How to avoid spending an unnecessary $525 this year

June 2, 2016 at 3:36 pm | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, New employment laws/amendments, retaliation | Leave a comment
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The U.S. Equal Employment Opportunity Commission on Wednesday June 1, 2016 increased the maximum penalty for employers that violate notice posting provisions of Title VII and other statutes from $210 to $525 per violation.  To avoid this $525 penalty, simply make sure your mandatory postings are up to date AND POSTED regarding Title VII and other anti-discrimination, anti-harassment and anti-retaliation laws.  Simple task for employers, post the laws and avoid paying $525 – think of what else you could do with $525 instead of paying a fine for simply failing to tack up a poster.

Placing such postings in an area where employees will see them is key to compliance here people!  Posting on the bathroom door, on the inside of the bathroom door, on the refrigerator, in a conspicuous spot in the break room are all good places to ensure that the postings are seen.

Reading this blog post does not create an attorney client relationship between Hultman Sensenig + Joshi and the reader, nor does this blog’s publication constitute legal advice to the reader.  If the Firm can be of assistance, please let us know.  

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DOL’s new Overtime Rules – this 3 minute video from the U.S. DOL is worth your time

May 24, 2016 at 3:59 pm | Posted in Uncategorized | Leave a comment
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https://www.dol.gov/featured/overtime

This simple presentation provides background as to the ideals behind the recent DOL overtime and salary basis changes.  Changes are effective in December of this year so employers need to look at their job descriptions, look at the hours worked, and engage in some analysis as to their business needs in order to remain complaint with the updated regulations.

 

From Hultman Sensenig + Joshi:  Reading this blog does not create an attorney client relationship nor is legal advice given in this blog.  The overtime issues are very serious for employers and we do suggest reviewing your policies and procedures to prepare for the upcoming changes – and enforcement efforts.  Let us know if we can help you.

 

The EEOC issues updated guidance on ADA related leave – as if there weren’t enough updates to deal with in 2016!

May 10, 2016 at 11:57 pm | Posted in ADA, discrimination, EEOC, Employee, Employer, Employment Law, FMLA, harassment, Legal, New employment laws/amendments, retaliation | Leave a comment
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Directly from the EEOC’s website:

Employer-Provided Leave and the Americans with Disabilities Act[1]

Introduction

The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title I of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in employment and requires that covered employers (employers with 15 or more employees) provide reasonable accommodations to applicants and employees with disabilities that require such accommodations due to their disabilities.

A reasonable accommodation is, generally, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”[2] That can include making modifications to existing leave policies and providing leave when needed for a disability, even where an employer does not offer leave to other employees.[3] As with any other accommodation, the goal of providing leave as an accommodation is to afford employees with disabilities equal employment opportunities.

The EEOC continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA. For example, some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation. Employer policies that require employees on extended leave to be 100 percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work. Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave.

This document seeks to provide general information to employers and employees regarding when and how leave must be granted for reasons related to an employee’s disability in order to promote voluntary compliance with the ADA. It is consistent with the EEOC’s regulations enforcing Title I of the ADA, as well as the EEOC’s 2002 Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (a link to the Guidance appears at the end of this document).

Equal Access to Leave Under an Employer’s Leave Policy

Employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees. Many employers offer leave — paid and unpaid — as an employee benefit. Some employers provide a certain number of paid leave days for employees to use as they wish. Others provide a certain number of paid leave days designated as annual leave, sick leave, or “personal days.”

If an employer receives a request for leave for reasons related to a disability and the leave falls within the employer’s existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.

Example 1: An employer provides four days of paid sick leave each year to all employees and does not set any conditions for its use. An employee who has not used any sick leave this year requests to use three days of paid sick leave because of symptoms she is experiencing due to major depression[4] which, she says, has flared up due to several particularly stressful months at work. The employee’s supervisor says that she must provide a note from a psychiatrist if she wants the leave because “otherwise everybody who’s having a little stress at work is going to tell me they are depressed and want time off.” The employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based on an employee’s statement that he or she needs leave. The supervisor’s action violates the ADA because the employee is being subjected to different conditions for use of sick leave than employees without her disability.

Example 2: 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.

Employers are entitled to have policies that require all employees to provide a doctor’s note or other documentation to substantiate the need for leave.

Example 3: An employee with a disability asks to take six days of paid sick leave. The employer has a policy requiring a doctor’s note for any sick leave over three days that explains why leave is needed. The employee must provide the requested documentation.

Granting Leave as a Reasonable Accommodation

The purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave. As noted above, requests for leave related to disability can often fall under existing employer policies. In those cases, the employer’s obligation is to provide persons with disabilities access to those policies on equal terms as similarly situated individuals. That is not the end of an employer’s obligation under the ADA though. 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. (See below for a discussion of undue hardship.) That is the case even when:

the employer does not offer leave as an employee benefit;
the employee is not eligible for leave under the employer’s policy; or
the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).
Reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy. Also, as is the case with all other requests for accommodation, an employer can deny requests for leave when it can show that providing the accommodation would impose an undue hardship on its operations or finances.[5]

Example 4: An employer provides 10 days of paid annual leave and four days of paid sick leave each year to employees who have worked for the company fewer than three years. After three years, employees are eligible for 15 days of paid annual leave and eight days of paid sick leave. An employee who has worked for only two years has used his 10 days of paid annual leave and now requests six days of paid sick leave for treatment for his disability. Under its leave program, the employer must provide the employee with four days of paid sick leave but may refuse to provide paid leave for the two additional days of sick leave because the employee has not worked long enough to earn this benefit. However, the employer must provide two additional days of unpaid sick leave as a reasonable accommodation unless it can show that providing the two additional days would cause undue hardship.

Example 5: 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.

Example 6: An employer’s leave policy explicitly prohibits leave during the first six months of employment. An employee who has worked for only three months needs four weeks of leave for treatment of a disability and the employer tells him that if he takes leave, he will be fired. Although the employee is ineligible for leave under the employer’s leave program, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship. If the employer could provide unpaid leave without causing an undue hardship, but fires the individual instead, the employer will have violated the ADA.

Example 7: An employer’s leave policy does not cover employees who work fewer than 30 hours per week. An employee who works 25 hours per week and who has not worked enough hours to be eligible for leave under the FMLA requests one day of leave each week for the next three months for treatment of a disability. The employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.

An employer may not penalize an employee for using leave as a reasonable accommodation. Doing so would be a violation of the ADA because it would render the leave an ineffective accommodation; it also may constitute retaliation for use of a reasonable accommodation.[6]

Example 8: An employee who is not covered by the FMLA requires three months of leave due to a disability. The employer determines that providing three months of leave would not cause undue hardship and grants the request. Instead of giving the employee an unsatisfactory rating during her next annual performance appraisal because she failed to meet production quotas while she was on leave, the employee’s supervisor should evaluate the employee’s performance taking into account her productivity for the months she did work.

Leave and the Interactive Process Generally

Communication after an Employee Requests Leave

As a general rule, the individual with a disability – who has the most knowledge about the need for reasonable accommodation – must inform the employer that an accommodation is needed. When 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. However, if the request for leave can be addressed by an employer’s leave program, the FMLA (or a similar state or local law), or the workers’ compensation program, the employer may provide leave under those programs. But, if the leave cannot be granted under any other program, then an employer should promptly engage in an “interactive process” with the employee — a process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.

The information required by the employer will vary from one employee to another. Sometimes the disability may be obvious; in other situations the employer may need additional information to confirm that the condition is a disability under the ADA. However, most of the focus will be on the following issues:

the specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy);
whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
when the need for leave will end.
Depending on the information the employee provides, the employer should consider whether the leave would cause an undue hardship (see below).

An employer may obtain information from the employee’s health care provider (with the employee’s permission) to confirm or to elaborate on information that the employee has provided. Employers may also ask the health care provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave). Information from the health care provider may also assist the employer in determining whether the leave would pose an undue hardship. An employee requesting leave as a reasonable accommodation should respond to questions from an employer as part of the interactive process and work with his or her health care provider to obtain requested medical documentation as quickly as possible.

Communication During Leave and Prior to Return to Work

The interactive process may continue even after an initial request for leave has been granted, particularly if the employee’s request did not specify an exact or fairly specific return date, or when the employee requires additional leave beyond that which was originally granted.

Example 9: 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.

However, an employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it may reach out to an employee on extended leave to check on the employee’s progress.

Example 10: An employee with a disability is granted three months of leave to recover from a surgery. After one month, the employer phones the employee and asks how the employee is doing and whether there is anything the employee needs from the employer to help the employee recover and return to work. That is an acceptable request for information. Additionally, a week prior to the end of the employee’s leave, the employer again reaches out to the employee to ask whether the employee is able to return to work at the end of leave and if any additional accommodations are required. This is also an acceptable request for information.

Maximum Leave Policies

The ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.

Example 11: An employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year. An employee uses the full 12 weeks of FMLA leave for her disability but still needs five additional weeks of leave. The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship. The Commission takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship. However, there may be legitimate reasons that establish undue hardship, such as the impact on an employer’s operations from the leave already taken and/or from granting additional leave. Also, the employer may consider whether other reasonable accommodations may enable the employee to return to work sooner than the employee anticipates, as long as those accommodations would be consistent with the employee’s medical needs.

Types of Maximum Leave Policies

Maximum leave policies (sometimes referred to as “no fault” leave policies) take many different forms. A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both extended and intermittent leave. Other varieties exist though. Some maximum leave policies have caps much higher than 12 weeks. Others, particularly those not covered by the FMLA, set lower overall caps. Employers also frequently implement policies that limit unplanned absences. For example, a policy might permit employees to have no more than five unplanned absences during a 12-month period, after which they will be subject to progressive discipline or termination.

Employees with disabilities are not exempt from these policies as a general rule. However, such policies may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can show that doing so would cause undue hardship.

Example 12: 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.

Communication Issues for Employers with Maximum Leave Policies

Many employers, especially larger ones and those with generous maximum leave policies, may rely on “form letters” to communicate with employees who are nearing the end of leave provided under an employer’s leave program. These letters frequently instruct an employee to return to work by a certain date or face termination or other discipline. Employers who use such form letters may wish to modify them to let employees know that if an employee needs additional unpaid leave as a reasonable accommodation for a disability, the employee should ask for it as soon as possible so that the employer may consider whether it can grant an extension without causing undue hardship. If an employer relies on a third party provider to handle lengthy leave programs, including short- and long-term disability leave programs, it should ensure that any automatic form letters generated by these providers comply with the employer’s obligations under the ADA.

Employers who handle requests under their regular leave policy separately from requests for leave as a reasonable accommodation should ensure that those responsible communicate with one another to avoid mishandling a request for accommodation. For example, an employer may hire a contractor to handle its long-term disability program, but have its human resources department handle all requests for leave as a reasonable accommodation. The employer should ensure that the contractor is instructed to forward to the human resources department, in a timely manner, any requests for additional leave beyond the maximum period granted under the long-term disability program, and to refrain from terminating the employee until the human resources department has the opportunity to engage in an interactive process. The human resources department should contact the employee as soon as possible to explain that it will be handling the request for additional leave as a reasonable accommodation, and that all further communication from the employee on this issue should be directed to that department.

An employer and employee should continue to communicate about whether the employee is ready to return to work or whether additional leave is necessary. For example, the employee may contact a supervisor, human resources official, or anyone else designated by the employer to handle the leave to provide updates about the employee’s ability to return to work (with or without reasonable accommodation), or about any need for additional leave.

If an employee requests additional leave that will exceed an employer’s maximum leave policy (whether the leave is a block of time or intermittent), the employer may engage in an interactive process as described above, including obtaining medical documentation specifying the amount of the additional leave needed, the reasons for the additional leave, and why the initial estimate of a return date proved inaccurate. An employer may also request relevant information to assist in determining whether the requested extension will result in an undue hardship.

Return to Work and Reasonable Accommodation (Including Reassignment)
Employees on leave for a disability may request reasonable accommodation in order to return to work. The request may be made by the employee, or it may be made in a doctor’s note releasing the employee to return to work with certain restrictions.

100% Healed Policies

An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions — that is, be “100%” healed or recovered — if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.[7] Similarly, an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk but it cannot show that the individual is a “direct threat.” Direct threat is the ADA standard for determining whether an employee’s disability poses a “significant risk of substantial harm” to self or to others. If an employee’s disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.

Example 13: A clerk has been out on medical leave for 16 weeks for surgery to address a disability. The employee’s doctor releases him to return to work but with a 20-pound lifting restriction. The employer refuses to allow the employee to return to work with the lifting restriction, even though the employee’s essential and marginal functions do not require lifting 20 pounds. The employer’s action violates the ADA because the employee can perform his job and he does not pose a direct threat.

Example 14: 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.

Issues Related to the Interactive Process and Return to Work

If an employee returns from a leave of absence with restrictions from his or her doctor, the employer may ask why the restrictions are required and how long they may be needed, and it may explore with the employee and his doctor (or other health care professional) possible accommodations that will enable the employee to perform the essential functions of the job consistent with the doctor’s recommended limitations. In some situations, there may be more than one way to meet a medical restriction.

Example 15: An employee with a disability has been out on leave for three months. The employee’s doctor releases her to return to work, but imposes a medical restriction requiring her to take a 15-minute break every 90 minutes. Taking a rest break is a form of reasonable accommodation. When the employer asks the purpose of the break, the doctor explains that the employee needs to sit for 15 minutes after standing and walking for 90 minutes. The employer asks if the employee could do seated work during the break; the doctor says yes. To comply with the ADA, the employer rearranges when certain marginal functions are performed so that the employee can perform those job duties when seated and therefore not take the 15-minute break.

If necessary, an employer should initiate the interactive process upon receiving a request for reasonable accommodation from an employee on leave for a disability who wants to return to work (or after receiving a doctor’s note outlining work restrictions). Some issues that may need to be explored include:

the specific accommodation(s) an employee requires;
the reason an accommodation or work restriction is needed (that is, the limitations that prevent an employee from returning to work without reasonable accommodation);
the length of time an employee will need the reasonable accommodation;
possible alternative accommodations that might effectively meet the employee’s disability-related needs; and
whether any of the accommodations would cause an undue hardship.

Reassignment

In some situations, the requested reasonable accommodation will be reassignment to a new job because the disability prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship. The Commission takes the position that if reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions.[8] Reassignment does not include promotion, and generally an employer does not have to place someone in a vacant position as a reasonable accommodation when another employee is entitled to the position under a uniformly-applied seniority system.[9]

Example 16: A medical assistant in a hospital required leave as a reasonable accommodation for her disability. Her doctor clears her to return to work but requires that she permanently use a cane when standing and walking. The employee realizes that she cannot perform significant parts of her job while using a cane and requests a reassignment to a vacant position for which she is qualified. The hospital violates the ADA if it fires the employee rather than reassigning her to a vacant position for which she is qualified and in which she could perform the essential functions while using a cane.

Undue Hardship

When assessing whether to grant leave as a reasonable accommodation, an employer may consider whether the leave would cause an undue hardship. If it would, the employer does not have to grant the leave. Determination of whether providing leave would result in undue hardship may involve consideration of the following:

the amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);
the frequency of the leave (for example, three days per week, three days per month, every Thursday);
whether there is any flexibility with respect to the days on which leave is taken (for example, whether treatment normally provided on a Monday could be provided on some other day during the week);
whether the need for intermittent leave on specific dates is predictable or unpredictable (for example, the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);
the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.

In many instances an employee (or the employee’s doctor) can provide a definitive date on which the employee can return to work (for example, October 1). In some instances, only an approximate date (for example, “sometime during the end of September” or “around October 1”) or range of dates (for example, between September 1 and September 30) can be provided. Sometimes, a projected return date or even a range of return dates may need to be modified in light of changed circumstances, such as where an employee’s recovery from surgery takes longer than expected. None of these situations will necessarily result in undue hardship, but instead must be evaluated on a case-by-case basis. However, 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, and so does not have to be provided as a reasonable accommodation.

In assessing undue hardship on an initial request for leave as a reasonable accommodation or a request for leave beyond that which was originally granted, the employer may take into account leave already taken — whether pursuant to a workers’ compensation program, the FMLA (or similar state or local leave law), an employer’s leave program, or leave provided as a reasonable accommodation.

Example 17: An employee has exhausted her FMLA leave but requires 15 additional days of leave due to her disability. In determining whether an undue hardship exists, the employer may consider the impact of the 12 weeks of FMLA leave already granted and the additional impact on the employer’s operations in granting three more weeks of leave.

Example 18: 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.

Example 19: An employer not covered by the FMLA initially grants an employee intermittent leave for a disability. After six months, the employer realizes that the employee is using far more leave than expected and asks for medical documentation to explain the additional use of leave and the outlook for the next six months. The documentation reveals that the employee could need as much leave in the coming six months as he already used. As a result of the increased number of absences, the employer has had to postpone meetings necessary to complete a project for one of the employer’s clients, in turn causing delays in meeting the client’s needs. In addition, the employer has had to reallocate some of the employee’s job duties, resulting both in increased workloads and changes in work priorities for coworkers that are interfering with meeting the needs of other clients. Based on this information, the employer determines that additional intermittent leave as described in the doctor’s letter would be an undue hardship.

Leave as a reasonable accommodation includes the right to return to the employee’s original position. However, if an employer determines that holding open the job will cause an undue hardship, then it must consider whether there are alternatives that permit the employee to complete the leave and return to work.

Example 20: An employer is not covered under the FMLA. An employee with a disability requires 16 weeks of leave as a reasonable accommodation. The employer determines that it can grant the request and hold open the job. However, due to unforeseen circumstances that arise after seven weeks of leave, the employer determines that it would be an undue hardship to continue holding the job open. The job is filled within three weeks by promoting a qualified employee. Meanwhile, the employer determines that the employee on leave is qualified for the now-vacant position of the promoted employee and that the job can be held open until the employee returns to work in six weeks. The employer explains the situation to the employee with a disability and offers the newly-vacant position as a reasonable accommodation.

Additional Information

The EEOC has issued a number of documents that discuss how the ADA addresses various leave issues:

Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html (see “Leave” under “Types of Reasonable Accommodations”)
Enforcement Guidance on Pregnancy Discrimination and Related Issues, http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (see section II.B., ADA and Reasonable Accommodation)
The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, http://www.eeoc.gov/policy/docs/fmlaada.html (see “Comparison of ADA and FMLA Leave” and “ADA Compliance When the FMLA Also Applies”)
Enforcement Guidance: Workers’ Compensation and the ADA, http://www.eeoc.gov/policy/docs/workcomp.html (see “Return to Work Decisions” and “Reasonable Accommodation”)
The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, http://www.eeoc.gov/facts/performance-conduct.html (see “Attendance issues”)
Additional information on the requirements of the ADA and section 501 of the Rehabilitation Act can be found on EEOC’s website, http://www.eeoc.gov.

[1] This document also applies to Federal employees protected under section 501 of the Rehabilitation Act, which has the same non-discrimination requirements as the ADA.

[2] 29 C.F.R. pt. 1630 app. §1630.2(o).

[3] Employers also may have to provide leave mandated by Federal, state, or local laws. For example, the Federal Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to provide up to 12 weeks of leave per year to eligible employees. The FMLA covers private sector employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year. The law also covers local, state, or Federal government agencies, as well as public or private elementary or secondary schools, regardless of the number of employees. An eligible employee must: (1) have worked for a covered employer for at least 12 months, (2) have worked at least 1,250 hours during the 12-month period immediately preceding the leave, and (3) work at a location where the employer has at least 50 employees within 75 miles. More information on the FMLA is available at http://www.dol.gov/whd/regs/compliance/whdfs28.pdf. The EEOC previously issued a Fact Sheet concerning the interaction of FMLA, ADA, and Title VII rights, available at https://www.eeoc.gov/policy/docs/fmlaada.html.

[4] All examples assume that the employee’s medical condition meets the broad definition of disability found in the ADA. For more information on the definition of disability, see http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm.

[5] The examples used in this document assume that the leave requested is “reasonable,” as that term is defined under U.S. Airways v. Barnett, 535 U.S. 391 (2002), and as discussed in the EEOC’s Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html. The examples also assume that leave is the only effective reasonable accommodation, meaning it alone meets the employee’s needs. But, as part of the interactive process an employer may discuss with an employee whether an alternative form of reasonable accommodation would meet the employee’s needs. In some situations, a combination of leave and other reasonable accommodations (for example, part-time work, telework, a number of breaks, and removal of marginal functions) may enable an employee to return to work sooner and therefore require less leave.

[6] Penalizing an employee for use of leave as a reasonable accommodation may also raise a disparate treatment issue if the employer grants similar amounts of leave to non-disabled employees but does not penalize them.

[7] See consent decree in EEOC v. Brookdale Senior Living Communities, Inc. (D. Colo. No. 14-cv-02643-KMT)(resolved August 17, 2015). EEOC alleged that the company refused an employee’s request to return to work after leave for fibromyalgia because she was unable to return to work without restrictions or accommodations. See also consent decree in EEOC v. Americold Logistics (W.D. Ky. No. 4:12-cv-47-JHM)(resolved June 14, 2013). In this case, the EEOC alleged that the employer refused to explore or to provide reasonable accommodation that would allow an employee with chronic lumbar back pain to return to work and instead fired the employee because she was not 100% healed. See also Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958 (7th Cir. 2014)(permitting an employer to require that an employee be 100% healed would negate the ADA’s requirement that an employer provide reasonable accommodation if it enables an employee to perform his job).

[8] See Question 29 in EEOC’s Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html.

For more information on the requirements and limitations of reassignment, see EEOC’s Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html.

From Hultman Sensenig + Joshi:  So many changes this year for employers from the various agencies – DOL and EEOC have issued many new policies for employers to review and incorporate into handbooks and manuals.  The EEOC’s Guidance is informative and helpful as the examples are concrete and provide some real insight into how the EEOC views ADA related leave.  Reading this blog does not result in an attorney client relationship between the reader and this blogger, nor is legal advice being given by the sharing of the educational information found in this blog.  

EEOC issues new Fact Sheet on LGBT/Transgender Bathroom Issues

May 5, 2016 at 3:22 am | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, LGBT, New employment laws/amendments, retaliation | Leave a comment
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Directly from the EEOC’s website:  

U.S. Equal Employment Opportunity Commission sent this bulletin at 05/02/2016 03:11 PM EDT

Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964

“Transgender” refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.

In addition to other federal laws, the U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation). Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:
denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.
In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi: “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.

Further information from other federal government agencies includes: A Guide to Restroom Access for Transgender Workers, issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), https://www.osha.gov/Publications/OSHA3795.pdf, and Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/, issued by the U.S. Office of Personnel Management.

If you believe you have been discriminated against, you may take action to protect your rights under Title VII by filing a complaint:

Private sector and state/local government employees may file a charge of discrimination by contacting the EEOC at 1-800-669-4000 or go to https://www.eeoc.gov/employees/howtofile.cfm.
Federal government employees may initiate the complaint process by contacting an EEO counselor at your agency; more information is available at https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm

From Hultman Sensenig + Joshi:  The EEOC and the DOL have been very active lately with issuing new guidelines.  Employers should take note as to all of this activity and respond proactively by reviewing policies and procedures and looking at inclusivity in the workplace.  As you consider such policies, consider the costs of litigation – and the impact of being the employer that makes a splash in the local media for alleged discriminatory practices.  Reading this blog does not create an attorney client relationship nor is legal advice being provided by your reading this blog.  

 

 

 

EEOC continues to be on the forefront of LGBT issues

April 26, 2016 at 3:58 pm | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, LGBT, New employment laws/amendments, retaliation | Leave a comment
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Directly from the EEOC and found on their website:

What You Should Know About EEOC and the Enforcement Protections for LGBT Workers

Overview

EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.
Through investigation, conciliation, and litigation of charges by individuals against private sector employers, as well as hearings and appeals for federal sector workers, the Commission has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual, and transgender (LGBT) applicants and employees against employment bias. The Commission has obtained approximately $6.4 million in monetary relief for individuals, as well as numerous employer policy changes, in voluntary resolutions of LGBT discrimination charges under Title VII since data collection began in 2013. A growing number of court decisions have endorsed the Commission’s interpretation of Title VII.

The information provided below highlights what you should know about EEOC’s outreach and enforcement in this area.

Examples of LGBT-Related Sex Discrimination Claims

Some examples of LGBT-related claims that EEOC views as unlawful sex discrimination include:
Failing to hire an applicant because she is a transgender woman.
Firing an employee because he is planning or has made a gender transition.
Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
Denying an employee a promotion because he is gay or straight.
Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.
Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

See How to File a Charge of Employment Discrimination for information about filing a Title VII charge of sex discrimination in employment related to gender identity or sexual orientation bias. There is a different complaint process for federal employees.

Applicable Federal Law

EEOC is responsible for enforcing federal laws that make it illegal to discriminate in employment against a job applicant, employee, or former employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices – for example, by reporting incidents of sexual harassment to their supervisor or human resources department – or against those who participate in an employment discrimination proceeding – for example by filing an EEOC charge, cooperating with an EEOC investigation, or participating in an employment discrimination lawsuit.

While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

Over the past several years the Commission has set forth its position in several published decisions involving federal employment. These decisions explain the legal basis for concluding that LGBT-related discrimination constitutes sex discrimination under Title VII, and give examples of what would be considered unlawful. In so ruling, the Commission has not recognized any new protected characteristics under Title VII. Rather, it has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The Commission has reiterated these positions through recent amicus curiae briefs and litigation against private companies.

Sex Discrimination – Transgender Status

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the Commission held that intentional discrimination against a transgender individual because that person’s gender identity is, by definition, discrimination based on sex and therefore violates Title VII.

The Macy decision explains that allegations of gender identity/transgender discrimination necessarily involve sex discrimination. Such cases can be viewed as sex discrimination based on non-conformance with gender norms and stereotypes under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, and based on a plain reading of the statute’s “because of . . . sex” language.

Applying Macy, the Commission has also held that an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility constitutes disparate treatment, Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment, Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013), and that an employer’s failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim, Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014).

Sex Discrimination – Sexual Orientation

In Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the Commission held that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.
The Baldwin decision explains that allegations of sexual orientation discrimination necessarily involve sex-based considerations. First, discrimination on the basis of sexual orientation necessarily involves treating an employee differently because of his or her sex. For example, a lesbian employee disciplined for displaying a picture of her female spouse can allege that an employer took a different action against her based on her sex where the employer did not discipline a male employee for displaying a picture of his female spouse. Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that the employer took the employee’s sex into account by treating him or her differently for associating with a person of the same sex. Finally, discrimination on the basis of sexual orientation is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.

Charge Data

In FY 2015, EEOC received a total of 1,412 charges that included allegations of sex discrimination related to sexual orientation and/or gender identity/transgender status. This represents an increase of approximately 28% over the total LGBT charges filed in FY 2014 (1,100). EEOC resolved a total of 1,135 LGBT charges in FY 2015, including through voluntary agreements providing approximately $3.3 million in monetary relief for workers and achieving changes in employer policies so that discrimination would not recur. This reflects increases of 34% in the number of resolutions over FY 2014 (847) and 51% in the amount of monetary relief over FY 2014 ($2.19 million). Please refer to the chart which shows charges received or resolved during FY 2015, shown at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

Conciliation and Litigation

When the Commission finds reasonable cause to believe that discrimination has occurred, it seeks to resolve the matter voluntarily through informal means of conciliation, conference, and persuasion. If the Commission is unable to secure a voluntary resolution, it has authority to file suit in federal court. In several cases, the Commission has filed LGBT-related lawsuits under Title VII challenging alleged sex discrimination. Read about examples of pending and resolved EEOC litigation involving Title VII sex discrimination claims brought on behalf of LGBT individuals, as well as EEOC amicus briefs filed in suits brought by private individuals raising these issues.

Federal Sector Enforcement

In the federal sector, EEOC has implemented its priority for covering LGBT individuals in a variety of ways:

Tracking gender identity and sexual orientation appeals in the federal sector
Issuing 20 federal sector decisions in FY 2015, including finding that gender identity-related complaints and sexual orientation discrimination-related complaints can be brought under Title VII through the federal sector EEO complaint process. For example, in Larita G. v. U.S. Postal Service, EEOC Appeal No. 0120142154 (Nov. 18, 2015), EEOC reversed the Agency’s dismissal of a hostile work environment claim on the basis of sexual orientation because such an allegation is necessarily an allegation of sex discrimination under Title VII.
Establishing an LGBT workgroup to further EEOC’s adjudicatory and oversight responsibilities
Issuing guidance, including instructions for processing complaints of discrimination by LGBT federal employees and applicants available on EEOC’s public web site
Providing technical assistance to federal agencies in the development of gender transition policies and plans
Providing LGBT related outreach to federal agencies through briefings, presentations, and case law updates

Training and Outreach

EEOC is addressing LGBT legal developments in numerous outreach and training presentations to the public. During FY 2015, field office staff conducted more than700 events and reached over 43,000 attendees where LGBT sex-discrimination issues were among the topics discussed. In the federal sector during FY 2015, there were approximately 53 presentations delivered to over 4,400 federal sector audience members. These events reached a wide variety of audiences, including employee advocacy groups, small employer groups, students and staff at colleges and universities, staff and managers at federal agencies and human resource professionals. To assist in this outreach, EEOC is distributing a brochure, Preventing Employment Discrimination Against Lesbian, Gay, Bisexual or Transgender Employees.

Resources

The Commission has issued various technical assistance publications on LGBT issues, including:

Fact Sheet on Recent EEOC Litigation Regarding Title VII & LGBT-Related Discrimination, http://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm
Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, http://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm
Federal Sector Cases Involving LGBT Individuals http://www.eeoc.gov/federal/reports/lgbt_cases.cfm
Brochure on Preventing Employment Discrimination Against Lesbian, Gay, Bisexual, or Transgender Employees, http://www.eeoc.gov/eeoc/publications/brochure-gender_stereotyping.cfm.
OPM-EEOC-OSC-MSPB Guide: Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment http://www.opm.gov/LGBTGuide

Useful resources from other agencies include:

OPM Guidance on Employment of Transgender Individuals http://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/
U.S. Department of Labor/OSHA Guide to Restroom Access for Transgender Workers, https://www.osha.gov/Publications/OSHA3795.pdf
U.S. Department of Justice Memorandum on Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964, http://www.justice.gov/file/188671/download

Other Laws

Be aware of other laws that also may apply:

Federal contractors and sub-contractors are covered by a separate, explicit prohibition on transgender or sexual orientation discrimination in employment pursuant to Executive Order 13672 and implementing regulations issued and enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance. For more information, see Frequently Asked Questions on E.O. 13672 Final Rule, http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html
State or local fair employment laws may explicitly prohibit discrimination based on sexual orientation or gender identity. Contact information for state and local fair employment agencies can be found on the page for EEOC’s field office covering that state or locality. On the other hand, if a state or local law permits or does not prohibit discrimination based on sexual orientation or gender identity, the EEOC will still enforce Title VII’s discrimination prohibitions against covered employers in that jurisdiction because contrary state law is not a defense under Title VII. Applicants and employees in those jurisdictions should contact the EEOC directly if they believe they have been subjected to sex discrimination based on sexual orientation or gender identity.

For more go to:  https://content.govdelivery.com/accounts/USEEOC/bulletins/1456e7e

From Hultman Sensenig + Joshi:  The EEOC continues to confirm its commitment to equality for all and will pursue this commitment through litigation.  Employers should review their policies and especially their handbooks to ensure whether recent rulings regarding marriage equality  and other rights being granted by the Court are addressed.  There is no attorney client relationship created through the reading of this blog, nor is any legal advice being rendered.  

 

 

 

 

New FMLA Forms issued by Department of Labor – time to throw out the old forms and print some new ones!

June 4, 2015 at 1:57 am | Posted in Uncategorized | Leave a comment
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The new FMLA forms published by the DOL are for use through May 2018.  Very few changes were made, but the Genetic Information Non-Discrimination Act is now specifically referenced as physicians were sometimes providing a little too much information on the forms.

Go to:  http://www.dol.gov/whd/fmla/ and you will find the treasure trove of forms for all of your FMLA needs, including:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-381 Notice of Eligibility and Rights & Responsibilities

WH-382 Designation Notice

WH-384 Certification of Qualifying Exigency For Military Family Leave

WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave

And last, but not least,

WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Get your shredder working and replace the old FMLA forms with the new ones to remain in compliance.

There is no legal advice given through this blog, nor is an attorney client relationship created through the reading of this blog.

Proposed FMLA Rules to Address DOMA Issues by Providing a New Definition of “Spouse”

June 25, 2014 at 1:52 am | Posted in Uncategorized | Leave a comment
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Directly from the Department of Labor’s website:  

Proposed rule to extend Family Medical Leave Act protections to all eligible employees in same-sex marriages announced by US Labor Secretary.

WASHINGTON — U.S. Secretary of Labor Thomas E. Perez announced today a proposed rule extending the protections of the Family and Medical Leave Act to all eligible employees in legal same-sex marriages regardless of where they live. The proposal would help ensure that all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss. Secretary Perez is proposing this rule in light of the Supreme Court’s decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

The FMLA, enacted in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition. Millions of workers and their families have benefited since the FMLA’s provisions became effective and even more American families would be made secure as a result of the proposed rule.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Secretary Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”
The proposed rule would change the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Currently, the regulatory definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages.

Following the Windsor decision, noting that it was “a victory… for families that, at long last, will get the respect and protection they deserve,” President Obama directed the Attorney General to work with the Cabinet to review federal statutes to ensure the decision, including its implications for federal benefits and obligations, is implemented.

For additional information on the FMLA, including information and fact sheets on the proposed revisions, visit http://www.dol.gov/whd/fmla/nprm-spouse. The department encourages all interested parties to view the proposed rule and submit comments at http://www.regulations.gov. The regulation identification number is 1235-AA09. Comments must be received within 45 days following publication in the Federal Register.

Major features of the new proposed rule:  

The Department is proposing to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”).

The proposed definition of “spouse” expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.

The Department of Labor proposes to define “spouse” as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Comments from the Sensenig Law Firm:

What all of this means is that a whole lot of Handbooks are going to require a whole lot of revisions if the proposed Rule is approved.  Employers will need to become a bit more savvy as to laws outside of the “home” state.  The proposed rule is following along with the notion of “full faith and credit.”   I am sure the proposed rule will be hotly debated and this is just the first draft of proposed new FMLA language.  Each and every one of us has the ability to send our comments/opinions to the DOL about this proposed language, and the proposed Rule’s impact on the workplace.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

 

Manatee County Schools Social Media Policy Update: Twitter, Facebook & Friending – “To friend or not to friend, that is the question.”

October 5, 2010 at 2:20 pm | Posted in Social Media/Social Networking | 1 Comment
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At its September meeting, the Manatee School Board decided to move forward with its plan to restrict the use of teachers in Manatee County from social media and social networking sites such as Twitter, Facebook, LinkedIn, and many others. As was stated in my prior blog entry, the social media/social networking policy proposed by the Manatee School District prohibits teachers from communicating with students through such sites without parental permission, and prohibits teachers from using the Manatee County School district’s name in online forums without permission. The ACLU is rattling cages and saying such a policy violates the right of teachers to free speech. The Manatee County teacher union joined in the criticism of the proposed restrictions and voiced the opinion that the rules are too restrictive.

The Manatee School Board’s attorney informed the School Board that under the Ethical Code of Conduct under which teachers are bound and can be disciplined for violating, off duty behavior can result in consequences at the workplace. This code applies to all manner of conduct, whether on-line or taking place in the “real” world.

The Miami School District allows teachers to use Facebook to post assignments and answer questions from students. The Santa Rosa School District put a social media/social networking policy in place but rescinded it soon thereafter when suit was threatened. Lee County considered implementing a policy but instead issued guidelines advising teachers that what they post is public; information posted on the internet is out there forever and available to anyone so use caution and common sense when posting.

A public hearing is scheduled for 5:45 on October 25th at the School Board Administration Building in Manatee County. This should be a raucous good time! I will provide an update about the meeting on this blog.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

Employers need to be aware of the new Fair Credit Reporting Act rule

July 3, 2010 at 5:54 pm | Posted in Employer, Employment Law, Legal, New employment laws/amendments | 1 Comment
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AMENDMENTS TO THE FAIR CREDITING REPORTING ACT EFFECTIVE JULY 1, 2010

The Federal Trade Commission (FTC) recently expanded the Fair Credit Reporting Act (FCRA) to include a broader definition of entities covered under the Act.  Employers that provide payroll and other employee-related information to certain third parties in connection with outsourced services, including unemployment processing and reference checking providers, will be considered “furnishers” within the meaning of the FCRA and subject to applicable federal and comparable state law regulations.

Although a “furnisher” is typically thought of as a bank or credit card company that provides credit-related information about a customer (consumer) to one of the three major credit bureaus, there are situations where an employer will be a “furnisher” within the meaning of the FCRA.  The FTC has determined that unemployment processing and reference checking providers, such as TALX, are consumer reporting agencies under the FCRA.  As a result, employers that provide payroll and other employee-related information to such outsourced servicing entities will be considered “furnishers” within the meaning of the FCRA.

Employers that outsource functions covered by the FCRA to entities considered to be consumer reporting agencies must comply with the new final rule.  Employers must now implement and maintain policies and procedures designed to ensure the “accuracy and integrity” of information provided to those outsourced entities. The “accuracy and integrity rules” within the new regulations require data furnishers to “establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information relating to consumers that it furnishes to a consumer reporting agency.”

“Accuracy” means that information furnished about an individual correctly:

  • reflects the terms of the relationship with the individual;
  • reflects the individual’s performance and other conduct with respect to the relationship; and,
  • identifies the appropriate individual.

“Integrity” means that information furnished about an individual:

  • is substantiated by the data furnisher’s records at the time it is furnished;
  • is furnished in a form and manner that is designed to minimize the likelihood that the information may be incorrectly reflected in a report about the individual; and,
  • includes any information in the furnisher’s possession that the Federal Trade Commission (“FTC”) has determined the absence of which would likely be materially misleading in evaluating the individual.

Under the new rule, employers must now investigate a “direct dispute” from a current or former employee disputing the accuracy or completeness of information the employer provided to the consumer reporting agency.  Under the old rule, employees complained directly to the consumer reporting agency; under the new rule, former and current employees of covered employers can complain directly to the employer.  Covered employers now have an affirmative duty to provide both employees and consumer reporting agencies with complete and accurate information.

Employers must investigate disputes by current or former employee’s related to “information contained in a consumer report regarding an account or other relationship with the furnisher that bears on the consumer’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.”  Employers rarely have such information, however, employers do have and share information about a current or former employee’s work history, positions held, compensation, dates of employment, and possibly the reason the employment relationship ended. This type of information is now covered by the new rule.  The new rule does not require an employer to investigate disputes regarding identifying information in a former or current employee’s file, such as the employee’s name, Social Security number, date of birth, address, or telephone number.  Disputes from former employees regarding the identity of past or present employers do not trigger the duty to investigate.

Employers are not required to investigate disputes by former or current employees where the employee fails to provide the employer with sufficient information. The employer must notify the former or current employee in writing within 5 business days of receiving the dispute that the dispute appears to be irrelevant or even frivolous. The notice must inform the former or current employee of the reason for the employer’s determination of frivolity or irrelevance, and the employer’s notice must include a description of the type of information necessary to proceed with the investigation.

Upon receiving any dispute notice, the employer must conduct a reasonable investigation, which means at a minimum reviewing the submitted information and determining the validity of the former or current employee’s dispute. The employer must complete the investigation and report back to the former or current employee within 30 days of receiving notice of the dispute (with a possible extra 15 days if the employee provides new information). If the employer determines that the information reported was inaccurate, the employer must notify the consumer reporting agency to whom the employer provided the information and provide any correction necessary to make the information accurate.

Written notice of covered employer’s steps to ensure compliance with the new rule is required by the rule itself.

For the official fact sheet about the rule, go to http://www.ftc.gov/opa/2009/07/facta.shtm

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

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