Thursday, March 21, 2019

DOL: FMLA-qualifying leave must be designated FMLA leave

Another interesting opinion letter from the U.S. Department of Labor (FMLA-2019-1-A), this time on FMLA leave. This one is pretty straightforward, so I'm just gonna let the letter do the talkin':
Not official use.
First, an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee's FMLA leave entitlement. Once the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days. Accordingly, the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation. 
(citations omitted).

Wednesday, March 20, 2019

DOL: Complying with state wage and hour exemptions is not enough

Last week, the U.S. Department of Labor issued an opinion letter (FLSA2019-1). The employer is located in  New York, which has a state law exemption from overtime pay requirements for "residential janitors." The federal Fair Labor Standards Act does not include an exemption for residential janitors. Does the employer have to pay the residential janitors overtime?

Simply put, where state and federal wage and hour laws are different, the employer must generally comply with both of them, and "meet the standard of whichever law gives the employee the greatest protection."
Not official use.

The FLSA allows employees to collect liquidated damages, but if the employer acted in "good faith" then a court may deny liquidated damages. DOL "does not believe that relying on a state law exemption from state law minimum wage and overtime requirements is a good faith defense to noncompliance with the FLSA, but a court retains discretion to make that determination on a case-by-case basis."

The letter notes that the statute of limitations for FLSA claims is extended from 2 years to 3 years for a "willful violation." The letter, however, does not expressly address whether reliance on a state law exemption is sufficient to limit recovery to two years - this is likely a fact-based inquiry dependent on whether the employer "knew that its conduct was prohibited" or "showed reckless disregard for the requirements."

Bottom line: employers (and their attorneys) must be familiar with, and comply with, federal, state, and local wage and hour laws.

Wednesday, March 13, 2019

Third Circuit on federal employee retaliation claims

The Third Circuit faced two issues in Komis v. DOL:

First - Can federal employees bring retaliation claims under Title VII. The Court concluded (in alignment with other circuits) that, yes, federal employees may bring retaliation claims under Title VII.

Not official use.
Second - Does the same standard govern federal and private sector retaliation claims? On this one we get a punt. The Court declined to answer because it was not necessary to resolve the case. Although it was not resolved, the issue itself is interesting.

Title VII initially (in 1964) contained provisions prohibiting private employment discrimination, and private employment retaliation. In 1972, Congress amended Title VII to prohibit federal employment discrimination - but that provision does not expressly address retaliation.

As the Court held, federal employees may still bring retaliation claims - but does the same standard apply? In a well-known case, Burlington Northern, the Supreme Court contrasted the standard under the private employment discrimination provision (requiring an adverse employment action, affecting terms and conditions of employment), and the anti-retaliation provision (requiring only a materially adverse action - that would dissuade a reasonable person from engaging in protected activity).

Which standard applies to federal employees (given that they only have the anti-discrimination provision but not the express anti-retaliation provision)? We still don't know. The Court did note, however, that the D.C. Circuit and 7th Circuit both applied the Burlington Northern standard to federal sector employees.

Friday, March 8, 2019

DOL's new proposed overtime regulations are here!

We knew they were coming, and now they're here - The U.S. Department of Labor's updated proposal for new overtime regulations: Press release | Proposed rule.

The headliner:
Not official use. 
  • To qualify for the white collar exemptions (administrative, executive, and learned professional) from the FLSA's overtime pay requirement, employees must still perform the applicable primary duties and be paid on a salary basis - but, now they must receive at least $679/week ($35,308), instead of the current minimum of $455/week ($23,660). 
Also of interest:
  • The minimum salary requirement for highly compensated employees ("HCEs") will increase from $100,000 to $147,414 per year;
  • "Nondiscretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently" may satisfy up to 10% of the minimum salary requirement for the exemptions; 
  • No changes to the job duties requirements (which is somewhat surprising, at least to me); and
  • No automatic adjustments to the salary threshold - but, the Department recommends reviewing the salary thresholds for the white collar exemptions and HCEs every four years (using the notice and comment rulemaking process).
Please note that this is not the final rule, so we may still see some tinkering. That said, I suspect this is pretty close to what will actually be implemented. 

Monday, February 25, 2019

SCOTUS vacates Ninth Circuit Equal Pay Act decision

Under the Equal Pay Act, employers must pay men and women equally for substantially equal work. There are, of course, exceptions, such as a merit system, seniority system, a system based on quality or quantity of production, and the catchall "any other factor other than sex."

Well, last year, the Ninth Circuit held that employers could not rely on an employee's prior salary to justify pay differential. According to the Ninth Circuit, this would "allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum." This morning, the Supreme Court vacated that decision in a per curiam opinion (p. 13) . . . but for an interesting reason.

The Ninth Circuit opinion included a footnote at the very beginning:
Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.
In other words, the Court officially decided the case after Judge Reinhardt had passed away.

This morning, the Supreme Court held that the Ninth Circuit should not have done that. "[F]ederal judges are appointed for life, not for eternity." Without Judge Reinhardt's vote (let alone opinion), only 5 of the remaining 10 judges concurred in the "majority" opinion. So, the Supreme Court vacated the case and remanded it back to the Ninth Circuit.

Wednesday, February 13, 2019

I heard the 4th Circuit recognized a harassment claim based on rumors, pass it on.

[T]he central question presented is whether a false rumor that a female employee slept with her male boss to obtain promotion can ever give rise to her employer’s liability under Title VII for discrimination “because of sex.”
Welcome to Parker v. Remo Consulting from the 4th Circuit. The plaintiff alleged that the highest-ranking manager at her warehouse facility participated in the gossip, asking the man in the rumor, "hey, you sure your wife ain’t divorcing you because you’re f--king [the plaintiff]?" The manager allegedly went on to blame the plaintiff for "bringing the situation to the workplace" and told her that he would no longer recommend her for promotions.

The district court dismissed the claim, drawing a distinction between the plaintiff's sex (a protected characteristic under Title VII) and her conduct (generally not protected*). The Fourth Circuit reversed, pointing to the sex stereotype that "women, not men, use sex to achieve success." Additionally:
The complaint not only invokes by inference this sex stereotype, it also explicitly alleges that males in the RCSI workplace started and circulated the false rumor about Parker; that, despite Parker and Pickett’s shared tardiness, Parker as a female, not Pickett as a male, was excluded from the all-staff meeting discussing the rumor; that Parker was instructed to have no contact with Jennings, her male antagonist, while Jennings was not removed from Parker’s workplace, allowing him to jeer and mock her; that only Parker, who complained about the rumor, but not Jennings, who also complained of harassment, was sanctioned; and that Parker as the female member of the rumored sexual relationship was sanctioned, but Pickett as the male member was not. 
The Court concluded that the plaintiff had sufficiently pleaded a Title VII hostile work environment claim.

Now seems like a good time to share Ross Runkel's Case of the Week video series too. Here's his video on this case (find more at

* Notable exception for sex stereotyping and protected activity (participation and opposition in good faith efforts to address discrimination).