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



Un-“PAID” Is a Better Option

Last week the U.S. Department of Labor’s Wage and Hour Division (WHD) unveiled its new Payroll Audit Independent Determination (PAID) program to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standard Act (FLSA). Below you will find the highlights of the program and our advice and recommendations on compliance.

WHD will implement this “self-audit pilot program nationwide for approximately six months” to begin in April. At the end of the six month pilot period, WHD will determine whether to make the program permanent. In the meantime, as your team contemplates this opportunity, we recommend you keep WHD’s stated goal in mind: “To ensure that more employees receive the back wages they are owed – faster.”

All FLSA-covered employers are eligible to participate in the program on a voluntary basis. The program covers potential violations of the FLSA’s overtime and minimum wage requirements including, for example, violations based on alleged “off-the-clock” work; failures to pay overtime at one-and-one-half times the regular rate of pay;  misclassification of employees as exempt from the FLSA’s minimum wage; and overtime requirements.

There are some attractive elements to the program. It enables employers to expeditiously resolve inadvertent minimum wage and overtime violations without litigation (perhaps—see below), without the payment of liquidated damages, and without civil monetary penalties. That certainly sounds attractive but there is a catch or two or three… .

For many employers, the downside of this program will outweigh the upside. For example:

  • This program does not require employees to surrender any rights.
  • If an employee chooses not to accept back payment, the employee will not release any private right of action.
  • If the employee chooses to accept the back payment, the employee will not grant a broad release of potential claims under the FLSA.
  • By allowing employers to participate in the program, WHD does not waive its right to conduct any future investigations of the employer.
  • The participating employer must pay 100% of the calculated back wages immediately, no exceptions.
  • An employer’s DOL-supervised settlement under this program does not necessarily prevent state law wage claims.

All FLSA-covered employers nationwide confront the same critical question: Does the PAID program reduce risk or increase exposure for your company? Our experience tells us that many employers will be better off conducting their own Audit outside the PAID program and under the attorney/client protection. Certainly, it would be prudent for all employers to conduct an Audit of pay practices to assess compliance under the FLSA and state wage and hour laws. Our employment law crystal ball identified these issues a few years back and led us to develop our very popular FLSA Wage and Hour and Timekeeping Audit Service and our Exempt or Non-Exempt Positions Classification Service. You can achieve compliance without the PAID program pitfalls. Please let us know how we can help. www.foleylawpractice.com or call 508.548.4888


In some jurisdictions this blog post is regarded as Attorney advertisement.

Workplace Posters are Free. Really.


Clients often receive pressing, official-looking notices urging the purchase of mandatory employment law postings. While you do have to post, you do not have to buy. Although some states also try to sell posters which is really cheap, all required postings are available free of charge (keep scrolling).  Please see the links below, from the federal government and states where we practice:

Federal: United States Department of Labor – Wage and Hour Division

Massachusetts: Labor and Workforce Development – Massachusetts Workplace Poster Requirements

California: http://www.taxes.ca.gov/payroll_tax/postingreqbus.shtml

Connecticut: https://www.ctdol.state.ct.us/gendocs/Labor_Posters.htm

Georgia: https://dhs.georgia.gov/department-labor-required-workplace-posters

Illinois: https://www.illinois.gov/idol/Employers/Pages/posters.aspx

Kansas:  http://www.dol.ks.gov/Laws/Posters.aspx

Maine: http://www.maine.gov/labor/posters/

Maryland: https://www.dllr.state.md.us/oeope/poster.shtml

Minnesota:  http://www.dli.mn.gov/ls/posters.asp

Missouri: https://labor.mo.gov/posters

New Hampshire: https://www.nh.gov/labor/forms/mandatory-posters.htm

New York: https://labor.ny.gov/workerprotection/laborstandards/employer/posters.shtm

North Carolina:  http://www.nclabor.com/posters/posters.htm

Oregon:  http://staging.apps.oregon.gov/boli/TA/Pages/Req_Post.aspx

Pennsylvania: http://www.hrm.oa.pa.gov/workplace-support/required-postings/Pages/default.aspx

Texas: http://www.twc.state.tx.us/businesses/posters-workplace

Utah: https://laborcommission.utah.gov/divisions/UOSH/RequiredPosters.html

Vermont: http://labor.vermont.gov/

Wisconsin:  https://dwd.wisconsin.gov/dwd/posters.htm

As always, should you have any questions including information for additional state postings, please contact us. We can help. Mike@foleylawpractice.com or 508-548-4888


WHERE ARE THE RULES?: In an unexpected development, the Department of Labor (DOL) has quietly released information indicating that the proposed changes to the overtime rules may not take effect until close to the end of 2016. After the DOL closed the 60 day comment period, conventional wisdom was the regulations would follow in early 2016. Yet the DOL has not released any information regarding its progress toward final regulations. At the present time there is no official announcement from DOL and a disclosure by a DOL official that the finalized changes to the FLSA’s overtime eligibility rules likely will not be issued until late 2016. Given this scenario, one can surmise the new regulations will not take effect until 2017.

We do not have a clear indication of what the finalized rules will look like yet. The period during which the public can comment on the proposed rules ended September 4, 2015, and the DOL received roughly 270,000 comments during that period. That is approximately three times the amount of comments the agency received when it last updated the overtime rules back in 2004. About 50,000 comments came in during the last week alone. Perhaps the amount of comments the DOL received and the complexity of the law factored in to the agency’s decision to look at a later date for releasing the rules.

WHAT WILL THE RULES LOOK LIKE? We do know a few things for certain about what will be in the final rules:

· The minimum salary threshold will rise … significantly. The current threshold a worker must hit to be overtime-exempt is $23,660. The proposed rules seek an increase to $50,440. While it may not climb quite that high, it will climb — likely to at least $40,000.
· After the initial salary threshold increase, the threshold will automatically increase again. For the first time ever, the salary threshold will be tied to an automatic-escalator, so it can keep pace with inflation.

The DOL is considering making changes to the duties tests in the future. The DOL has not suggested changing the executive, administrative, professional, computer or outside sales duties tests yet, but did specifically seek comments on whether the tests should be changed and whether they are working to screen out employees who are not bona fide white collar exempt employees. One possibility is adopting the California test, which requires that 50% of an employee’s duties be for the exempt purpose in order for the exemption to apply. It is also unknown whether there will be a shorter window for implementation. It could be as low as 30 days and as great as 120 days.

SHOULD I WAIT UNTIL 2017? This announcement appears to buy employers more time to prepare, but waiting to look at your job descriptions and exempt classifications may not be the smartest strategy. It is a best practice to maintain accurate job descriptions and employee classifications, which also aids in a well-run workplace. A beneficial review of these issues necessarily takes time. Moreover, increased attention to the federal overtime rules and job duties means your employees are probably looking at their job descriptions and wondering whether they should be paid overtime.

Then, there is the unknown impact of the presidential election. For instance, if certain candidates are elected, the rule changes will be repealed instantly. There are some employers who will bank on the election outcome and will not do a thing. Leave those odds to Vegas.

We recommend the following actions:

· Start getting ready for the changes now. It will not be a quick process.
· Look at each position– and not just the job description– but what the employee is actually doing. If the employee is not spending at least 50% of his or her time on exempt duties, either change the duties or reclassify the employee as non-exempt.
· Look at the hours the employee works. If the hours worked and position duties do not warrant a salary of between $40,000 and $57,000, consider reclassifying as non-exempt.
· If reclassifying as non-exempt, look at actual hours worked and ways to limit overtime. This may mean restructuring jobs and transferring responsibilities.

STATE vs FEDERAL EXEMPTIONS: Finally, keep in mind that not all federal exemptions are recognized by the states and vice versa. If you are relying solely on any federal exemption to classify employees as exempt, you may be in violation of your state wage laws. For example, Massachusetts has the same white color exemptions as the federal rules but does not recognize an exemption for inside sales. Now is the time to audit all of your positions to check the legality of your exemptions. The federal overtime change is still undefined, but the Massachusetts Wage Law and other state laws are specific.

FINAL THOUGHT: Start 2016 ready to go and in compliance with all wage laws. We can help.