Prop 22 and Minimum Wage Hikes: What the Election Results Mean for EmployersIn true 2020 style, this year’s general election was one for the history books. While the presidential race has been called in favor of President-Elect Joe Biden, the inevitable legal challenges are looming. Meanwhile, Georgia will be the site of two runoff elections in January – races that could decide which party controls the U.S. Senate. This is not to mention the slow, and at times frustrating, process of counting an unprecedented number of ballots cast in newfangled ways. With (most of) the results finalized, many of you are wondering: What does this mean for my business?

Independent Contractors

Under an incoming Biden administration, there may be an attempt to withdraw the DOL’s recent proposed rule clarifying federal standards for who qualifies as an independent contractor. The DOL rule may be finalized before Biden takes office — it has been fast-tracked for a 30-day review – but it is possible the Biden DOL may initiate new rulemaking to amend or rescind the rule. It is most likely that any proposed rule under the Biden DOL would seek to expand the definition of “employee.”

This move would stand in contrast to California’s approval of Proposition 22 – a statewide ballot initiative aimed at the gig economy.

CA’s Proposition 22

Proposition 22, a statewide ballot referendum, overturns the state’s previous worker classification law that classified drivers for apps such as Uber and Lyft as employees, not independent contractors. On November 3,  after a well-funded campaign (with nearly $200 million from tech companies), approximately 58% of voters approved the measure. Essentially, Prop 22 allows companies to classify gig economy workers as independent contractors, rather than employees. This means that these contractors continue to be exempt from benefits such as health insurance, unemployment, and even some standard minimum wage requirements. On the flip side, those workers also can work as much or as little as they want and hold lots of other jobs (which is attractive to many).

As California goes, so goes the nation? Will tech companies see Prop 22’s passage as a bellwether for gig economy legislation to come? It is too soon to tell, but the passage of this referendum will have a major impact not only in California, but likely nationwide as well.

Minimum Wage

Florida – a veteran of the election spotlight – voted to raise the state minimum wage from $8.56 to $15 over the next six years. This move made Florida the eighth state to usher in the $15 minimum wage. If you want to check your state’s minimum wage, visit the DOL’s webpage.

In Maine, the cities of Portland and Rockland approved city-wide measures to increase the minimum wage to $15 over the next four years.

President-Elect Joe Biden

Finally, like every incoming administration, President-Elect Biden will have the authority to appoint new members of the NLRB and new leadership to agencies such as the EEOC. We don’t want to go out on a limb but it is likely these appointments will skew democratic and, as much of Biden’s platform, pro-labor. Some are already speculating that Biden may support federal measures to strengthen OSHA reporting requirements during COVID-19; push for a federal minimum wage increase; and defend (and expand) the Affordable Care Act. While we are not here to make predictions, we will keep you informed of any new developments under this new administration.

For now, it’s a waiting game.

Tennessee’s New ‘Pregnant Workers Fairness Act’ Requires Employers to Reasonably Accommodate Pregnant EmployeesThere is a new law for Tennessee employers. As of October 1, 2020, those of you with employees in Tennessee must reasonably accommodate pregnant employees under the state’s new “Pregnant Workers Fairness Act” or else face potential civil liability.

New Obligations and Cause of Action

Under the act, which applies to employers with 15 or more employees, businesses are prohibited from:

  • Refusing to make reasonable accommodations for “medical needs arising from pregnancy, childbirth, or related medical conditions” for applicants or employees, unless it would cause an undue hardship (defined as an action requiring “significant difficulty or expense”);
  • Requiring an employee to take leave “if another reasonable accommodation can be provided” to accommodate the pregnant employee’s medical needs arising from the pregnancy, childbirth, or related medical conditions; and
  • Taking adverse action against an employee for requesting or using a reasonable accommodation related to pregnancy, including “counting an absence related to pregnancy under no fault attendance policies.”

The act creates a new cause of action against Tennessee employers, and a successful plaintiff may recover back wages, non-economic damages such as emotional distress, prejudgment interest, reasonable attorneys’ fees, and “any legal or equitable relief that will effectuate the purpose” of the Pregnant Workers Fairness Act. The Tennessee Department of Labor and Workforce Development can also enforce the act.

How Is This Different from Title VII and the ADA?

The act has some significant differences from two related federal laws. Title VII of the Civil Rights Act (Title VII) and the Americans with Disabilities Act (ADA) also apply to employers with 15 or more employees. Although Title VII, via  the federal Pregnancy Discrimination Act (PDA) prohibits employers from discriminating against pregnant employees, the Pregnant Workers Fairness Act imposes a reasonable accommodation requirement on employers that the PDA arguably does not.

Furthermore, the ADA does not consider a normal pregnancy to be a qualifying disability. Under the Pregnant Workers Fairness Act, the employee or applicant does not have to have a disability to be entitled to a reasonable accommodation. Also, there is no language in the act that requires an employee to be able to perform the “essential functions” of her position with the accommodation to be entitled to it. Rather, the employee or applicant must only have “medical needs arising from pregnancy, childbirth, or related medical conditions” to potentially be entitled to a reasonable accommodation, examples of which are provided below.

Medical Certifications and Interactive Processes

There are some ways for employers to check the veracity of the employee’s claim. An employer can request a medical certification from a healthcare provider if the pregnant employee is seeking a temporary transfer to a vacant position, job restructuring, light duty, or an accommodation that requires the employee time off from work. You can ask for the medical certification only if you ask employees with other medical conditions for certifications —so make sure you are treating everyone similarly. Also, while the employee is trying to obtain a medical certification, the new act requires employers to engage in a “good faith interactive process” to determine if a reasonable accommodation can be provided absent an undue hardship. Not surprisingly, you cannot take adverse action against the employee during the interactive process.

Suggested Reasonable Accommodations

The Pregnant Workers Fairness Act provides examples of what could constitute a reasonable accommodation for a pregnancy-related medical condition, including:

  • Making existing facilities readily accessible and usable;
  • Providing more frequent, longer, or flexible breaks;
  • Providing a private place, other than a bathroom stall, for the purpose of expressing milk (which is, by the way, already covered in the federal law);
  • Modifying food or drink policy (i.e., maybe allowing the pregnant employee to eat at her work station);
  • Providing modified seating or allowing the employee to sit more frequently if the job requires standing;
  • Providing assistance with manual labor and limits on lifting;
  • Authorizing a temporary transfer to a vacant position;
  • Providing job restructuring or light duty, if available;
  • Acquiring or modifying of equipment, devices, or an employee’s work station;
  • Modifying work schedules; or
  • Allowing flexible scheduling for prenatal visits.

So What Doesn’t the Act Require?

Now that you know what the act requires, here are a few things it specifically does not require:

  • You do not have to construct a permanent, dedicated space for expressing milk. As noted above, the act follows the federal law that you have to provide a private space other than a bathroom.
  • You do not have to compensate employees with pregnancy-related medical conditions for longer or more frequent breaks, unless you do so for other employees.
  • You do not have to create new positions (including new light duty positions) for employees with pregnancy-related medical conditions unless you provide light duty positions for other employees.
  • You do not have to create a job opening for the pregnant worker by discharging, transferring, or promoting another employee, and employers are not required to hire pregnant applicants unless they otherwise would have.

Takeaway

As a result of this new law, covered employers in Tennessee must not only consider the ADA when evaluating a reasonable accommodation issue for a pregnancy-related condition but must also evaluate whether the Tennessee Pregnant Workers Fairness Act requires the employer to make a reasonable accommodation for the pregnant employee. As this is new, make sure your supervisors understand their obligations.

Everyone is talking about voting options — absentee ballots, early voting, and, of course, the traditional going to the pollsLet Your (Employee’s) Voice Be Heard? Giving Employees Time Off to Vote on election day. With the presidential election on November 3, you may be thinking about giving your employees time off to be a part of the democratic process and vote.

So, must you give employees time off to vote? While federal law does not require voting leave, some states do. The amount of time off required, if any, can vary drastically state to state. To complicate matters further, some states require paid time off to vote. You should make sure you are up to date on the law in states in which you have employees to avoid both unhappy employees and potential penalties. Below are some of the laws in the southeastern states to help you determine how much time should be given to employees for voting purposes.

States with a Notice Requirement or Option

Some states require an employee to give the employer notice, but then the employer must permit some amount of time off for voting. In general, it depends on when the employee’s work shift starts and stops in relation to the polls being open.

  • Up to one hour unpaid in Alabama – An employee must be given up to one hour off of work to vote, so long as (1) reasonable notice is given to the employer and (2) his or her shift makes it hard to get to the polls (i.e., starts within the first two hours the polls are open and ends in the last hour before the polls close). The employer may specify the time in which the employee may leave to vote. However, the employer does not have to give voting leave if the employee’s workday commences at least two hours after the polls open or the workday ends at least one hour prior to the polls closing.
  • District of Columbia – D.C. enacted a new law this year requiring employers to provide employees at least two hours of paid leave to vote. You may require your employees to request the leave a “reasonable time in advance,” and you may specify the hours during which employees may take the leave.
  • Up to two hours in Georgia – If the employee gives reasonable notice, Georgia requires necessary time off, not to exceed two hours, for voting. Currently, you do not have to give time off if the employee’s workday commences at least two hours after the polls open or ends at least two hours prior to the polls closing.
  • Not less than four hours in Kentucky – An employee in Kentucky must request leave for voting prior to the day he or she votes either by absentee voting (because the law requires an absentee voter to appear before the county clerk) or on election day. If an employee applies for leave, the employer must permit a reasonable time, but not less than four hours, for the employee to go vote. The employer may determine the hours in which the employee may leave to vote.
  • Not more than three paid hours in Tennessee – Employees in Tennessee must request time off to vote no later than 12:00 p.m. on the day before the election. If that request is made, the employer must provide the employee with a reasonable period of time necessary to vote, but the time should not exceed three hours. Further, the employer does not have to give time off if the employee’s workday begins three or more hours after the polls open or ends three or more hours before the polls close.

States Without a Notice Requirement

Arkansas, Mississippi, and Texas do not have notice requirements, but each state requires employers to grant employees time off to make their voice heard at the polls.

  • Arkansas – An employer must schedule an employee’s work hours on election day so that the employee will have an opportunity to vote. The law does not specify how much time is necessary for compliance.
  • Mississippi – An employee may be allowed vacation or leave of absence at the expense of the employer for the necessary time to cast his or her vote. The law does not require notice or specify the length of necessary time to cast a vote.
  • Texas – The state code does not specify how much time should be given off but does prohibit an employer from refusing to permit time off from work to vote. The Texas Workforce Commission interpreted the law to require an employer to provide paid time off to vote, unless the employee has sufficient time, meaning at least two consecutive hours outside of the employee’s working hours, to vote.

States Without a Voting Time-Off Law

FloridaLouisianaNorth CarolinaSouth Carolina, and Virginia currently have no laws requiring employers to provide employees time off to vote. However, Florida, North Carolina, and South Carolina laws prohibit employers from disciplining, discharging, or threatening to discharge employees for reasons relating to voting (see each state’s law for the specifics on that here). And in Louisiana, no employer with 20 or more employees shall forbid or prevent any employees from engaging or participating in politics.

What Does This Mean?

Generally, if an employee asks for time off to vote, see if you can work it out.

  • Talk to employees about when the polls open and point out that they should have time to vote before or after their shift (assuming that is true).
  • Consider whether changing your work hours on election day may avoid a conflict. If that does not work for your business, then consider allowing employees time during the day to go vote.
  • If employees push back about time off, look at your state law to decide just how much time you have to give them to vote and whether you have to pay them.
  • Be sure that your conversations with employees are neutral and no one thinks you are only enabling employees to vote if you like their politics.

Use this as an opportunity to show your employees you support their right to vote. As always, if you have questions, call your friendly neighborhood employment counsel.