Category Archives: FMLA

2019 Labor and Employment Law Checklist

Each year, LP’s Labor & Employment Practice Group is pleased to provide a short checklist of steps that all companies should consider taking to measure their readiness for the coming year. We hope that you find our 2019 Labor and Employment Law Checklist to be a helpful guide to best practices for the year ahead.

Download a fillable PDF here. Print it out for yearlong reference, or get started right away and enjoy the satisfaction of checking some very important items off your list.

 

  • Keep Ahead of Harassment & Discrimination Claims.  The #MeToo and #TIMESUP headlines did not slow down in 2018, and preliminary data released by the EEOC showed more than a 50% increase in EEOC charges claiming sexual harassment. In addition, Illinois and New York implemented new requirements relating to harassment policies and training, with Illinois requiring policies for employers that do business with the state or claim EDGE tax credits, and New York implementing strict requirements that apply to all companies with New York employees.  The EEOC also issued “Promising Practices for Preventing Harassment” to provide strategies to employers to reduce workplace harassment. Committed and engaged leadership, strong and comprehensive harassment policies, and regular, interactive training tailored to the audience and the organization are the new standard. If you have not conducted training and updated your harassment, discrimination and retaliation policies to meet these standards, put it on the agenda for early 2019.  

 

  • Update Policies to Reflect New Reimbursement Requirements. Under a new law targeting employers who require employees to use their personal cell phones for business purposes, Illinois now requires employers to reimburse employees for expenses they incur that are “directly related” to the services they are providing their employer. However, employers can set requirements around how and when requests for reimbursement must be made.  It is critical that employers confirm that expense reimbursement policies provide the framework for requesting reimbursement, and that policy manuals are clear that employees are eligible for reimbursement for these expenses, at least to the extent they exceed what the employee would have spent for personal reasons. 

 

  • Review Compensation Policies. The gender pay gap continues to draw the attention of lawmakers. For example, California, Connecticut, Delaware, Hawaii, New York, New Jersey, Maryland, Massachusetts, Oregon, Puerto Rico, Vermont and a number of municipalities have adopted laws making it easier to prove discrimination and/or limiting the compensation information that can be requested from applicants.  And with the change in leadership in Springfield, Illinois might just follow suit in 2019.  Consider reviewing compensation policies to put the emphasis on the value of the work being performed, rather than on what the applicant was paid in his or her last position.   

 

  • Confirm Parental Leave Policies Don’t Discriminate.  Being more generous with paid leave to new mothers than new fathers can create significant liability if the difference is based on gender and not on the physical act of giving birth or the employee’s designation as a primary care giver.  In February 2018, Estee Lauder paid $1 million to more than 200 male workers to settle a charge claiming that the company’s parental leave policy discriminated against male employees. Employers should revisit maternity and parental leave policies to make sure that any difference between the leave being provided to male and female employees is based on a permissible reason.   

 

  • Comply with New Military Leave Protections.  A new Illinois Law –ISERRA– provides some additional protections beyond those of the Federal USERRA.  ISERRA applies to all Illinois employers, regardless of size and requires that a specific notice of rights be posted.  Make sure that your team is aware of these new requirements and that the notice is posted in your workplace. Also, if you have a military leave policy, confirm that it reflects ISERRA.  

 

  • Are Arbitration Agreements Right for You? After years of uncertainty, the Supreme Court determined that employers can legally require employees to arbitrate any disputes individually. But are these types of agreements right for your company?  There are pros and cons of arbitration, so talk with your legal advisors to determine whether the agreements that require individual arbitration make sense for your organization.   

 

  • Revisit Workplace Rules Following NLRB Shift. The NLRB, now controlled by Republicans, is undoing many of the standards put in place by the prior NLRB.  Many, but not all, of these rules are considered pro-employer, including a more practical approach to determining when handbook policies regarding confidentiality interfere with employees’ right to engage in concerted activity. This means that some of the disclaimers and limitations in employee handbooks that were put into place in response to the “old” NLRB’s standards are no longer necessary.  Consider revisiting employee handbooks to clarify policies to be consistent with the current rules. 

 

  • Consider Unpaid Intern Standard Changes.  For years we have counseled clients not to use unpaid interns or risk a variety of employment claims.  However, changes to legal standards from both the courts and the Department of Labor have provided a more practical approach and raises the possibility of treating interns as unpaid.  At the heart of the analysis is whether the internship is more for the intern’s benefit or the company’s, and whether the internship is an extension of their education.  If you have an internship program that works with students, or are considering one, talk to your legal counsel about whether the internships can be unpaid. 

 

  • Update Restrictive Covenants. There has been lots of conversation regarding restrictive covenants. In fact, states are increasingly passing laws related to non-competes. Most recently, Massachusetts passed the most sweeping legislation we have seen in several years, limiting when and how employers can prohibit competition and even requiring additional consideration during the time period in which the employee cannot compete. If your restrictive covenants are more than a few years old, or if they are not specifically crafted to meet the legitimate business needs of the company, it is important to revisit and update them to maximize enforceability.

 

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2015 Check-In – Have you updated your policies and documents?

Echeckarlier this year, we posted a checklist outlining key issues and action items for compliance in 2015. With the first quarter coming to a close, we want to remind you of a few important items from that checklist that required changes to your policies and practices, as well as alert you to a new item that requires immediate action.

Change FMLA policy to reflect same-sex spouses.

Effective March 27, 2015, the definition of “spouse” under the FMLA will be amended so that an eligible employee in a legal same-sex marriage will be allowed to take FMLA leave for his or her spouse. Make sure that you change your FMLA policies and practices to reflect this new definition.

Confirm employment applications and processes comply with “Ban the Box.”

As of the first of this year, Illinois employers must wait until an interview has been granted (or, if no interview, until a conditional offer of employment has been made) before asking about criminal history. New Jersey’s new law, effective earlier this month, requires companies to wait even longer. Employers hiring in these states — as well as in other states with similar laws — should ensure that employment applications do not contain criminal background questions and that questions regarding criminal background are not asked until it’s legal to do so.

Comply with new Illinois pregnancy accommodation rules and notice requirements.

As of January 1st, Employers in Illinois are required to provide reasonable accommodations to pregnant employees and applicants who ask for them, to post a notice in the workplace regarding pregnancy accommodation rights, and to include language relating to such rights in their handbooks. Make sure your team is aware of these requirements and that any necessary changes to policies and practices have been made.

Obama: FMLA Should Cover Same-Sex Couples

fmlaPresident Barack Obama announced today that he is directing the Department of Labor to propose a rule making legally married, same-sex couples eligible for benefits under the Family and Medical Leave Act in all fifty states regardless of whether they live in a state that recognizes their marital status.

The Family and Medical Leave Act allows employees to take unpaid, job-protected leave for family and medical purposes. Without the regulatory changes, gay couples cannot receive federal benefits in states that do not recognize their marriages. Same-sex marriage is currently legal in nineteen states and the District of Columbia.

Obama’s announcement comes as a precursor to the Justice Department’s announcement this afternoon of findings from their yearlong review of how the landmark 2013 Supreme Court Windsor decision (that held that the survivor of a same-sex couple could claim the federal estate tax exemption for surviving spouses) affects federal rights and obligations linked to marriage and spousal rights and benefits. It is expected that, in almost all instances, same-sex married couples will receive the same federal benefits and obligations as their heterosexual counterparts, regardless of where they live. The two exceptions are Social Security and veterans benefits, which are determined by the law where the couples live. Obama, and gay and civil rights groups, are pressing lawmakers to extend these federal benefits to same-sex couples too.

EEOC Files Suit Alleging Attendance Policy Failed to Accommodate Disabled Employees

sealOn Friday, the EEOC filed suit against AutoZone, alleging that the car repair company violated the Americans With Disabilities Act by applying its attendance policy in a way that failed to accommodate certain disability-related absences.  This is the EEOC’s fourth disability discrimination case against AutoZone in the last 5 years.

Under AutoZone’s policy, employees received points for absences, with 12 points resulting in termination.  According to the EEOC, the policy did not make any allowances for disability-related absences (such as early departures by a diabetic employee who had insulin reactions), which the EEOC has alleged constituted a failure to accommodate.

Employers often — wrongly — assume that the fact that an employee doesn’t qualify for (or has exhausted) FMLA leave means that he can be terminated for his absences.  However, if the reason for the absence relates to the employee’s medical condition, it’s critical that the absence be considered under an ADA reasonable accommodation analysis as well.

DOL Updates FMLA Guidance to Cover Same-Sex Spouses

Wage and Hour DivisionEver since the Supreme Court’s decision in U.S. v. Windsor striking down the federal Defense of Marriage Act (DOMA), employment lawyers have struggled to keep up with the implications of the ruling for various federal and state employment laws.  For example, under the Family and Medical Leave Act (FMLA), same-sex spouses prior to the Windsor ruling did not have all of the same leave rights as opposite-sex spouses because federal law did not recognize same-sex marriages.  Now that the DOMA has been overturned, the Department of Labor (DOL) has issued updated FMLA guidance remedying this situation, at least for some same-sex couples.  Fact Sheet 28F issued by the DOL in August clarifies that “spouse” for purposes of qualifying leave under the FMLA means “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.”  As a result, same-sex spouses who reside in one of the states recognizing same-sex marriage should now be entitled to the same leave rights as opposite-sex spouses.  Unfortunately, same-sex spouses who move to a state that does not recognize such marriages will not benefit from this guidance.  Many commentators believe that help for same-sex spouses falling in this second category will only come through a formal change to the FMLA regulations by the DOL.