Leaves of Absence/FMLA Law and Practice

The U.S. Department of Labor has issued its final rule requiring federal contractors to provide at least seven days or 56 hours of paid sick leave each year to employees who perform work on covered federal contracts.  This rule is the final implementation of Executive Order 13706, which President Obama issued in September 2015.  The new rule becomes effective on November 29, 2016, though in most instances, as discussed below, it will only be applicable to new contracts awarded on or after January 1, 2017.  Contractors should, however, take steps now to ensure compliance. Continue Reading Department of Labor Issues Final Rule Requiring Paid Sick Leave for Federal Contractors

On April 21, 2016, San Francisco became the first city to impose a mandatory paid parental leave ordinance.  Under the new law, certain covered employers must provide supplemental compensation to employees who are receiving California Paid Family Leave (PFL) for purposes of bonding with a new child.  Employers should be mindful of these new obligations, which are likely to expand to other cities and possibly the entire State of California in the future.

Under previously existing law, no California city required that employers provide paid parental leave for bonding with a new child.  Employers were only required to notify employees of their rights under the state’s PFL program.  The PFL program is a component of the California State Disability Insurance (SDI) program and entitles employees who have paid into SDI to receive up to 55% of their lost wages when they must take a leave of absence to care for a child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner.  Benefits are capped at six weeks in a 12-month period, and benefits are funded entirely by the SDI program.  (Note that California Governor Jerry Brown recently signed legislation that will increase the benefits paid by the California PFL program for eligible leaves from 55% to 60% (or 70% in some cases) beginning on or after January 1, 2018.) Continue Reading San Francisco Becomes First City to Require Employers to Fund Paid Family Leave

A number of significant developments in California labor and employment law occurred in 2015. This article will highlight the developments we believe are most important for California employers, including a new mandatory paid sick leave law, a substantial overhaul of the Fair Pay Act, the solidification of special meal period waivers for healthcare employees, the prohibition of certain no-hire clauses in California settlement agreements, and a few others.

California Paid Sick Leave Laws

On July 1, 2015, California became the second state in the nation (following Connecticut) to implement a mandatory paid sick leave law and the first state in the nation to require paid sick leave for all employers.  Unlike Connecticut, there is no small employer carve out.

Continue Reading California Case Law 2015 Recap

On Thursday, February 25, 2016, the U.S. Department of Labor proposed new rules to implement Executive Order 13706, which requires certain federal contractors to provide qualifying employees with at least seven days of paid sick leave each year, including paid leave for family care. The Department of Labor intends to publish a final version of these rules by September 30, 2016, and employers who contract with the federal government should begin preparing for their implementation now.  Noncompliance could result in suspension of federal payments or even termination of a federal contract. Continue Reading New Mandatory Paid Sick Leave Rules Could Ensnare Unwary Federal Contractors

Armed Services Board of Contract Appeals logoThe Armed Services Board of Contract Appeals (ASBCA) recently granted a claim sponsored by the prime contractor for its subcontractor’s employee severance costs under a fixed-price contract. Appeal of Government Contracting Resources, Inc., ASBCA No. 59162 (March 12, 2015).

Government Contracting Resources, Inc. (GCR), sought additional compensation for severance costs it incurred, along with its subcontractor, upon expiration of its service contract with NASA for the distribution of mail at the Kennedy Space Center. A collective bargaining agreement (CBA) between GCR subcontractor Creative Management Technology Inc. (CMT) and the International Association of Machinists and Aerospace Workers (IAMAW) granted severance pay to CMT bargaining unit employees who were not rehired by a successor company at the end of the service contract. The provisions of the CBA had been incorporated, through a modification, into GCR’s service contract with NASA.

Continue Reading Sponsored Claim for Subcontractor Severance Pay Granted under Fixed-Price Service Contract

As of March 27, “spouse” under the Family and Medical Leave Act (FMLA) will include same-sex spouses for any legally recognized marriages based on the laws of the state of celebration. On February 25, as expected, the Department of Labor (DOL) published its final rules on the definition of spouse under the FMLA in light of the Supreme Court’s Windsor decision. Based on this final rule, the definition of spouse will be based upon the law of the jurisdiction where the marriage was entered into (place of celebration) rather than based on the law of the state of the employee’s residence (or work) “to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live.” Continue Reading DOL Issues Final Rule Revising the Definition of “Spouse” Under the FMLA

Some employers believe that an employee who is out on FMLA cannot be disciplined or terminated. More savvy employers know that such a broad application is not quite accurate, as an employee’s request for or taking FMLA leave does not give the employee any greater rights than if the employee were actively at work. This case, here, is a prime example.

What happened?  The employee requested leave for birth of her child, and the leave was granted. While on leave, however, the employee visited the employer’s premises. While there, she took home 6 cases of sample baby formula (yes, the employer produces baby formula), and doing so was a clear policy violation (think – stealing). A co-worker reported the misconduct, and an investigation resulted in the employee’s termination. The employee then sued, claiming that she was terminated while on FMLA leave and thus the termination was unlawful. Continue Reading Termination During FMLA Leave Not Unlawful

The Supreme Court’s Defense of Marriage Act (“DOMA”) ruling will impact the “spouse” definition in the Family and Medical Leave Act (“FMLA”) (among other extensive impacts in the employment law and employment benefits industry). Employers can expect the Department of Labor to issue, relatively soon, some guidance on the definition of spouse in light of the DOMA ruling.

It is anticipated that the definition of spouse will look to the state of celebration – that is, the state where the same-sex union was performed, or what state issued the license, regardless of the state of residence of the couple. But, until the guidance is issued, what should an employer do “in the meantime?” Continue Reading DOMA and the FMLA – What Should Employers Do “In the Meantime”?

The Department of Labor recently issued new FMLA regulations. The new regulations will take effect March 8, 2013. The regulations will have limited impact on most employers. However, the new regulations will require employers to obtain and post a new poster with the revised language contained in the regulations.

The other, more substantive impact is limited. The new regulations relate primarily to employees who are active military or retired. For a qualifying exigency leave, the definition of “active duty” is now “covered active duty” and will somewhat narrow coverage for eligible employees – the coverage will now extend only to those whose related service members are being deployed to a foreign country. On the other hand, military caregiver leave has been expanded. That leave – which provides for as much as 26 weeks of leave in 12 months – now includes eligible employees who are caring for covered veterans as well as covered service members. Covered veterans are those with a “serious injury or illness” who were discharged or released under conditions other than dishonorable within five years of an eligible employee’s initial request for leave (subject to certain exclusions extending the time for requesting leave). These and other new provisions are included on the revised FMLA Employee Rights and Responsibilities Poster (WH 1420). Employers should obtain new posters now for posting by March 8.

If you have questions about the new regulations and how they will affect your leave policies or would like assistance obtaining the revised poster, contact any of our Labor and Employment attorneys.

The EEOC recently announced two multi-million dollar settlements relating to the targeted employers leave of absence practices. In November, the EEOC announced a $4.5m settlement with Interstate Distributor Company, based on claims that the trucking company did not provide reasonable accommodation to scores of employees who were terminated upon exhausting available leave time. The EEOC claimed that the company’s practice of automatically terminating employees after exhausting a set amount of leave without any interactive discussions with the employee, along with an alleged “no restrictions” policy violated the Americans with Disabilities Act (ADA).

Similarly, on December 18 (the same day that the EEOC announced its strategic plan), the EEOC announced a $2m settlement with Dillard’s Inc. based on similar allegations. There, Dillard’s was accused not only of having a practice of terminating employees after a specific period of leave but also of having a practice of seeking specific medical information from an employee seeking sick leave. According to the EEOC, these practices violated the ADA.

Continue Reading EEOC Continues Aggressive Look at Employer Leave Policies