Second State To Guarantee Paid Sick Time - Just 48 to Go ...

On August 30, 2014, California became the second state to guarantee sick time.  While, likely a surprise to most people, although federal law provides some protections for at least unpaid medical leave, at least after employees working for certain employers have been on the job for a year (FMLA), there is no federal law broadly guaranteeing paid sick days -- not even just one. 

Some local jurisdictions like NYC have passed local laws.  But, absent local legislative action, there is an enormous gaping hole in protections for sick workers.

Right now -- you're thinking about the fact that you do have sick days at work -- that's great news. The bad news is that those sick days are likely merely your employer's disrcretionary policy and are not mandated under federal law -- which I'm sure you think they should be.

Here is an overview of the new California law from the Labor and Employment Law Blog:

"The new law is called the 'Healthy Workplaces, Healthy Families Act.'  Beginning on July 1, 2015, both public and private employers (of any size) will be required to provide eligible employees with paid sick leave 'at the rate of not less than one hour per every 30 hours worked.'  Eligible employees are those employees who have worked 30 or more days within a year after their date of hire.  Under the new law, exempt employees are deemed to work a 40 hour workweek.  Employees are to be compensated at the same wage as the employee normally earns during regular work hours.  The rate of pay shall be the employee’s hourly wage.  If the employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay shall be calculated by dividing the employee’s total wages (not including overtime premium pay) by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

There are a few exceptions in which employers are not required to offer the new paid sick leave benefit and they relate mainly to employees who are covered under a collective bargaining agreement, or who work in the construction industry, the home healthcare industry, or the airline industry." (link)

An in-depth overview of the new California law is available here.

Based on the experience of Connecticut, the only other state to pass a similar state-wide law, concerns raised about the California law are unlikely to be realized:

"California joins Connecticut, the first state to guarantee its residents have paid sick leave.  If that state’s experience is a guide, the California Chamber of Commerce, which called the state’s bill a 'job killer,' should have nothing to worry about.  A year and a half after Connecticut’s law took effect, most employers said the costs had been negligible or non-existent, abuse hadn’t cropped up, and many actually saw benefits.  More than three-quarters support the law, with nearly 40 percent saying they’re very supportive." (link)

Wait -- "more than three-quarters support the law?" Sounds like supporting the rights of workers to take a paid sick day might even attract votes to supportive legislators.

Just 48 states to go . . . including New York.

Liberalized Medical Marijuana Laws Clash With Employer Policies -- Implicating Disability Rights

As covered by the New York Times:

"[M]arijuana’s recent strides toward the legal and cultural mainstream are running aground at the office.  Even as 23 states allow medical or recreational marijuana, employment experts say that most businesses are keeping their drug-free policies.  The result is a clash between a culture that increasingly accepts marijuana and companies that will fire employees who use it." (link)

During July New York passed a medical marijuana law permitting New Yorkers suffering from a narrow list of conditions to obtain marijuana for medical treatment.

This development in turn sets up a future series of conflicts between employers and at least some state and/or local disability discrimination laws, which may require reasonable accommodations for people with disabilities -- the people many of the medical marijuana laws are targeted to assist.

New York is no exception.  Indeed, it appears ripe for this conflict because of the state law's definition of those permitted to use medical marijuana as "disabled" within the meaning of New York disability discrimination law:

"The New York law specifically classifies individuals prescribed medical marijuana as 'disabled.'  Accordingly, employers may need to provide reasonable accommodation for medical marijuana users.  While courts have not yet addressed the issue of what constitutes a 'reasonable accommodation' for medical marijuana use, one suggestion is relaxing an employer's drug policy to permit the employee's medical marijuana use. Whether or not such 'accommodation' is reasonable will depend on the employee's specific job.  While it is low cost to the employer, if the side effects of marijuana have a negative impact on the employee's job, as could be the case of truck drivers or machine operators, such accommodation may not be reasonable."  (link)

Advocates for reasonable accommodations regarding medical marijuana use with respect to drug policies are in no small part assisted by increasing voices in support of the positive medical effects of marijuana -including Dr. Sanja Gupta. 

Dr. Gupta recently noted he is "doubling down on medical marijuana;"

"I have met with hundreds of patients, dozens of scientists and the curious majority who simply want a deeper understanding of this ancient plant. I have sat in labs and personally analyzed the molecules in marijuana that have such potential but are also a source of intense controversy. I have seen those molecules turned into medicine that has quelled epilepsy in a child and pain in a grown adult. I've seen it help a woman at the peak of her life to overcome the ravages of multiple sclerosis.

I am more convinced than ever that it is irresponsible to not provide the best care we can, care that often may involve marijuana.

I am not backing down on medical marijuana; I am doubling down." (link)

This will certainly be one of the more interesting employment law issues over the course of the next few years, particularly given the lack of movement with respect to the federal prohibition on the use of marijuana.

Former Urban Outfitters Clerk Sues For Co.'s Indifference to Customers' Sexual Harassment

From the NY Daily News:

"Tatiana Swiderski, 25, said her bosses at the Fifth Avenue store turned a blind eye [to] the harassment — refusing to call cops on the pervy patrons and holing her away in the stock room for complaining.

'They made it their mission to make me feel invalidated,' Swiderski told the Daily News. 'They tried to make me feel like I was a crazy over-reactor.'"

Now she's suing the chain for sexual harassment and retaliation."  (link)

Some of the details:

"The sexual assault came just two weeks after security told her a man had been following her and another employee with a video camera and shooting up their skirts as they went up the stairs. While the guards made him erase the video, they let him go and refused to call the police or tell her his name so she could do so. Her suit even claims that a guard mocked her.

After she complained to management, a security guard allegedly told her to “stop being a stupid bitch.” She also claims that a guard began patting her down as she left work, something she felt was sexually inappropriate and not done to other employees."  (link)

Not only are the details pretty horrifying but it appears to be a potentially industry-wide issue:

"A 2002 study in Canada found that harassment for these workers doesn’t just come from coworkers, but from customers, as it did for Swiderski, which constitutes a “significant problem.” A majority of women in retail said they had been sexually harassed by customers on the job, but given that companies are focused on satisfying the customer, women face constraints in how they can handle it and many are reluctant to bring it up."  (link)

According to the EEOC, it is a clear violation of federal discrimination law for an employer to take no action in response to harassment of employees by customers -- where it has notice of the conduct:

"The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action."  (link)

The above response is, to put it lightly, clearly inadequate.

I was also struck by a throw away line in the middle of the NY Daily News. Interestingly -  the article notes that when Swiderski began working:

"She said there was an early sign of trouble — a co-worker told her she'd only been hired because she's 'tall, pretty, thin and white.'"  (link)

If that is accurate (which it may or may not be) Urban Outfitters may be headed for a repeat of  a large racial discrimination case brought by LDF regarding hiring for "the American look" at Abercrombie and Fitch:

"Th[at suit alleged that Abercrombie refused to hire qualified minority applicants as Brand Representatives working on the sales floor while discouraging applications from minority candidates. It also charged that in the rare instances when minorities were hired, they were given undesirable positions to keep them out of the public eye.

* * *

In November 2004, LDF and co-counsel reached a settlement with the company, winning $40 million dollars for rejected applicants and employees who had been discriminated against by the company. The settlement’s consent decree also required the company to institute a range of policies and programs to promote diversity among its work force and to prevent discrimination based on race or gender."  (link)

Of course this is just the hearsay statement of a co-worker.  But, if true, Urban Outfitters (or at least this store location) may also soon be facing suit on the race discrimination front.

It will be interesting to follow this case as it develops.

Obama Signs Executive Order Prohibiting LGBT Discrimination By Federal Contractors

This is obviously long overdue - but thankfully finally happening:

"The executive order has two parts: It makes it illegal to fire or harass employees of federal contractors based on their sexual orientation or gender identity, and it explicitly bans discrimination against transgender employees of the federal government. The part targeting federal contractors affects 24,000 companies employing roughly 28 million workers, or about one-fifth of the nation's workforce.

"America's federal contracts should not subsidize discrimination against the American people," Obama said during remarks at the White House just before signing the order. "I'm going to do what I can with the authority I have to act."

The provision affecting federal employees takes effect immediately, while employees of federal contractors will have their new protections in place by early next year, according to senior administration officials" (link)

President Obama signing the order yesterday:

Twitter Accused of Disability and Age Discrimination

Coverage is here and the California state court complaint is here.

I hope Twitter doesn't retaliate for this post by secretly downgrading my Twitter account.

Recently Pregnant Employees Also Protected From Pregnancy Discrimination For Four Months

Citing recent decisions from within the Second Circuit, New York federal Judge J. Paul Oetken found that protection from pregnancy discrimination extends to include recently pregnant women in addition to pregnant women:

Katherine Albin alleged viable pregnancy discrimination claims against Thomas Pink Inc., its corporate parent LVMH Moet Louis Vuitton Inc., and two supervisors under Title VII of the 1964 Civil Rights Act and New York state and city law, the U.S. District Court for the Southern District of New York said.  It found that the promotion denial may have occurred three and a half months after Albin gave birth to her first child.

Judge J. Paul Oetken cited emerging case law within the U.S. Court of Appeals for the Second Circuit holding that women who are four months or less removed from giving birth are still protected by Title VII's prohibition against pregnancy discrimination."

While observing that at some point after a pregnancy ends protection from pregnancy discrimination also comes to an end:

"[P]regnant women, women who very recently gave birth, and women on maternity leave are unquestionably within the protected class of pregnant persons, 'at some point in time such women are no longer 'affected by pregnancy, childbirth, or related medical conditions' and, thus, are not protected.'" (internal citations omitted) (link)

the court found that protection generally continues for approximately four months after a pregnancy:

"Distinguishing among previously pregnant women to determine who is still affected by pregnancy requires selecting a temporal cutoff based on the facts of the given case.  While ultimately dependent on the factual situation of a specific claim, a pattern has developed in this Circuit establishing a loose line at approximately four months from the date of birth." (internal citations omitted) (link)

In my view, along with age and disability discrimination, pregnancy discrimination is one of the more prevalent forms of discrimination today.  Unlike explicit race and gender discrimination, pregnancy discrimination (in its varied forms) does not carry the same heavy stigma and is surprisingly prevalent. 

Unfortunately, although prevalent, it is often unrecognized and/or unreported.

This decision goes a long way to help advance anti-discrimination protections for pregnant and recently pregnant employees.

The Ten Largest Discrimination Settlements of 2013

From Inside Counsel the top ten largest discrimination settlements of 2013.

Topping the list is:

"$160 million – McReynolds, et al. v. Merrill Lynch & Co.

The largest settlement of 2013 has its roots eight years earlier, when in 2005, broker George McReynolds accused Merrill Lynch & Co. of giving white brokers more lucrative accounts while denying black employees equal pay and career advancement opportunities. McReynolds filed a lawsuit on behalf of 700 black brokers who worked for Merrill. Before the suit was settled out of court in August, it had seen two appeals in the Supreme Court and survived Merrill Lynch's acquisition by Bank of America in 2009."  (link)

It is also gratifying to see a case I worked on for several years with my prior firm at #8.

"$3.1 million – Easterling, et al. v. State Of Connecticut, Department Of Correction

Similar to the Chicago case, this suit alleged that the a physical fitness test composed of a 1.5 mile run required by the Connecticut Department of Corrections was not a business need, and that it discriminated against female candidates. As a result over 200 women who applied for a Correction Officer position in 2004 o4 2006, were certified for the class. The settlement was finalized in July." (link)

(*small correction to IC - the Easterling class totaled 124 class members not 200)

EEOC Settles ADA Leave Suit for $1.35 Million With Princeton Healthcare

The EEOC has settled another ADA leave as a reasonable accommodation case.

Princeton HealthCare System, which operates the University Medical Center of Princeton at Plainsboro and several other medical facilities, will pay $1.35 million and will undertake significant remedial measures to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission, the agency announced today.

The EEOC’s suit alleged that the hospital’s fixed leave policy failed to consider leave as a reasonable accommodation, in violation of the Americans with Disabilities Act. According to the EEOC, Princeton HealthCare’s leave policy merely tracked the requirements of the federal Family Medical Leave Act and employee leaves were limited to a maximum of 12 weeks. The policy meant that employees who were not eligible for leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks.

The EEOC filed suit in U.S. District Court for the District of New Jersey after attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, approved by U.S. Magistrate Judge Douglas E. Arpert, the hospital is prohibited from having a blanket policy that limits the amount of leave time an employee covered by the Americans with Disabilities Act may take.

. . .

Princeton HealthCare also agreed that it will not subject employees to progressive discipline for ADA-related absences, and will provide training on the Americans with Disabilities Act to its workforce. (link)

Age Discrimination: Older Job Seekers Forced to Disguise Their Ages On Resumes

Although perhaps one of the least recognized forms of discrimination - the effects of age discrimination are real - forcing some older workers to conceal their age in their resumes to have a shot at being hired.

ABA: A Dual Perspective on City-Mandated Paid Sick Leave Policies

From the American Bar Association Section of Labor and Employment Law - a point counterpoint on paid sick time laws:

A Dual Perspective on City-Mandated Paid Sick Leave Policies

Since 2006, several cities have enacted ordinances requiring employers to provide a specified number of paid sick days per year to employees who have some level of work activity in those cities. To date, San Francisco; Seattle; Portland, OR; Long Beach, CA;1 New York City, Jersey City and Newark,2 NJ; Philadelphia;3 and Washington, D.C., plus the state of Connecticut have passed mandatory paid sick leave laws. Although these laws vary--some apply only to larger employers, or require the provision of unpaid, rather than paid sick days for smaller employers--they generally provide anywhere from five to fourteen paid sick days per year for employees to care for themselves or a dependent family member.

At the same time, ten states (Georgia, Wisconsin, Louisiana, North Carolina, Tennessee, Massachusetts, Kansas, Indiana, Florida, and Arizona) have adopted laws that prohibit local governments from passing paid sick leave laws. Fourteen other states are considering similar bans.  (continue reading)