Friday, April 19, 2019

Pennsylvania appellate court on joint employment

Ethan Wilt
Ethan Wilt, my fellow McQuaide Blasko attorney, published a new whitepaper: County not a joint employer of probation officer employee where the Probation Office ultimately operated under the final supervision and authority of the President Judge. That's a mouthful - I'll have to work with him on succinct, click-baity headlines.

The whitepaper covers a new Pennsylvania Commonwealth Court decision considering whether Clarion County was a joint employer with the Court of Common Pleas of Clarion County for purposes of liability under the Pennsylvania Human Relations Act (PHRA).

Thursday, April 18, 2019

Does the cost of a sign language interpreter constitute an undue hardship under the ADA?

First, check out this great article: How Reasonable is That Accommodation? Case Studies Evaluating the Reasonableness of Workplace Accommodations Under the Americans With Disabilities Act. The article provides three "case studies" for reasonable accommodations under the ADA, including Searls v. Johns Hopkins Hosp.

In Searls, a deaf nurse sought a reasonable accommodation under the ADA - an American Sign Language (ASL) interpreter. The nurse's salary was about $60,000/year, and the ASL interpreter would have cost up to $120,000/year. The hospital argued that it would effectively have to layoff two other nurses to account for the ASL interpreter in the budget. That sounds like a pretty goo setup for an undue hardship defense, huh?

Not so fast! The Court declined to enter summary judgment for the employer, mostly because the $120,000 cost was only 0.007% of the hospital's budget. And, that right there is one of the difficulties in analyzing an employer's duty to accommodate employees with disabilities under the ADA.

You really have to examine circumstances. Did Johns Hopkins fail to get summary judgment on a $120,000 cost that was twice the employee's salary? Yeah. Does that mean your business has to provide such an accommodation? Well . . . wait for it . . . classic attorney punchline coming . . . that depends.

[Loud groaning and booing from the audience]. "Can you at least tell us what it depends on?" Fine. Per the ADA, here is a nonexhaustive (I know, I know - yes, there might be even more factors that aren't even listed) list:
(i) the nature and cost of the accommodation needed under this chapter; 
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; 
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and 
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 
42 U.S.C. § 12111(10)(B).

Wednesday, April 17, 2019

NLRA limitations on employee handbooks and policies

Yesterday, I guest-taught labor law (specifically, social media and the NLRA) at Penn State Law. We covered the NLRB's review of employee handbooks and policies. What makes a policy overbroad, and therefore unlawful under the NLRA?

Not official use.
I'd say it's a question I get all the time, but the truth is that it's a question I almost never get. Most employers don't even realize it's an issue. "NLRA? I don't have any union employees" - it's not that simple. Even non-union employees have the right under the NLRA to engage in protected concerted activity, not to mention union organizing activities. So, employee handbooks must not infringe on those rights.

At the end of 2017, the NLRB issued its opinion in Boeing, announcing a new standard of review for employee handbooks. The Board placed emphasis on balancing the employer's business justifications for a policy with the employee's NLRA rights:
Under the standard we adopt today, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things:  
(i) the nature and extent of the potential impact on NLRA rights, and 
(ii) legitimate justifications associated with the rule.
This is a more employer-friendly rule, although its vagueness will be difficult for employers to apply prospectively. The Board provided some clarification with three categories of policies:

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement in this case, the “harmonious interactions and relationships” rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications. 
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.


Tuesday, April 2, 2019

DOL proposes new "joint employer" rule

Geez, the U.S. DOL has been busy! On Monday, they announced "a proposed rule to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements." The joint employer standard has been a hot topic for a while now.

Let's cut to the chase - DOL proposes the following rule for FLSA matters:
Not official use.
[A] clear, four-factor test —based on well-established precedent—that would consider whether the potential joint employer actually exercises the power to:" :
  • hire or fire the employee; 
  • supervise and control the employee’s work schedules or conditions of employment; 
  • determine the employee’s rate and method of payment; 
  • and maintain the employee’s employment records.
Note that the employer must "actually exercise the power" - this was one point of disagreement across administrations under the NLRA.

Additional information from DOL:

Monday, April 1, 2019

11th Circuit on "similarly situated" comparators

In my experience, very few discrimination cases include "direct evidence" - the proverbial smoking gun. Instead, plaintiffs rely on circumstantial evidence to imply discriminatory intent. The most common way to do this is for the plaintiff to point to other employees (outside of the plaintiff's protected class) who did not receive the same adverse employment action.

Not official use. 
To draw a valid comparison, the plaintiff and the comparators must be "similarly situated." That just makes sense. A different supervisor treating a different person with a different job under different circumstances differently is hardly evidence of discriminatory intent on behalf of the employer. The 11th Circuit's opinion in Lewis v. City of Union City answers the question: just how similarly situated do they have to be?

The majority opinion of the en banc panel concluded that comparators must be "similarly situated in all material respects." The Court describes this standard as the "sweet spot" between the to-lenient "comparison that is not useless" standard and the too strict "nearly identical" standard.

Although the analysis will depend on the circumstances of each case, the comparator will "ordinarily"

  • "have engaged in the same basic conduct";
  • "been subject to the same employment policy, guideline, or rule";
  • "have been under the jurisdiction of the same supervisor";
  • "share the plaintiff's employment or disciplinary history."
To wrap-up, "comparators must be sufficiently similar, in an objective sense, that they cannot reasonably be distinguished." (internal quotations omitted). It is important to note that the test varies (in some cases fairly significantly) from circuit to circuit. 

Friday, March 29, 2019

Another new DOL rule - this time, on the "regular rate"

Not official use.
Under the Fair Labor Standards Act (FLSA), an employer must generally pay a non-exempt employee an overtime premium for hours over 40 worked in a workweek. Overtime pay is equal to 1.5x (or 150% of) the employee's "regular rate."

This calculation can be easy - an employee who makes $8/hour gets $12/hour for overtime. Sometimes it's hard though. Employees receive all kinds of perks and payments and it can be difficult to calculate them into the regular rate (or know if you even need to).

Yesterday, the U.S. Department of Labor announced a new proposed rule to update regular rate calculations. DOL pointed to some highlights:
[E]mployers may exclude the following from an employee's regular rate of pay:
  • the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services; 
  • payments for unused paid leave, including paid sick leave; 
  • reimbursed expenses, even if not incurred "solely" for the employer's benefit; 
  • reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements; 
  • discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary; 
  • benefit plans, including accident, unemployment, and legal services; and 
  • tuition programs, such as reimbursement programs or repayment of educational debt. 
The proposed rule also includes additional clarification about other forms of compensation, including payment for meal periods, "call back" pay, and others.
The DOL is trying to incentivize employers to provide these "perks" without fear that they will have to include them in overtime calculations. Unfortunately, employers may still face this concern because many state laws also require an overtime premium; and, whether these perks are excluded from that calculation will depend on the state law.

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).