By Conn Maciel Carey’s COVID-19 Task Force
On April 10, 2020, the District of Columbia passed the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (“the Act”). Among other things, the Act amends the D.C. Accrued Sick and Safe Leave Act of 2008 by creating a new category of paid leave called “Declared Emergency Leave.” This is in addition to the March 17, 2020, amendment of the D.C. Family and Medical Leave Act (“D.C. FMLA”) that created “Declaration of Emergency” leave. Under the Act, employers must now provide paid leave to employees for any covered reason provided by the Families First Coronavirus Response Act (“FFCRA”). Notably, this leave appears to be in addition to: (1) leave provided by FFCRA; (2) leave provided by D.C. FMLA; and (3) leave provided by the employer’s policies. The new law is currently in effect and will remain in effect for no longer than 90 days, until July 9, 2020.
With respect to coverage, companies employing between 50 and 499 people must provide Declared Emergency Leave to D.C. employees. It is unclear, however, if the 50 to 499 employees must all work in D.C. to trigger the new law’s application, or whether the new law applies to any employee who works in D.C. so long as the employer employs between 50 and 499 employees nationwide. Subsequent regulations may be issued to further clarify. Additionally, there is an exemption from coverage for healthcare providers. For purposes of Declared Emergency Leave, healthcare provider is defined as any doctor’s office, hospital, healthcare center, clinic, post-secondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer or entity. This includes any permanent or temporary institution, facility, location or site where medical services are provided that are similar to such institutions.
An employee is eligible to take Declared Emergency Leave if Continue reading
Earlier this week, on January 12, 2020, the U.S. Department of Labor (DOL) announced the release of its final rule revising and updating its regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA). According to DOL, “The final rule provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity, including guidance on the identification of certain factors that are not relevant when determining joint employer status.” The DOL published its Notice of Proposed Rulemaking (NPRM) on April 9, 2019, and received over 12,000 comments within the 30-day comment period. The final rule becomes effective on March 16, 2020, 60 days after publication in the Federal Register today, January 16, 2020.
As a threshold matter, under the FLSA, an employee working for one company may be found to be the joint employee of a second, independent company, depending on the nature and extent of control over the employee’s work. Joint employer status is important for numerous reasons, including the fact that a joint employer can be held joint and severally liable for FLSA wage and hour obligations. In 1958, DOL published an interpretive regulation, 29 C.F.R. § 791, explaining that joint employer status depends on whether multiple persons are “not completely disassociated” or “acting entirely independently of each other” with respect to the employee’s employment.
Specifically, the regulation provided three situations where two or more employers are generally considered joint employers: (1) where there is an arrangement between the employers to share the employee’s services (e.g., to interchange employees); (2) where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. The DOL issued its NPRM out of concern that Continue reading
On October 15, 2019, the U.S. Supreme Court asked the U.S. Solicitor General of the Department of Justice (DOJ) to weigh in on a petition to revive the discrimination case of Peterson v. Linear Controls Inc. David Peterson, a former offshore electrician at Linear Controls, petitioned for a writ of certiorari on May 7, 2019, asking the Supreme Court to overturn the Fifth Circuit’s holding that more difficult working conditions alone are not enough to be considered an “adverse employment action” under Title VII of the Civil Rights Act of 1964. The petition is currently pending, with the most recent action being the Supreme Court’s invitation to the DOJ’s Solicitor General to file a brief in the case to express the views of the United States. So what is the case about, and what might the implications be for employers?
Under Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual” with respect to “compensation, terms, conditions, or privileges of employment” because of the individual’s race, religion, sex, or other protected status. In this case, Peterson alleged Continue reading
Last month, a waitress, Brittany Spencer, was fired after refusing to serve transphobic customers at a Fat Joe’s Bar and Grill in Fond du Lac, Wisconsin, raising questions as to whether the restaurant engaged in impermissible discrimination by doing so. During her shift, Spencer was asked by a couple of patrons sitting at one of her tables what she thought of a transgender customer sitting at the bar. According to Spencer, the couple asked her if she thought it was “disgusting and wrong,” and asked why the restaurant would “let someone like that into the establishment,” to which Spencer answered that she did not agree and walked away. When Spencer asked her manager if another employee could serve the table because she was uncomfortable, her manager said no, and Spencer decided to leave. That night, Spencer shared what had happened on Facebook, stating that she was sent home for refusing to serve the customers, and the following day, Spencer was alerted by restaurant management that she had been fired. The restaurant claims that it fired Spencer for “refusing to do the duty [it] hired her for.” Spencer has filed a complaint with the Equal Employment Opportunity Commission (EEOC).
Before diving into the analysis of Spencer’s potential discrimination claim, it is important to understand what she would be required to show. As we have previously posted, as with almost all claims of discrimination, Spencer will likely seek to prove her case through the use of indirect evidence under the McDonnell Douglas burden-shifting framework, requiring her to show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gave rise to an inference of discrimination. The question, however, will likely turn on Continue reading
On May 10, 2019, the D.C. Circuit issued its opinion in Figueroa v. Pompeo, 923 F.3d 1078 (D.C. Cir. 2019), raising the bar for employers to articulate legitimate non-discriminatory business reasons for taking alleged unlawful actions against plaintiffs. As we explained in a prior post, under the McDonnell Douglas burden shifting framework, after the plaintiff makes his/her prima facie case of discrimination, the employer has an opportunity to rebut plaintiff’s prima facie case by articulating legitimate non-discriminatory business reasons for taking the alleged discriminatory action. And, if the employer is able to do that, the burden shifts back to the plaintiff to show that the employer’s stated reasons are a pretext for discrimination. Figueroa now makes it more difficult for employers to successfully argue that the actions they took were for legitimate non-discriminatory business reasons. So, what happened in the case, and what should employers do going forward?
The facts of the case are straightforward. Figueroa, a Puerto Rican employee, alleged that his employer, the State Department, discriminatorily passed him over for promotions. At the trial court level, the State Department moved for summary judgment, claiming that it did not discriminate against Figueroa, but rather decided not to promote him because other candidates were better qualified. The State Department explained that candidates for promotion are ranked based on substantive criteria called “core precepts.” These precepts consist of six performance areas: (1) leadership skills; (2) managerial skills; (3) interpersonal skills; (4) communication and foreign language skills; (5) intellectual skills; and (6) substantive knowledge. The State Department explained that, although Figueroa
By Lindsay A. DiSalvo and Beeta B. Lashkari
When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection. In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the adverse employment action of which it is accused was legitimate or did not occur as alleged. These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim. A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer. However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.
Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response. We are pleased to share the following tips and strategies for how to effectively address such complaints.
To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.
While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them. This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as Continue reading
As you know, Title VII of the Civil Rights Act of 1964 (Title VII) is one of the principal federal statutes prohibiting employment discrimination. It prohibits discrimination on the basis of race, color, national origin, religion, and sex (including gender and pregnancy). Other federal statutes that prohibit employment discrimination include Title I and Title V of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA). But, employers must also be aware of state and local laws that extend protection beyond these federally protected classes. In the District of Columbia, for example, it is a violation of the law to discriminate on the basis of personal appearance, a category of protected class that has caused employers significant confusion with respect to what kinds of dress and grooming policies they may lawfully enforce. So what does personal appearance discrimination mean? And what should employers do to minimize their legal risk and ensure they do not run afoul of such laws?
Under the D.C. Human Rights Act (DCHRA), personal appearance is one of 20 protected traits for people that live, visit or work in D.C. Personal appearance is defined as the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards. To flesh this out, the D.C. Office of Human Rights, which administers Continue reading
In employment discrimination cases, employees often seek to prove their claims by presenting indirect evidence of discrimination. Employees will seek to present evidence that they were treated differently than similarly situated employees outside of their protected class. On March 21, 2019, the Eleventh Circuit adopted a new test for analyzing these “comparators” by issuing its decision in Lewis v. City of Union City, Ga.. In doing so, the Court rejected its previous standards for analyzing comparators. Before Lewis, courts in the Eleventh Circuit evaluated “similarly situated” comparators under either the “nearly identical” or “same or similar” standard, and sometimes even used both standards simultaneously. The fact that two standards had emerged, and at times, were even used together, without any clear guidance on their proper use, caused the Court to call the entire situation “a mess.” Accordingly, in an effort to clean up and clarify the proper standard for comparator evidence, a full panel of the Court took on Lewis so that it could address whether “similarly situated” should be interpreted as “same or similar,” “nearly identical,” or something else. Ultimately, the Court decided to depart from its previous standards, and went with something else. Now, in order to prove intentional discrimination by indirect evidence, a plaintiff must show that employees “similarly situated in all material aspects” received preferential treatment. The Court also reiterated that this burden remains with the plaintiff as part of plaintiff’s prima facie case. So, what was the case about, and what does it mean for employers?
After the announcement of a new policy requiring all police officers to carry Tasers and receive a five-second shock, Jacqueline Lewis, an African-American detective with the Union City Police Department in Union City, Georgia, was scheduled to receive such training. She had also been scheduled to receive pepper spray training. But, before receiving either of these, Ms. Lewis submitted a doctor’s note Continue reading
Last Friday, the National Labor Relations Board (the “Board”) returned to its long-standing independent-contractor standard, reaffirming its adherence to the traditional common-law test. In deciding SuperShuttle DFW, Inc. on January 25, 2019, the Board voted 3-1 along party lines to overturn the 2014 Obama-era ruling in FedEx Home Delivery. In that case, the Board modified the applicable test for determining independent-contractor status by “significantly limit[ing] the importance of [a worker’s] entrepreneurial opportunity.” Specifically, the Board in FedEx created a new factor – “rendering services as part of an independent business” – and made entrepreneurial opportunity merely one aspect of that factor. However, in its Friday decision, the Board found that FedEx impermissibly altered the common-law test, and clarified the essential role entrepreneurial opportunity plays in its determination of independent-contractor status.
In SuperShuttle, the Board analyzed the issue of whether franchisees who operate shared-ride vans for SuperShuttle Dallas-Fort Worth are employees covered under the National Labor Relations Act (NLRA) or independent contractors. Shuttle van drivers for SuperShuttle sought to unionize at Dallas-Forth Worth airport, but the protections of the NLRA do not extend to independent contractors. The Acting Regional Director, in making her decision before the 2014 FedEx case, applied the traditional common-law test and found that SuperShuttle met its burden in establishing that the franchisees are independent contractors and not employees. After overturning FedEx and applying the common-law test, the Board affirmed the Acting Regional Director’s decision.
To start, the Board explained that the inquiry into whether a worker is an employee or an independent contractor has traditionally depended on the common-law agency test, which involves the application of Continue reading