Legislation to Expand federal FMLA Proposed

Published by Meg Vergeront on | Permalink

A member of Congress recently introduced a bill to amend the federal Family and Medical Leave Act is several significant ways.  HR 3999 would amend the current Act to provide as follows:

*Cover employers with 25 + employees (current only applies to employers with 50 + employees).

*Permit employees to take "parental involvement" leave to participate in/attend activities sponsored by a school or community organization that are related to a program of the school or organization that the employee's son, daughter, or grandchild attends.

*Permit leave for "family wellness" to allow employees to attend to routine family medical care needs, such as medical and dental appointments of children, grandchildren and spouses, or to attend to the care needs of elderly relatives, whether or not they are in nursing or group. 

*Provide up to four hours of "parental or family wellness leave" during a 30-day period and up to 24 hours in a 12-month period.  Employees could elect or the employer could require substitution of other accrued paid leave. 

*Employees would have to give at least seven days' notice of intent to take parental involvement or family wellness leave.  When taking family wellness leave, employees also have to "make a reasonable effort" to schedule the leave so to avoid unduly disrupting the employer's operations, subject to the health care provider's approval (if applicable).
It is critical for employers to keep an eye on this proposed legislation and weigh in if deemed appropriate. 

Keep in mind that, whether or not the legislation passes, Wisconsin has its own Family and Medical Leave Act which has some significant differences from the federal law as it exists and as proposed.  Despite the differences, employers have to comply with both.

EEOC Challenges Standard Separation Agreement Terms as Unlawful

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Think your standard employee separation agreement complies with the law?  According to the Equal Opportunities Commission (EEOC), it may not.  The EEOC recently filed a lawsuit in federal court challenging terms of a CVS employment separation agreement.  Specifically, the EEOC is alleging that several terms of the agreement unlawfully restrict the rights of employees who sign the agreements to file discrimination charges or communicate and cooperate with the EEOC.  Such restrictions violate federal law.

The allegedly offending clauses include:

*A cooperation clause requiring employees to notify CVS's in-house counsel if the employee receives an administrative complaint relating to the employee's former employment.

*A confidentiality clause prohibiting employees from discussing personnel information.

*A non-disparagement clause prohibiting employees from making statements disparaging or harming CVS's reputation.

*An attorneys' fees clause requiring a terminated employee to pay CVS's reasonable attorneys' fees if CVS has to sue because the employee breaches the separation agreement.

*A covenant not to sue, prohibiting employees from suing CVS, even though the clause carved out the right to participate in or cooperate with state and federal discrimination investigations and proceedings (such as EEOC investigations/proceedings).

*A general release, including a release of all claims of discrimination.

If the EEOC is successful in this lawsuit, employers will have to virtually start from scratch in an attempt to craft a separation agreement that protects their interests in buying a release of claims from former or departing employees without violating EEOC's dictates. 

Employers need to watch this case closely.

Department of Labor to Crack Down on Independent Contractor Misclassification

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The Secretary of the Department of Labor just announced that the Department will be cracking down on employers’ misclassification of employees as independent contractors with respect to minimum wage and overtime requirements.  Employers need to review whether those workers employers label “independent contractors” are properly classified for wage and hour purposes, as well as worker’s compensation and unemployment compensation purposes.  The definition of independent contractor is slightly different under each of these laws and employers in general must make sure that each definition is met before they can lawfully treat individuals who perform work for them as independent contractors.

Is Obesity Now A Disability Under the Americans With Disabilities Act?

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The American Medical Association voted last month to classify obesity as a disease requiring a range of medical interventions to advance obesity treatment and prevention.  Given the broad definition of “disability” under the Americans With Disabilities Act and the Wisconsin disability anti-discrimination act, it may not be too long before courts start ruling that obesity is covered by these disability discrimination laws and reasonable accommodations will need to be provided as appropriate.  Keep an eye out for decisions addressing the issue that are sure to be forthcoming in the near future.

Facebook Postings Trashing Supervisor Are Protected By the NLRA

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The National Labor Relations Board (NLRB) recently decided that an employer violated the National Labor Relations Act (NLRA) when it terminated employees who complained about the conduct of their supervisor on Facebook.  The case is Design Tech. Grp. LLC d/b/a Bettie Page Clothing.  

The NLRA prohibits all employers, both union and non-union, from punishing employees who act together to complain about the terms and conditions of their employment (conduct referred to as “concerted activity.”)  In Design Tech., the NLRB determined that a Facebook “conversation” about workplace conditions is, in and of itself, concerted activity.  Based on this determination, the NLRB concluded that the law prohibited Design Tech from punishing its employees over the Facebook postings.  The Board ordered the employer to reinstate the employees and pay back wages, among other remedial relief.  This case is a reminder that employers must tread very carefully when taking any action based on the social media postings of its employees.  Consulting with legal counsel before doing so can help an employer stay on the right side of the law.

Undocumented Workers Can Bring Wage and Hour Claims

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According to a recent Eleventh Circuit Court of Appeals decision, undocumented workers are entitled to sue under federal law for minimum wage and overtime.  The Eleventh Circuit does not govern Wisconsin, but Wisconsin employers should nonetheless pay attention to the ruling.  Paying all employees at least minimum wage and all overtime due will help keep you out of court, no matter which employees are at issue.

Paid Sick Leave Legislation Introduced in Congress

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Senator Tom Harkin (D-IA) and Representative Rosa DeLauro (D-CT) recently introduced legislation referred to as “the Healthy Families Act” that would require employers with 15 or more employees to provide those  employees with paid sick leave.  As proposed, the legislation provides generous benefits for employees.  Some highlights are:

  • Employees would earn one hour of paid sick time for every 30 hours worked, to a maximum of 56 hours annually;
  • Leave could be taken for the employee’s own or for a family member’s illness, and for preventative care, e.g., medical appointments;
  • Employees who are the victims of domestic violence, stalking or sexual assault would qualify for leave;
  • Leave would begin accruing the first day of employment and employees can use it after 60 days;
  • Leave would carry over from year to year, but could not exceed 56 hours absent employer consent;
  • Employers could require medical certification for absences of more than three consecutive days;
  • Employees who leave and are rehired within 12 months would be entitled to accrued leave earned prior to leaving employment and would be entitled to take sick leave immediately upon rehire.

Can Employers Be Liable For Discriminating Based on Appearance?

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In Wisconsin, some local ordinances, like City of Madison Ordinance 39.03, prohibit employers from discriminating on the basis of physical appearance.  In those jurisdictions, Wisconsin employers need to be careful what they say in job announcements or during the hiring process regarding an §applicant’s physical appearance to avoid a potential discrimination charge. 

But what about outside the jurisdictions of these municipalities?  Are there other laws that permit employees to sue Wisconsin employers for allegedly discriminating on the basis of physical appearance?  Not per se.  Nothing under Wisconsin state law or federal law expressly makes physical appearance a protected classification.  That does not mean, however, that employers are free to “discriminate” on the basis of physical appearance without a risk of being sued.  Basing employment decisions on a person’s physical appearance can give rise to a claim that physical appearance “discrimination” is simply a pretext for denying employment based on age or based on gender stereotyping about how men and women should look. 

The threat of such a claim is not just something made up by lawyers to scare their clients.  The federal Equal Employment Opportunities Commission (EEOC) recently started an investigation of a coffee shop chain regarding the company’s alleged practice of hiring only attractive women.  The EEOC did so even though no applicant or employee had filed a complaint.  The agency’s rationale is that individuals may not even know that they are being discriminated against on the basis of age or some other protected classification, apparently under the guise of hiring only “beautiful people.”  The EEOC’s investigation makes it all the more important for employers to follow best practices regarding hiring and employee retention and rewards, making such decisions on individual work-related qualifications.

The Importance of the Interactive Process in Defense of ADA Claims

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A recent case issued by the federal Seventh Circuit Court of Appeals (which governs employers in Wisconsin) underscores the importance of engaging in an interactive process with a disabled employee who has asked for a reasonable accommodation under the Americans With Disabilities Act (ADA). 

In Hoppe v. Lewis University, an employee claimed that she suffered from a disability, and sought a reasonable accommodation from her employer.  The employer offered three accommodations, each of which the employee rejected.  The employer also sought additional medical information from the employee to help it find an appropriate accommodation that might be acceptable to the employee.  The employee refused to cooperate.  Under these circumstances, the court determined that the employee could not prevail on her ADA claim because she had thwarted the “interactive process” through which she and her employer might arrive at a reasonable accommodation, which in turn thwarted the employer’s ability to offer an appropriate accommodation.  The court noted with approval that the employer had continued to make efforts to accommodate the employee despite the lack of information provided. 

The ADA “interactive process” involves back and forth discussions between the employer and a disabled employee in an effort to find an appropriate accommodation.  An employee who refuses to engage in the process will likely lose her ADA claim.  By the same token, an employer who refuses to do so will likely be found liable under the ADA if no reasonable accommodation is ultimately provided.   Engaging in good faith in the interactive process helps protect employers from liability under the ADA.  Never refuse to talk to an employee about possible accommodations.  That way, if the process fails, it is through the fault of the employee and not you.

Recent NLRB Decisions Invalidating Common Employer Policies Applies to Non-Union Employers, Too!

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As mentioned in my March 29, 2012 blog entry, even non-union employers are subject to some of the provisions of the National Labor Relations Act (NLRA).  One relevant provision is Section 7.  Section 7 provides, among other things, that all employees, whether union or not, have the right to engage in “concerted activities for the purpose of” “mutual aid or protection.”  The National Labor Relations Board interprets this language very broadly.  This interpretation has resulted in the Board recently issuing decisions determining that commonplace—and common sense—employer policies have a “chilling effect” on employees’ Section 7 rights.  That means, according to the Board, the policies violate the NLRA.  The following are a few examples of policies that the Board recently found “chilled” Section 7 rights.

Banner Health System (July 30, 2012)

Banner Health System had a policy prohibiting employees who made complaints to management from discussing the matter with co-workers until management had completed investigation of the complaint.  The Board found that this policy could chill employees’ Section 7 rights, and that the employer’s generalized concern with protecting the integrity of its investigations was not sufficient to overcome the concern over chilling employee rights.   

Costco Wholesale Corp. (September 7, 2012)

Costco had a policy prohibiting employees from electronically posting statements that damaged Costco or that defamed or damaged any other person’s reputation.  The Board found that the prohibited conduct encompassed concerted communications protesting the employer’s treatment of its employees and that the policy did not expressly exclude protected communication from its reach.  Therefore, the policy violated the NLRA.  The Board did make reference to policies prohibiting malicious, abusive or unlawful conduct as the kinds of policies that would likely not violate the NLRA.

Flex Frac Logistics (September 11, 2012)

Flex Frac Logistics required its employees to sign an agreement that they would not disclose “confidential information” to individuals outside the company, and that such disclosure could lead to termination.  Confidential information included personnel information.  The Board concluded that employees could reasonably believe that the policy prohibited them from discussing wages or other terms and conditions of employment with non-employees, such as union representatives—conduct protected by the NLRA.  The Board therefore determined that the language in the agreement chilled Section 7 rights and violated the NLRA.

Karl Knauz Motors, Inc. (September 28, 2012)

Karl Knauz Motors issued a statement that it expected employees to be courteous, polite and friendly to customers, vendors, suppliers and other employees, and to not be disrespectful or use profanity or other language that injured the image or reputation of the company.  The Board found that the prohibition on “disrespectful” conduct and “language that injures the image or reputation” of the company could encompass activity protected by Section 7.  It determined that the policy violated the NLRA.

Bottom Line

In light of the National Labor Relations Board’s recent decisions, employers should carefully review policies that govern communication by and between employees and revamp, or get rid of altogether, those policies that could be construed to “chill” employees’ Section 7 rights.

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