Paid Sick & Family Leave Passes D.C. City Council

Capitol BuildingFor over a year, the D.C. City Council has considered a bill that would have provided employees in the nation’s capital paid family and sick leave.  Now, after extended debate and comment from the public and business community, on December 20, 2016, the D.C. City Council passed the bill, known as the Universal Paid Leave Amendment Act of 2016 (“the Act”), with some modifications.

The new law gives eight (8) weeks of paid leave to new parents, and six (6) weeks for those taking care of sick family members.  Although the bill offers the most generous paid leave in the U.S.  for new parents and employees who are taking care of sick family members, the law only offers two (2) weeks of paid leave for personal injuries or illnesses, which is less than other city and state programs around the country.  The program will be administered by a social insurance program controlled by the city and funded by a .62 percent increase to employer payroll taxes.

Mayor Muriel Bowser, a staunch opponent of the legislation, has vowed that she will not add her name to the legislation.  However, the bill passed by a 9-4 margin – the minimum number of required votes to override a veto by Mayor Bowser.  The bill may therefore likely go into law without her signature.

Employers should pay careful attention to this bill and consider changing employer provided paid leave policies, especially since the Mayor will begin collecting the .62 percent payroll tax from all covered employers on or before July 1, 2019.  Payment of paid leave benefits to eligible employees will commence on July 1, 2020.

The following highlights what D.C. employers need to know about this groundbreaking law and how it will affect them.

  1. Who does the law apply to?

The Act requires all covered employers to contribute to the Universal Paid Leave Implementation Fund (“the Fund”).  A covered employer is defined as any “individual, partnership, general contractor, subcontractor, association, corporation, business trust, or any group of persons who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee and is required to pay unemployment insurance on behalf of its employees by section 3 of the District of Columbia Unemployment Compensation Act” and a “self-employed individual who has opted into the paid leave program established pursuant to [the] Act.”  The law permits a “covered employee” to collect paid leave under the Act.  A covered employee is defined as “any employee who spends more than 50% of his or her work time in the District of Columbia for a covered employer.”  Therefore, there is no “small business exception” and employers that employ any individuals in the District of Columbia are subject to the Act’s requirements.

To be eligible to receive paid leave under the Act, an “eligible individual” must be a covered employee during some or all the 52 calendar weeks immediately preceding the qualifying event for which paid leave is being taken, or a self-employed individual who earned self-employment income for work performed more than 50% of the time in the District of Columbia during some of all of the 52 calendar weeks immediately preceding the qualifying event for which paid leave is being taken and has opted into the paid leave program established pursuant to the Act.

Thus, an employee is eligible for paid leave as soon as he or she is hired, regardless of the number of hours worked for the employer, subject to a one week waiting period.

  1. How long can employees receive paid leave benefits?

Upon the occurrence of a qualifying family leave event (the diagnosis or occurrence of a serious health condition of a family member of an eligible individual), qualifying medical leave event (the diagnosis or occurrence of a serious health condition of an eligible individual), or qualifying parental leave event (the birth of an child; the placement of a child with an eligible individual for adoption or foster care; or the placement of a child with an eligible individual for whom the individual legally assumes and discharges parental responsibility), and after a one week waiting period during which no benefits are payable, an eligible individual is entitled to receive payment of his or her paid leave benefits.

An eligible individual can submit a claim for payment of his or her paid leave benefits for a period during which he or she does not perform his or her regularly and customary work following the occurrence of a qualifying event, as provided below:

  1. Family Leave: eligible individuals may receive up to a maximum of 6 workweeks within a 52-workweek period that an eligible individual may take following the occurrence of a qualifying family leave event.
  2. Medical Leave: eligible individuals may receive up to a maximum of 2 workweeks within a 52-workweek period that an eligible individual may take following the occurrence of a qualifying medical leave event.
  3. Parental Leave: eligible individuals may receive up to a maximum of 8 workweeks within a 52-workweek period that an eligible individual may take following the occurrence of a qualifying parental leave event.
  4. Intermittent Leave: eligible individuals may receive payment for his or her paid leave benefits for intermittent leave, provided the total amount of intermittent leave shall not exceed 6 workweeks in a 52-workweek period for a qualifying family leave event, 2 workweeks in a 52-workweek period for a qualifying medical leave event, or 8 workweeks in a 52-workweek period for a qualifying parental leave event.

An eligible individual can receive benefits under any one or a combination of paid leave provided under the Act.  However, eligible employees are only entitled to receive payment for a maximum of 8 workweeks in a 52-workweek period, regardless of the number of qualifying leave events that occurred during that period.

For example, if an employee receives parental leave following the birth of twins, the employee is only entitled to 8 weeks of paid leave, not 16.  Also, if an employee receives 4 weeks of paid medical leave to care for a sick family member, and then takes parental leave a few months later, the employee is only entitled to an additional 4 weeks of paid leave within the 52-workweek period.

  1. What benefits do employees receive during paid leave?

An eligible individual who earns an average weekly wage at a rate that, on an annualized basis, is equal to or less than 150 percent of the District’s minimum wage, currently set at $11.50, are entitled to payment of benefits at a rate that equals 90% of that eligible individual’s average weekly wage rate (based on a 40-hour workweek). For those eligible individuals who earn an average weekly wage at rate that, on an annualized basis, is greater than 150% of the District’s minimum wage are entitled to paid leave benefits at a rate that equals:

  1. 90 percent of the 150 percent of the District’s minimum wage; plus
  2. 50 percent of the amount by which the eligible individual’s average weekly rate exceeds 150% of the minimum wage.

However, prior to October 1, 2021, the maximum benefit amount that any eligible individual may receive is $1,000 per week.  On October 1, 2021, and October 1 of each successive year, the maximum weekly benefit will increase in proportion to the annual average increase in the Consumer Price Index for All Urban Consumers, Washington-Baltimore metropolitan area, as published by the Bureau of Labor Statistics.

  1. What obligations do employers have under the law?

Covered employers are required to contribute 0.62 percent of the wages of each of its covered employees to the Universal Paid Leave Implementation Fund in a manner prescribed by the Mayor.

The Mayor has 180 days of the effective date of the Act to provide public notice to covered employers regarding the way contributions to the Fund shall be collected.  The Mayor must begin collecting contributions to the Fund from covered employers and self-employed individuals who opted into the paid leave program by July 1, 2019.

An employer that fails to contribute the amount required under the Act is subject to the same notice requirements, procedures, interest, penalties, and remedies set forth in section 4 of the District of Columbia Unemployment Compensation Act.

Employers are required to provide covered employees a notice, as prescribed by the Mayor, at the time of hiring and annually thereafter, and at the time the covered employer is aware that the leave is needed, that explains:

  1. the employees’ right to paid leave benefits under the Act and the terms under which such leave may be used;
  2. that retaliation by the covered employer against the covered employee for requesting, applying for, or using paid leave benefits is prohibited;
  3. that an employee who works for a covered employer with under 20 employees shall not be entitled to job protection if he or she decides to take paid leave pursuant to the Act; and
  4. that the covered employee has a right to file a complaint and the complaint procedures established by the Mayor for filing a complaint.

An employer that violates the notice requirement may be subject to a $100 civil penalty for each covered employee to whom individual notice is not delivered and $100 for each day that the covered employer fails to post notice in a conspicuous place.

  1. How is the law administered?

Under the Act, the Mayor is responsible for establishing procedures and forms for filing claims for benefits and specify what supporting documentation is required to support a claim for benefits – none of which have been contemplated.  Nonetheless, if an individual is deemed eligible to receive paid leave benefits, the Mayor shall make the first payment to the eligible individual within 10 business days of the determination or eligibility and subsequent payments are made biweekly thereafter.

Covered employers will receive notice that an employee has filed for paid leave benefits under the Act within 3 business days of the claim being filed.  However, employees are still required to give their employer notice of their leave under the Act, to the extent practicable.  If leave is foreseeable, the written notice shall be provided at least 10 days, or as early as possible, in advance of the paid leave.  If leave is unforeseeable, a notification, either oral or written, shall be provided prior to the start of the work shift for which paid leave is being used.  In the case of an emergency, the eligible individual, or another individual on behalf of the eligible individual, shall notify the employer, either orally or in writing, within 48 hours of the emergency occurring.

  1. How does the law interact with DCFMLA and existing employer paid leave policies?

The DC Family Medical Leave Act (DCFMLA), which provides for 16 weeks of unpaid leave, remains unchanged under the Act.  Therefore, employees are still eligible to take unpaid leave under DCFMLA.  When paid leave taken pursuant to the Act also qualifies for leave under the DCFMLA, the paid leave taken under the Act will run concurrently with, not in addition to, leave taken under other acts such as DCFMLA.  Nothing in the act provides job protection to any eligible individual beyond that to which an individual is entitled to under DCFMLA.

Eligible employers are not prohibited from providing individuals with leave benefits in addition to those provided under the Act but employers are still required to provide the paid leave benefits under the Act.  The provision of supplemental or greater paid leave benefits does not exempt the covered employer from providing or prevent an eligible employee from receiving benefits under the Act.

Employers should consider modifying any existing paid leave policies.  Because a covered employer is required to participate in the Fund, regardless of existing policies, employers may want to amend their paid leave policies to offer additional or supplemental paid leave benefits.  However, the parameters of the additional or supplemental paid leave should be clearly laid out to prevent any confusion about employee’s double dipping.  Employers may provide additional benefits above the maximum amount received through the Fund or provide additional paid leave beyond the eight, six, or two weeks provided under the Act.

  1. Is there an exemption or exception for small businesses?

No, there is not an exemption or exception for small businesses.  Council members Mary Cheh and Jack Evans introduce an amendment to the bill that the council did not pass, which would fund paid leave through an individual-employer mandate, in which employers pay for parental leave when employees need it, instead of the current plan to raise taxes and provide the benefit through a public-insurance program. The amendment would have also given a tax credit – not an exemption – to small businesses to help them cover their employees’ wages while they are gone.  However, under the Act that was passed, employers of all sizes must contribute to the Fund.

In sum, there remain many questions as to how the Act and the Fund will be administered, all of which should be answered after the Act becomes effective and the Mayor’s office issues forms and notices.  We will continue to keep you apprised of any developments under the Act, and what employers should do to ensure compliance.



Whistleblower Retaliation Article Published in BLR’s HR Daily Advisor and Upcoming Webinar

whistleblower-articleBLR recently published a two piece article in the HR Daily Advisor by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding government agencies increased focus on whistleblowers and retaliation, and how employers can avoid whistleblower and retaliation complaints from their employees.

Over the past year, there have been significant changes in both the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) that make it easier for employees to demonstrate that an employer acted with retaliatory intent.  Given this increased focus on retaliation, it is prudent for employers to take steps to avoid whistleblower and retaliation complaints from their employees, and ensure that they have adequate workplace policies and complaint systems to address retaliation complaints before an employee complaint lands before the EEOC or OSHA.

Part 1 of the article, titled “Preventing Whistleblowers in the Workplace: EEOC Expands the Rights of Whistleblowers,” focuses on how the EEOC has modified the standard it uses to evaluate retaliation claims, and has become more aggressive in its whistleblower enforcement efforts. Continue reading

States and Businesses Seek Injunction to Prevent DOL Overtime Rule From Taking Effect on December 1

gavelBy:  Kara M. Maciel and Dan Deacon

On September 20, 2016, business groups and states filed two lawsuits in the U.S. District Court for the Eastern District of Texas challenging President Obama’s new overtime rule that is set to take effect December 1, 2016 .   Twenty-one states banded together to challenge the U.S. Department of Labor’s (“DOL”) new overtime exemption rule in States of Nevada et al. v. United States Department of Labor et al, Case No. 1:16-cv-004070., and the U.S. Chamber of Commerce, leading a coalition of 50 national and Texas business groups, filed a similar lawsuit in Plano Chamber of Commerce et al. v. Thomas Perez et al. Case No. 4:16-cv-00732.  The two lawsuits argue that DOL unconstitutionally overstepped its authority to establish a federal minimum salary level to qualify for the Fair Labor Standards Act’s (“FLSA”) white collar exemption and violated the Administrative Procedure Act (“APA”).

The New Rule & its Impact on Employers

The long awaited controversial rule was released in May 2016 to the disdain of employers, as we’ve explained in prior blog posts.  The most significant change in the final rule is the new $47,476.00 minimum threshold salary required to qualify as an exempt employee, representing more than a 100% increase from the present level and a huge financial undertaking for employers.  All employers throughout Continue reading

The Impact of the 2016 Presidential Election on the Supreme Court and Employment Law [Virginia Human Resources Today Magazine]

va-magazineThe Summer/Fall 2016 issue of Virginia Human Resources Today Magazine featured an article by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding “The Impact of the 2016 Presidential Election on the Supreme Court and Employment Law.”

The article discusses the influence that the next President will have on shaping the Supreme Court – with the potential to nominate up to four new Supreme Court Justices – and the impact that this could have on employers, unions, and the workplace in the near future.  In light of Justice Scalia’s death, the Court is more or less split between liberal and conservative Justices.  The current political landscape leading up to the election suggests that Donald Trump will nominate a conservative justice that could step into Justice Scalia’s role on the bench as a heavy conservative justice and Hilary Clinton will nominate a candidate more akin to Justice Sotomayor – arguably one of the most liberal justices currently on the Supreme Court.  The President’s ability to appoint the next Supreme Court justice to replace Justice Scalia and the potential to appoint three more will surely influence the law on several important labor and employment law issues including a union’s ability to collect fees from workers who do not join the union, the Affordable Care Act’s contraception mandate, and employer grounds to challenge class action lawsuits.  Ultimately, there is a lot at stake in this year’s presidential election – not only will it determine who will lead the country’s executive functions and federal regulatory agendas, but it will also have a dramatic and long-standing impact on the future of the Supreme Court and judicial opinions impacting workers and workplace rights for years to come.

To read more on this interesting topic, here is a link to the full article in Virginia Human Resources Today Magazine.

Paid Sick Leave Set to Become Effective in Montgomery County, Maryland

health-care-costs-2In 2015, Montgomery County implemented Maryland’s first paid sick and safe leave statute, The Earned Sick and Safe Leave Law, which becomes effective on October 1, 2016.  The law applies to all employees that perform work in Montgomery County.  Under the law, employees who work for employers with 5 or more employees earn sick and safe leave at a rate of one hour for every 30 hours of work in Montgomery County, up to 56 hours or approximately 7 days of leave per calendar year.  Employees who work for employers with fewer than 5 employees must earn one hour for every 30 hours worked in Montgomery County, but only up to 32 hours or approximately 4.5 days per calendar year.

As has been seen in similar paid leave laws developing throughout the country, under Montgomery County’s statute leave can be used for (1) medical care of employee or employee’s family member; (2) closure of employer’s place of business or school/child care by order of a public official due to public health emergency; (3) care of a family member with a communicable disease that could jeopardize the health of others; or (4) obtaining medical or legal services for or participation in a proceeding related to domestic violence, sexual assault or stalking committed against the employee or the employee’s family member.

Similar to DC’s paid sick and safe leave law, employees must begin accruing leave on their first date of employment, but may be prohibited from using the leave during the 90-day initial probationary period.  Employers must permit leave to be carried over from year to year (up to 56 hours), but can cap use of accrued and carried-over leave to 80 hours per calendar year.  The law also requires employers to provide a written statement of available sick and safe leave to employees each time wages are paid.

Pursuant to this law, an employer must notify employees of their entitlement to leave by posting and in its written policies, usually the employee handbook.  Although this may require some employers to implement a new policy, many employers may already have policies that meet these basic requirements.  A general PTO policy that permits accrual of paid leave at the same or a greater rate and use of the paid leave for any reason, may simply need to be updated to encompass all of the permitted uses of leave, an anti-retaliation statement, and information about the employee’s rights to file a complaint.  Employers also should ensure accrual is not prohibited.  Policies must be carefully reviewed and revised, if necessary, to meet the qualifications of this law by or before October 1st.

This shift in the law is especially significant because of what it reflects for Maryland as a whole.  Maryland’s Healthy Working Families Act has gained renewed momentum in light of Montgomery County’s law and a similar law currently being considered in Prince George’s County.  The Act would similarly provide full-time employees up to 7 days of paid sick and safe leave and would, as it’s currently written, apply to all employers with 10 or more employees.  Employers with 9 or fewer employees would have to provide unpaid leave.  Although this proposed law has been introduced and reintroduced multiple times without success, there may be enough support in the state to push it through the Maryland government based on the implementation of one such law within the state already.

NLRB To Start Collecting Employer Data Under DOL’s Controversial “Blacklisting” Rule

Even though the DOL has not been cleared to issue its contentious blacklisting rule under President Obama’s “Fair Pay and Safe Workplaces” Executive Order (“the Blacklisting Rule”) – and despite legal and congressional challenges – the National Labor Relations Board (“NLRB”) is forging ahead with its own plan to collect data that could tarnish federal contractors and bidders as a company with a history of labor disputes.

Under the Blacklisting Rule, federal contractors bidding on jobs worth at least $500,000 are required to report data on labor violations, such as citations by the Occupational Safety and Health Administration, in their contract bids. far-1The federal government plans to implement the rule partly by compiling contractors’ information in a DOL database; newly appointed Labor Compliance Advisors at contracting agencies will use that data as part of determining contractor “responsibility” in awarding federal jobs. The DOL has a pending rule under White House review to carry out Obama’s Order and does not yet have the go-ahead to implement this new database.

Still, in a pro-labor friendly move that is not uncommon of the NLRB in recent years, the agency has started to collect data under the Blacklisting Rule’s disputed tracking system. Continue reading

NLRB Makes It Easier for Employers with Temp Workers to Become Unionized

By:  Kara M. Maciel and Lindsay Smith

On July 11, 2016, the National Labor Relations Board (“Board”) reversed decade old precedent requiring consent from the host employer and a staffing agency before a union election that includes temporary employees could take place. Through its 3-1 decision in the Miller & Anderson, Inc. case, the Board revoked its 2004 Oakwood Care Center holding and reinstated its 2000 decision in M.B. Sturgis by finding that bargaining units covering both regular employees and temporary employees do not require employer approval.  Indeed, the Board explained that based on the broad definition of employee in the National Labor Relations Act (“the Act”) and Congress’s “statutory charge” to the Board, it interprets the term “employer unit” in Section 9(b) be made up of both employees solely employed by the host employer and joint employees employed by both the host employer and the staffing agency, when those employees share a community of interest. In a statement released regarding its decision, the Board made clear that host employers would be expected to bargain as usual with their regular employees, and “will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”

The main argument against reversal of the Oakwood Care Center decision and the problem that arises in permitting such a bargaining unit, as explained in Board Member Philip Miscimarra’s dissent, is that Continue reading