The EEOC reaches out to young workers about religious discrimination.

Religious discrimination remains an issue in the American workplace. In fiscal year 2015, EEOC received 3,502 charges alleging discrimination on the basis of religion, with the top issues alleged being discharge, harassment, terms and conditions of employment, and reasonable accommodation.

The EEOC has issued a one page fact sheet “designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination.”

If you have young workers in your employ, check out the EEOC Fact sheet.

Questions? We can help. 508-548-4888 or info@foleylawpractice.com

 

 

 

 

 

Addiction in the Workplace

Earlier this year Massachusetts Governor Charlie Baker signed a comprehensive law intended to combat the state’s opioid addiction epidemic.  In recent years, opiate abuse has claimed thousands of lives in Massachusetts. Unfortunately, addiction is not limited to opiate abuse, and many employers know first hand the unique challenges addiction and drug and alcohol abuse and addiction pose in the workplace.

Title I of the Americans with Disabilities Act, and Massachusetts law specifically permit employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol.  At the same time, the ADA and state law provide limited protection from discrimination for recovering drug abusers and for alcoholics.  This tension leaves employers faced with the dual task of addressing workplace addiction and avoiding the threat of a discrimination lawsuit.

Here is a brief summary of the current state of the law as related to drug and alcohol abuse and addiction:

• An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace, and employees may be required to follow the Drug-Free Workplace Act of 1988. At this time, the prohibition may include marijuana and medicinal marijuana.
• An employee who is currently engaging in the illegal use of drugs is not an “individual with a disability” under the ADA or Massachusetts law.
• Employers who test for the illegal use of drugs are not in violation of the ADA, but must comply with state drug testing laws.
• Employers may terminate or deny employment to those currently engaged in the illegal use of drugs.
• Employees who use drugs or alcohol can and should be required to meet the same standards of performance and conduct as other employees.
• Employers may not discriminate against those with a history of drug addiction provided the individual is not using drugs and is actively engaged in rehabilitation.
• Employers may not discriminate against alcoholics.  However, this protection does not extend to employees who are currently abusing alcohol.

When are drug users protected by the ADA and state discrimination laws? 

An employee who is “currently engaging” in the use of illegal drugs is not entitled to protection under the ADA and state disability laws.  Employers that consistently enforce workplace rules prohibiting employees from illegally using drugs, and disciplining employees who violate the policy will not be in violation of the ADA.

Where the law in this area can get tricky is that individuals who are undergoing treatment for drug and/or alcohol abuse are protected by the ADA. Specifically the ADA protected individuals:

• who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
• who are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
• who are regarded, erroneously, as illegally using drugs.

Additionally a former drug addict may be protected under the ADA because the addiction may be considered a substantially limiting impairment. However, according to the EEOC Technical Assistance Manual on the ADA, a former casual drug user is not protected:

[A] person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be “substantially limited” because of drug use, s/he must be addicted to the drug. The EEOC Technical Assistance Manual can be found here.

Alcoholism as a Disability

Alcoholism is a recognized disability under both Massachusetts law and the ADA. Individuals regarded as alcoholics, and those with a record of alcoholism, may be considered disabled.That means that if an employee comes to you and tells you that he or she needs to get help or take time off for an AA meeting, an employer should respond the same as any other request for accommodation under the ADA or state law.  Furthermore, if the employee is in fact an alcoholic, treating him or her differently from other employees could expose an employer to a discrimination claim under state and/or federal law. Under Massachusetts law:

An employer may only subject an addicted individual to discipline, including termination, if the employer would subject a non-handicapped individual to similar discipline for similar misconduct; and an employer may not treat the misconduct of an addicted employee more harshly than it would the misconduct of a non-handicapped individual.  Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap, Chapter 151B § X.D (1998). Furthermore, an employer must provide reasonable accommodation to individuals handicapped as a result of their addiction to alcohol where such accommodation permits them to perform the essential functions of the job, unless such accommodation creates an undue hardship.  Id.

Brief Overview of the American With Disabilities Act (ADA)

The ADA prohibits discrimination in hiring and placement against disabled persons who are otherwise qualified and who can perform the essential functions of a job with or without reasonable accommodation. Under the ADA, an employer must accommodate employees or applicants who request accommodation for a disability unless accommodation would create an undue hardship.  The ADA also permits employers to require, as a job qualification, that an individual not “pose a direct threat to the health or safety of other individuals in the workplace.” The defense of “direct threat” is one that is raised frequently by employers in dealing with issues of substance abuse. The ADA defines direct threat as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”

 

In all cases, the determination that an individual with a disability poses a direct threat must be based on an individualized assessment of the person’s present ability to safely perform the essential functions of the job.  In determining whether an individual poses a direct threat, the factors to be considered include:

• the duration of the risk;
• the nature and severity of the potential harm;
• the likelihood that the potential harm will occur; and
• the imminence of the potential harm.

It is important to note that the EEOC has emphasized that an employer may not deny employment to an individual with a disability “merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability of substantial harm; a speculative or remote risk is insufficient.”

Employers beware: 

• The ADA requires an individualized assessment of every disability and request for accommodation.  There is no one size fits all approach that can be applied in every situation.  With each employee and each request for accommodation, the employer should engage in an interactive dialogue with the employee or applicant.
• Discrimination has been found in cases where employers require routine testing in response to an employee self-disclosing as an alcoholic when other employees were not required to submit to the same routine testing.  As such, unless it is your policy that all employees submit to routine testing, you may not require it of this employee.

 

 

Get Ready California

Get Ready California: Los Angeles, Santa Monica, and San Diego Passed Minimum Wage and Paid Sick Leave Ordinances

In a move that will leave many employers scrambling for timely compliance, the cities of Los Angeles, Santa Monica, and San Diego recently approved minimum wage and sick leave ordinances that will apply to all employees who work within city lines.  The ordinances will impose additional compliance obligations on employers still coming to terms with extensive California state law requirements. Below is a summary of the new ordinances as well as a comparison to existing California law.  For employers with employees working in San Diego, Santa Monica, and Los Angeles, the ordinances will require modifications of existing sick leave policies.

Los Angeles

Minimum Wage

Commencing July 1, 2016, employers with 26 or more employees working at least two hours in a particular week in Los Angeles will increase to $10.50.  For employers with 25 employees or less, the minimum wage will remain at $10.00 until July 1, 2017.

The minimum wage increase:

Date	26+ Employees	Less than 25employees
July 1, 2016	$10.50	$10.00
July 1, 2017	$12.00	$10.50
July 1, 2018	$13.25	$12.00
July 1, 2019	$14.25	$13.25
July 1, 2020	$15.00	$14.25
July 1, 2021	$15.00	$15.00

Employers operating outside an incorporated city, but inside the County of Los Angeles will also be required to comply with the County’s Minimum Wage Ordinance.  Minimum wage for employees in unincorporated areas of Los Angeles County will increase according to the schedule above.  The ordinance does not require employers to provide sick leave.

Sick Leave

Employees who work in the City of Los Angeles for the same employer for 30 or more days within a year of the start of their employment will be entitled to 48 hours of sick leave per year.  This sick leave ordinance is more generous than the 24 hours or 3 days that California law currently requires.

Like the state mandatory sick leave law, employees must begin accruing sick leave immediately upon hire (or July 1, 2016, whichever is later) and may use accrued sick leave after their 90th day of employment.

Accrual

Employers have the option of granting employees all 48 hours of paid sick leave at the beginning of each year of employment, calendar year, or 12-month period; or allowing employees to accrue one hour of sick leave for every 30 hours worked.  Employees will be entitled to take up to 48 hours of sick leave each year.

Employers will have the ability to cap accrual of sick leave at 72 hours, but must allow employees to carry over all accrued but unused sick leave to the following year.  This is a higher accrual cap than California law, which allows employers to cap accrual at 48 hours or 6 days.

Like the state mandatory sick leave law, employers do not have to pay out accrued, unused sick leave at termination or resignation, although they do have to reinstate accrued, unused leave for any employee rehired within a year.

Existing Policies

The law does state that if an employer has vacation or PTO policy that provides employees with at least 48 hours of time off, the employer does not need to provide any additional sick leave, provided employees are allowed to use the time for the purposes set forth in the law. However, where most of these plans were drafted to comply with the requirements of the state mandatory sick leave law, it is unlikely existing plans will comply.

Use

In addition to the sick leave uses set forth in the state sick leave law (i.e. the employee’s own illness, medical appointments, caring for family members, or taking time off due to domestic violence and related incidents), under the Los Angeles ordinance, employees may also utilize sick leave to care for any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Documentation

The Los Angeles ordinance does expressly allow employers to require employees to provide reasonable documentation of an absence from work for which paid sick leave will be used; however, the California state law does not expressly allow this.  Current guidance from the DLSE has discouraged employers from requesting documentation under the state mandatory sick leave law, so employers should proceed carefully with requests for documentation.

Los Angeles Citywide Hotel Worker Minimum Wage Ordinance

Hospitality employers and employers with businesses operating inside Los Angeles hotels should also be aware of the separate minimum wage, paid time off, and sick leave requirements of the Citywide Hotel Worker Minimum Wage Ordinance.

Santa Monica

With some limited exceptions, the Santa Monica Ordinance applies to all employees who work two or more hours during “a particular week” in the City of Santa Monica.  Private employers that are situated, or do business, in Santa Monica will be required to meet the minimum wage standards and provide paid sick leave in excess of the requirements under state law.

Minimum Wage

The Santa Monica minimum wage provision largely mirrors the Los Angeles ordinance, raising the minimum wage to $15.00 an hour by 2020.

 Sick Leave

Similar to state law, under the Santa Monica Ordinance, employees will accrue one hour of paid sick time for every 30 hours worked (including overtime hours) in Santa Monica, unless the employer provides for a faster accrual rate. Sick time accrues only in whole hour increments.

It is important for employers to note that like the San Francisco sick leave ordinance, the Santa Monica Ordinance does not expressly allow for front-loading of sick leave, which is allowed under the California mandatory sick leave law.  Additionally, current employees will begin to accrue sick time on the effective date of the ordinance or the 90th day of employment, whichever is later.  This is a slightly different requirements from the California mandatory sick leave law, which requires accrual beginning the first day of employment, but allows an employer to prevent employees from using sick leave until the 90th day of employment. It is important to note that because Santa Monica-based employees must accrue sick time during their first 90 days of employment under California law, an employer cannot limit accrual during the first 90 days under the Santa Monica Ordinance. Similarly, although California law allows employers to provide a lump sum of 24 hours of sick leave at the start of the benefit year, the Santa Monica ordinance will require employers who provide a lump sum of 24 hours to continue to track sick leave hours so that employees continue to accrue until they reach the maximum accrual.

Accrual

Employers with 26 or more employees must permit employees to accrue up to a maximum bank of 72 hours of paid sick time; and employers with 25 or fewer employees must permit employees to accrue up to a maximum bank of 40 hours of paid sick time.  However, this accrual is a floating accrual rather than an annual accrual.  This means that an employee may accrue a paid sick leave bank up to 72 hours, and once that employee uses that leave, the employee will immediately begin to accrue new sick time, and can use that additional accrued sick time during the same year immediately upon accrual.

Use of Leave

Other than the differences addressed above, the Santa Monica Ordinance largely mirrors the requirements of California law in terms of usage, notice, and anti-retaliation provisions.

Existing Leave Policies

The law does allow for employers to continue to maintain other paid leave policies, such as vacation, sick, floating holidays, personal days, or other paid time off (PTO) provided the policies meet or exceed the of the Ordinance.  However, as stated above, where most policies were drafted to comply with the California mandatory sick leave law, we recommend that all employers revisit their policies to ensure compliance. The requirements of the Ordinance may be waived in a collective bargaining agreement, so long as the waiver is explicitly set forth in the agreement in clear and unambiguous terms.

Minimum Wage

The Ordinance increases the minimum wages for private sector, non-hotel industry employees on the same time schedule listed above for the City of Los Angeles and Los Angeles County.

Hotel Workers

The Ordinance also establishes minimum wage rates for hotel workers.  Starting on July 1, 2016, Santa Monica’s minimum wage will be $13.25 for hotel workers, including those who work in sublet businesses in a hotel facility or in conjunction with a hotel. Note that these rates do not track the Los Angeles Citywide Hotel Worker Minimum Wage Ordinance, which does not apply to Santa Monica-area hotels.  On July 1, 2017, the minimum wage will increase to $15.37 per hour and will then mirror the Los Angeles Citywide Hotel Worker Minimum Wage rate, currently in effect.  Starting on July 1, 2018, the minimum wage rate for Santa Monica hotel workers will increase according to the Consumer Price Index.

Certain “hotel workers,” (excluding managerial, supervisory, or confidential employees) whose primary place of employment is at one or more hotels in Santa Monica are also covered by the sick leave ordinance, regardless of how many hours worked during “a particular week” in Santa Monica.

San Diego

Effective as soon as the City Clerk certifies the election results (which could be any time between now and mid-July), San Diego will increase the minimum wage to $10.50 per hour and employees who work at least two or more hours in a calendar week within the city limits will be entitled to paid sick leave.

Minimum Wage

The ordinance will immediately increase the City of San Diego’s minimum wage to $10.50 per hour, rising to $11.50 per hour, effective January 1, 2017.  Beginning January 1, 2019, minimum wage increases will be based on San Diego’s Consumer Price Index.

Sick Leave

San Diego’s sick leave ordinance requires provides employees with one hour of paid sick leave for every 30 hours worked within the city limits.

Accrual

Although employers may limit employees’ use of paid sick leave to 40 hours per year, employers may not cap accrual of leave.  This means that employees may continue to accrue sick leave indefinitely, although they may use only 40 hours of sick leave per year.  The ordinance is a steep increase from the state’s mandatory sick leave law, which requires employers to provide 24 hours or three days of paid sick leave per year with an optional cap of 48 hours or six days.  Like the California mandatory sick leave law, employees will begin accruing sick leave upon hire, but employers may prohibit use of sick leave until the 90th day of employment.

Use of Leave

The San Diego ordinance tracks the California mandatory sick leave law usage requirements, allowing employees to use sick leave for the employee’s own illness, medical appointments, caring for family members, or taking time off due to domestic violence and related incidents.  Also like the state law, employers may require the leave to be used in increments of at least two hours, and employers are not required to pay out unused sick leave at separation from employment.

Existing Policies

The ordinance provides that if an employer provides sufficient paid sick leave or other paid time off (including paid vacation or paid personal days) that satisfies the conditions of the ordinance, the employer will not be required to provide any additional sick leave to its employees.  However, as noted with regard to the Los Angeles and Santa Monica ordinances, policies drafted for compliance with the California mandatory sick leave law will not be in compliance with the San Diego ordinance.

The San Diego ordinance also requires employers to post notices within the workplace, and to provide each new employee with written notice of the minimum wage and paid sick leave requirements of the ordinance on the date of hire.

Recommendations

Employers in Los Angeles, Santa Monica and San Diego who crafted sick leave policies in compliance with the California mandatory earned sick leave law will need review and likely amend their policies to reflect the additional responsibilities imposed by the city ordinances. This can be accomplished either by drafting an addendum to current sick leave policies, or by crafting a new policy that tracks the language of the ordinance.

Specifically, policies should be amended to reflect that each of the ordinances increases the minimum number of hours of paid sick leave employers must offer, the accrual, and the carryover provisions required by the state sick leave law.  Although each of the ordinances states that existing paid leave policies may comply, it is unlikely that any employer has an existing policy that sufficiently tracks the language of the ordinances.

Our office is available to help amend and draft policies to ensure timely compliance with these new ordinances. This blog post should not be considered legal advice.

 

More Overtime News

Nothing says freedom like an increase in civil penalties.  In preparation for Independence Day, the DOL announced increases to civil penalties for violations of a number of federal law including OSHA and the FLSA.  Specifically, the DOL will be increasing civil penalties for willful violations of the FLSA minimum wage and overtime provisions. Those penalties will increase from $1,100 to $1,894.

If you are interested, a list of of each agency’s individual penalty adjustments is available here.

The takeaway here is that if you have not yet begun to prepare for the new overtime rules, set to go into effect on December 1, 2016,  you are quickly running out of time.  Several groups have made attempts to stop these new rules, and several groups have failed. The changes to the overtime rules are coming.

 

Let Freedom Ring–Happy July 4th

May the sun in his course visit no land more free, more happy, more lovely, than this our own country! ~Daniel Webster We have exciting news at Foley & Foley, PC –Attorney Mikaela McDermott will join our team July 12, 2016. She brings years of experience in public and private sector employment and labor law. She will make our strong team even stronger. The Massachusetts legislature has been busy. Two bills that will impact employers are still in the works and may land on the Governor’s desk soon: Noncompete reform The Massachusetts House passed a comprehensive noncompete reform bill on June 29, 2016. Because the Senate passed a fairly similar measure last year, the bill is expected to be approved by the Senate before the session closes on July 31, 2016. Whether Governor Baker will sign the bill is unknown at this time. The major changes: By far the most significant change would introduce what is referred to as a “Garden Leave” clause requirement. Under the current version of the law, employers would have a choice of paying either 50% of the employee’s salary for the length of the non-compete or “other mutually-agreed upon consideration… .” Noncompete period is limited to 12 months in duration unless the employee has breached a fiduciary duty or taken property, in which case 24 months is allowed; Noncompetes are not allowed for several categories of workers: Employees terminated for cause or laid off; Non-exempt (OT eligible) employees; Ages 18 or younger; and Undergraduate or graduate interns. Noncompete must include a right to consult with counsel before signing, and must be provided to the employee by a formal offer or 10 business days before the start date, whichever is earlier. Any noncompete entered during employment must be supported by additional consideration beyond continued employment. A court may not strike out unlawful provisions of a noncompete in violation of this law–the entire agreement will be invalid, which is not the practice now. Should this bill become law many current noncompetes in Massachusetts will need to be rewritten. Pay Equity The Senate Bill Proposal – 2119 “An Act to Establish Pay Equity” is gaining momentum. Attorney Mike Foley recently presented on this topic at a Government Affairs Committee of the New Bedford Chamber of Commerce – more about his presentation Here is the bottom line: For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation. In Massachusetts, employees who believe that they are underpaid on the basis of their gender currently have recourse to four statutes when seeking relief: The Federal Equal Pay Act (FEPA); Title VII of the Civil Rights Act of 1964 (Title VII); The Massachusetts Equal Pay Act (MEPA); and Chapter 151B of the General Laws of Massachusetts (151B). Depending upon your perspective, here are the highlights or low lights regarding the pending pay equity law: Significantly changes the definition of “comparable work” under MEPA. That critical phrase under the proposed law “shall solely mean work that is substantially similar that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.. .” The key question is how will this impact merit pay, commission pay and any pay system that is not seniority driven. It would become unlawful for an employer to seek the salary history of any prospective employee. Employers could not prevent employees from disclosing their wages, benefits or other compensation or inquiring about or discussing the wages of any other employee. There is more to this far ranging bill and we will, of course, keep you informed. As always, please contact us with any concerns or questions. We can help.

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