Employment LawEmployment Law Update

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2018 AMERICAN FAMILY SURVEY YIELDS IMPORTANT INFORMATION FOR EMPLOYERS. As reported in Salt Lake City’s Deseret News this week, a newly-released American Family Survey (a joint project between the Deseret News and Brigham Young University’s Center for Study of Elections and Democracy) revealed significant differences between the perceptions of men and women regarding sexual harassment. Opinions about what types of conduct constitute harassment vary substantially by gender. For example, more women than men believe that asking someone out or telling sexual jokes constitute workplace harassment. Certain actions by men toward women were more likely to be seen as sexual harassment than the same actions when taken by women toward men. Interestingly, while 71% of women reported believing that asking for sexual favors at work is always sexual harassment, only 49% of men agreed. (Readers may pause here to reflect on these percentages, and what would constitute harassment to those who did not believe that asking for sexual favors at work qualified.)

More generally, the survey revealed that women are much more likely than men to believe that express verbal consent is required for sex and intimacy; men were more likely than women to believe that non-verbal, “implied” consent is adequate. These differences are likely rooted in the collective past experiences of women—the survey revealed that while 6 in 10 women say they’ve suffered unwanted sexual advances, fewer than 3 in 10 men reported the same. What does this mean for employers? Jathan Janove, a Portland, Oregon based attorney and employee relations specialist interviewed by the Deseret News, stresses that companies must focus on more than just whether behavior meets minimum legal standards, but rather should work to create a culture of respect and professionalism, in which employees feel empowered to speak out when they are uncomfortable.

COURT WEIGHS IN ON THE LIMITS OF LEAVE REQUIRED AS A REASONABLE ACCOMMODATION. Does figuring out how to handle requests for additional leave after FMLA has been exhausted leave you feeling, well, exhausted? You’re not alone. As HR professionals can attest, challenging issues can arise when an employee has used all of the leave provided under FMLA, state or local laws, and employer policies, but still is unable to return to work. At that point, employers must carefully consider whether further leave is required as a reasonable accommodation under the ADA. Answering that question, as well as how much additional leave the ADA requires in a particular situation, can be tricky.

A federal court in Connecticut recently held that an employer, Amedisys Holdings, LLC, was not required to provide an employee with additional leave under the ADA. In that case, the plaintiff was a home health aide who was injured when she fell outside of a patient’s house. She provided the company with a particularly unhelpful doctor’s note that simply stated she needed leave “until further notice.” The company sought further information, and the employee returned an FMLA certification form that said her return to work was “TBD” (to be determined). Eventually, the employee’s physician identified a three-month window during which she would need leave. After the employee used all of her FMLA (and state FMLA) leave, the company notified her that her leave under those laws was exhausted. The company told her that if she required further leave as an ADA accommodation, she must return documentation supporting the need for leave within 15 days. After the employee failed to respond, the company contacted her and again asked for appropriate documentation, but she never responded. Eventually, the company terminated her employment, and she sued for an alleged failure to accommodate her disability.

The court noted that a temporary leave of absence may be a reasonable accommodation under the ADA, but also recognized that an employer is not required to provide leave of indefinite duration. Crucially, despite the employer’s efforts to communicate, the employee here had never produced any documentation showing that an accommodation of temporary leave would have allowed her to return to work and perform the essential functions of her job. As a result, the court concluded that she was not a “qualified individual” under the ADA, and the company was not required to provide the accommodation.

Important takeaways here are: (1) Courts and the EEOC generally do not require leave as a reasonable accommodation when the request is for leave of an indefinite duration (meaning the employee cannot say whether or when he or she will be able to return to work); (2) The interactive process is critical. Employers can and should ask for documentation providing an expected date when an employee should be able to return to work and perform the essential job functions. You may wish to consult an employment lawyer to help you determine your ADA obligations in these types of situations.

EEOC LOSES BID TO HAVE TEXAS EMPLOYER’S CASE DISMISSED. A federal court in Texas recently ruled against the EEOC in a lawsuit brought against the agency by BNSF Railway Co. BNSF filed suit against the EEOC in April of this year, alleging that the agency violated the law when it issued right to sue notices to 54 workers. Right to sue notices are issued after the EEOC investigates a charge of discrimination and does not elect to file suit against the employer itself. The notices give an allegedly wronged worker the right to sue the employer under federal anti-discrimination laws.

The EEOC investigation against BNSF involved a charge filed by a former EEOC commissioner as well as charges by individual workers. After years of legal wrangling and investigation, the EEOC concluded that discrimination violating both the Americans with Disabilities Act and the Genetic Information Discrimination Act had likely occurred. After mandatory efforts at conciliation failed, the EEOC issued right to sue notices to the individual charging parties. BNSF says it expected this and did not object. However, the EEOC also unexpectedly issued right to sue notices to 54 additional individuals who were not charging parties. BNSF argues that the issuance of these notices violated federal law prohibiting EEOC charges being publicized, as they were issued to workers who weren’t previously aware of the matter. The EEOC asked the court to dismiss the suit, arguing that its actions were not the type of final agency action reviewable by the federal court. The Texas court rejected that argument, meaning the lawsuit will proceed.

“REGULAR RATE” CLARIFICATION ANTICIPATED IN UPCOMING PROPOSED RULE. With the holidays upon us, employers are eagerly awaiting a gift from the Department of Labor—clarification on the definition of “regular rate” of pay under FLSA, and more specifically, what types of payments must be included in the regular rate. While this gift may not seem particularly exciting (like, say, a new ugly Christmas sweater), it will nevertheless be useful for employers (like a pair of socks). The regular rate is used to calculate overtime, and is generally determined by taking the total amount of non-overtime payments to an employee in a workweek, and dividing it by the number of hours worked. Current DOL regulations allow only a few types of payments to be excluded from the regular rate, including: discretionary bonuses; vacation or holiday pay; gifts; expense reimbursements; extra pay for working more than eight hours a day or outside of an employee’s normal working hours; income from stock options or grants, and a few other types.

The DOL has indicated that it expects to issue a new proposed rule regarding the regular rate in December 2018, saying: “The Department believes that changes in the 21st Century workplace are not reflected in its current regulatory framework.” The DOL hopes to provide appropriate guidance to employers offering “more modern forms of compensation and benefits regarding their inclusion in, or exclusion from, the regular rate.” The DOL believes these changes will give employers more flexibility to offer these types of compensation, facilitate compliance, and reduce litigation. Commentators predict clarification on things like tuition reimbursement, ride share services, supplemented child care costs, modest incentive programs like gift cards or points for products, and travel, meal, or housing allowances. Stay tuned to these updates to learn when the proposed rule is issued.

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