Gwinn Legal Winter 2020-21 Update

GWINN LEGAL PLLC
Attorneys and Counselors at Law
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WINTER 2020-21 UPDATE

 

Daniel A. Gwinn                                                                                                                                                          Laura Bradshaw Tucker
daniel@gwinnlegal.com                                                                                                                                            laura@gwinnlegal.com

 

2020 was a year of headlines — from the pandemic, to the elections, to nationwide protests, raging fires and devastating storms. Coverage of one event had barely ended before the news of another grabbed our attention.

But often buried in the barrage of news were stories about legal issues and decisions that may affect you as much as anything that dominates the front page or leads the newsfeed on MSN or Apple. Gwinn Legal has compiled a summary of some of this “law-related” news to help workers and employers stay on top events as we head into 2021.

COVID, COVID, COVID…

Leave: While the Covid-19 pandemic was not easy to overlook, revisions to regulations on the implementation of the paid sick leave and expanded FML provisions of the Family First Coronavirus Response Act were easy to miss.

In response to a decision from the Southern District of New York, the Department of Labor on September 11 announced it was tweaking the rules. The revisions clarified that an employee can take FFCRA leave only if work is otherwise available, that an employee must get an employer’s permission to take intermittent FFCRA leave, and that employees must provide required documentation supporting their need for leave as soon as practicable.

Unemployment:  Employers may have to start paying costs for unemployment benefits. Since April, first under an Executive Order and then under an amendment to the law, laid-off workers’ base period for unemployment benefits increased from 20 weeks to 26 weeks and employers were allowed off the hook for paying the cost of any benefits. Both those provisions expire at the end of the December.

EMPLOYMENT NEWS

Sex-plus Age Discrimination under Title VII? The Tenth Circuit Court of Appeals, which includes several western states, recognized a claim of discrimination based on “sex-plus-age” under Title VII. The court stated that if sex plays any impermissible role in an employer’s decision is discrimination even if the decision was based on another factor not protected under Title VII (like age) and that plaintiffs can prove their claims individually — they would not need to show that all older women were discriminated against. The plaintiffs in the case alleged that the employer’s actions had a discriminatory impact on older female workers. The case’s analysis has not been adopted in the Sixth circuit, which includes Michigan — so far.

Second Circuit KO’s Trump Administration ‘Joint Employer’ Rule. In good news for workers, but not-so-good news for employers, a September 8 opinion from New York vacated portions of a new March 2020 rule from the Department of Labor that would have made it easier for employers to avoid being viewed as “joint” — and jointly liable for violation of the FLSA. The Court held the new rule violated legal precedent by, inter alia, an overly narrow focus on the control an employer has over an employee. The Trump Administration appealed the ruling on November 6; a Biden Administration is unlikely to continue the appeal.

New Independent Contractor Test Also Likely to be Challenged. The fate of another employer-friendly Administrative Rule revision by the Trump Administration is not clear. The proposed Rule would determine whether a worker is an employee or an independent contractor by focusing more on the nature and degree of control a worker has over the work and the worker’s opportunity for profit and loss. Previous guidance examined six factors to determine the “economic reality” of the arrangement. After passing a 30-day comment period in late October, the rule should have become final — but there’s no word yet on its current status. If the rule becomes final, it is likely to be challenged during the Biden Administration.

NLRB Makes It Easier for Employers to Discipline Workers for Abusive Conduct. In July, the 3-member National Labor Relations Board gave employers a defense when disciplining workers whose offensive conduct occurs are engaging in protected concerted action under Section 7 of the NLRA. Workers who use profanity-laced speech, racial, ethnic or sexist slurs or other abusive conduct toward management or other workers may be disciplined if the employer can show the same action would have been taken even in the absence of concerted activity. The employee in the case — General Motors LLC and Charles Robinson — a union rep, had a heated exchange with a manager during a discussion of overtime coverage in which he repeatedly used the F word and told the manager  to “shove it up [his] f****** ass,” among other offensive conduct.

Worker with Genetic Mutation that Predisposes Worker to Cancer Is Protected under the ADA. The federal Sixth Circuit — which includes Michigan — ruled in June that a worker whose doctors discovered she had the BRCA1 gene, a mutation that would predispose her to getting breast cancer, had presented enough information for her claim to survive under the ADA, although additional evidence would be required. The worker had been fired after taking time off for a double-mastectomy. Reviewing the 2008 Amendments to the ADA, the Court posed the question as whether the plaintiff had alleged an impairment that “substantially limits her normal cell growth” where it was coupled with a medical diagnosis serious enough to warrant a double mastectomy — and decided there was enough evidence to deny her employer’s motion to dismiss her complaint. The court stressed, however, that “a plaintiff must allege more than a genetic mutation capable of interfering with normal cell growth to survive a motion to dismiss.” The court’s decision related only to whether the allegations in the lawsuit, if true, presented a potential violation of the law. The case is Darby v Childvine.

IN CASE YOU MISSED IT 

Supreme Court decision on Title VII brings LGBT individuals Title VII protection, but falls short of recognizing Constitutional protection. The Supreme Court’s landmark decision in June in Bostock v Clayton County declared that discrimination in employment against LGBT individuals is discrimination “because of sex.” The ruling, however, did not recognize LGBT people as a class entitled to equal protection of the laws. The lack of a constitutional underpinning to the decision means that the decision could be overturned by a revision of the law to explicitly define sex as biological gender — however unlikely such an amendment might be — and that similar laws in areas other than employment discrimination could be interpreted differently.

NY Court of Appeals Blocks Rule That Would Allow Discrimination Against the Transgendered Under the ACA: Just days before the Supreme Court decided Bostock v. Clayton County, above, the Trump Administration finalized a new rule that would interpret the word “sex,” in the context of the Affordable Care’s protections against discrimination in healthcare, “according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” The rule was almost immediately challenged. In August, the federal District Court for the District of New York granted a preliminary injunction, barring enforcement of the new rule. Although the rule was not related to Title VII, but to Section 1557 of the ACA, which is controlled by Title IX, Title VII law on the meaning of discrimination “on the basis of sex,” if often adopted in Title IX cases. The Administration’s failure to address the impact of the Bostock decision on the new rule rendered it likely that the plaintiff’s in the case “will succeed on their claim that the rules are arbitrary and capricious,” the Court said.

Although under appeal, the injunction remains in force.

NEW RULE MAKES ‘DISPARATE IMPACT’ HARDER TO PROVE IN HOUSING DISCRIMINATION CASES

In late October, the Department of Housing and Urban Development released a new administrative rule for handling claims of “disparate impact” brought under the Fair Housing Act, the law that prohibits discrimination in housing on the basis of race, color, religion, sex, disability, familial status and national origin. The rule is intended to bring the disparate impact standard in line with a 2015 Supreme Court decision and provide a clearer and more uniform standard. In the past, a plaintiff could present a prima facie case simply by providing statistical evidence that a given practice or policy had a discriminatory effect on a protected group

Under the new rule, a plaintiff must state in the initial pleadings that a specific identifiable policy or practice has a discriminatory impact based on evidence of all of the following:

  1. “That the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective such as a practical business, profit, policy consideration, or requirement of law;
  2. That the challenged policy or practice has a disproportionately adverse effect on members of a protected class;
  3. That there is a robust causal link between the challenged policy or practice and the adverse effect on members of a protected class, meaning that the specific policy or practice is the direct cause of the discriminatory effect;
  4. That the alleged disparity caused by the policy or practice is significant; and
  5. That there is a direct relation between the injury asserted and the injurious conduct alleged. “

A defendant can rebut the first of the required elements, by producing evidence that the challenged practice or policy advances a valid interest and it would be up to the plaintiff to prove that the interest is not valid or that there is a less discriminatory policy or practice that would be equally effective at serving the defendant’s interest without creating any “materially greater costs” or burdens.

The National Fair Housing Alliance, a nonprofit advocacy group, claimed the revisions “will make it eminently harder to challenge systemic racism by housing providers, financial institutions, and insurance companies that deprive people of the services and opportunities they need.”

 

ARE YOUR EMPLOYMENT POLICIES TO-DATE?

  • Under Bostock v Clayton County, above, employment discrimination against LGBT people and harassment of LGBT people on the basis of their orientation or gender identity is against the law — your employee handbook should reflect this.
  • Do you have a question about salary or pay history on your application? You should consider eliminating it. In 2019, Gov. Gretchen Whitmer signed an Executive Order forbidding the use of this question on applications for state jobs; expect to see this kind of prohibition migrate to the private sector in the next few years. Now is a good time to get ahead of the curve and strike questions about prior pay, which can contribute to discriminatory low wages for women.
  • With the recreational use of marijuana now legal in Michigan for adults over age 21, you might want to reconsider any workplace policy that requires immediate termination for anyone testing positive for the presence of THC, a substance in that can stay in the body days after marijuana was consumed. Unless there is reason to believe that the worker was high on the job, or used pot while at work, any no-tolerance policy may end up costing you good employees. That said, the 2018 law legalizing marijuana allows employers to discipline workers who test positive for marijuana.
  • Michigan’s Paid Medical Leave Act went into effect back in March 2019. If you have over 50 employees and haven’t updated your leave policies, better get cracking. And make sure to display a poster ”in a conspicuous place that is accessible to eligible employees” that explains the right to medical leave, and an employee’s right to file a complaint with Michigan’s Department of Licensing and Regulatory Affairs (LARA).

If you need help revising a handbook or policy, Gwinn Legal can offer advice on how to update specific sections, or take on the task, and update your handbook to ensure it complies with current laws.

We value our relationship with you. Keep safe, stay well.

Very truly yours,

                           GWINN LEGAL PLLC

Daniel A. Gwinn                                           Laura Bradshaw-Tucker

 

 

 

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