Federal/State/Local Laws

Today’s post comes to us courtesy of Justin Schwam, an associate in the Labor and Employment Department in Roseland:

60987399 - four young friends drunk and hungover after house party sitting on the couch.

With the trend of local paid sick leave ordinances continuing its progressive sweep in cities across the country, a consistent concern for companies located in the vicinity is whether their operations fall within the local law’s reach.  Does it only apply if the company is physically located in the city?  Or does any employee activity within the city trigger the often onerous recordkeeping obligations?

A few weeks ago, a Minneapolis judge limited the reach of the City’s law slated to go into effect later this year.   Judge Dickstein issued a temporary injunction against the enforcement of its Ordinance against businesses not physically located in the City.  Although the City argued that its exclusive enforcement authority meant that it would not apply the Ordinance against businesses outside the City, the court recognized that such assurances, “however sincere,” did not alter the Ordinance’s plain language.

The court’s analysis of this issue is also notable for its dissection of the City’s argument that its action was a permissible exercise of its police powers to protect the health and welfare of residents.  The court found that the City’s attempt to regulate extraterritorial businesses whose employees “are unlikely (or may never) enter the city while sick” was not a narrowly tailored means of addressing “identifiable harms within the city limits,” such as a rule governing the inspection of extra-territorial cows whose milk was sold within the city.  Because a prime justification for these local ordinances is typically the need to protect residents from the spread of contagion, the court’s refusal to accept policymakers’ assumptions that ill workers would use the sick leave benefit to “protect against potential harm” is significant.

Although the injunction ultimately may be lifted, or the ordinance amended – it’s not scheduled to take effect until July 1, 2017 – employers not located in Minneapolis are breathing a sigh of relief.   For now, employees who occasionally travel to Minneapolis will not be entitled to accrue sick leave under the law.

As local action on this issue will no doubt continue to pick-up steam, since more state governments are looking at measures to prevent municipal action than are moving to enact state-wide measures, it will be interesting to see how cases like this one influence future legal challenges and how future paid sick leave laws are drafted.  We will keep an eye out and report back on any developments.

 

The end of the year, that is.  Although given the number of celebrity deaths in the last week, I think some people might be reading that headline a little more broadly.  We are not making doomsday predictions, however.

Back in the fall, we started a list of employment laws that were going to go into effect in January 2017.   We tried to get a jump start on the list as we knew how quickly the end of the year can creep up on you.  How right we were as the Fall flew past and now we find ourselves just days away from the New Year without having updated the list.

Our first big update is to remind everyone that the FLSA salary test has been enjoined.  The other big changes have to do with sick leave laws.  The last few years have seen a lot of jurisdictions adopting sick leave laws.  This year is no exception. The sick leave laws going into effect in January 2017 are as follows:

  1. Executive Order 13706 — Back in September, President Obama issued an Executive Order that applies to federal contracts entered into, sent out for bid, or renewed after 1/1/17.  The EO requires that contractors provide up to a maximum of 56 hours paid sick leave per year.  The DOL has issued guidance for the Final Rule, which can be found here.
  2.  Morristown, New Jersey becomes the latest New Jersey municipality to have a paid sick leave law.  The law goes into effect on 1/11/17 and requires employers with 10 or more employees to provide up to 40 hours of paid sick leave.  Employers with less than 10 employees are not exempt from the law; they only have to provide 24 hours of sick leave.
  3.  Vermont –  The law applies to employers with 6 or more employees and goes into effect on 1/1/17.  This law does have two phase-in provisions.  For employers with less than 6 employees, the law will not be effective until 1/1/18.  For other employers, in the first year, they must only provide up to 24 hours of sick leave.  After the first year, employers must provide up to 40 hours of sick leave.
  4.  Spokane, Washington – This law is also effective as of 1/1/17 and is similar to Morristown’s law in that there are different requirements for employers with 10 or more employees and less than 10 employees. Employers with 10 or more employees must provide up to 40 hours of paid sick leave while employers with less than 10 employees must provide up to 24 hours of sick leave.

The laws will not only require a review of policies to insure that employees are being provided with sick leave, they also come with record keeping requirements and notice requirements.  Employers with questions are encouraged to seek the advice of employment counsel.

Delaware’s legislature and Governor have been busy bees in 2016.  This post details three protections added to Delaware’s employment discrimination law in 2016, two of which become effective on December 30th (i.e., next Friday).  Specifically, these laws protect employees on the basis of an employee’s (1) reproductive health decisions, (2) family responsibilities, and (3) wage discussions or disclosures.  Also worth noting:  each of these three provisions applies to employers who have 4 or more employees within the state at the time of an alleged violation.

Legislation

Reproductive Health Decisions

Effective December 30, 2016, Delaware employers should be aware that it is an unlawful employment practice to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment (including failure/refusal to hire or discharge) because of a “reproductive health decision” by the individual. Reproductive health decision is defined as any decision “related to the use or intended use of a particular drug, device, or medical service, including the use or intended use of contraception or fertility control or the planned or intended initiation or termination of a pregnancy.”

It’s noteworthy here that this section doesn’t limit the prohibition against discrimination to actions taken against employees; that is, applicants are protected under this definition.  Nor is there language that carves out certain religious employers from this law, unlike there is for sexual orientation and gender identity under Delaware law.  As a general matter, an employee’s reproductive health decisions are probably not something most employers are (or should be) interested in, but as of December 30th, employers should not use any such knowledge they may have as the basis of an adverse employment action.

Family Responsibilities

Effective December 30, 2016, Delaware employers also may not engage in certain discriminatory acts based upon an employee’s “family responsibilities.”  As defined in the statute, family responsibilities means an employee’s caregiving obligations “to any family member who would qualify as a covered family member” under the FMLA.  This section does, however, permit employers to take certain actions “with respect to the employer’s attendance and absenteeism standards that are not protected by other applicable law and inasmuch as the employee’s performance at work meets satisfactory standards.”  It will be interesting to see if the Delaware Department of Labor issues any regulations or guidance to further clarify this section.

It’s also important to note that this law does not create an entitlement to leave for purposes of family responsibilities in and of itself.  The law itself notes that employers are not obligated to make special accommodations for employees who may have family responsibilities.  Rather, this is a non-discrimination provision, meaning the employer must apply its policies “related to leave, scheduling, absenteeism, work performance and benefits” in a manner that is not discriminatory against employees with family responsibilities.  This law provides another reason for employers to audit their workplace policies and practices — and seek any needed training — on these items to ensure compliance moving forward.

Wage Discussions/Disclosures

Delaware employers should also note that since June 30, 2016, it has been an unlawful employment practice under state law to:

(1) Require as a condition of employment that an employee refrain from inquiring about, discussing, or disclosing his or her wages or the wages of another employee;  (2) Require an employee to sign a waiver or other document which purports to deny an employee the right to disclose or discuss his or her wages; [or] (3) Discharge, formally discipline, or otherwise discriminate against an employee for inquiring about, discussing, or disclosing his or her wages or the wages of another employee.

The law does not obligate employers or employees to discuss wages; instead, it merely provides state law protection for employees who do choose to discuss wages.  A number of other states across the country have similar provisions.
Need to get up to speed on how these new laws may affect your workplace (including any needed updates to your employee handbook)?  Give us a call, or email us!

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As the nation prepares to honor the service of men and women in armed forces, Massachusetts employers should be aware of some new obligations.

In July 2016, Massachusetts Governor Charlie Baker signed the HOME Act into law.  The HOME Act is an omnibus bill that, in part, amends M.G.L. 149, Section 52A1/2 . Previously, employers were required to provide any veteran with unpaid leave who desires to participate in Veterans’ Day or Memorial Day exercises, parades or services.

The HOME Act amends that law to provide that employers with 50 or more employees must provide paid leave. There are some limits to the law.  Veterans are permitted to participate in services in their community of residence.  This means employers would not have to grant multiple leave days for veterans to travel outside of their community of residence.  Employers also may deny leave where the employee’s services are essential to public health and safety and the employee is an essential employee to the employer.

The HOME Act also amends the Massachusetts Fair Employment Practices Act to provide that “veteran status” is a protected class.  As Veterans Day approaches, employers should remind supervisors and HR personnel that leave requests may need to be granted.

 

Bill Egan writes:

Under the Americans With Disabilities Act (ADA), a covered employer must provide reasonable accommodations to disabled employees, unless doing so would cause an undue hardship on the employer. Generally, an employer’s duty to reasonably accommodate is initiated by a request for an accommodation from a disabled employee or someone speaking on the employee’s behalf.

Pillars
Copyright: bbourdages / 123RF Stock Photo

Most courts have held that a request for accommodation from an employee is a “predicate requirement” to the interactive process for determining whether a reasonable accommodation can be made and what that accommodation will look like. The ADA does not require an employer to speculate about the accommodation needs of employees and applicants.

That has now changed, at least in the Eighth Circuit.  In Kowitz v.Trinity Health, a hospital respiratory therapist returned to work under a lifting restriction after undergoing spine surgery and exhausting her 12-week FMLA leave.  Although the hospital initially accommodated this restriction, it terminated the therapist’s employment after she advised that her doctor restricted her for four months from performing the physical demonstration portion of the “basic life support” recertification process, a departmental requirement.

The District Court granted summary judgment to the hospital concluding that Kowitz was not qualified to perform the essential functions of her job because she was not certified to provide basic life support.  The court further held that because Kowitz never requested a transfer to another position, the hospital was under no obligation to reassign her to a position that did not require the basic life support certification.

The Eighth Circuit reversed, over a strongly worded dissent, holding that an express request for assistance is not needed to trigger an employer’s duty to discuss the reasonable accommodation option with an employee.  The court held, “Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.”

The lesson from Kowitz is if the facts known to the employer about an employee’s disability are sufficient to make the employer aware of the possible need for a reasonable accommodation, the employer is legally obligated to engage in the interactive process to determine if indeed the employee needs such an accommodation and whether an accommodation can be made without posing an undue hardship on the employer.


Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

10524387_sAt a recent meeting, the New Jersey General Assembly Labor Committee advanced three bills that would expand workplace protections for employees under New Jersey’s Law Against Discrimination (“LAD”).

The first bill, A-2294, seeks to amend the LAD to add protections for breastfeeding employees.  Specifically, A-2294 adds “breastfeeding” as a protected characteristics under the LAD, further seeking to amend the LAD to state that “‘pregnancy or breastfeeding’ means pregnancy, childbirth, and breast feeding or expressing milk for breastfeeding, or medical conditions related to pregnancy, [or] childbirth, or breastfeeding, including recovery from childbirth.”  In the employment context, this means that adverse employment actions based on breastfeeding, as defined, would be prohibited.

Furthermore, A-2294 would require employers to accommodate breastfeeding employees, including a requirement that the accommodation “shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for the child.”

The second bill, A-2646, would add “familial status” as a protected characteristic under the LAD.  A committee comment to the bill notes that familial status means:

[B]eing the natural parent of a child, the adoptive parent of a child, the resource family parent of a child, having a ‘parent and child relationship’ with a child as defined by State law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child, or any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

The Assembly Labor Committee also advanced a third bill we have previously discussed, A-3480/A-4119, which would prohibit employers from asking employees about their wage/salary history.

Of course, normal legislative caveats apply:  these are the bills in their current form, which may or may not ultimately be enacted, and which may or may not be amended to varying degrees if ultimately enacted.  We will continue to monitor these pieces of legislation and will provide relevant updates should they move in the New Jersey Legislature.

Last Friday, my colleague Alexander Leonard, reported that Massachusetts had just passed a sweeping gender equity law that would prohibit employers from asking applicants about their past salary history.  Days after the Massachusetts law was signed by Governor Baker, the New York City Public Advocate Letitia James introduced a similar bill.  We wonder if laws like these will be become part of a new grassroots movement that produce a lot of patchwork laws like sick leave laws have been in the last few years.

The proposed bill has 6 co-sponsors and was designed to implement one of the policy recommendations from Ms. James’ April 2016 pay equity policy report.

If passed, it would be illegal for NYC employers and employment agencies to ask about any applicant’s salary history or benefits.  Employers and employment agencies could not get around this law by conducting public record searches on applicants.  Finally, the law would make it illegal for employers to rely on salary history to determine an applicant’s salary.

Employers have long asked applicants about their salary history in an attempt to find the appropriate salary to offer a candidate. This is done both to save money for the employers, but just as often to insure that a previous salary is at least being matched with the new offer.

Massachusetts’ law does not go into effect until January 2018.  If New York City’s law passes it will likely be effective before Massachusetts’ law goes into effect.  This means that New York City employers won’t have the benefit of seeing how this law will affect the interviewing and hiring process.  Questions remain as to whether laws such as this will in fact close the gender pay gap or will simply make the hiring process more time-consuming and drawn out as employers struggle to hit on the appropriate compensation to get candidates to accept job offers.

We will keep an eye on this one.

56212572 - business cartoon about two different perceptions of compensation level.

 

On July 29, 2016, Governor Bruce Ratnor signed the Child Bereavement Act into law.  The Act requires employers with 50 or more employees to provide up to 10 working days of unpaid leave to employees to:

  1. attend the funeral or alternative to a funeral of a child;
  2. make arrangements necessitated by the death of the child; or
  3. grieve the death of the child.

37323216 - single or divorced woman alone missing a boyfriend while swinging on the beach at sunset

Bereavement leave must be completed within 60 days after the date on which the employee receives notice of the death of the child.   Further, employees requiring leave must provide employers with at least 48 hours’ advance notice of the employee’s intention to take bereavement leave, unless providing such notice is not reasonable and practicable.

The law defines employer as it is defined under the Federal Family and Medical Leave Act, which provides that employers are covered employers if they have 50 employees located anywhere in the U.S.  However, the law also defines eligible employees as is defined in the FMLA.  Thus, in order to be eligible for leave employees must have worked at least 12 months for the employer, worked at least 1250 hours in the last 12 months, and work in a location with 50 or more employees within a 75-mile radius.

The law does not define “child” as the FMLA does so employees will be able to take this leave regardless of the age of their children.

Employers may require reasonable documentation to demonstrate the need for leave.  Such documentation can include a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

If an employee tragically suffers the death of more than one child in a 12-month period, an employee is entitled to up to a total of 6 weeks of bereavement leave during the 12-month period. Although the Act provides for unpaid leave, if an employee has paid leave (including family, medical, sick, annual, personal, or similar leave) from employment, the employee may elect to use paid leave for bereavement leave.

Finally, the law provides that it is not meant to increase the total amount of unpaid leave the employee can take under the FMLA.  This seems to mean that if an employee has exhausted his or her 12 week FMLA entitlement, that he or she will not be permitted to take bereavement leave.

The law was effective immediately so, if employers have not already updated their leave policies, we encourage you to do so.

A workplace of any significant size is bound to be full of individuals who are a little off the beaten path, so to speak.  While an employer will need to deal with the quirky dispositions of some workers, on occasion an employee’s behavior will cross over from merely quirky  to disturbing.

The first step towards addressing the issue is a fitness for duty exam.  These exams, which are typically conducted with licensed medical professionals, evaluate whether an employee is physically or emotionally appropriate for their position.  But this is complicated by the fact that disturbing behaviors often are due to psychiatric and emotional conditions, which are covered as disabilities under most state and federal discrimination laws.  If an employee has such a disability, an employer may require a fitness for duty exam only if the exam is job-related and part and parcel to a legitimate business necessity. This standard will generally be met if the employer has a reasonable belief that either a) the employee’s condition may prevent the employee from performing the job’s essential functions, or b) the employee poses a direct threat to his or her own safety or the safety of others.

This past week, an Illinois appellate court found for the employer in such a situation where an employee was observed in an office talking to herself and sending cryptic emails to coworkers.  The employee, who clearly suffered from an emotional infirmity that would be covered by the ADA, was sent for a fitness for duty examination with a mental health professional.  The employee then sued, arguing that the examination was a violation of the ADA.

If confronted with such a situation, employers should immediately engage with an employee for more reasons than just legal.  After assessing the situation, including gathering any pertinent documentary information, an employer should weigh the two questions above and err on the side of caution if an evaluation is necessary.

It should also be noted that this analysis is also applicable to physical challenges in positions that include manual labor.

Taking early intervention with respect to a possibly troubled employees can be a proactive step towards preventing workplace violence and improving efficiency.

Earlier this month, the US Equal Employment Opportunity Commission (EEOC) announced a proposal to update its guidance on employment discrimination based on national origin.   The proposal, which marks the EEOC’s first update to this particular guidance in 14 years, contains important information for employers and is available for public comment until July 5, 2016.

What’s National Origin?

Federal regulations define national origin discrimination as including employment discrimination that occurs “because of an individual’s, or his or her ancestor’s place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.”  29 C.F.R. § 1606.1.

The regulations note that the EEOC defines national origin discrimination broadly, and that the EEOC will pay particular attention to charges alleging discrimination based on national origin considerations,  including:

  • marriage to or association with persons of a national origin group
  • membership in, or association with, an organization identified with or seeking to promote the interests of national origin groups
  • attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group, and
  • the individual’s name or spouse’s name being associated with a national origin group.

So What Does This Mean for the Workplace?

At the outset, it’s important to remember that EEOC guidance is not necessarily binding on courts.  In addition,  since this guidance has not yet been finalized, revisions remain a possibility.  That said, the proposed guidance provides an illuminating look into how the EEOC approaches enforcement on this issue.

Some noteworthy issues raised in the proposed guidance include:

  • Accents.  Employers tread in dangerous waters if they use accents as a basis for making an adverse employment decision, as accents and national origin are often linked.  While employment decisions may legitimately be based on accents, the EEOC proposed guidance states that this will require the employer to show that “effective spoken communication in English is required to perform job duties and the individual’s accent materially interferes with his/her ability to communicate in spoken English.”
  • Word-of-Mouth Recruiting.  Word-of-mouth recruiting may violate Title VII if the employer’s actions have the purpose or effect of discriminating on the basis of national origin.
  • Social Security Number (SSN) Screening.  Employers who have a policy or practice of screening out job candidates or new hires who do not have a social security number may constitute national origin discrimination, if work-authorized but newly arrived immigrants and new lawful permanent residents of a particular ethnicity or national origin are disproportionately affected.
  • Customer Preference.  Employers aren’t permitted to use the preferences of customers, coworkers, or clients as the basis for discriminating in violation of Title VII.  The EEOC notes that company “look” or “image” policies, under certain circumstances, can act as a proxy for discriminatory customer preferences; adverse employment actions taken according to such policies can serve as the basis of national origin discrimination.
  • Job Segregation.  An employer may not use national origin as the basis for assigning (or not assigning) individuals to specific positions, locations, or geographic areas; nor may an employer physically isolate, deny promotions to, or otherwise segregate individuals into certain roles due to their national origin.
  • Perceived National Origin.  It’s important to note that employer actions may not have the purpose or effect of discriminating on the basis of national origin whether that is an individual’s real or perceived national origin.
  • English-Only Rules.  Work rules or practices requiring the use of English may be national origin discrimination as a person’s primary language is often intertwined with cultural/ethnic identity.  The EEOC operates under the presumption that rules requiring workers to speak English at all times (including during lunch, breaks, and other personal time while on employer premises) violate Title VII.

These items are just a sampling of the information contained in the EEOC’s proposed guidance update.  The full document is available here.