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2015 Employment Law Update
1. The Merry-Go-Round of Employment
Law: Your 2015 Edition
May 19, 2015 ▪ BIRMINGHAM
Presented by:
Katherine E. Reeves, Birmingham, AL
Samantha K. Smith, Birmingham, AL
2. Employment Law Update
• State Law Update
• U.S. Supreme Court
• OSHA
• EEOC
• FLSA
• FMLA
• OFCCP
4. “The Parking Lot Rule”
Effective August 1, 2013
Employee may “possess” a gun in the workplace
parking lot under certain conditions
Employer may not discipline an employee for
possessing a firearm in the workplace parking lot
If an employer violates the statute, the
employee may sue the employer
5. New Gun Bill
• Current law requires handguns to be locked away unless the owner has
CWP
• New bill drops that requirement
• State Sen. Gerald Allen (R)-Tuscaloosa
• Bill passed State Senate in 2014, but died in House
• Sheriff’s Association and other law enforcement agencies oppose the
bill
6.
7. Searcy and McKeand v. Luther Strange
• U.S.D.C., Southern
District of Alabama
• Alabama Marriage
Protection Act and state
constitutional amendment
both unconstitutional
• 11th Circuit denied
State’s motion to stay
pending outcome of U.S.
Supreme Court ruling on
6th Circuit case
• Several same-sex
marriage cases pending
in state
8. Impact on Health & Welfare Plans
• No more imputed income for health plan coverage of
same-sex spouse
• Can make pre-tax contributions for same-sex spouse
coverage
• FSAs can reimburse same-sex spouse medical
expenses
• Same-sex spouses eligible for COBRA
• Special enrollment rights
9. • Should no longer be imputing federal income tax
• Review plans, SPDs, other plan materials to identify
necessary changes
• Expand coverage for FSA and HRA reimbursements
and HSA maximums
• Consider requesting updated beneficiary elections
Impact on Health & Welfare Plans
11. Young v. United Parcel Service
• U.S. Supreme Court decision on March 25, 2015
• Created new standard for establishing p.f. case for
pregnant workers
• Vacated 4th Circuit’s judgment for UPS and remanded
18. EEOC Developments
• Since 2011, the EEOC has
filed over 45 lawsuits
involving pregnancy
discrimination.
• The Commission has
recovered approximately
$3,500,000 -- as well as
injunctive and other case-
specific “make whole” relief.
19. EEOC Developments
• LGBT Discrimination under Title VII
• “Emerging and Developing Issues Priority”
• No power to amend the law
• Investigated as claims of sex discrimination
• Transgender or gender-identity
• Sexual orientation
20. EEOC Developments
• B.O.L.O. in 2015:
• EEOC v. Mach Mining – U.S. – Conciliatory
efforts
• EEOC v. Ford Motor – 6th Cir. – ADA and
telecommuting
• 4/16/15 – EEO published a Notice of Proposed
Rulemaking on the ADA’s application to employer
wellness programs.
21. EEOC Developments
Continue to Expect Aggressive Investigative Tactics.
• Extensive requests for information not germane to
charge.
• Increased threat/use of subpoenas.
• Increased demand for on-site investigations.
• Increased number of witness interviews.
• Aggressive behavior in settlement negotiations.
22. EEOC Developments
Best Practices:
• Respond to request in the narrowest terms
possible.
• Be careful when handing over personnel files;
consider limiting the information sent to the
EEOC from the personnel file.
• Prepare management for on-site interviews as if
you were preparing for a deposition.
• Attend the interviews of non-management
employees.
23. EEOC DevelopmentsIGATIONS
Increased Cross-Pollination of Agency Investigations
• EEOC conducts on-site investigation—Contacts DOL
• OSHA or OFCCP conduct on-site investigation—Contacts EEOC
• Aggressive enforcement posture for all agencies
• Tri-Agency Working Group—EEOC, DOJ, and DOL
25. Executive Orders
Minimum Wage
• Required to pay $10.10/ hr
• Effective January 1, 2015
• Increases annually beginning January 1, 2016,
as determined by Secretary of Labor
• Future increases based on Consumer Price Index
• Tipped Employees, $4.90/ hr
• Effective January 1, 2015
• Formula for annual increases until it is 70% of the minimum wage
26. Executive Orders
• No Retaliation for Pay Discussions/Complaints
• Inquiring about, Discussing, or Disclosing compensation
• Employee or applicant, self or other
• Already prohibited by NLRA
• Section 7 of NLRA protects employee rights to discuss
• Wages
• Hours
• Working Conditions
• Considered “unfair labor practice” for employers to
“interfere with, restrain, or coerce employees”
27. Executive Orders
• Compensation Data Tool (Equal Pay Report)
• Directs DOL to adopt rules requiring summary pay data
broken down by sex and race
• Who has to file?
• EEO-1 Report
• > 100 Employees
• Gov’t contract/subcontract/PO for at least $50k for at
least 30 days
• Filed by March 31 of each year
28. Executive Orders
• Must include:
• Total number of workers by job category, race, ethnicity, & sex;
• Total W-2 wages for all workers by job category, race, ethnicity, &
sex; and
• Total hours worked by all employees by job category, race, ethnicity,
& sex
29. Executive Orders
LGBT
• Specifies “sexual orientation and gender identity”
as an element of sex discrimination
• No religious exemption
• Effective April 8, 2015
31. Changes to Exempt Status
• Current salary minimum $455/wk. = $23,660/yr.
• Substantial increase is likely
• Between $42,000-$69,000/yr.
• Between $807/wk. to $1326/wk.
32. Required Lactation Breaks
ACA amended the FLSA to Require
“Lactation Break” (March 2013)
• What: “reasonable break time”
• When: Each time the employee needs
to express breast milk for up to one
year
• Where: “A place, other than a
bathroom that is shielded from view
and free from intrusion from coworkers
and the public”
33. Lactation Breaks Cont’d
Who is covered?
• Employers with more than 50 employees
• Employers with less than 50 employees - Unless compliance
constitutes an undue hardship
34. Medicinal Marijuana in the Workplace
23 states and D.C. have legalized medical
marijuana.
Can employers still drug test?
Can employers still maintain a drug-free
workplace?
Do employers have to accommodate?
35. New Rule for Same-Sex Marriages
• Previously, only qualified for FMLA if in a state where
same-sex marriage is recognized
• Now, all same-sex married couples entitled to FMLA
leave regardless of state recognition
• Definition of “spouse” amended
• Rule change conforms with Supreme Court decision in
U.S. v. Windsor
• Effective as of March 27, 2015
36. The Merry-Go-Round of Employment
Law: Your 2015 Edition
May 19, 2015 ▪ BIRMINGHAM
Presented by:
Katherine E. Reeves, Birmingham, AL
Samantha K. Smith, Birmingham, AL
Editor's Notes
On August 1, 2013, Alabama’s law allowing guns in the parking lot went into effect.
Basic premise is this:
Permits employees to bring guns to the parking lots of their workplaces, if certain conditions are met
If the conditions are met, an employer may not punish/discipline an employee for having the gun in their car
If the employer violates the statute, the employee has a cause of action against the employer and may initiate a lawsuit.
This Spring, State Senator Gerald Allen expects to introduce a bill to amend the portion of the current gun law that requires handguns to be unloaded and locked out of sight.
His bill would anyone to carry a loaded handgun in their car regardless of whether the person has a CWP.
Law enforcement agencies have opposed it because they view the background check requirements as an important safeguard.
So, until a couple of months ago, this is what the map of the US looked like with respect to laws allowing or prohibiting same-sex marriage.
But, on January 23, Judge Ginny Granade down in the Southern District of Alabama ruled that both the Alabama law and the constitutional amendment prohibiting same-sex marriage violated the equal protection provisions of the U.S. Constitution.
Luther Strange appealed her decision to the Eleventh Circuit, which denied the State’s motion. He then appealed that decision to the U.S. Supreme Court, which declined the invitation to take up the matter because the Court had previously agreed to hear arguments on four same-sex marriage cases, which it did at the end of last month. The ruling is expected sometime this summer and should decide the issue once and for all.
Where do we stand currently in Alabama? In the wake of Judge Granade’s decision, some same-sex marriages took place, but Judge Roy Moore sent a letter to Probate Judges prohibiting them from issuing the licenses, and made some statement about Alabama not having to follow federal law. There was also enough confusion over the application of Judge Granade’s decision – did it apply to everyone, or just to the litigants of that case? – that everyone is just afraid to do anything right now.
Why does it matter in the employment context?
BENEFITS and Taxes!!
In March of 2014, the Supreme Court decided a case called U.S. v. Windsor, which you may have heard about. That decision invalidated portions of the Defense of Marriage Act that Congress passed back in the 1990’s, including the definitions of “spouse” and “marriage” as being unconstitutional. That decision left intact a state’s choice as to whether to recognize same-sex marriages from other states, but said the federal government had to recognize them for federal income tax and ERISA purposes.
What does that mean? Everything that’s on the slide there. Before Windsor, none of that was true.
(3/14/2014) – If a health insurance offers coverage of an opposite-sex spouse, the issuer may not refuse to offer coverage of a same-sex spouse.
Double check all these things, and then wait and see what the Court does with that Sixth Circuit case this summer.
Also in January, the Supreme Court issued a decision on an important pregnancy discrimination case called Young v. United Parcel Service.
Just to give a little background into this decision, UPS had a policy setting forth the essential functions for all drivers, which included the ability to lift packages weighing up to 70 lbs.
The company had a CBA that covered drivers, and it provided alternative work for 3 groups of workers: (1) those injured on the job; (2) those with a permanent impairment recognized under the ADA; and (3) for certain drivers who had lost their DOT certification, UPS offered an “inside job” that was not considered light-duty.
However, neither the CBA nor the policy made any special concessions for work limitations due to pregnancy.
Young was a driver for UPS, and after she became pregnant, her doctor put her on a lifting restriction of 20 lbs for the first half of her pregnancy, and 10 lbs for the last half.
She eventually went on extended unpaid leave of absence during which she had no medical insurance. After she had her baby, she returned to work, and later filed her lawsuit claiming failure to accommodate her pregnancy-related lifting restriction, arguing that UPS had accommodated other drivers who were “similar in their …inability to work.”
UPS countered and said that because she did not fall into one of the 3 categories, she was treated the same as everyone else who did not fall into one of the 3 categories, and the District Court agreed with UPS.
In a 6-3 decision, the Supreme Court came down somewhere in between and sent it back to the District Court for a re-do.
The Court said a plaintiff can survive summary judgment and thus present the case to a jury if she shows “sufficient evidence that the employer’s policies impose a significant burden” on her, and the employer’s “legitimate, nondiscriminatory reasons” for doing so are not “sufficiently strong” to justify that burden. All of which sounds rather vague. They didn’t set a bright line on this.
But they said, as in this case, if a plaintiff shows that the employer “accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers,” a plaintiff can survive summary judgment.
How does this ruling affect you? You need to take a look at your current policies and practices. Do they significantly burden pregnant workers? And if so, do your reasons sufficiently justify the burden? If not, a revision is likely in order.
On December 3, 2014, the Senate approved the nominations of David Lopez to serve a second term as EEOC General Counsel, and Charlotte Burrows, a Department of Justice Associate Deputy Attorney General and former staffer for the late Sen. Ted Kennedy, to serve a five-year term as EEOC Commissioner. The Commission is now a full five-member panel with a Democratic majority. Based on these confirmations, the EEOC is well-positioned to continue to aggressively pursue its Strategic Enforcement Plan adopted in December 2012.
And now that the Republicans control the Senate, the EEOC may get even more active bc there will be no legislation likely forthcoming in the area of EEO…what you’re going to see is the EEOC becoming even more aggressive in the policymaking role because that is, in effect, the only venue that they have—not the legislative track.
Over the past several months, the EEOC has been focusing attention on class-based hiring practices, and digging into the use of criminal background checks, credit checks, and other practices to try to make sure the use of this information doesn’t adversely affect members of protected classifications.
They’ve issued updated guidance on these points to include things like making sure that if you reject someone with a criminal history, that you’re not rejecting simply based on the fact of the criminal history, and that the crime committed is relevant to the job that you’re trying to fill, and that older criminal activity doesn’t keep someone from being able to secure a job.
Same for credit checks. If you’ve got someone with a sketchy credit history, particularly given the predatory lending tactics that got a lot of people in trouble, that you’re making an individualized assessment of this information relative to the position you’re trying to fill.
There has been a steady increase over the past few years in retaliation claims. Even if the claimant cannot establish a discrimination claim, the retaliation aspect of those claims continues to find some traction with the EEOC and then in the courts.
They are taking a hard look at settlement agreements. We’ve had some situations where we have settled an EEOC charge with a claimant outside the EEOC mediation process, particularly in cases where they have a lawyer or perhaps another claim that is not one within the EEOC’s jurisdiction, and the EEOC wants to see and approve the settlement agreement. So, we have to be careful in how we draft releases so as to not restrict a claimant’s right to file a charge based on something that may arise after the agreement is reached.
At the end of February, the EEOC released an internal memorandum stating that it will now process and investigate claims of discrimination based on sexual orientation, transgender status, and gender identity.
At this point, of course, Title VII has not been amended to specifically include sexual orientation or gender identity, but the EEOC’s current view is that discrimination based on sexual orientation is grounded in sex-based stereotypes, and would therefore violate Title VII’s prohibition on sex discrimination.
EEOC is also taking the position that complaints of sexual orientation discrimination can constitute “protected activity” for purposes of retaliation claims. So we’ll just have to see what the courts do with that once these charges get there.
People are living and working much longer these days. Retirement at 65 is not as common as it used to be. That fact is impacting the workplace, and you have to be mindful of your aging workforce and the protections in place for them. ADEA lawsuits can be tricky and difficult and very expensive.
Some other things they’re paying closer attention to include the Americans with Disabilities Act.
In the post ADA Amendments Act world, the EEOC and several courts expect everyone to just assume a disability. The definition has been so expanded that just about any condition you can think of can constitute a disability. So, when that happens, we have to default to the next steps in the analysis of whether they can perform their essential duties with a reasonable accommodation, and figuring out what that reasonable accommodation is. Again, individualized assessment is critical.
They’re paying attention to pregnancy under the ADA. Previously, the standard response was that pregnancy itself is not a disability, but medical conditions related to pregnancy, certainly after the ADA Amendments Act, can result in a disability. And now, as I mentioned earlier, after the Young decision, if you accommodate other non-pregnant workers similar in their inability to work, you’ll need to accommodate pregnant workers to the same extent.
The EEOC filed a Friend of the Court brief in that case to try to get the Court to consider the EEOC’s guidance on pregnancy discrimination, and the Court declined to follow it when rendering its decision. But, that will not stop the EEOC from trying to enforce based on its own interpretations. So, just be aware of that.
We continue to see a strong focus on disability issues: disability cases make up 34% of all EEOC filings this year, fairly close to the number of cases we saw filed last year (36% in 2013). Race cases were somewhat underrepresented this year when compared with past years (14 in 2014, as compared with 17 in 2013), but there has been a fairly sizable uptick in age discrimination filings (nine this year, compared with only five in 2013).
By far, sex and pregnancy issues are the dominant discrimination theories alleged in Title VII cases in FY2014. The Commission filed 6 pregnancy discrimination cases in September alone, and has repeatedly emphasized that this is a priority for the agency. In a recent case filing announcement, for example, the EEOC’s press release stressed that “[t]he law is clear – employers cannot refuse to hire or discharge women because of their pregnancy,” and that “[c]ombating pregnancy discrimination remains a priority.” Indeed, sex/pregnancy discrimination cases make up 61% of all Title VII cases filed in 2014:
Fiscal Year 2014 was curious in many ways. We can see the unquestionable fingerprints of the 2012 Strategic Enforcement Plan in the EEOC’s filings, and we can expect to see those trends continue. But we also see the agency making more nuanced, strategic decisions with how it uses its finite resources – choosing to fight a number of procedural issues that may pave the way (at least if the EEOC has its way) to an open door to the federal courthouse in years to come, unfettered by procedural prerequisites. The 2014 fiscal year has just ended, and we continue to process this data. The EEOC’s official published statistics are typically released in November, which will give us additional insight into this often confounding agency. Stay tuned, loyal blog readers.
Looking at some of the more recent statistics ---
Traditionally, pregnancy discrimination claims have averaged less than 4 percent of all charges filed with the EEOC since 2010.
BUT we do anticipate an increase in that percentage for 2014 and into 2015 based on the EEOC’s new Guidance on Pregnancy Discrimination which it issued in mid-July of last year, and certainly in the aftermath of Supreme Court decision in Young.
Basically, what that guidance says, in a nutshell, is that
Employers cannot discriminate against employees on the basis of pregnancy, childbirth or related medical conditions, and
Women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.
Now, in the Young case, recall that the Supreme Court didn’t adopt that outright. The Court said if you accommodate a large percentage of nonpregnant workers and you don’t accommodate pregnant workers who are all similar in their abilities to work, then you’ve got to have strong legitimate, nondiscriminatory reasons that justify placing such a significant burden on your pregnant worker.
The other hot issue that is on the minds of all government agencies and the Supreme Court has to do with the LGBT community.
In February of this year, the EEOC issued a memorandum to district directors to reiterate the agency’s priority regarding LGBT discrimination complaints.
This is one of the EEOC’s priorities right now, as well as the OFCCP, which I’ll touch on in a few minutes for you government contractors.
The EEOC cannot amend Title VII. That is not stopping the EEOC from deciding that discrimination or retaliation based on sexual orientation or gender-identity are effectively grounded in sex or sex stereotypes, and they will be investigating such claims aggressively.
Some significant EEOC employment issues will play out in the U.S. Supreme Court this year too.
A particularly important one, EEOC v. Mach Mining, focuses on the legalities surrounding the commission’s prelawsuit conciliation processes. The EEOC is required to try to seek a solution for informal resolution of issues with companies before resorting to litigation. What has happened in recent years is that employers sued by the EEOC have challenged the sufficiency of the EEOC’s conciliation efforts, arguing that the EEOC didn’t do enough and that the insufficiency of the agency’s efforts is a basis to dismiss the EEOC’s lawsuit. This has resulted in some success for employers, and a variety of differing decisions about what standards should be used to evaluate the adequacy of the EEOC’s conciliation efforts. In Mach Mining, argued on ____________, the Supreme Court will decide whether an appeals court was right in saying that there’s no basis for judicial review of the EEOC’s efforts at conciliation.
A developing issue in the area of ADA is telecommuting. In a U.S. Court of Appeals for the Sixth Circuit case, EEOC v. Ford Motor, the EEOC and a former Ford worker who wanted to work from home because of an illness sued the automaker, which had terminated the worker, claiming that her job required her presence in the workplace. The circuit denied summary judgment, passing the case over to en banc review. Although the case is still undecided, the lesson for employers is clear - technology is changing the game for employers whose workers are covered by the ADA and have trouble operating in the workplace. One takeaway on the ADA is that we need to remember that the ADA is all about challenging our assumptions about how work is traditionally done versus what ultimately needs to get done in order to perform the job. The court’s treatment of the Ford case could be a bellwether in underscoring those principles, or at least creating some limits to those principles.
Another ADA-related issue the EEOC is set to deal with in 2015 is the legality of some corporate wellness programs. The ACA has incentivized employers to create wellness programs for their workforce, but some employees are objecting to the fact that these programs may involve medical inquiries. Although the ADA limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations, it allows such inquiries and exams if they are voluntary and part of an employee health program. The EEOC and the ACA appear to be on a collision course with respect to wellness programs. It’s unclear whether a program that provides financial incentives or penalties for employees who participate is in fact truly voluntary. Should they be deemed voluntary, the wellness programs would not be subject to limitations on medical queries that are part of the ADA. EEOC has proceeded with three lawsuits challenging employer-provided wellness programs. The wellness programs also pose problems under the Genetic Information Nondiscrimination Act, which prohibits discrimination based on genetic information that might be revealed in the course of some wellness programs.
The proposed rule offers guidance about how wellness programs offered as a part of group health plan can comply with the ADA consistent with provisions governing wellness programs in HIPAA. I’d encourage you to check out the fact sheet for small business and Q&A that the EEOC has published online. The NPRM further requires that if an employee health program seeks information about employee health or medical examinations, the program must be reasonably likely to promote health or prevent disease. Employees may not be required to participate in a wellness program, and they may not be denied health coverage or disciplined if they refuse to participate
A few things you can do is limit the response. Don’t just hand over a pile of documents expecting to overwhelm them so that they don’t look at everything. They’re looking.
I tell my clients to respond to the question that is asked. Don’t assume that what they really are asking for is more than what they’ve actually requested. If they want something more, they’ll come back and ask for it.
If they want to see your policy on dress code or PTO, just give them those policies. Don’t deliver the whole handbook. But do consider providing signed handbook acknowledgement and discipline records, if they’re relevant.
If you have multiple site locations, tailor your response to the particular site involved in the Charge.
If the EEOC says they’re coming on-site, you have got to treat that like a deposition and get your people ready to respond.
You can attend the interviews of your non-management folks. The EEOC may not like it, but they can’t make you leave.
Also please know that these federal agencies are talking to each other. When one of them gets all up in your cool-aid, they’re going to pick up the phone and call Dept of Labor and Dept of Justice. You may all of a sudden get a letter from the OFCCP after an EEOC on-site, and vice-versa. You may have an OSHA inquiry.
Communications among those three agencies – EEOC, DOJ and DOL – are stronger than they’ve been in the past. So just be aware of that.
Last update is for OFCCP.
Several Executive Orders have been issued by President Obama affecting government contractors. Scott Kelly in our office has given entire presentations on just this topic, so I’m just going to hit the high points for you, and invite you to follow up with him if you have more questions. [click]
Minimum Wage:
Basically, covered federal contractors and subcontractors are required to pay higher than the Federal minimum wage established under the FLSA. You have to pay $10.10 per hour.
If you’re a covered contractor and you have tipped employees, $4.90 Per Hour Cash Wage for Tipped Employees
[click]
Another EO covers Retaliation for Pay Discussions/ Complaints
With some exceptions, contractors are prohibited from retaliating against any employee or applicant for employment for inquiring about, discussing, or disclosing the compensation of the employee, the applicant, or any other employee or applicant.
Practical Considerations - Retaliation already prohibited for both union and non-union employees under the NLRA. Section 7 of NLRA has been interpreted to protect employees’ rights to discuss wages, hours, and working conditions Section 8(a)(1) of the NLRA makes it an unfair labor practice to “interfere with, restrain, or coerce employees” in the exercise of their Section 7 rights.
There is an open question as to whether this Executive Order will expand employee protection to managers, supervisors, and other employees not currently protected under the NLRA. But at this point, Contractors should revise existing policies prohibiting employee discussions about compensation.
[click]
Compensation Data Tool
Directs the DOL to adopt rules requiring that federal contractors provide summary compensation data broken down by sex and race
Both OFCCP and EEOC have tried to release a compensation data tool for the past several years
OFCCP issued a Notice of Proposed Rulemaking on such a tool in August 2011, receiving 2,000+ comments
EEOC commissioned study by National Academies of Science, which recommended against such a tool
OFCCP already obtains summary pay data from contractors in compliance evaluations
Equal Pay Report
Who has to file?
Those who have to file an EEO-1 Report;
Have more than 100 employees; and
Have a government contract, subcontract, or purchase order for at least $50k covering at least 30 days
Must be filed annually by March 31 and include:
What must it include?
Total number of workers by job category, race, ethnicity, & sex;
Total W-2 wages for all workers by job category, race, ethnicity, & sex; and
Total hours worked by all employees by job category, race, ethnicity, & sex
OFCCP will use the Equal Pay Report to compare a contractor’s pay discrepancies against a newly created “industry standard” to identify contractors for compliance evaluations. OFCCP will publish these industry standards so that contractors can compare their “pay differential ratios” to that of others in their industry. In turn, contractors will be expected to use the report to proactively investigate their pay practices and remediate, as needed.
[click]
Sexual Orientation/ Gender Identity
No federal law bars employment discrimination on the basis of sexual orientation and gender identity.
Some states have passed laws prohibiting it.
Executive Order will protect about 11 million employees who are not currently protected under state law.
Amended Executive Order 11246 to specify “sexual orientation and gender identity” as an element of sex discrimination
Nondiscrimination and affirmative action requirements extended immediate gender identity protections to federal employees
Therefore, under EO 11246, race, color, religion, sex, sexual orientation, gender identity and national origin are the protected categories.
No religious exemption
For any contract entered into after April 8 (last week), federal contractors/subcontractors must include gender identity and sexual orientation as prohibited bases of discrimination in the Equal Opportunity Clause. Does not impact existing contracts, unless they’re modified after April 8. So, check your EO language in applications and postings to make sure it’s updated to reflect the new regulation.
The EEOC has had success pressing “sex stereotyping” claims in situations where the employee does not conform to typical gender stereotypes in appearance or behavior and case law in this area is developing.
This new rule doesn’t require contractors to set placement goals for affirmative action purposes on the basis of sexual orientation or gender identity, and does not require contractors to collect and analyze data on these bases.
And after the Supreme Court’s decision in the Young v. UPS case we discussed earlier, on March 30, the OFCCP extended the public comment period for its proposed new rules on sex discrimination guidelines for contractors through April 14, which was Monday of this week. The revisions address gender identity and pregnancy as well as sexual harassment. So, be on the lookout for some additional changes in that arena.
Last Fall, the DOL announced its intent to implement President Obama’s directive to modernize and streamline the FLSA regulations for executive, administrative, and professional employees. Part of this initiative includes increasing the weekly salary threshold to qualify for exempt status. They are trying to decide where the threshold should be moved to accommodate for inflation. It has not been adjusted in almost 40 years, and a lot of heavy hitters are weighing in. Some saying it needs to stay on the lower end of the spectrum ($42k), some are advocating for about $50k, and others of course want to push that threshold even higher to $69k.
They pushed the deadline to February, and here we are in April and it still hasn’t happened. But it is coming, and it will impact a broad range of industries.
Mention that there is a push by the Democrats to increase minimum wage to $10.10/hr.
One more thing I want to make sure you are all aware of. We talked about pregnancy a little bit, but a lot of people don’t realize that they have to do this now after an employee returns from maternity leave.
Gotta provide a lactation break.
In March 2013, the Affordable Care Act amended the FLSA to require that employers provide a reasonable break time for an employee to express breast milk for her child for as much as one year after child’s birth.
As frequently as needed and for as long as it takes her to express milk, which is going to vary by employee.
You have to provide a place other than a bathroom that is: shielded from view and free from intrusion. A conference room with no lock on the door does not suffice. Please trust me when I say, you do not want to walk in on that. It’s uncomfortable for all involved when that happens.
You can convert an office or other space temporarily if it meets the “free from intrusion requirement.” You don’t have to hire a contractor to come in and renovate. And you don’t have to have a “lactation room” if you have no nursing employees. But if you do, you do have to find a place for this to happen.
If not dedicated to the nursing mother’s use, it must be available when needed.
The space must be functional for expressing milk. A janitor’s closet is not going to work, and a bathroom, even if private, does not meet the statutory requirements. She’s going to need a place to sit so she can relax, and a place to set the equipment.
A little refresher on who is covered:
Employers with more than 50 employees must provide the lactation room;
Employers with less than 50 employees – must provide unless doing so constitutes an undue hardship. Undue hardship is a very difficult position to defend, even for small businesses.
“Significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business”
All employees who work for the covered employer (FT and PT) regardless of the work site are counted when determining whether the exemption applies.
Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk, but:
If employers already provide compensated breaks, an employee who uses the break time to express milk must be compensated in the same way as other employees who are compensated for the break time.
The general FLSA requirement that the employee must be completely relieved from duty – or else the time must be compensated as work time – applies
Only covers non-exempt employees, but the DOL encourages employers to provide breaks to all nursing mothers regardless of their FLSA status.
24 states, plus DC and Puerto Rico have similar state laws. Alabama does not. These state laws may provide more coverage than the FLSA. For example compensated breaks, break time for exempt employees, extending the requirement beyond 1 year, etc…
EEOC v. Houston Funding – 5th Circuit – 2013
Employee alleged that she was terminated because she inquired as to whether she would be able to pump when she returned to her job.
The 5th Circuit determined that discharging an employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII.
Court noted that lactation is a physiological condition distinct to women who have undergone pregnancy.
Marijuana remains an illegal drug under the federal Controlled Substances Act (21 U.S.C. § 812(b)(1)), and safety standards imposed by federal agencies, including the Department of Transportation, do not permit the use of medical marijuana by regulated employees, such as those in safety-sensitive positions. Marijuana also is a controlled substance in every state but Washington and Colorado, which have made recreational use of marijuana lawful. Therefore, employer drug testing programs rest on the premise that marijuana use is unlawful, and employers may insist on a drug-free workplace.
Decriminalization of marijuana for medical purposes has not altered this premise. More than half of the 24 existing medical marijuana laws (Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Massachusetts, Michigan, Montana, New Hampshire, New Jersey, Rhode Island, Vermont and Washington) explicitly prohibit marijuana use at work, and/or provide that employers need not accommodate any form of marijuana use in the workplace. In light of these provisions and the federal Controlled Substances Act, state courts in California, Colorado, Washington and Montana, as well as the federal appellate courts for the Sixth and Ninth Circuits, all have held that state medical marijuana laws do not require employers to accommodate medical marijuana use in the workplace. However, nuances created by anti-discrimination provisions in eight of the twenty-four medical marijuana laws warrant employer attention, particularly with respect to drug testing programs.
So now, it no longer matters whether a same-sex couple’s marriage is legal in the state where they reside. That means that you, as an employer in a state that currently does not recognize same-sex marriage, must provide qualifying spousal leave under the FMLA for a same-sex couple. They’re covered under the FMLA and entitled to the same leave to care for a spouse with a serious health condition to the same extent as opposite-sex married couples.
Major features of the Final Rule
The Department has moved from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations. The Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.
The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state
