|
Daniel A. Gwinn |
GWINN LEGAL PLLC Attorneys and Counselors at Law (248) 247-3300 (248) 247-3310 facsimile www.gwinnlegal.com |
Laura Bradshaw
Tucker |
WINTER 2020-21 UPDATE
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