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Remember last year when we repeatedly posted about the Pregnant Worker Fairness Act (PWFA) and the PUMP Act telling you that the EEOC was going to have pregnancy discrimination on its radar? Recent activity from the EEOC suggests we were right. Last week the EEOC issued two press releases about its lawsuits involving pregnancy discrimination claims, which make clear they are focused on pregnancy discrimination in the workplace.

What happened?

According to the press release, a Georgia employer is paying $50,000 to settle a Title VII pregnancy discrimination claim. The EEOC had filed a lawsuit alleging that the pathology lab discriminated and retaliated against an employee who experienced pregnancy-related symptoms. The EEOC alleged that the lab terminated the employee shortly after she complained of pregnancy discrimination and while she was on approved leave related to her pregnancy. The settlement included the $50,000 payout and a two-year consent decree requiring the employer to provide all employees with specialized training, circulate policies and complaint procedures, and to post a notice setting forth the Title VII requirements.

Another press release reported that the EEOC recently filed a lawsuit against a New Orleans bakery for pregnancy discrimination in violation of Title VII and the ADA. According to the EEOC, the bakery terminated an employee after she missed two shifts to seek medical treatment related to her pregnancy. The complaint alleges the bakery managers reported that the pregnancy complications created a reliability issue. As this case is newly filed, not much has happened, but we will keep you updated with any key updates.   

While neither of these cases involve a PWFA claim, both press releases reiterated the EEOC’s commitment to safeguarding equal employment for pregnant employees. In fact, one EEOC representative stated “[t]he EEOC will use all tools at its disposal to root out pregnancy discrimination, including the federal Pregnant Worker Fairness Act (PWFA).”

What can you do?

Not to sound like a broken record, but:

  • Make sure you have policies prohibiting discrimination and retaliation, and specifically mention that pregnancy is a covered status.
  • Include the policies in training materials and onboarding materials so that every employee sees that you have a policy against discrimination and harassment, including pregnancy discrimination and harassment.
  • Update your policies or employee communications to highlight what is available to pregnant employees (and for the PUMP Act, set out what resources are available to employees who are lactating).
  • Think about creating a short handout for pregnant employees about maternity leave, return from leave, policies, and the contact person who can answer questions and work with them during this time and after their return.

Finally, make sure everyone is on the same page. You have a legal duty to accommodate pregnant and lactating employees in new ways. The EEOC is going to be looking to see if you are doing that. Educate your supervisors and managers so they know what to do when an employee announces she is pregnant and who to call when or if she requests any form of accommodation.

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Everyone has been preparing for the recently enacted Pregnant Workers Fairness Act and the PUMP Act. Earlier this month the EEOC gave us another reason to make sure our policies are up to snuff. Frontier Airlines and the EEOC reached a settlement on claims filed in 2018 and 2019, which alleged that Frontier discriminates against pregnant and lactating employees. As part of the settlement, the airline agreed to several policy changes. Given that this issue is clearly on lawmakers’ and the EEOC’s radar, employers should take note of these policy changes.

Lessons from the Settlement

Some of the policy changes (like allowing pilots to pump breastmilk in the cockpit during noncritical phases of the flight), are pretty industry specific. However, others give us some insight as to what the EEOC will likely want from employer policies. For example, Frontier’s new policies will:

  • Permit pregnant pilots to fly with a medical certification (which complied with the union contract). Even if you don’t employ pilots, think about any policies you have that preclude all pregnant workers at some point in the pregnancy. Rather than a general cutoff date (like six months), think about accepting a medical certification for the employee to work beyond the cutoff.
  • Clarify a policy to be sure that the airline accommodates pilots unable to fly due to pregnancy or lactation on the same terms that it accommodates pilots unable to fly because of other medical conditions. In the airline industry, this can include temporary ground assignments or medical leave. If you make temporary assignments available based on non-pregnancy-related medical conditions, be sure you include medical conditions related to pregnancy.
  • Maintain and distribute internally a list of airport lactation facilities. While this may not be a necessity for all of your workforce, think about how you are communicating with your employees. If an employee filed a charge alleging that you did not provide an appropriate place to pump, it would be great to point to a policy that provides the process for addressing these issues. If it makes sense for your facility, it would be great evidence if you provided information to your worker of the available lactation room(s).  

An Ounce of Prevention Is Worth a Pound of Cure

Given the new laws, having policies that support employees during pregnancy and following will be important to defending claims.  

  • Have a policy (or policies) that clearly sets out what is available to employees who are pregnant or lactating. You may cover reasonable accommodations, leave, and breaks in several different policies — just make sure they clearly address pregnancy and lactation issues.
  • Think about having a handout you can give to employees when they disclose their pregnancy, ask for maternity leave, or return from maternity leave. The handout could direct them to the policies in the handbook or the person in HR who can help them with questions.
  • Make sure that your front-line supervisors know they have a legal duty to accommodate these issues and who they and their employees can talk to with questions.

One size will not fit all so we need to be willing to talk with employees to figure out what they need. This could be a great help, not only to your employees, but in avoiding or defending legal challenges.

The Case of the Breastfeeding Narc: 11th Circuit Confirms Lactating Employee is Covered Under Pregnancy Discrimination ActDoes an employee’s protection under the Pregnancy Discrimination Act (PDA) stop when the employee ceases to be pregnant?  The 11th Circuit Court of Appeals was confronted with this question in Stephanie Hicks v. City of Tuscaloosa, in which Ms. Hicks, a police officer who returned from maternity leave and unsuccessfully sought some accommodation related to breastfeeding. The police department said the requested accommodation was not required and she ultimately left her job, alleging she had been constructively discharged. The 11th Circuit stated that a “plain reading” of the PDA showed that breastfeeding is covered and affirmed the jury verdict in Hicks’ favor.

Factual Background

Stephanie Hicks was an investigator on the narcotics task force of the Tuscaloosa Police Department. After she became pregnant, her supervisor allowed her to work on pharmaceutical fraud cases so she could be off on nights and weekends. Before she left for her FMLA pregnancy leave, Hicks received exceptional performance reviews. However, on her first day back at work after her leave, she was written up. She submitted that some of her superior officers negatively commented on the length of her FMLA leave. The City claimed that Hicks was not willing to meet the demands of a narcotics officer and subsequently transferred her out of that unit and into a patrol unit. The City wrote a letter stating the reasons for her demotion and included an incident where officers came to Hicks’s home to get her police car and she did not come out because she was breastfeeding.

One of the big differences between a narcotics officer and a patrol officer is that a patrol officer must wear a ballistic protective vest all day. Hicks’s doctor wrote a letter to the police chief asking that she be considered for alternative duties because the restrictive ballistic vest could cause breast infections that could lead to problems with breastfeeding. Hicks asked for a desk job so that she would not be required to wear a vest. The Police Department instead only offered her two options:  1) don’t wear a vest; or 2) wear a “specially fitted” vest that left gaping holes. For safety reasons, Hicks did not choose either option and resigned. She sued the City and a jury found in her favor on constructive discharge, pregnancy discrimination, and FMLA interference, awarding her $374,000. The City appealed, arguing that it reassigned Hicks because of her poor performance rather than discrimination.

The Eleventh Circuit’s Take

The 11th Circuit found that Hicks was both discriminated against on the basis of her pregnancy and retaliated against for taking FMLA leave.  Under the PDA, an employer may not discriminate against an employee on the basis of pregnancy, childbirth or “related medical conditions.” The 11th Circuit held that lactation is a related medical condition to pregnancy and therefore, a termination based on a woman’s need to breastfeed violates the PDA. The court went on to make the somewhat obvious statement: “Breastfeeding is a gender-specific condition because it clearly imposes upon women a burden that male employees need not—indeed, could not—suffer.”

However, the court noted, there is an abundance of case law stating that Title VII and the PDA do not mandate that employers  have to provide “special” accommodations to breastfeeding workers. The opinion recognizes that Hicks had a unique case. While the City may not have been required to provide Hicks with special accommodation for breastfeeding, the City’s action in refusing an accommodation offered to other employees compelled her to resign and supported the jury’s verdict. The court went on to cite Young v. United Parcel Service a case that recognized a Title VII claim for a pregnant woman where her employer failed to accommodate her in a lifting restriction, but accommodated other similar non-pregnant employees on worker’s comp. Given these facts, the court upheld the jury verdict.

What Did We Learn?

This decision clearly shows that a breastfeeding employee is still protected under the PDA and employers should take note. While it is not an absolute protection from any supported non-discriminatory adverse employment action, employers should be careful about loose comments about the employee and certainly should engage in an interactive process if approached about a reasonable accommodation. While the 11th Circuit made some blanket statements that breastfeeding employees don’t have to be treated as special, they surely were not ignoring an employer’s obligation under the FLSA that mandates employers to provide reasonable break time for employees to express breast milk for a nursing child for up to one year after the child’s birth. The employer must also provide the lactating employee a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.

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The EEOC has some new laws in its arsenal (i.e., the Pregnant Workers Fairness Act, the PUMP Act) and is likely to release new guidance on harassment. Keeping that in mind, we anticipate investigators will be interested in employer compliance with the new laws and will likely ask for evidence of such. For example, if you have not updated your policies to address the PWFA and the PUMP Act, do it now because you could get a request for them. If you don’t provide that information in the course of the investigation, the EEOC has the power to issue a subpoena to get it.

Keep an Eye on the Deadlines and Follow the Rules

If you get a subpoena, you need to act quickly. Although you typically have 30 days to respond, you only have five business days to object, seek to modify the scope of the subpoena, or secure confidentiality protections for sensitive information. If you miss that deadline, you waive your objections. And this short deadline will not be listed on the subpoena! The subpoena will likely tell you that you have 30 days to respond.

The regulations set out exactly what you need to do to object:

  • File a petition with the issuing director or the general counsel (depending on who issued it) to seek the subpoena’s revocation or modification.
  • Identify each portion of the subpoena with which you do not intend to comply and state your basis.
  • Attach the subpoena as Exhibit A.

Then What?

Once you have timely filed your petition, you should hear something within eight calendar days. If the EEOC doesn’t revoke or modify the subpoena like you asked, you will need to decide your next steps (i.e., comply or not).

If you do not comply, the EEOC can file an enforcement action. As long as you are being reasonable, you are usually in a good position in an enforcement action. However, an enforcement action is like any other kind of litigation and it can get expensive, so do not commit to that lightly. 

As always, keep your favorite employment lawyer in the loop.

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The Equal Employment Opportunity Commission recently introduced proposed enforcement guidance aimed at further clarifying and strengthening measures against harassment in the workplace. The 144-page guidance outlines strategies and policies the EEOC believes are necessary to prevent and address workplace harassment based on any protected status (i.e., race, gender, national origin, disability, religion, age, and genetic information).

Key Components of the Proposed Guidance

Below are a few noteworthy points in the guidance:

  • Expanded Definition of Sex-Based Harassment: The guidance specifies that gender-related harassment encompasses mistreatment linked to pregnancy, childbirth, and associated medical conditions (including breastfeeding), as well as a woman’s choices regarding reproductive matters, like contraception or abortion. Not surprisingly, the guidance makes clear that harassment based on sexual orientation and gender identity, including how that identity is expressed, is sex discrimination. The guidance provides examples of mistreatment due to a person not conforming to traditional gender stereotypes in appearance, the deliberate and repetitive use of incorrect names or pronouns, or the refusal to provide access to restrooms or other gender-specific facilities in line with the individual’s gender identity.
  • Preventive Measures: The guidance stresses the importance of employers taking proactive steps to prevent harassment. While none of the suggestions are new, the guidance encourages robust anti-harassment policies, complaint processes, and regular training for all employees regarding the anti-harassment policy and complaint process.
  • Enhanced Response to Complaints: The guidance outlines steps to promptly and effectively respond to harassment complaints. Again, while none of the information is new, the suggested steps include conducting thorough and impartial investigations, taking appropriate disciplinary action, and ensuring the confidentiality of individuals involved.
  • Documenting Harassment Complaints and Investigations: The EEOC suggests that employers maintain documentation of all reports of harassment and investigations to identify recurring problems or trends. Per the EEOC, employers should review the records and tweak their strategies for preventing harassment and refine training programs.

Key Takeaways for Employers

Considering the proposed enforcement guidance, employers should:

  • Revisit anti-harassment policies to align with the proposed guidance. Make sure that coverage of pregnancy-related issues, sexual orientation and gender identity is explicitly mentioned. The EEOC will likely consider employer policies to be deficient without such references.
  • Update training programs. Make sure that all employees are periodically trained and informed about what is covered and how to file a complaint.

Although this proposed guidance is not legally binding, it provides insight as to how the EEOC will look at workplace harassment complaints. The EEOC has reported high numbers of harassment complaints in the last several years, and it clearly plans to strengthen measures against workplace harassment.

This guidance is proposed at this point but will likely be adopted. Employers should take this opportunity to look at the recommendations and consider incorporating these strategies into their policies and practices. Not only should employers be ready to defend themselves against an EEOC charge, they should also want to create environments where every employee feels valued, respected, and safe from harassment and believes their employer takes the guidance seriously.

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We promised to keep you updated with the EEOC’s proposed regulations for the Pregnant Workers Fairness Act (PFWA). Per its website, the EEOC is publishing the proposed regulation on August 11, 2023, and you have until October 10 to provide input. 

A Note Regarding Public Comment  

Earlier this week, the EEOC posted a Notice of Proposed Rule Making for the PWFA to its website. The notice indicates the EEOC will publish the proposed regulations on August 11. Once published, the public has 60 days (until October 10) to provide input. If you do not want to wait to read the published version, you may find the unpublished version of the regulations here. (The same link will provide you with the published version as soon as it is available).  

There are four ways to submit your comments:

  1. via Federal eRulemaking Portal at https://www.regulations.gov;
  2. via Fax to 202-663-4114 (restrictions apply);
  3. via Mail to Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507;
  4. via Hand Delivery/Courier sent to Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507

Now to the Regulations

The 275-page pdf containing the regulations has a lot to unpack, but the EEOC also published a Summary of Key Provisions for the PWFA, which highlights coverage, remedies, definitions, accommodation requests, prohibited acts, and the PWFA’s relationship to other laws.

Here are a few key takeaways:

  • Application. The PWFA applies to public or private employers with 15 or more employees and to certain federal government employees.
  • Enforcement. The PWFA enforcement procedures are similar to the those for Title VII (i.e. employees, applicants, or former employees may file a charge with the EEOC).
  • Qualified Employee. Unlike the ADA, the PWFA allows an employee or applicant to be “qualified” even if they cannot perform one or more essential functions of the job so long as:
    • The inability to perform the essential function is temporary
    • The employee could perform the essential function in the near future (generally, 40 weeks but it could be longer and it could restart upon the employee’s return from leave if another accommodation is needed); and
    • The employer is able to reasonably accommodate the employee’s inability to perform the essential function without undue hardship.   
  • Pregnancy, Childbirth, and other Related Medical Conditions. There is no level of severity required for the condition the employee is experiencing. Outside of obvious pregnancy conditions, “related medical conditions” also include, but are not limited to:
    • termination of pregnancy (including miscarriage, stillbirth, or abortion);
    • infertility;
    • fertility treatment;
    • pelvic prolapse;
    • nerve injuries;
    • nausea or vomiting;
    • endometriosis;
    • changes in hormone levels;
    • menstrual cycles; and
    • use of birth control.
  • Requesting an Accommodation. The employee must (1) identify the limitation, (2) the limitation it must relate to, affect, or arise out of pregnancy, childbirth, or a related medical condition, and (3) the employee must indicate that they need an adjustment or change at work. An employee does not have to put the request in writing and may simply come up in a conversation with the employer.
  • Medical Certification. It is best to avoid requiring documentation for PWFA requests as it is only permitted if you have reasonable concerns about whether the condition or limitation is related to, affected by, or arising out of pregnancy, childbirth, or related medications. In fact, the EEOC’s summary notes that the Commission expects most determinations to “be a straightforward determination that can be accomplished through a conversation between the employer and the employee” and without the need for additional documentation.

While the regulations are not yet final and the public comments may or may not change the final regulations, it would not hurt to start preparing and avoid potential traps until official guidance is published.  Here are a few ways to do that:  

  • Once an employee brings up the need for accommodation, do not delay in responding. Make sure your front-line supervisors (who might be the ones who get requests) know that they need to get HR involved sooner rather than later.
  • Do not request documentation relating to the condition unless you have reasonable concerns about the employee’s condition.  
  • Implement policies and train your supervisors and managers on the PWFA.
  • Call your employment lawyers with questions.

If you need additional ideas on how to navigate the PWFA, check out our other blog posts here and here.

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Do you have pregnant employees, employees returning from parental leave, or employees who have had a child or children in the last year? Recent updates to two laws may impact accommodations you provide pregnant and breastfeeding employees. Effective December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act, also known as The PUMP Act, expanded protections for breastfeeding mothers and, effective June 2023, the Pregnant Workers Fairness Act (PWFA) will provide new protections for pregnant employees.

The PUMP Act

The PUMP Act is already in effect, so if you are not already providing breastfeeding workers with reasonable time and a location to pump, you should start doing so now. Here’s what you need to know.

  • The PUMP Act applies to all employers, regardless of size. However, if you have fewer than 50 employees, you may be exempt if compliance with the requirements would cause undue hardship.
  • The act applies to all employees — exempt and non-exempt — with the exception of certain airline employees.  
  • Reasonable pumping breaks must be provided to breastfeeding employees for one year after a child’s birth.
  • You are not required to compensate non-exempt employees for pumping breaks as long as they are relieved of all work duties during that break. If the employee is not completely relieved of work duties during the entirety of the pump break, the time must be compensated.
  • The location for pumping breaks must be somewhere other than a bathroom and must be private and free from intrusion.
  • If an employee believes her employer is violating the PUMP Act, the employee must provide notice and allow her employer 10 days to remedy the issue.

Revisit and update your policies now if you have not already done so. Many of you have been complying with the FLSA provision on nursing mother breaks, but those apply only to non-exempt employees. If you have questions regarding the PUMP Act, talk to your employment lawyers sooner rather than later.

PWFA

The Pregnant Workers Fairness Act (PWFA) is coming in June 2023. The PWFA is modeled after the Americans with Disabilities Act (so it will sound familiar). Here are the highlights:

  • The PWFA applies only to employers with 15 or more employees.
  • It prohibits employers from denying reasonable accommodations to those employees affected by pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship.
  • It prohibits employers from denying employment opportunities to qualified individuals if the denial is due to the need for a reasonable accommodation related to pregnancy, childbirth, or other related medical condition.
  • It prohibits employers from requiring qualified employees to take leave — paid or unpaid — if another reasonable accommodation can be provided.
  • It prohibits employers from taking adverse employment actions against a qualified employee due to a request or use of a reasonable accommodation related to the employee’s pregnancy, childbirth, or related medical conditional.

Stay tuned for more information on the PWFA in the coming months. The PWFA takes effect June 27, 2023, so make sure you’re ready by revisiting your policies related to pregnant employees and update them accordingly.

As always, if you have questions about the PUMP Act, the PWFA, or other related employment issues, give your local employment attorneys a call.

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This year brought substantial progress in the way of slightly fewer positive COVID-19 cases and/or transmissions and increased vaccinations. Consequently, in the employment world many of you reopened your offices and invited employees, some thrilled and others reluctant, to return to in-person work. Though the return has restored some sense of normalcy, there are still issues that remain in flux and continue to demand flexibility and meticulous attention to the myriad of federal, state, and local developments in employment law that impact your workplace. So, before we all sit down at the table and fill our plates and bellies to overflowing as we start the 2022 holiday season, we can once again find some bright shining blessings as we review the year. We are grateful to have survived many of the repercussions from the COVID-19 global pandemic, including supply chain disruptions and embarrassing Zoom fails. We are hopeful for economic stability and a highly satisfied, productive workforce. We are also grateful for the following legal stuff:

1. The Great Resignation Appears to Be Slowing Down

The U.S. Bureau of Labor Statistics reported that beginning in March 2021 and carrying over into 2022, the rate of job quitting in the U.S. reached highs not seen since the bureau began measuring job openings and turnover in December 2000. The phenomenon has been dubbed the “Great Resignation” (coined by Texas A&M University professor Anthony Klotz) and has been marked by a dramatic rise in the national quit rate that the bureau defines as: (a) terminations of employment initiated by the employee (excluding employees who retire or leave the labor market, and those who simply transfer to another location for work); (b) failure to report to work after being hired; or (c) 3 unauthorized absences from work if at the end of the month the employee was absent for more than seven consecutive days.  Forbes reported that by the end of 2021, 47.8 million people left their jobs for other positions as compared to 37.7 million people who quit in 2017.

Though the trend began in 2021 has continued into 2022, and is projected to continue into 2023, the rate of job quitting appears to be slowing. The number of quits has declined month over month for the past six months. Nevertheless, the number of workers leaving their jobs – whether due to residual effects of the pandemic, taking a better job or position, choosing an opportunity for remote work or a hybrid schedule, higher pay, and better benefits, or just seeking a different life experience – is still very high historically speaking. Thus, companies are finding themselves competing for the best and brightest talent and are using creative ways to attract and retain a high-performing workforce.

Although the Great Resignation is not strictly an employment law topic, several legal issues are often at the center of poor retention. Many of the experts monitoring the trend and surveying sample populations across varying industries have advised employers who want to combat the trend to foster connections through active engagement, implementing remote and/or hybrid work schedules, allowing employees reasonable time off to prevent burnout, beefing up fringe benefit offerings and cultivating company culture. You have some tools at your fingertips to limit the impact of the Great Resignation on your workforce and that’s something to be grateful for.

2. Employers Are Subject to Fewer Vaccine Mandates and Can Independently Choose How to Handle the Issue

Over the course of 2021, your HR departments likely suffered whiplash from all the changing vaccine rules and mandates emanating from the federal, state, and local government.  Some of you developed policies requiring employees to get a COVID-19 vaccination, only to have your state or local government ban vaccine requirements. Keeping up with the conflicting guidelines proved frustrating for you and your workers.

So, we are thankful that as of now you are free to independently choose whether to require vaccines or boosters among your employees and applicants (of course keeping in mind accommodations for disabilities or religious beliefs), as many of the federal mandates have either been lifted or enjoined and state and local guidelines have followed suit. We all remember the late 2021 OSHA emergency temporary standard that would have required all businesses with more than 100 workers to institute a “vaccination or test weekly” program with few exceptions. In January 2022, the U.S. Supreme Court said not so fast, ruling that the rule exceeded OSHA’s rulemaking power. OSHA subsequently withdrew the emergency temporary standard in January 2022.

Similarly, in late 2021, President Biden issued an Executive Order that required federal contractors and subcontractors to mandate that employees obtain COVID-19 vaccinations.  Litigation ensued, and several attorney generals filed lawsuits alleging the federal contractor vaccine mandate exceeded the president’s statutory power over the procurement process. One federal district judge in Georgia issued an injunction preventing the federal government from enforcing the federal contractor vaccine mandate nationwide. Though the injunction was later narrowed to apply only to the plaintiffs in that case, since the injunction the federal government has not taken any action or expressed any intent to enforce the federal contractor mandate and, in fact, updated its guidance to instruct government agencies to pause on requiring, requesting or collecting documentation of vaccination status and asking about the vaccination status of on-site contractors, employees, and visitors.

Much of the state and local guidance on these issues has followed the federal lead. So, while you should certainly continue to protect workers and maintain a policy that allows sick workers to stay home and instructs them whom to inform of illness, you now have the freedom to decide whether your policies will include mandatory vaccinations or not. And that certainty and independence is definitely something to be grateful for.

3. Clarification on Misclassification Based on the DOL’s Proposed Rule Regarding Independent Contractor v. Employee Status

The DOL announced on October 11, 2022, the publication of a proposed rule that would rescind the earlier rule adopted by the Trump administration and replace it with a new analysis for determining employee or independent contractor status under the FLSA. Under the proposed rule, the DOL intends to provide guidance that is more aligned with circuit case law and useful to employers when determining employee versus independent contractor status to decrease the occurrences of employee misclassification. The DOL identified six factors (which courts have examined for decades) that should be considered when determining the relationship of the parties. While the final rule may differ somewhat from the proposed rule published, nevertheless, you should expect the final rule will limit the circumstances in which an individual or entity can be properly classified as an independent contractor, and you can get a head start on reviewing your practices to ensure compliance.

4. Safe Harbors for Voluntary Pay Equity Audits

As more and more states roll out pay equality statutes, we are hearing more discussion and receiving more questions about these issues. For many of you aiming to close the pay gap between men and women, a first step is to conduct a pay equity audit, under legal privilege, and resolve to fix any issues identified immediately and earnestly. In the past, companies may have been reluctant to voluntarily engage in pay equity audits because many felt like doing so was asking for claims or inviting problems. More recently, there has been a slight shift in perspective either because the company wants to take advantage of the safe harbors offered under some state laws, limit risks of liability and ensure legal compliance, respond to demands from stakeholders or employees themselves for a pay “gap” analysis, or because of a desire to ensure you are compensating employees equitably because of values or retention. Whatever the reason, there are more safe harbors available for conducting pay audits, and we expect to see more of these provisions with the rising number of states passing their own pay equity laws. California, New York, and New Jersey, have each enacted comprehensive pay equality statutes covering all protected classes of employees, but Rhode Island, Massachusetts, Colorado, and Oregon have each included unique safe-harbor provisions for employers who proactively assess and address their pay gaps. Massachusetts provides potential relief from liability and liquidated damages for employers who perform voluntary self-audits, while Rhode Island, Oregon and Colorado offer more limited relief from compensatory, punitive, or liquidated damages.

These safe harbors, and those to come, can provide an effective defense to liability and/or damages in pay equity litigation – and that’s something to be grateful for. But before you launch a formal audit, we recommend that you consult counsel, obtain buy-in from internal leadership, and be prepared to fix any issues identified.

5. Updates to the EEOC’s Mandatory Posting Requirements

Last month, the EEOC released an updated version of the “Know Your Rights” poster. The EEOC explained the updated poster uses straightforward language and formatting to make it easier to read and understand, clarifies that sex discrimination incudes discrimination based on pregnancy and related conditions, sexual orientation, and gender identity, adds a QR code for digital access to the “how to file a charge of discrimination” webpage, and provides information about equal pay discrimination for federal contractors.

6. All Our Readers!

We are so grateful to all our readers, followers, and subscribers. We do this for each of you, and we appreciate hearing from you about what is helpful or when you send our articles along to someone else in your network. Continue to read, like, follow, and retweet us! Now go eat, drink and be merry with your families!

Happy Thanksgiving from Bradley’s Labor and Employment Insights blog team!

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Does a plaintiff have to specify not only the facts but also the law that applies? In Bye v. MGM Resorts, Inc., the Fifth Circuit looks at a common pleading issue: What do you do when a plaintiff pleads facts that may or may not state claims under more than one statute but only cites one? In Bye, Bailie Bye filed a complaint alleging her employer discriminated against her based on her sex for not allowing lactation breaks. She only cited to Title VII and did not mention the FLSA (which provides for lactation breaks). Can she later pursue the FLSA claim? Not according to the Fifth Circuit.

The Not-So-Well-Pled Complaint

Generally, plaintiffs need only tell a story that shows that they have a claim against the defendant and puts the defendant on fair notice. In the employment law context, however, vaguely worded complaints without specific citations can require a team of lawyers to speculate on all the different combinations of claims and prepare a defense for each.

In Bye, the plaintiff “told a story” of being denied an adequate break for pumping breastmilk. Bye’s original complaint claimed that this denial was pregnancy discrimination, sex discrimination, harassment, and constructive discharge, all under Title VII. At the summary judgment stage of the litigation, for the first time Bye argued that the FLSA required her employer to provide “a reasonable break time for an employee to express milk” other than a restroom “shielded from view and free from intrusion [from others].”

Sometimes the Cited Law Matters

The Bye court ruled that Bye’s failure to cite the FLSA until summary judgment amounted to failing to bring an FLSA claim. The court seemed focused on how fundamentally different a Title VII case is from an FLSA case, and the fact that the plaintiff’s complaint was built around Title VII. The court also discussed how the plaintiff first asserted an FLSA claim on the eve of trial. Most other cases where a citation was missing, the missing-cite statute was either obviously the only grounds for relief or understood by the parties to be a ground for relief from the beginning.

“Hind-Cite” May Be 20/20

What can we learn from the Bye case?

  • Plaintiffs need to cite every separate legal basis for relief (not just the facts).
  • If plaintiffs don’t cite every legal basis that the defense counsel can imagine may be at issue, a court may not allow them to pursue those claims later.

Employers and their counsel can rest (a little) easier knowing a new uncited theory of the case will not come out of leftfield. However, depending on the facts, a court may permit an amendment to the pleading, even on the eve of trial, so be prepared.

New EEOC Facts on Getting “Vaxxed” and Getting BackThe EEOC updated its very clearly titled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,last week to provide some much needed guidance on COVID-19 vaccine issues. While the EEOC’s guidance is helpful, not surprisingly, it leaves open some questions. Section K of the guidance addresses vaccines, so the references below are to the specific questions and answers in that section.

  • Employers can mandate vaccines.

Nothing has changed on this front. You can mandate that employees get vaccinated, but will need a process to consider reasonable accommodations for disabilities, sincerely held religious beliefs, and pregnancy.

  • You can ask if an employee has been vaccinated.

K.9 reiterates that asking an employee if he or she has been vaccinated or requesting documentation of vaccination is not a disability-related inquiry.  If the employee says no, don’t ask why (as that could elicit disability-related information).  Also, if the employee provides confirmation of vaccination, it is confidential medical information and must be kept confidential.

  • What if you are merely incentivizing employees to get vaccinated?

For those employers who opted to encourage rather than require the vaccine, the guidance provides some help on employee incentives (K.16 and K.17). What you can offer as an incentive depends on whether you or your agent are providing the shot. If you are giving the shot (which means you will be asking all of those medical inquiries that have to be asked before you can give the vaccine), then (1) the questions have to be job related and consistent with business necessity and (2) any incentive has to be nominal. The first part is that you (rather than a pharmacy or health department) are asking the medical questions — and you can only ask current employees medical questions that are job related and consistent with business necessity. The second part is that because you are asking the questions, you can’t offer an incentive that may coerce an employee into answering. Even if the incentive is only to encourage vaccination, you are still asking the questions, so you need to offer something that no one will feel that they just have to have.

On the other hand, if you are not giving the shots — you are just telling employees to bring proof of vaccination to get the incentive — you have more leeway. Because you are not asking those pre-vaccine medical questions, employees will not feel that they have to disclose their confidential medical information to get the incentive, so you can offer something more substantial.

Something to keep in mind on the incentive side: The vaccines are pretty much available to everyone at this point, so your employees who want the vaccine have probably gotten it. You should think about whether incentives will really increase the number of your vaccinated employees or just cause division among them.

  • Be ready to talk about reasonable accommodations.

There has been a lot of talk about the interactive process in which all employers have to engage if an employee requests a reasonable accommodation for a disability or sincerely held religious belief. In K.2 and K.5., the guidance outlines the kinds of reasonable accommodations you should consider in those circumstances. While these are not groundbreaking ideas, this is a pretty good checklist, and thoughtful employers should be sure to consider all of the options listed — face masks, social distancing, modified or staggered shifts, changes to the work environment (e.g., improved ventilation or limiting contact with others), periodic testing, telework, or voluntary reassignment to a vacant position. Are these alternatives reasonable in your location and for the position at issue? Remember that if the accommodation requires you to eliminate an essential function of a job, it is not reasonable.  In coming to that conclusion, make sure the function is, in fact, essential.

K.11 provides guidance on what to do with your fully vaccinated employees who request accommodations for an underlying disability because they are afraid of the heightened risk of severe illness from COVID-19. Just because there is a vaccine doesn’t mean that these employees won’t request accommodations. This guidance sends a clear message that employers need to be ready to engage in the interactive process with these employees as well.