Monday, March 1, 2021

Third Circuit: Allegation of "significantly younger" comparator is good enough to state an age discrimination claim under the ADEA

The Third Circuit recently published a precedential decision on a pretty interesting little pleading issue. In Martinez v. UPMC Susquehanna, the plaintiff alleged that he was replaced by people who were "significantly younger" than him. To use a comparator to establish an ADEA claim, the comparator must be "substantially younger." 

The pleading here bumps up against some general pleading requirements:

  • First, when deciding whether a plaintiff has stated a claim, a court is only to consider factual allegations and not conclusory statements. "Significantly younger" could be viewed as conclusory. 
  • Not official use.
    Second, plaintiffs generally cannot survive a motion to dismiss just by "alleging the conclusion to an ultimate legal issue." And, whether someone is actually substantially younger is a conclusion of law. For example, see Narin v. Lower Merion School District, 206 F.3d 323, 333 n.9 (3d Cir. 2000) (7-year age difference between 56-year-old plaintiff and 49-year-old comparator was insufficient to “permit an inference of discrimination”); Gutknecht v. SmithKline Beecham Clinical Lab., 950 F. Supp. 667, 672 (E.D. Pa. 1996) ("Although no uniform rule exists, it is generally accepted that when the difference in age between the fired employee and his or her replacement is fewer than five or six years, the replacement is not considered sufficiently younger, and thus no prima facie case is made"). 
The Third Circuit, however, viewed the plaintiff's allegation that his comparators were "significantly younger" as a factual allegation and not a conclusion of law:

Martinez alleges a commonsense fact. He does not ask us to take as true that the hospital discriminated against him based on his age. He asks us only to accept that the men who replaced him were “significantly younger” than he was. That is a matter of common parlance and observation. People often look at someone’s appearance or experience and infer that person’s rough age. The inference is imperfect, but it is enough to get to discovery.
In my experience litigating these cases, this "commonsense" is indeed "imperfect." I once discovered that a proposed comparator was indeed younger than the plaintiff . . . by eight days. That said, it can sometimes be obvious to a plaintiff that their replacement is "significantly younger" - even if the exact age of the comparator is not known. The Third Circuit's decision here will let that issue play out in discovery. 

Wednesday, February 10, 2021

"I'm not a cat."

 We could all use a moment of levity, right? As luck would have it, the hottest Internet video of the day intersects with my world . . . a lawyer making a court appearance via Zoom. Just one problem: he's streaming with a filter on that makes him appear to be a cat. 


If you don't lose it at the exact moment he says, "I'm not a cat," we can't be friends. 

Wednesday, February 3, 2021

OSHA issues new COVID-19 guidance for workplaces

As vaccines roll out, workplaces are still dealing with COVID-19 and trying to protect employee and public health. OSHA recently issued updated (and self-described "stronger") guidance on limiting the spread of COVID-19 at work. The guidance addresses a lot of the questions I'm getting from employers, but is not really earth-shattering: 

  • Wear masks; 
  • Distance;
  • Separate and send home potentially infected people; 
  • Improve ventilation;
  • Use PPE;
  • Good hygiene;
  • Routine cleaning and disinfection. 
Employers may appreciate some of the details included in the guidance though - it's definitely worth reading if you're an employer. 

Tuesday, January 12, 2021

DOL Wage and Hour Opinion Letter on Travel Time for Telworkers

The federal government agencies have been unveiling guidance and regs faster than I can even blog about them. I'll try to hit some of the highlights in the next week or so though. Of course, all of this comes with the giant caveat that we have a new administration coming in, and it will likely hold different views on at least some of these issues. 

On the last day of 2020, DOL Wage and Hour issued opinion letter FLSA2020-19. As you probably already know, commute time is generally not compensable. The opinion letter addresses what, frankly, I'd call some no-brainers. If an employee is teleworking and has to drive an hour to a parent-teacher conference and then comes into the office - compensable? Of course not! Why would an employer be responsible for paying its employees to drive to their kid's school?

Employers, however, should be aware of the "worksite-to-worksite" doctrine: 

Travel time must be counted as hours worked when it is part of an employee's principal activity, such as travel from worksite to worksite during the work day.

But, if the employee is not required to travel from home to office (let alone to a parent-teacher conference) as part of their job, then the time is probably not compensable. 

Employers should also note the "continuous workday" doctrine:

[T]he period between an employee's first and last principal activities will "in general" be compensable.

But, again, if an employee is not required to travel between home and office for work, then the employee is effectively relieved from duty during that travel time. From the opinion letter:
When an employee arranges for her workday to be divided into a block worked at home and a block worked at the office, separated by a block reserved for the employee to use for her own purposes, the reserved time is not compensable, even if the employee uses some of that time to travel between the home and office.

The letter does not specifically address a situation where the employee uses all of that time to commute. I do not believe the result would be different though. If an employee arranges to spend some time at home and then some time in the office, that time will likely not be compensable. 

What would make the result different? If the employee were required to do some work from home immediately before or after being required to come into the workplace. In that situation, the employer is effectively controlling the entire bloc of the employee's time for the employer's benefit - probably compensable. 

Thursday, January 7, 2021

DOL publishes new independent contractor rule, but is it DOA?

You probably heard the big news out of DC yesterday... the U.S. Department of Labor published its final rule to clarify independent contractor status under the Fair Labor Standards Act (FLSA). What? Did something else happen?

The new rule generally makes it easier to classify workers as independent contractors as opposed to employees under the FLSA (i.e. federal minimum wage and overtime law). The actual rule is here. Short version of a long and complicated issue, the new rule focuses on two primary factors:

(1) the nature and degree of the worker’s control over the work; and 

(2) the worker’s opportunity for profit or loss.

But, if need be, there are three additional "guideposts":

(3) The amount of skill required for the work; 

(4) The degree of permanence of the working relationship between the worker and the potential employer.

(5) Whether the work is part of an integrated unit of production.

But, wait! This comes with so many caveats... I don't know where to begin. 

  • The Rule takes effect March 8th; 
  • But, we get a new president January 20th and he has already flagged this rule as "an example of the type of last-minute regulation Mr. Biden would seek to halt or delay with a memo he intends to sign on inauguration day;"
  • This is *just* the rule for the FLSA - There are countless other laws that require independent contractor vs. employee classification analysis and they each have their own tests (worker's comp., unemployment compensation, collective bargaining, etc.); 
  • Also, your state probably has its own minimum wage and overtime law that does not necessarily track with the federal rules; and
  • Courts are not bound by agency regulations, and often adopt their own tests (See, e.g., the Obama administration's paid intern rule that was rejected over and over again). 
In other words, although the rule itself is easier to apply, classifying workers remains as frustrating and convoluted as ever. 

Monday, January 4, 2021

Happy New Year! Now, what's your FFCRA paid leave plan?

Free whitepaper: Emergency Paid Leave - What Now? The FFCRA emergency paid leave and emergency paid FMLA mandates expired on December 31, 2020, but the tax credits live on. 

Bottom line: After December 31, 2020, employers are no longer required to provide emergency paid sick leave or emergency paid FMLA leave to employees - BUT - employers may voluntarily provide such leave and still receive the tax credit through March 31, 2021.

In the whitepaper, I included some pros and cons of voluntarily continuing FFCRA leave:

  • CONS 
    • Administrative overhead. Someone will have to continue to track employee balances, document the requests, and obtain the tax credits. 
    • Compliance costs. I’m still fielding calls and emails asking whether assorted absences are covered. o Cash flow. The payroll tax credits will likely not result in full reimbursement until after the employer has already paid for the leave. 
  • PROS 
    • Workplace and public health. The whole point of the emergency paid leave is to incentivize employees to stay home if they are experiencing symptoms or quarantined to prevent the spread of COVID-19. 
    • Employee morale. Employees will likely appreciate employers shouldering the burdens described above to provide them with this extended benefit for the next three months.
Now is the time to decide!

Monday, December 28, 2020

Miles on the (now official) voluntary FFCRA extension

Straight from the department of shameless self-promotion, I am pleased to recommend Judy Greenwald's article in Business Insurance, Employers may extend FFCRA, but mandate ends: Experts, featuring quotes from... me! I'm "Experts" (along with fellow employment law bloggers, Jeff Nowak and Eric Meyer

You can read my prior summary here:

Bottom line: After December 31, 2020, employers are no longer required to provide emergency paid sick leave or emergency paid FMLA leave to employees - BUT - employers may voluntarily provide such leave and still receive the tax credit through March 31, 2021. 

At the time, I noted that "it ain't over till it's over" - after far more drama than anyone expected, still-President Trump signed the bill into law yesterday.