The House Ways and Means Committee has published an overview of employer leave requirements and tax credit provisions under the Families First Coronavirus Response Act. You can access that chart here.
MA has announced some economic aid for small business affected by the COVID-19 pandemic (press release: https://www.mass.gov/news/baker-polito-administration-announces-10-million-small-business-recovery-loan-fund)
- loans up to $75,000 per business ($10 million total fund)
- for Massachusetts-based businesses with under 50 full- and part-time employees (including nonprofits)
- loans immediately available; no payments due for 6 months; 30-months of principal and interest payments and no prepayment penalties
- administered by Massachusetts Growth Capital Corporation – applications at https://www.empoweringsmallbusiness.org/
Following a two-week trial, Bello Welsh has secured a major victory for a federal contractor in an enforcement action alleging gender-based pay discrimination brought by the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) under Executive Order 11246. The case, OFCCP v. Analogic Corporation, No. 2017-OFC-00001, is the first and only OFCCP case in the United States claiming gender pay discrimination to go to trial, and the decision is likely to have significant implications for OFCCP’s dealings with federal contractors going forward.
The origins of the case date back to an OFCCP compliance review that began in December 2011. Over two years later, in January 2014, OFCCP issued a Notice of Violation claiming that the contractor violated the federal Executive Order by paying females in two specific positions less than males in those same positions. A trial was held before Administrative Law Judge Colleen A. Geraghty in October 2017, and briefs were submitted in February 2018.
On March 22, 2019, Judge Geraghty issued a 43-page decision recommending that OFCCP’s pay discrimination claims be dismissed, rejecting the theory of discrimination presented by OFCCP’s expert, and finding instead that the contractor’s expert demonstrated that there was no such discrimination. In so ruling, Judge Geraghty held that OFCCP failed to prove a pattern and practice case of pay discrimination under either a disparate impact or disparate treatment analysis.
Judge Geraghty specifically found OFCCP’s disparate impact claim to be deficient because OFCCP never identified a specific policy or practice that caused the alleged pay disparity. Further, the statistical evidence offered by OFCCP’s expert to demonstrate a pay disparity was effectively refuted by the statistical evidence presented by the contractor’s expert.
Judge Geraghty also found OFCCP’s disparate treatment claim to be deficient because, again, OFCCP’s statistical evidence was rebutted by the contractor’s more persuasive statistical evidence. Judge Geraghty further determined that OFCCP had failed to present “anecdotal evidence” – that is, specific instances – of intentional discrimination, while the contractor offered substantial evidence that it did not discriminate against women.
A final decision in the case will be issued by the Department of Labor’s Administrative Review Board.
The import of this case is substantial, as it is likely to impact the types of statistical and other evidence that will be deemed sufficient to support a pattern and practice claim of pay discrimination, be it based on gender or any other protected status.
Bello Welsh will be providing a more detailed discussion of the decision and its potential implications in the coming weeks.
In June 2018, Massachusetts passed a law that will gradually raise the state minimum wage to $15.00 per hour and establish a paid family and medical leave program for employees in the state. The Massachusetts Department of Family and Medical Leave, a newly established state agency created to administer the leave program, recently issued FAQs for employers and employees, available here. The requirements of the new law, as clarified by the FAQs, are explained below. Read more
On March 1, 2018, the Massachusetts Attorney General’s Office published guidance on the amendments to the Massachusetts Equal Pay Act (MEPA), as described below.
By way of background, the amendments, signed into law in 2016 and effective July 1, 2018, seeks to ensure that men and women are paid equal wages for comparable work. In sum, MEPA broadens the definition of comparable work, describes the limited circumstances in which variations in pay may be permissible, and prohibits employers from restricting discussions of wages or from seeking salary history from applicants. Importantly, MEPA provides employers with an affirmative defense against pay disparities if they have completed a good faith self-evaluation of its pay practices and can show that they have made reasonable progress towards remedying pay differentials.
The Guidance, titled “An Act to Establish Pay Equity: Overview and Frequently Asked Questions,” seek to provide employers with clarification around key issues including: Read more
Now that a federal judge has issued a preliminary injunction staying implementation of the new DOL regulations revising salary thresholds for determining application of the white collar minimum wage and overtime pay exemptions, otherwise slated to go into effect on December 1st, what happens next, and how quickly will that occur? Here are the possibilities.
- An interlocutory appeal to the 5th Circuit Court of Appeals. How that comes out is anyone’s guess, but the case is vulnerable in its analysis, as detailed below.
- Congressional Action that renders the decision academic. On September 28, 2016, the House of Representatives passed H.R. 6094, titled Regulatory Relief for Small Business, Schools, and Nonprofits Act. The bill would have changed the effective date of the revised overtime regulations from December 1, 2016 until June 1, 2017. With a Republican majority in both the House and Senate, there is a very real possibility that some form of law will be filed and passed in 2017. The question of course is what will that bill look like – for examples, will it exempt “small business”, and will it change the minimum salary amounts and/or remove automatic indexing?
On May 9, the U.S. Equal Employment Opportunity Commission issued a new Resource Document that advocates the use employer-provided leaves of absence as accommodation for an employee’s disability. According to the press release announcing the publication of the document, titled Employer-Provided Leave and the Americans with Disabilities Act, this new resource attempts to address the “troubling trend” that is the “prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.” Claiming that the Resource Document creates no new agency policy, the EEOC describes the document as simply “one in a series of EEOC Resource Documents” that “consolidates existing guidance on ADA and leave into one place.”
The Resource Document covers six main topics, giving specific examples for each. These topics, and one example provided for each, are:
- Equal Access to Leave Under an Employer’s Leave Policy. Here, the EEOC simply asserts that “employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees.” Given that this has been the law of the land for many years, it is likely that the EEOC included this statement in its Resource Document to demonstrate that it is not creating new agency policy, but simply consolidating existing guidance into one place.
Example: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.
- Granting Leave as a Reasonable Accommodation. The EEOC describes its policy as requiring employers “to change the way things are customarily done” (emphasis in the original). To that end, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation, when the employer does not offer leave as an employee benefit, when the employee is not eligible for leave under the employer’s policy, or when the employee has exhausted his or her available leave. The practical effect of this principle is to extend FMLA leave, or to provide FMLA leave to employees who are not eligible for such leave.
Example: An employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment for a disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.
- Leave and the Interactive Process Generally. According to the Resource Document, “[w]hen an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA” (emphasis added). If the request for leave cannot be addressed under an employer’s existing leave program, the FMLA or similar state or local law, or the state workers’ compensation program, the employer must engage in the “interactive process,” to obtain relevant information to determine whether the employee has a condition that is a disability under the ADA, and to determine the feasibility of providing the leave as a reasonable accommodation.
Example: An employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted.
- Maximum Leave Policies. Many employers have maximum leave policies that provide for automatic or administrative termination for all employees who exceed the maximum amount of leave. The Resource Document makes clear that although such policies are not per se unlawful, employers must consider modifying maximum leave policies to grant leave beyond the maximum allowed as a reasonable accommodation for disability-related absences. In other words, employers must make a case-by-case assessment of an employee’s situation and need for leave before terminating the employee in accordance with a maximum leave policy.
Example: An employer is not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employee has requested a reasonable accommodation, and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if granting an exception to the unplanned absence policy would cause undue hardship.
- Return to Work and Reasonable Accommodation (Including Reassignment). The EEOC unequivocally states that an employer “will violate the ADA if it requires an employee with a disability to have no medical restrictions” before returning to work. In other words, a “100% healed or recovered” policy is unlawful if the employee can perform the essential functions of the job with or without reasonable accommodation. The EEOC also takes the position that if an employee cannot perform the essential functions of his or her job even with a reasonable accommodation, the employer must place the employee in a vacant position for which he or she is qualified without requiring the employee to compete with other applicants for the position.
Example: An employee with a disability requests and is granted two months of medical leave for her disability. Three days after returning to work she requests as reasonable accommodations for her disability an ergonomic chair, adjusted lighting in her office, and a part-time schedule for eight days. In response, the company requires the employee to continue on leave and informs her that she cannot return to work until she is able to work full-time with no restrictions or accommodations. The employer may not prohibit the employee from returning to work solely because she needs reasonable accommodations (though the employer may deny the requested accommodations if they cause an undue hardship). If the employee requires reasonable accommodations to enable her to perform the essential functions of her job and the accommodations requested (or effective alternatives) do not cause an undue hardship, the employer’s requirement violates the ADA.
- Undue Hardship. The EEOC reiterates that employers are not required to provide reasonable accommodation if to do so would cause “undue hardship.” Importantly, the EEOC clearly states that “indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship.” Otherwise, however, the EEOC offers no further clarity to what constitutes “undue hardship” beyond what has already been provided in previous guidance. As always, factors to be considered include the amount and/or length of leave required, the frequency of leave, the predictability of intermittent leave, and the impact on the employer’s operations and its ability to serve customers and clients in a timely manner.
Example: An employee has exhausted both his FMLA leave and the additional eight weeks of leave available under the employer’s leave program, but requires another four weeks of leave due to his disability. In determining whether an undue hardship exists, the employer may consider the impact of the 20 weeks of leave already granted and the additional impact on the employer’s operations in granting four more weeks of leave.
The concept of leave as a reasonable accommodation is not new. For many years, the Equal Employment Opportunity Commission has taken the position that a leave of absence is a form of reasonable accommodation under the Americans with Disabilities act if necessitated by an employee’s disability, including leave that exceeds a company’s normal leave allowance. Nevertheless, and despite the fact that the EEOC claims that the document creates no new agency policy, employers are on notice that the EEOC will scrutinize all refusals to grant an employee a leave of absence as a reasonable accommodation. Beware.
President Obama signed the “Defend Trade Secrets Act of 2016” into law on May 11th. The Act amends the Economic Espionage Act of 1996 to provide a federal private right of action for trade secret misappropriation and theft. Remedies include actual damages, injunctive relief, and exemplary damages and attorneys’ fees for willful and malicious misappropriation. The Act does not preempt state law, meaning that plaintiffs will now have the option of proceeding under either state or federal law when faced with a threat to trade secrets.
The Act also provides immunity for certain disclosures made to government officials or attorneys. Specifically, the Act provides that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a government official or an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other filing in a lawsuit or other proceeding, if such filing is made under seal. Likewise, an employee who files a retaliation lawsuit for reporting a suspected violation of law may disclose the trade secret to his or her attorney and may use the trade secret information in a court proceeding if the individual files any document containing trade secret information under seal and does not disclose the trade secret except pursuant to court order.
Importantly, effective May 11, 2016, the Act requires employers to provide notice of this immunity in any contract or agreement with an employee that governs the use of trade secrets or other confidential information. Employers who fail to provide the required notification cannot recover attorneys’ fees or exemplary damages under the Act. The notice of immunity can be done in one of two ways. One way is to incorporate fully the notice of immunity into confidentiality agreements. The second way is to put the notice of immunity in the company’s policy for reporting a suspected violation of law, and then to cross-reference that policy in confidentiality agreements. For simplicity, we recommend that employers reproduce the statutory language in the notice of immunity.
By: Alexandra (Sasha) Thaler
The Department of Labor has extended the public comment period on its Proposed Rule for Federal Contractor Paid Sick Leave, based on public comments received and the interest that has been expressed in this matter. The comment period was due to close on March 28; comments may now be submitted through April 12, 2016.
See our earlier post for more detail on the Proposed Rule.
The Department of Labor (DOL) announced last Thursday that it has posted for comment its Proposed Rule implementing President Obama’s September 7, 2015 Executive Order (EO 13706), which requires certain federal contractors and their subcontractors to provide employees with up to 7 days (56 hours) of paid sick leave annually. The rule affects contractors entering into new contracts on or after January 1, 2017 that are covered by the Service Contract Act, the Davis-Bacon Act, or the Fair Labor Standards Act, concessions contracts, and service contracts in connection with federal property or lands. These contractors will need to include a new contract clause in applicable solicitations and government contracts, included as Appendix A to the Proposed Rule.
Under the new rule, employees must be allowed to earn paid sick time at a rate of 1 hour for every 30 hours worked. This mirrors many recently enacted state and municipal sick time laws across the country. However, accruals may not be capped at less than 56 hours, an amount that is higher than required by some jurisdictions, including Massachusetts and California.
The Proposed Rule provides that sick time must be made available for absences due to the employee’s own physical or mental illness, injury or medical condition, and for obtaining diagnosis, care or preventative treatment for the employee, as well as for caring for family members for the same reasons, and for absences relating to domestic violence, sexual assault or stalking (including for medical, legal and other needs that may arise in those circumstances). In a departure from some existing state and local laws, however, the definition of a family member is quite broad, and includes not only children, parents, spouses and domestic partners, but also “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
The new federal contractor requirement also has some of the same aspects of other sick time laws that are most likely to cause problems in administration, such as allowing employees to use sick time in 1-hour increments, requiring carryover of unused hours from year to year, requiring reinstatement of unused time following interruptions in service of up to 12 months, and requiring sick time to be granted even if the employee provides little or no prior notice.
Due to the rash of activity in this area in recent years, many employers have already implemented paid sick time policies, while others have had comprehensive PTO policies for some time. The Proposed Rule permits existing sick time, PTO or other time off policies to substitute for the new paid sick time requirement so long as those policies meet the minimum standards of the new rule. Employers that plan to rely on existing policies to meet the new requirements should consult with experienced employment counsel to assess whether they fully meet the new requirements. The good news is that employers will have until January 1, 2017 to implement compliant policies. The Wage and Hour division invites comments on the proposed rule until March 28, 2016.
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