Don’t forget leaves of absence as ADA accommodation

Suppose an employee tells you that she needs time off to undergo surgery for her recently diagnosed breast cancer. Do you?

1. Deny the request (and fire the employee), either because you are too small to be FMLA-covered or the employee has not worked enough to be FMLA-eligible; or
2. Consider, and likely grant, the request as a reasonable accommodation under the ADA?

If you chose option one, congratulations, you just bought yourself an EEOC lawsuit.

The EEOC’s press release fills in the details.

Joan O’Donnell successfully performed her job duties as a regional manager at the company’s BWI Dunkin’ Donuts locations. After O’Donnell was diagnosed with breast cancer, she e-mailed the owner to explain that she was diagnosed with breast cancer and would need surgery. She also talked to her supervisor about her diagnosis and requested four to eight weeks of unpaid leave for surgery, chemotherapy, and radiation treatment. The EEOC charged that Dunkin’ Donuts refused to provide a reasonable accommodation and instead abruptly discharged O’Donnell because of her disability just three days before the start of her medical leave.

I’ve written before about the need to put the human back into human resources. The EEOC agrees with me: “Granting an employee unpaid leave for needed medical treatment is not only the compassionate thing to do, it is required by federal law unless the employer can show it would pose an undue hardship.” Case closed.

Be conscious of inequities when gauging litigation

Four years ago, in Wal-Mart v. Dukes, the U.S. Supreme Court held that it was inappropriate to certify a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide "policy" of sex discrimination. SCOTUS’s Dukes decision ended a decade of litigation over the propriety of the attempted nationwide class action.

More than a year after the Dukes decision, Cheryl Phipps, Bobbi Millner, and Shawn Gibbon launched a similar lawsuit in federal court in Tennessee, but instead seeking a region-wide sex-discrimination class. Wal-Mart alleged that the claims, more than a decade old, were time barred. Yesterday, in Phipps v. Wal-Mart Stores [pdf], the 6th Circuit formally disagreed.

For civil procedure geeks (like myself), the case is a fascinating read on the theory of statutes of limitations and equitable tolling. That analysis, however, is well beyond the scope of what I hope to accomplish with my little slice of the Internet.

Here’s the practical take-away. Employers favor certainty, knowing that if an employee fails to file a lawsuit 90 days after the EEOC issues its right-to-sue letter, for example, the employee waived the right to assert federal discrimination claims. Courts, however, favor equities, and try to avoid inequitable results. Sometimes, these ideals clash. When this happens, employers cannot assume victory, and should brace themselves accordingly.

Ohio’s odd anti-retaliation statute

Ohio’s employment discrimination law has lots of peculiarities that separate it from its federal counterpart—a six-year statute of limitations for all discrimination claims except age (which is only 6 months), individual liability for managers and supervisors, and the right for employees to file direct actions in court without first exhausting their administrative remedies, for example, stand out. Add to this list the fact that Ohio’s anti-retaliation statute is not limited to employers, but applies to anyone who retaliates:

It shall be an unlawful discriminatory practice for any person to discriminate in any manner against any other person because that person [1] has opposed any unlawful discriminatory practice defined in this section or [2] because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.

In Wiltz v. Accountancy Board of Ohio, an Ohio appellate court held that a state licensing board could be liable for retaliation because of the broad definition of “person” in Ohio’s anti-retaliation statue. It was irrelevant that the defendant was not the “employer”.  So, businesses, beware and take heed. Just because you are not someone’s employer will not save you from a retaliation claim under Ohio law.

2nd Circuit becomes 2nd court to toss DOL internship test

Four years ago, the 6th Circuit, in Solis v. Laurelbook Sanitarium and School, rejected the Department of Labor’s six-factored test for determining whether an “intern” is an employee entitled to wages. In its place, the court adopted a “primary benefit” test.

At the time, the case did not garner that much attention. In the years since, however, the issue of unpaid interns has rocketed to the forefront of wage-and-hour issues on which employers need to focus. Last week, in Glatt v. Fox Searchlight Pictures [pdf], the 2nd Circuit become the 2nd federal appellate court to reject the Department of Labor’s formulaic six-factored analysis for the more flexible and nuanced primary-benefit test.

In reaching its decision, the 2nd Circuit framed the import of the issue:

When properly designed, unpaid internship programs can greatly benefit interns. For this reason, internships are widely supported by educators and by employers looking to hire well‐trained recent graduates. However, employers can also exploit unpaid interns by using their free labor without providing them with an appreciable benefit in education or experience.

Ultimately, the court sided with the employer in adopting the “primary benefit” test:

[T]he proper question is whether the intern or the employer is the primary beneficiary of the relationship. The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work.… Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.…

In the context of unpaid internships we think a non‐exhaustive set of considerations should include: 

     1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa. 

     2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions. 

     3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. 

     4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar. 

     5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning. 

     6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern. 

     7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.…

The approach we adopt … reflects a central feature of the modern internship—the relationship between the internship and the intern’s formal education. The purpose of a bona‐fide internship is to integrate classroom learning with practical skill development in a real‐world setting…. By focusing on the educational aspects of the internship, our approach better reflects the role of internships in today’s economy than the DOL factors, which were derived from a 68‐year old Supreme Court decision that dealt with a single training course offered to prospective railroad brakemen

The court concluded that, in certifying a class of interns, the district court erred by applying the wrong standard (the DOL’s six factors). Thus, this decision does not mean that Fox Searchlight’s interns are not employees under the FLSA; instead, it simply means that the district court must re-evaluate its earlier decision on class certification using the primary-benefit test instead of the DOL’s six factors.

Thus, while this case is a win for employers, it does not mean that employers can rest easily on the issue of unpaid interns. Rather, it confirms that employers need to practice vigilance in classifying an entry-level worker as an unpaid intern or an employee. The focus remains on whether the “intern” is receiving training akin to, or as a part of, an academic program.

• If the “intern” is merely performing menial entry-level tasks without an attached educational component, the worker is almost certainly an employee that must be paid. 
• If the “intern” is working in exchange for course credit as part of a bona fide academic program, the worker is almost certainly an unpaid intern. 

The thornier question is how to classify one who is not working in exchange for academic credit, but is receiving bona fide training, in addition to making copies and Starbucks runs. For this clarity, we will need to wait for merits decision on this case and others. For now, however, the safer course of action is to err on the side of “employee” in all but the clearest of internships.

WIRTW #373 (the “happy birthday” edition)

Happy birthday Equal Employment Opportunity Commission. The EEOC turns 50 today. While the agency and I have not always seen eye-to-eye on how it enforces our nation’s civil rights laws, we do agree on why it was founded—because all people are created equal and should enjoy the right to an equal workplace. These past few weeks—with the mass shooting in an African-American church and hateful protests over LGBT rights—serve as a stark reminder that while we have traveled a long way in the past 50 years, we still have a long way to go to achieve true equality.

And now, a birthday song.

Here’s the rest of what I read this week:

Discrimination

• Touching in the “Crotch Area” Only A Few Times Doesn’t Create a Hostile Work Environment — via The Employment Brief
• Fourth Circuit Affirms EEOC’s Resounding Summary Judgment Defeat in ADA Case — via Workplace Class Action Litigation
• That White Guy Lost — via Phil Miles’s Lawffice Space
• Transgender Experiences in the Workplace — via Workplace Prof Blog
• Update your job descriptions. Because, Americans with Disabilities Act. — via Eric Meyers Employer Handbook Blog
• Disparate-impact claims survive challenge: In Plain English — via SCOTUSblog

Social Media & Workplace Technology

• Google Is Sorry That Its New App Is Racist — via Boy Genius Report
• Mitigating Cyber Risks — via Technologist
• Guitar Center Employees May NOT Share “Very Negative” — via Gawker

HR & Employee Relations

• Neil deGrasse Tyson: Work and Life Don’t Always Have to Be Balanced — via Lifehacker
• Vacation Policy in Corporate America Is Broken — via Harvard Business Review
• Kinder, gentler Terminator: how to say ‘Hasta la vista’ to employees without getting sued — via EntertainHR
• Should We Tell Our Employee To Remove His Confederate Flag Bumper Sticker? — via Evil Skippy at Work
• Corporate Espionage: Not Your Typical Sports-“Gate” — via Trading Secrets

Wage, Hour, & Safety

• All the Best Uber Drivers I’ve Had Want to be Contractors, Not Employees — via The HR Capitalist, Kris Dunn
• Are Male Strippers Exempt From the FLSA As Creative Professionals? — via Minnesota Employer
• Cross-departmental work? Remember OT rules — via Business Management Daily
• How to make sense of Obama’s big changes to overtime policy — via Wonkblog
• Anatomy of an OSHA Inspection — via The Emplawyerologist
• OSHA launches its Hazard Identification Training Tool OSHA Law Blog

Labor Relations

• NLRB Reverses Longstanding Rule: Employers Now Required to Disclose Confidential Witness Statements in Investigations—a Major Change for Labor Arbitration? — via Management Memo
• NLRB Weakens Employers’ Ability to Conduct Effective Workplace Investigations — via Employment Law Worldview
• NLRB Flip Flops, Finds Employer Legally Terminated Employee for Dishonesty — via Labor Relations Today
• Ambush at the NLRB: Region 28's Average Election Time Now 18 Days — via Labor and Employment Law Cocktail

EEOC updates pregnancy discrimination guidance to embrace accommodations

In the wake of the Supreme Court’s decision in Young v. UPS, the EEOC has updated its administrative guidance on pregnancy discrimination. The updated guidance includes Enforcement Guidance on Pregnancy Discrimination And Related Issues, a Q&A, and a Fact Sheet for Small Businesses.

The most notable inclusion is updated guidance on an employer’s obligation to provide reasonable accommodation to a pregnant worker.
From the Q&A:

May an employer impose greater restrictions on pregnancy-related medical leave than on other medical leave? 

No. Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer:

• may not fire a pregnant employee for being absent if her absence is covered by the employer's sick leave policy;
• may not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions;
• may not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
• must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.

Must an employer provide a reasonable accommodation to a worker with a pregnancy- related impairment who requests one? 

Yes, if the accommodation is necessary because of a pregnancy-related impairment that substantially limits a major life activity. An employer may only deny a needed reasonable accommodation to an employee with a disability who has asked for one if it would result in an undue hardship. An undue hardship is defined as an action requiring significant difficulty or expense. 

Examples of reasonable accommodations that may be necessary for someone whose pregnancy-related impairment is a disability include:

• Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
• Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited;
• Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
• Allowing a pregnant worker placed on bed rest to telework where feasible;
• Granting leave in addition to what an employer would normally provide under a sick leave policy;
• Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
• Temporarily reassigning an employee to a light duty position.

As the new guidance makes abundantly clear, while an employer cannot compel a pregnant employee to take an accommodation (such as a leave) if she is able to perform her job, it must allow women with physical limitations resulting from pregnancy to take leave (or other accommodations) on the same terms and conditions as others who are similar in their ability or inability to work. Thus, the EEOC has confirmed, as I’ve consistently said (here and here, for example), that if employers grant employees accommodations under the ADA, Title VII will almost certainly compel them to do the same for pregnant employees.

Obama to announce new overtime regulations, but will they really matter?

Last night, on the Huffington Post, President Obama blogged his intentions to announce long-awaited new overtime regulations later today.

In a post entitled, “A Hard Day’s Work Deserves a Fair Day’s Pay,” the President wrote:

Right now, too many Americans are working long days for less pay than they deserve. That’s partly because we’ve failed to update overtime regulations for years—and an exemption meant for highly paid, white collar employees now leaves out workers making as little as $23,660 a year—no matter how many hours they work. 

This week, I’ll head to Wisconsin to discuss my plan to extend overtime protections to nearly 5 million workers in 2016, covering all salaried workers making up to about $50,400 next year.

So, what do we know about these new regulations?

• The salary-level at which employees will qualify for either the administrative, executive, professional, and computer employee exemptions will increase from $23,660 a year (or $455 per week) to $50,400 (or $969.23 per week) (could they not make it an even thousand?)
• The earliest these new regulations will take effect is sometime next year.

These rules are not final. They still must first undergo a public-comment period. Nevertheless, this announcement is the first concrete details about these long-rumored rules, and could become a key part of President Obama’s legacy, which, unlike the Affordable Care Act, will be done without Congressional approval.

These new rules will change the pay structure for millions of American workers. Yet, they may not result in the sweeping pay increases envisioned by the White House. American businesses, many of which already run leanly, need not absorb increased payroll from the switch of workers from exempt to non-exempt status. Instead, a company could simply calculate how much to pay an employee, on an hourly basis (anticipated overtime included), to reach the employee’s current salary level. Or, a company could ban overtime altogether. Thus, gross compensation probably will not change. What will change, however, is the flexibility salaried workers enjoy. Will Johnny Manager appreciate having to punch a time clock, especially if his 2016 W-2 reads the same as his 2015 W-2? And will that change undermine the authority certain employees need to have to effectively perform their jobs?

While the White House has laudable aspirations to “strengthen the middle class” and “commit to an economy that rewards hard work, generates rising incomes, and allows everyone to share in the prosperity of a growing America” in reality, it will likely be “meet the new boss, same as the old boss.”

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(Update) The DOL has made available various resources (hat tip: Lawffice Space):

• The Notice of Proposed Rulemaking [pdf] (all 295 pages, which includes the text of the proposed regulatory changes)
• A helpful one-page fact sheet
• A FAQ