Pregnancy Discrimination

The Poster Post – DOL Updates to Your Employees’ Favorite Area of the Break RoomThe United States Department of Labor (DOL) has revised mandatory federal posters on the Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA). By law, employers must display official DOL posters where employees and job applicants can readily see them. Here’s a general overview of the applicable statutes and the specific updates:

FLSA Poster Updates

As we all know, the FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards for employees in the private sector and in federal, state, and local government. Covered non-exempt workers are entitled to a minimum wage (currently not less than $7.25 per hour). Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.

The updated FLSA poster has the following changes:

  • The posting requirement is now at the top of the poster, as opposed to within the “Additional Information” section.
  • The “Child Labor” section removed the specific hours and days in which 14- and 15-year- olds may work, as well as the hours when work must begin and end.
  • The “Tip Credit” section now reads: “Employers of ‘tipped employees’ who meet certain conditions may claim a partial wage credit based on tips received by their employees,” instead of “Certain other conditions must also be met.”
  • A “Nursing Mothers” section has been added: “The FLSA requires employers to provide reasonable break time for a nursing mother employee who is subject to the FLSA’s overtime requirements in order for the employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has a need to express breast milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by the employee to express breast milk.”
  • The poster removes the maximum amount of civil penalties from the “Enforcement” section. This is a result of the fact that agencies across the federal government must adjust their penalties for inflation each year. Currently, the maximum civil monetary penalties for violations are:
    • Violation of recordkeeping, monetary, certificate or other statutes, regulations or employer assurances: $1,005
    • Violation of child labor standards: $12,278
    • Violation of child labor standards that causes the serious injury or death of a minor: $55,808
    • Willful or repeated violation of child labor standards that causes the serious injury or death of a minor: $111,616
    • Repeated or willful violation of minimum wage and/or overtime laws: $1,925
  • In the “Additional Information” section, the following changes have been made:
    • The Commonwealth of Puerto Rico has been added to the locations in which special provisions apply to workers.
    • The law regarding employees under 20 years of age being paid $4.25 per hour during their first 90 consecutive calendar days of employment has been removed.
    • Statements regarding independent contractors have also been added. They state:
      • Some employers incorrectly classify workers as “independent contractors” when they are actually employees under the FLSA. It is important to know the difference between the two because employees (unless exempt) are entitled to the FLSA’s minimum wage and overtime pay protections and correctly classified independent contractors are not.

EPPA Poster Updates

The EPPA generally prevents private sector employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain limited exceptions.  Employers generally may not require or request any employee or job applicant to take a lie detector test, or take any action because an individual refuses to take a test or exercises other rights under the EPPA. The EPPA does not apply to federal, state, and local government agencies.

On the updated EPPA poster, the “Enforcement” section no longer includes the maximum amount of civil penalties (up to $10,000) because, as noted above, the penalties must be adjusted for inflation each year. Currently, the maximum civil monetary penalty is $20,111.

Where to Find Updated Posters

Don’t have your updated posters yet? Don’t worry. DOL provides the posters at no cost. All DOL posters can be viewed, downloaded, and ordered here. The EPPA poster can also be accessed here, and the FLSA poster can be accessed here.

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.

Back from maternity leaveJust how broad is the EEOC’s subpoena power and are we likely to get some guidance soon? We’ve said before that the McLane v. EEOC case (which is about the EEOC’s subpoena power and is currently before the Supreme Court) is uncertain given President Trump’s election. Since then, we have had two developments: first, President Trump nominated Judge Neil Gorsuch, a conservative jurist from the 10th Circuit to fill the vacancy on the Court, and second, the Court heard oral arguments last week in McLane.

What Is McLane About?

In essence, McLane is about the EEOC’s subpoena power and anyone who deals with the EEOC should be interested in the facts. Damiana Ochoa worked for McLane Company, a grocery supply chain, in Arizona. When she returned from maternity leave, McLane made her take a physical strength exam. Ochoa did not pass the exam, was terminated and promptly filed an EEOC charge alleging sex/pregnancy discrimination. In its investigation, the EEOC ultimately asked McLane for pedigree information (including name, social security number, last known address and telephone) about who took the physical strength test, who passed and its reasons for terminating any employee who took it—and expanded its investigation to include facilities nationwide (more than 20,000 employees) AND to seek information about the age of the employees—even though Ochoa wasn’t in the age-protected category.

After refusing to go nationwide, McLane ultimately provided the EEOC with a lot of information but refused to provide pedigree information or information on termination decisions. The EEOC issued an administrative subpoena and sought enforcement in the Arizona federal district court. The district court split the baby and ordered McLane to provide a number of things, including any adverse employment action imposed within 90 days of taking the test, but not pedigree information or the reasons for any termination. On appeal, the Ninth Circuit reversed and vacated part of the district court’s ruling after reviewing it de novo. The EEOC appealed and it is now before the Supreme Court.

How Does the Gorsuch Nomination Affect This?

While the Senate has not yet confirmed Judge Gorsuch’s nomination, history tells us he will likely join the highest court. The rules of the Senate still allow for a filibuster of a judicial nomination, which, if exercised, would prevent a vote on the nominee absent 60 senators voting in favor of proceeding. However, Republican control of the chamber probably means a filibuster would merely delay the inevitable and Judge Gorsuch will join the bench by the late spring. Although he is likely to give employers a fifth vote in hotly contested cases, his addition to the court may be inconsequential to McLane because everyone seems to agree that the Ninth Circuit should be overturned.

What Did Oral Argument Tell Us?

Before the court in McLane is a circuit split on the proper standard of appellate review of a decision to quash or enforce an EEOC subpoena. The Ninth Circuit applied a de novo standard of review, while eight other circuits apply an “abuse of discretion” standard. This case is unusual in that the parties to the litigation agree that the Ninth Circuit should join the other circuits and adopt the deferential “abuse of discretion” standard. Given the parties’ positions, the Supreme Court appointed a lawyer to argue in favor of the Ninth Circuit’s position on de novo review. At oral argument, however, the justices hinted of a consensus in favor of the deferential standard. Most of the justices who spoke during the argument seemed to agree that an appeals court should not disturb a district court’s ruling on an EEOC subpoena unless the lower court had clearly erred.

Notably, oral argument seemed to focus more on the appropriate scope of EEOC subpoenas than on the proper standard of appellate review. Justice Ginsburg questioned the district court’s ruling, suggesting that even if the Ninth Circuit had applied the more stringent “abuse of discretion” standard, it still would have found in the EEOC’s favor that McLane’s pedigree information was relevant to the underlying investigation. Similarly, Justice Sotomayor noted that while McLane provided a list of more than 14,000 employees along with genders, test results, and adverse action within 90 days of the test, that information did not specify whether the employee had been terminated or the underlying reason for the adverse action—which she suggested supports the EEOC’s position that the pedigree information was relevant so the EEOC could communicate with the employees to determine whether failing test-takers were treated differently based on gender.

Justice Breyer seemed a bit more skeptical of the relevance catch-all. He acknowledged that relevance is a broad concept that the EEOC could use to justify seeking almost any information. In this case, one former employee alleged discrimination, but the EEOC ultimately sought information on thousands of employees, which demonstrates that relevance is a slippery slope. Justice Breyer also contemplated whether the EEOC’s subpoena could be quashed on the basis of undue burden.

What Does This Mean For Employers?

Although the only issues before the Supreme Court are the appellate review standard and the relevance of employee pedigree and termination information, the Court’s decision will hopefully provide employers guidance on how to respond to EEOC subpoenas. Can employers object to EEOC subpoenas based on the relevance and proportionality of the requested information? If the subpoena is broad and only potentially relevant to the charging party’s allegations (a classic fishing expedition), can an employer successfully argue that it is unduly burdensome? Employers should stay tuned.