusive and whether it would
withstand scrutiny under the ADA’s prohibition on unlawful medical
inquiries. The ADA only allows
during-employment medical inquiries to be made if they are job related and
connected to a business necessity. The
EEOC has stated that an employer needs a reasonable belief that an employee’s
health status will affect his or her job performance before being entitled to
make a medical inquiry. It seems pretty
certain this policy will be tested before a court in the near future, as the
policy requires all employees to make a disclosure without any individual reasonable
belief.
In New York, the Second Circuit ruled that employers can
require employees to go to arbitration on Title VII class action claims because
Title VII contains no right to pursue a pattern-or-practice sex discrimination
claim. In the case, the employer
(Goldman Sachs) moved to compel arbitration under the FAA, stating that it
could not be compelled to arbitrate on a class-wide basis. The employer responded that she had a
substantive right to pursue a pattern-or-practice claim available only to class
plaintiffs, and that the arbitration clause would cause her to forgo a
statutory right. The court disagreed,
and ruled that in regards to Title VII a pattern-or-practice claim is simply a
method of proof, and not a separate cause of action to which there is a
substantive right. As such, the employee’s
contract mandated that she individually arbitrate her claim.
Finally, the New York Times has an interesting
article about how workers who are classified as independent contractors and
thus not provided benefits are banding together to purchase health insurance as
a group. The article focuses on the Freelancers
Union, a group of around 200,000 members, most of whom are independent
employees not tied to one employer. The
Union purchases health insurance as a group for its members, and seeks to
address the economic vulnerability faced by many workers for whom limited ties
to a specific employer often equals low-quality benefits and limited
stability. The article is rather
lengthy, and worth reading in its entirety.
In sum though, the Freelancers Union seems to be taking an interesting
approach to helping workers in the modern economy, focusing on the provision of
health insurance rather than traditional union goals such as collective
bargaining that are inapplicable to the individual employee without a
traditional employer.