Eldercare Discrimination Claims are on the Rise

May 31, 2016

Well, it has been coming along very discreetly and now we have a not so new area to be concerned about–Eldercare discrimination.

Of course, workers’ care giving responsibilities are not limited to childcare, and include many other forms of care giving. An increasing proportion of care giving goes to the elderly, and this trend will likely continue as the Baby Boomer population ages. As with childcare, women are primarily responsible for caring for society’s elderly, including care of parents, in-laws, and spouses. Unlike childcare, however, eldercare responsibilities generally increase over time as the person cared for ages, and eldercare can be much less predictable than childcare because of health crises that typically arise. As eldercare becomes more common, workers in the “sandwich generation,” those between the ages of 30 and 60, are more likely to face work responsibilities alongside both childcare and eldercare responsibilities.

It is now some nine years later and it appears that employers are slowly getting the message that this somewhat hidden area is not starting to rise. The “buzz” according to Fortune Magazine is more employees are suing over family care—and winning (there’s a shocker).

Between 1998 and 2012, federal employment discrimination cases declined overall. But not employee lawsuits over family-leave discrimination: They shot up 590%. In the past 10 years … the fastest-growing type—up 650%—was brought by employees who were taking care of elderly relatives. Nor is this a “women’s issue.” Well over a third (39%) of those eldercare actions were brought by men, who also filed 336% more paternity-leave lawsuits than in the decade before.

For employers, this gets expensive. Plaintiffs have been winning cases about 70% of the time, the study says, or more than twice as often as they prevail in other kinds of employment suits. Altogether, litigation over what the study calls “FRD,” for family responsibilities discrimination, has cost employers almost half a billion dollars ($477,009,417) between 2006 and 2015, more than double what it cost in the previous decade. And that’s a conservative estimate, because it doesn’t include the cost of confidential out-of-court settlements.

This issue hits workers between the ages noted above because they are bookended by care giving responsibilities. They not only have their children to which to attend, but also their parents. Employers that mis-perceive employees dedication to their families as a lack of dedication to their jobs are missing the bigger picture. It is not only the right thing to grant your employees the flexibility to attend to family issues when they arise, but it is also the legal thing. $477 million dollars suggests that employers, unfortunately, have not received this message.

Get ready! Prepare your policies and make sure you follow them to the letter and as always do not fire anyone on a leave of absence or who has not returned timely.


New Overtime Law is Now a Reality!

May 23, 2016

Well I have been writing about this for almost a year and here it is. The Obama administration and Secretary of Labor Perez announced the publication of the Department of Labor’s final rule updating the overtime regulations under the Fair Labor Standards Act (FLSA).  The final rule increases the minimum salary to qualify for the white-collar exemptions from $455 per week to $913 per week ($47,476 annually).  This is slightly less than the increase to $50,440 the DOL had earlier proposed.  Under the final rule, the minimum salary to qualify for the FLSA’s highly compensated employee exemption will rise from $100,000 to $134,004 (higher than had earlier been proposed by the Department of Labor). These salary thresholds are further subject to automatic increases every three years, beginning January 1, 2020.

Notably, under the new rules, employers may use non-discretionary bonuses and incentive payments (including commissions) that are paid quarterly or more frequently to the employee, to satisfy up to 10% of the minimum salary threshold. The new rule further amends the regulations to provide as follows: “If by the last pay period of the quarter the sum of the employee’s weekly salary plus nondiscretionary bonus, incentive, and commission payments received does not equal 13 times the weekly salary amount required by § 541.600(a), the employer may make one final payment sufficient to achieve the required level no later than the next pay period after the end of the quarter. Any such final payment made after the end of the 13-week period may count only toward the prior quarter’s salary amount and not toward the salary amount in the quarter it was paid.”

The effective date of the final rule (when employers must comply with the new salary thresholds for exempt employees) is December 1, 2016.

The final rule does not include any changes to the duties tests, despite the DOL having solicited input on whether such changes should be made.

California employers should note that the new minimum salary threshold for exempt status under the FLSA is now even higher than the exempt salary threshold under California law (currently $41,600, increasing to $43,680 on January 1, 2017).  California employers will have to ensure that their exempt employees meet the higher salary threshold under the FLSA, while also meeting California’s stricter duties test (which requires an employee to spend more than 50% of his or her time on exempt duties).  Additionally, it is not clear whether California will adopt the new federal regulation allowing employers to count non-discretionary bonuses and incentive payments toward satisfying the minimum salary threshold. Currently, there is no such provision under California law.  Finally, employers are reminded that California, unlike the FLSA, does not recognize a “highly compensated employee exemption” that allows an employer to treat an employee as exempt based solely on the employee’s compensation level and without regard to whether the employee spends more than 50 percent of his or her time on exempt duties.

Employers should review their exempt classifications to ensure that employees meet the new minimum salary threshold.  Employers may need to increase salary to retain exempt status or reclassify employees to non-exempt if their salary is below the new threshold (simply stated, managers and supervisors would now have to punch in and out and be paid for any overtime that they work).

New EEOC Guidelines on ADA Leaves of Absence

May 15, 2016

What does the EEOC want you know about your treatment of employees’ leaves of absence under the ADA? A whole bunch, according to this guidance, published recently by the agency. The guidance, aptly entitled Employer-Provided Leave and the Americans with Disabilities Act, addresses, according to the EEOC, “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” which the agency believes “serve as systemic barriers to the employment of workers with disabilities.” In my experience, employers don’t deny leaves because they are trying to discriminate against their employees. Instead, they are simply trying to do their best they can to balance the operational needs of their business against the medical needs of an employee. Sometimes, the business wins. The EEOC is trying to level the playing field by making sure that employers consider leaves in all cases when appropriate. The guidance is broken down into six key areas, which highlight various issues for employers to consider when employees need medical leaves of absence not covered by, or in addition to, the FMLA.

1. Equal Access to leave under an Employer’s Leave Policy. Employers must provide employees with disabilities access to the same leaves of absence rules as non-disabled employees.

2. Granting Leave as a Reasonable Accommodation. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.

3. Leave and the Interactive Process Generally. After an employee requests leave as a reasonable accommodation, the employer should promptly engage in an “interactive process” with the employee, a discussion that focuses on the reasons for the leave, whether it’s blocked or intermittent, and its expected duration, and which may include confirming information from the employee’s health care provider.

4. Maximum Leave Policies. Policies that place a hard cap on an employee’s leave of absence, without consideration of modifications or extensions as reasonable accommodations, are unlawful under the ADA.

5. Return to Work and Reasonable Accommodation (Including Reassignment). Avoid “100% Healed” policies, which mandate that an employee be fully recovered before returning to work and are unlawful. Instead, considered reasonable accommodations that will enable an employee to return before 100% healed, which might include transfer to a vacant position.

6. Undue Hardship. Depending on the duration and frequency of the leave, and the impact on the employer’s business, the leave of absence might be an undue hardship that an employer need not offer. An open-ended, indefinite leave is always an undue hardship; otherwise, leaves should be evaluated on a case-by-case basis. Leave of absence issues continue to confound employers.

You have heard me say it many times. Never fire an employee who is out on a leave of absence and do not terminate them upon their return from a leave of absence.


Amended medical marijuana bill offers employers higher protections

May 9, 2016

The issue of privacy rights v. workplace rights with respect to the use of marijuana and an employers’ policy against such just took a turn for the better. There are a number of states that have passed laws legalizing marijuana either for recreational or medicinal use. The U.S. Supreme Court has dealt with this issue as far back as twenty years ago with a California case. In that case the Court stated employers do not have to honor the use of medicinal marijuana but no specific laws were enacted to protect an employer from a lawsuit. Now, one state has done just that which hopefully will be a growing trend nationally to help employers.

Ohio now has legalized marijuana and their legislature has passed a law which provides some much needed help to employers and expands the rights of employers in regard to employees using marijuana. The law, as it now reads, still would not require an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana. It also, however, would offer the following clear and unambiguous protections for employers.

  • It would permit an employer to refuse to hire, discharge, discipline, or otherwise take an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use, possession, or distribution of medical marijuana;
  • It would permit an employer to establish and enforce a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;
  • It would not interfere with any federal restrictions on employment, including the regulations adopted by the United States department of transportation for drivers;
  • It would prohibit a person from commencing a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana;
  • It would not impact rebates or discounts on workers’ compensation premium rates to employers that participate in a drug-free workplace program; and
  • It makes clear that person who is discharged from employment because of that person’s use of medical marijuana is ineligible for unemployment compensation.

These types of laws obviously provides necessary protections for employers by enabling them to maintain safe workplaces and enforce reasonable human resources policies. Hopefully some of the other states will adopt similar legislation and send a message that legalized marijuana in any form is detrimental to our society and especially the workplace.

Things Employers Need to Know for 2016

May 2, 2016

There are issues brewing throughout 2016 that employers on a National basis need to be aware of. The following represents an overview by government agency that employers need to know.

Equal Employment Opportunity Commission (EEOC)

Systemic Discrimination

The EEOC is focused on uncovering and challenging policies and practices that intentionally or unintentionally target specific groups (i.e. gender, race, ethnicity, economic, etc.). Areas of particular interest for which employers should be aware include policies and practices impact hiring/firing decisions, rates of pay, background checks, wellness programs, and accommodations for and/or discrimination against pregnant women and LGBT employees.

Looking Ahead: Major Rule Changes

  • Revised EEO-1: The new EEO-1 form would significantly expand reporting requirements to include pay data by gender, race, and ethnicity. This is aimed at discovering and addressing pay equity (again both intentional and unintentional). However, the U.S. Chamber of Commerce has been quite vocal in their opposition of this expanded reporting requirement questioning whether or not the additional information will provide the information necessary to determine if/when pay is inequitable.
  • LGBT Discrimination: Already in the works, the EEOC has announced that they will take cases based on sexual orientation and gender identity. This is despite the fact that Title 7 technically does not include specific language that would group LGBT individuals together as a protected class. With Congress unlikely to act on the issue, the EEOC is simply expanding their interpretation of the Title 7 language.

Occupational Safety and Health Administration (OSHA)

  • Employers should also be aware that even in the absence of an “emphasis program” or specific safety standard on the books, OSHA can always invoke the “General Duty Clause” and cite an employer for a situation that is uncovered that they feel poses a safety or health hazard to their employees.
  • Each region of the country has its own set of emphasis programs based on “certain high risk workplace conditions or industries” that are more common in that geographic area.

Looking Ahead: New Standards & Penalties

  • Increasing Penalties: Likely to hit this summer, the penalties for OSHA violations are going up for the first time since 1990. Violations are grouped into categories, i.e. Willful, Serious, Other-Than-Serious, De Minimis, Failure to Abate, and Repeated, and are largely based on how imminent the danger was and whether or not the employer knew about the violation. Not only are the penalties going up for all categories, but they will continue to go up across the board in accordance with CPI year over year.
  • The Rules Have Already Changed: Not exactly a “look ahead”, but there are definitely some rules that have been tweaked in noteworthy ways in the very recent past of which employers should be aware. Key examples noted during the presentation include: whistleblower protections—language changed from “motivating factor” to “good cause”; injury reporting changes—condensed time frames for reporting fatalities, injuries, etc.; repeat violation statute of limitations—lengthened from 3 years to 5 years; and new standards for confined spaces—mandatory training.

Department of Labor (DOL), Wage & Hour Division (WHD)


The misclassification of workers that the DOL is currently focused on fall into three major categories:

  1. Exempt vs. non-exempt
  2. Independent contractor status
  3. Unpaid interns/volunteers

The method by which employees are paid as well as the amount of the compensation provided (if any) are largely determined by their classification. For this reason, job descriptions and detailed performance evaluations are key to maintaining accurate up to date classifications for all employees.

Especially when it comes to accurately assigning the exemption status, employers (and specifically HR) should know exactly what job duties each employee undertakes on a day to day basis.

Armed with this knowledge and walking through each step of the specific classification tests, employers should be able to accurately classify their employees. Employers shouldn’t try to force a position into a certain classification regardless of whether it’s for their own or the employee’s benefit. However, when in doubt, the attorneys repeatedly reinforced that “If it walks like a duck and quacks like a duck…” it’s probably a duck. In short, use common sense.

Looking Ahead: Exemption Status

  • Overtime Pay: Although it is still in the rulemaking stage, the DOL has proposed and is moving ahead with significant increases to the minimum dollar amount that qualifies a position to be exempt from FLSA overtime. Currently, to be considered exempt from overtime pay an individual must be paid more than $455/week ($23,660 annually). Under the new proposed rule this figure would more than double to $970/week or $50,440 annually. There are also changes in the works for the minimum amounts for “highly compensated” employees.
  • Exemption Test: Currently the DOL has not made any changes to the exemption test itself, but there is significant discussion around whether or not changes should be considered in the near future. Another challenging issue that the DOL is likely to weigh in on sooner than later is that of electronic device usage after hours and overtime pay.