Leave Under the ADA Not a Guarantee

The Americans with Disabilities Act (ADA) Is Not a Leave Act, Or Is It?

 

This week the US Supreme Court let stand a decision from America’s heartland that has been closely watched. The Severson case arose from an employee with a back issue who had surgery at the end of his FMLA leave and was unable to return to work for another three months.  He was terminated. Severson sued, claiming his rights under the ADA were violated when he was not allowed extra leave.  The Seventh Circuit US Court of Appeals which covers Illinois, Indiana and Wisconsin disagreed. The Court found that ADA is an anti-discrimination statute, not a medical leave law.

 

What does this mean for employers? The Circuit Courts are split and a ruling from the Supreme Court would have been helpful. Unless and until that occurs, we recommend employers continue to utilize a case by case analysis in determining if leave is a reasonable accommodation under the ADA.  The interactive process with the employee and analysis of undue burden is the best practice for each instance. The trend favoring employees in these cases may be waning, but the risks in denying accommodation across the board are tremendous. Stay the course: treat the ADA as proscribed by law.

 

If you have any questions on ADA and FMLA leaves, please contact us.  It can be tricky business. questions@foleylawpractice.com

 

 

Equal Pay Is Coming Your Way

Less than a handful of states do not have laws that prohibit gender-based compensation discrimination, and the federal pay equity laws have been on the books for years. California, New York and Massachusetts seem to be competing to have the most aggressive pay equity laws, with other states in the race. While this alert focuses on Massachusetts, we are happy to answer questions about your state’s equal pay laws or the federal law.

Is your company covered by the new Massachusetts pay equity law? Yes, all employers in Massachusetts with the noted exception of the federal government are covered by the new law: for-profit; not-for-profit; large and small; in all industry sectors. Unlike most employment laws, the number of individuals employed is not relevant – your company is covered.

The assessment of gender-based pay inequity in Massachusetts has changed significantly. The standard is different. The definitions are different. Exposure is different. Potential corrective measures are different. Defenses are different. The conversation about salary history and employee wages will be significantly different.

Many find that the guidance recently issued by the Massachusetts Attorney General raised as many questions as it answered. The good news is that the Attorney General’s guidance includes a basic self-evaluation tool for employers. We recommend using outside counsel as part of this process to protect your findings under the attorney-client privilege. Think of our Pay Equity Audit as a protective cloak: it shields any pay inequities you may discover, and will allow your team to make reasonable progress eliminating pay disparities without creating other distractions.

In less than four months, the Massachusetts law goes into effect and your company must be in compliance. We have been advising our clients for over a year to conduct gender-based pay equity audits to protect their organization against the new exposure and litigation from this law: Several have used our innovative Pay Equity Audit already. The Attorney General’s guidance has made it very clear that there are very few clear answers implementing this law– and that all employers should make compliance a top priority.

Our Pay Equity Audit is designed to help your Massachusetts team achieve compliance with the new law and create a rolling affirmative defense to a gender-based pay equity claim. No worries, if you are not located in Massachusetts, we have other state specific Pay Equity Audits. We stand ready to help and can be reached at questions@foleylawpractice.com or 508-548-4888.

The Kids Are Alright

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Millennials love information. Information means transparency. And that means pay equity cannot hide. A case in point: The EEOC prevailed where two high school friends, Jensen Walcott and Jake Reed, applied to work at Pizza Studio as “pizza artists” in 2016. After both were interviewed and offered jobs, Walcott and Reed discussed their starting wages. Upon learning that Reed–the male– was offered 25¢ more per hour, Walcott called the restaurant to complain about the unequal pay. When she did so, the company immediately withdrew its offers of employment from both Walcott and Reed. Not the best practice, maybe the worst.

The Kansas federal court ordered that compensatory, liquidated and punitive damages be paid by the store’s holding company (the store had closed). A very expensive lesson learned:

  • Rectify don’t retaliate when mistakes are discovered;
  • REVIEW PAY PRACTICES–we can help.  We have a comprehensive pay equity service that has already helped many clients;
  • Workers, particularly millennials, will talk about pay and will publish information found online.  Keep ahead of trouble with fair pay policies.

We can help.  Check out our Pay Equity Service http://www.foleyworkplacelaw.com/pay-equity-audit-service.htm

WORKPLACE COMPLIANCE IN THE TRUMP-ERA: IT IS NOT ABOUT TWITTER

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It has been noted politicians campaign in poetry and govern in prose.  That may sound too lofty to describe current times, but the sentiment remains: promises made on the campaign trail do not easily translate into law. We have a Republican President and a Republican Congress, which historically has meant a more business-friendly regulatory environment.  Yet as the first 100 days will show, unwinding is neither quick nor easy. The Affordable Care Act has not been repealed and little is on the horizon. The President’s Budget Blueprint for 2018 proposes to slash the Department of Labor’s (DOL) budget by 21%. What does this mean for employers right now, or even over the next year?

In short, not a lot. Meanwhile, state and local governments are legislating like mad to fill the gaps that could be created by proposed budget cuts and executive orders. President Trump is an active Twitter user but as detailed below, that communication belies the actual activity of the federal government. #Realtalk

Are employers off the hook for federal mandates? Not so fast. Most of the federal regulations that govern the workplace remain in place and, given the inability to repeal the much lamented ACA, may not change at all.

Below is a quick overview of the current federal landscape under President Trump. Without actual policy as a guide, we are using the President’s proposed budget as a crystal ball. Please note that many states, including Massachusetts and California, have stricter mandates than the federal laws:

THE FUTURE OF DOL/OSHA/EEOC ENFORCEMENT

The President has proposed $2.5 Billion in cuts to the U.S. Department of Labor’s (“DOL”) operating budget. Because Congress has to approve the budget this is only an outline of the actual budget.  The blue print is short on details, but does expressly call for reduced funding for grant programs, job training programs for seniors and disadvantaged youth, and support for international labor efforts.  It also proposes to eliminate the U.S. Chemical Safety and Hazard Investigation Board (“CSB”) – an independent, federal, non-enforcement agency that investigates chemical accidents at certain facilities.  These cuts account for $500 million dollars of the DOL budget. The blueprint does not specify where the other $2 billion in cost savings will come from, except to say more funding responsibility will go to the states.  If approved by Congress—a big if–the cuts will involve a loss of funds that could be distributed heavily through DOL’s enforcement programs. This will include the EEOC and OSHA. Yet the process by which these agencies collect fines is a valuable revenue generator and unlikely to end easily.

At this point, the likelihood of the final budget looking like the proposed one is total conjecture. Furthermore, even with the expected cuts to the DOL’s enforcement and regulatory programs, it is important to recall that under the last Republican administration—no fan of regulation– the DOL still enforced the law. Moreover, as the federal government delivers more labor enforcement responsibility to the states, employers will increasingly be forced to work to achieve compliance on two fronts, instead of one.

RIGHT NOW

Every administration has used the media as a means of furthering and communicating its chosen agenda, and the Trump administration is no exception.  The choices the administration makes in what it chooses to publicize likely signal the administration’s direction; but also shape the public’s perception of what it is actively doing.  The Trump administration and President Trump in particular use social media and news reports for the purpose of shaping the public’s understanding their activity.  From a compliance standpoint, this actually creates risk for employers.

Despite the President’s proposed budget and awaited confirmation of a new Labor secretary, the New York Times reported  that DOL enforcement actions continue.  In a departure from past practice, the department has stopped publicizing fines against companies. As the New York Times points out, the Obama administration used the announcements as an enforcement tool, and a means to influence employers.  However, the announcements also served as an important window for employers into the DOL’s current position on important compliance issues such as wage and hour or OSHA safety enforcement.  If a company in the same industry was recently fined for a practice, that action provided others in the industry with important notice to examine their practice.  Employers no longer have this benefit.  Furthermore, those who believe that the lack of information surrounding DOL enforcement means they no longer have to worry about the threat of an audit do so at their own peril.  At the present, and until the new budget is confirmed months from now, agency enforcement has not changed.  For those inclined to believe the confirmation of the new Labor secretary will change that should keep in mind that DOL audits are a money-maker for the agency.  There seems to be little reason for them to stop.

WHAT TO DO

The last few years have seen a seismic change in the number of employment laws on both the state and federal level.  If it has been a few years since your organization has updated its employee handbook, you have a compliance problem on your hands.  Updating your handbook and policies is an important step to mitigate risk.

And remember, statutes, regulatory guidance and case opinions published by the courts are what impact compliance obligations, not the news. What happens on Twitter does not reflect the actions of the agencies of the federal government. #Really

Get Ready to Update Your Discrimination Policies, California.

 

No this is not a cruel April Fool’s Day joke. As of April 1, revised California Fair Employment Housing Act (FEHA) regulations will take effect, with new anti-discrimination and anti-harassment obligations for California employers. If you have not already updated your Discrimination and Harassment Policies to track the amendments to FEHA, now is the time.

Our office has already updated and drafted a number of Harassment and Discrimination Policies in response to these new regulations. Feel free to contact us at any time.

The new regulations make it mandatory for every California employer employing five or more employees (regardless of location) to have a written anti-discrimination, harassment and retaliation policy. This means that out of state companies with 1-2 California employees may now be sued under FEHA.

Discrimination and Harassment policies must now include all of the following:

List all protected categories covered under the FEHA. These include:

  • 4o Age (40 and over)
  • Ancestry
  • Color
  • Religious Creed (including religious dress and grooming practices)
  • Denial of Family and Medical Care Leave
  • Disability (mental and physical) including HIV and AIDS
  • Marital Status
  • Medical Condition (cancer and genetic characteristics)
  • Genetic Information
  • Military and Veteran Status
  • National Origin (including language use restrictions)
  • Race
  • Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
  •  Gender, Gender Identity, and Gender Expression
  •  Sexual Orientation

Specify that the law prohibits unlawful conduct by coworkers and third parties, as well as supervisors and managers;

Set forth a complaint process, that includes:

  • Timely investigations and response to complaints;
  • Impartial investigations by qualified personnel;
  • Means for tracking progress of investigation;
  • Appropriate remedial actions and resolution; and
  • Timely closure.

Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor. Complaint options should include:

  • Direct communication, either verbally or in writing, with a designated company representative, another supervisor or complaint hotline, so that the employee has options outside of his or her immediate supervisor;
  • Access to an ombudsperson; and/or
  • Identification of the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints;

Instruct supervisors to report all complaints of misconduct to designated company personnel.

Indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation. If misconduct is found, appropriate remedial measures will be taken.

Specify that confidentiality will be maintained to the extent possible, although the policy should not indicate that the investigation will be completely confidential.

Clearly state that employees will not be retaliated against for lodging a complaint or participating in any workplace investigation.

Employers must distribute the updated policy through one or more of these methods:

  • Hard copy to all employees with an acknowledgement form for the employee to sign and return;
  • Email to employees, along with an acknowledgement return form;
  • Post on the company intranet, along with a tracking system that ensures all employees have read the policy and acknowledged receipt;
  • Discuss the policy with new hires or during orientation sessions; and/or
  • Other distribution methods that ensure employees receive and understand the policy.

Employers whose workforce at any facility or establishment contains 10 percent or more employees who speak a language other than English as their primary spoken language must translate the policy.

For employers with 50 or more employees:

The new regulations also update training and record keeping requirements under California’s existing supervisor harassment training provision. The following now apply:

  • Training must instruct supervisors of their obligation to report complaints of discrimination, harassment or retaliation to a designated company representative, and must review with supervisors the steps necessary to take appropriate remedial measures to correct harassing behavior.
  • The training must cover “abusive conduct,” including the definition of abusive conduct, the negative impact of abusive conduct, the elements of and examples of abusive conduct, and the fact that a single act will not constitute abusive conduct unless it is sufficiently severe and egregious. The regulations state that there is not a specific amount of time that must be spent on abusive conduct in the training but it should be covered in a meaningful manner.

o Employers must maintain training documentation for a minimum of two years.

  • Documentation includes names of the supervisors trained, training date, sign-in sheet, certificates of attendance or completion, type of training, copies of written or recorded training materials, and the name of the training provider.
  • For webinar training, employers must also retain a copy of the webinar, written materials used by the trainer, written questions submitted during the program, and written responses or guidance that the trainer provided during the webinar. For e-learning training, employers must retain written questions received and written responses or guidance provided.

 

Other updates to the FEHA regulations include:

New definitions of gender expression, gender identity, sex stereotype, and transgender;

  • “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
  • “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
  • “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”

A woman/female disabled by pregnancy includes a transgender employee who is disabled by pregnancy;

Clarification of what constitutes actionable harassment and the basis for co-worker liability;

A new rule permitting the DFEH to recover “non-monetary preventative remedies” against an employer, regardless of whether the agency prevails on an underlying claim for discrimination, harassment or retaliation; and

A prohibition of discrimination against a non-citizen applicant or employee who holds a driver’s license issued under Section 12801.9 of the California Vehicle Code. Specifically, the regulations now allow employers to require an applicant or employee to hold or present a driver’s license as part of employment only if it is required by: (a) state or federal law, or (b) the employer’s policies for a legitimate business purpose (and permitted by applicable law).

 

We recommend that California employers take the following immediate steps:

  • Ensure you have written policies that comply with the new regulations and that the policies are disseminated in one or more of the approved methods (in addition to Form DFEH-185).
  • Ensure proper complaint and investigation procedures are in place.
  • Ensure supervisors and human resources personnel receive proper training on the new regulations so that all inquiries and potential complaints can be addressed in a compliant manner.