Landmark Supreme Court Ruling Defends LGBTQ Rights

June 15, 2020.  In the biggest triumph for gay rights since 2015, the Supreme Court ruled to protect gay, lesbian and transgender workers in Bostock v. Clayton County, GA, a landmark Supreme Court ruling.

This decision has significant impact for equality on the job and is the biggest victory for gay rights since the Supreme Court 2015 decision in Obergefell v. Hodges, which required states to recognize same sex marriages.  The majority in Bostock ruled that Title VII of the 1964 Civil Rights Act, which prohibits discrimination “because of” sex, extends to people who face job bias arising from their gender identity or sexual orientation.  The Civil Rights Act of 1964 makes it illegal for an employer to discriminate against any person on the basis of sex.

In this landmark Supreme Court ruling, the justices struggled over the fundamental question – What exactly does the term “sex” include?  The Court considered two instances where men were fired for being gay and one case where a transgender woman was fired for disclosing her identity to her boss.  The Court decided that discrimination based on sexual orientation or gender identity includes discriminating based on sex, making it clearly illegal under the Civil Rights Act of 1964.

The plaintiff presented the following example:  Think about an employer who has two employees, one male and the other female.  Both employees date men, but the male employee is fired for doing so, while the same action is tolerated in the female employee.  The only material difference between the two employees was their sex.  The Court noted that it is impossible to discriminate against a person for being gay or transgender without discriminating against the individual based on sex.

Prior to this decision, more than 25 states had not established such broad workplace protections for LGBTQ individuals.  As a result of this landmark Supreme Court ruling, employers are federally prohibited from discriminating against individuals for being gay or transgender.  With this ruling in mind, employers must consider their policies and procedures to protect LGBTQ workers and to ensure that they are treated fairly.

If you have any questions relating to this ruling and your employment circumstances, please contact us for a confidential evaluation of your situation.  Ed Feinstein would be pleased to speak with you.

Posted by Shira Itskowitz, 2020 Summer Intern (Barnard College, Columbia University), June 19, 2020.

Pennsylvania Supreme Court Rejects Fluctuating Work Week Method

The PA Supreme Court ruled that the “Fluctuating Work Week” method of calculating overtime pay is not permissible under Pennsylvania law. Tawny Chevalier, et al. v. General Nutrition Centers, Inc., et al., Case Nos. 22 WAP 2018 and 23 WAP 2018 (Nov. 20, 2019), PA Supreme Court.

What is the Fluctuating Work Week Method?

Under the fluctuating work week method, non-exempt employees (entitled to overtime pay if they work more than 40 hours a week) who are paid a fixed salary regardless of hours worked are paid for all hours worked in a work week beyond 40 hours at half of their “regular rate” of pay.  That “regular rate” is determined by dividing the employee’s salary by the number of hours worked that week.  As a result, the regular rate of pay “fluctuates” depending on how many hours he or she works in a given week.  Therefore, under this method, an employee may be paid a half time rate for the overtime hours they work.

Is this Allowed?

In short, no.  Not in Pennsylvania.

While the Fair Labor Standards Act (“FLSA“), a federal statute, allows employers to use this method, the PA Supreme Court opinion holds that the Pennsylvania Minimum Wage Act (“PMWA“) does not.  The Court ruled that the fluctuating work week method, which allows employees to be paid at lower overtime rates the more hours they work, violates the PMWA’s requirement that employers pay overtime compensation of at least one and a half times an employee’s regular rate for all hours worked in excess of 40 hours in a work week.

While the FLSA establishes a “national floor” under which wage protections cannot drop, individual states may enact greater protections under their own laws.  The PA Supreme Court Opinion notes that the PMWA, despite being mostly modeled by the FLSA, is silent about whether the fluctuating work week method is permissible.  The PA Supreme Court chose to view this silence as an intent to reject the .5 multiplier utilized under the fluctuating work week method in favor of a 1.5 multiplier.  Thus, the Court rejected GNC’s use of the .5 multiplier for purposes of overtime pay calculation, affirming an earlier decision by the Pennsylvania Superior Court.

If you are concerned that your overtime compensation is being calculated improperly, please contact us for a private consultation.

Posted by Taylor Gillan.  Taylor was an associate with Feinstein Doyle Payne & Kravec, LLC, whose practice areas included labor and employment, education, and class action cases.  She represented clients in individual employment law matters, including claims related to the Family Medical Leave Act (FMLA) and federal employment discrimination statutes.

DOL: Employees May Use Intermittent FMLA for Children’s Special Education Meetings (IEP Meetings)

The Department of Labor (“DOL”) issued an opinion letter last week concluding that employees may use Family Medical Leave Act (“FMLA”) leave to attend their children’s Individualized Education Program (“IEP”) meetings.

The August 8, 2019 opinion letter addressed the matter of a woman whose employer approved her request for intermittent FMLA leave to take her two children to medical appointments, but would not approve her request to use the leave to attend her children’s IEP meetings. The woman’s two children had serious health conditions as defined by the FMLA, for which the school provided pediatrician-prescribed occupational, speech, and physical therapy. Teachers and therapists working with her children held IEP meetings four times per year to review their educational and medical needs and progress, review recommendations made by the children’s doctors, and make recommendations for additional therapy.

The DOL determined that the woman’s need to attend these IEP meetings was a qualifying reason for taking intermittent FMLA leave. Under the FMLA, an eligible employee of a covered employer may take up to twelve weeks of job-protected, unpaid FMLA leave per year to care for a family member with a serious health condition. The DOL concluded that the woman’s participation in the IEP meetings constituted care for family members with serious health conditions, as “to care for” family members includes making arrangements for changes in their care. The DOL also confirmed that the children’s doctor did not need to be present for the woman to qualify for FMLA leave. While the determination specifically referred to IEP meetings, it is not limited to such meetings according to the DOL. Rather, it also applies to any meetings held pursuant to the Individuals with Disabilities Education Act (“IDEA”) and any applicable state or local laws, regardless of the terms used for those meetings.

DOL opinion letters are guidance documents. While they are not binding on the courts, they explain the DOL’s position on how the particular laws the DOL enforces apply in specific circumstances.

If you are concerned that your FMLA leave request has been improperly denied, or you are having trouble getting employer approval to attend your child’s IEP meetings, please contact Ed Feinstein for a confidential consultation.

Posted by Taylor Gillan.  Taylor was an associate with Feinstein Doyle Payne & Kravec, LLC whose practice areas included labor and employment, education, and class action cases.

PennDOT Defendants Not Immune to Suit for Unpaid Wages

Feinstein Doyle Payne & Kravec, LLC won a significant legal victory on October 7, 2016 when its opposition to Defendants’ motion to dismiss carried the day in an unpaid wages class action against PennDOT (Williams, et al. v. Richards, et al., Case No. 2:16-cv-00525).

The ruling by Chief Magistrate Judge Maureen P. Kelly (PennDOT Opinion) sided with the brief in opposition authored by FDPK Partner Pamina Ewing, finding that Defendants were not entitled to immunity from suit under the Eleventh Amendment because they had been sued in their individual capacities.

Ms. Ewing, along with FDPK Partners Edward J. Feinstein and Deborah K. Marcuse and co-counsel Kevin W. Tucker of the Darren K. Parr Law Firm, represents the Plaintiffs in Williams, a group of PennDOT employees who brought a class action for unpaid wages under the Fair Labor Standards Act against four PennDOT officials.

“We’re gratified that the court has made clear that defendants can’t shield themselves from paying these state employees for the overtime they legitimately worked by claiming immunity under the 11th Amendment,” said Ms. Marcuse, quoted in a Law360 article by Dan Packel. “Plaintiffs are now prepared to go forward with proving their case.”

Click here to review the complete Law360 article (subscription required): https://www.law360.com/employment/articles/849476/penndot-officials-not-covered-by-11th-amendment-judge-says

If you have questions about whether you are owed unpaid wages, please contact Ed Feinstein or Deborah Marcuse.

EEOC ISSUES FINAL RULES ON EMPLOYER WELLNESS PROGRAMS

May 17, 2016.  The EEOC issued final rules on the administration of employer wellness programs.  The rules address the relationship between the Genetic Information Nondiscrimination Act (GINA) and the obtaining and use of genetic information in employer wellness programs.  The final rules are effective July 18, 2016, but will only be applicable to employee benefits plans on January 1, 2017.

Questions and Answers regarding the new final rules were published by the EEOC:

• Wellness ADA Rule
• GINA Rule

Employer wellness programs are health promotion and disease prevention programs and activities offered to employees as an employment benefit — either as part of an employer health plan or as separate benefits. Wellness programs commonly ask employees to fill out questionnaires about their health and risk factors.  These questionnaires are often called “health risk assessments” or “HRAs.”

Wellness programs also often include biometric screening for health risk factors, including blood testing for diabetes or high cholesterol, and blood pressure tests for high blood pressure.  Other employer wellness programs may be educational, such as to provide information about healthy nutrition and eating habits; or may be designed to change unhealthy behaviors such as tobacco use.  They may also be inspirational to develop a healthier-at-work environment.

Employee advocates were concerned that the proposed employer wellness program rules would allow employers to discriminate against disabled employees. The final rules answer a number of questions regarding the relationship between the Americans with Disabilities Act (ADA), the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA):

1. The ADA’s “safe harbor” provision, which allows health insurers and plan sponsors (including employers) to collect health information related to risk, does not apply to employer wellness programs.  Employers may not seek information related to insurance premiums and insurance rate-making as part of their offering of wellness programs.
2. Employers and those administering a wellness program may ask employees about their disabilities and ask other medical questions as long as the programs are “reasonably designed to promote health or prevent disease.”  This means that wellness programs may use HRAs and biometric screenings as long as the results of the information gathered is only used to help design programs to promote health or to prevent disease.  The information collected may not be used against individuals.
3. The good news is that an employee’s participation in a wellness program must be “voluntary.”  This means the employer may not require any employee to participate in the program.  An employer may also not deny health coverage to an employee who refuses to participate in a wellness program.  The employer also may not take any other adverse action against the employee for not participating, however, that does not mean that there cannot be significant financial consequences to employees who refuse to participate in wellness programs.
4. The bad news is that the EEOC’s final rule allows employers to use “incentives” of up to 30% of the total premium related to an employee’s individual health coverage without the premium assessment being considered as making participation in the wellness program not voluntary.  The “incentives” for tobacco cessation programs may be as high as 50%.  This means that an employee who refuses to participate in a wellness program may end up paying as much as 30% of the total premium charged for the employee’s health coverage and an employee using tobacco may end up paying as much as 50% of the total premium.  These “incentives” may be used not only for employer sponsored coverage but also for coverage under the ACA (“Obamacare”).
5. The Wellness ADA Rule adds two new requirements designed to protect employee privacy.  First, the employer or wellness program may receive information collected by a wellness program, but only in a combined form. This means that this information may be considered for the group without giving the identity of specific individuals “except as is necessary to administer a health plan.”  Second, an employer may not require an employee to waive confidentiality or agree that the employee’s information may be used or shared as a condition of participating in the wellness program.  This second requirement addresses any concern that wellness programs may collect data about individual employees and then sell this private health information without the employee’s consent.

The Wellness/GINA rule uses the same definition of a wellness program, and the same requirements for a wellness program to be “reasonably designed to promote health or prevent disease.”  This final rule allows an employer to ask for current or past health status information about an employee’s spouse as long as there is an inducement to participate.  Inducements to spouses may be offered in all welfare plans.  The inducements may be up to 30% of the cost of the plan. Refusal to participate in a wellness program by a spouse may not be used to deny access to health insurance or benefits if the spouse refused to provide health status information.

The new rules should reduce concerns employees may have had regarding wellness programs.  They will still have a significant effect on employees’ and spouses’ participation in wellness programs.  If the result of not participating is that the employee or the spouse has to pay up to 30% of the costs of health coverage, many employees and their spouses will not be able to afford to not participate in the programs.

This is a summary of complex information in the new rules.  If you have questions about whether your employer’s wellness plan violates the EEOC rulings, you may contact Deborah Marcuse or Ellen Doyle at Feinstein Doyle Payne & Kravec, LLC.

New ADA Resource

May 10, 2016.  The EEOC issued a new ADA  covering what employers owe disabled employees under the Americans with Disabilities Act.

The new publication “Employer Provided Leave and the ADA” highlights several points we believe all disabled employees need to know.

First, the ADA may require your employer to offer you a reasonable period of unpaid leave above and beyond what it offers to non-disabled employees. Most of our clients recognize that an employer cannot deny them benefits that it offers to non-disabled employees.

What many disabled employees don’t know is that if an extended period of unpaid leave is the one thing that would permit a disabled employee to keep her job (for example, three weeks off in order to complete a cycle of chemotherapy), the employer must provide that leave unless it can demonstrate that doing so would be an “undue hardship.”

Factors that may be considered to determine whether an employer has shown that a proposed accommodation would be an “undue hardship” include:

• the amount of leave required
•  the frequency of leave
• the flexibility of leave (whether it could be taken on different days)
• the impact of leave on co-workers or the employer’s operations

Second, an employer may not retaliate against a disabled employee for making use of additional unpaid leave, or any other “reasonable accommodation.”  Many of our clients may not realize that illegal retaliation under the ADA could include an employer deciding not to promote a disabled person because she took a period of unpaid leave, or telecommuted for several months, as a reasonable accommodation for her disability under the ADA.

Third, an employer may violate the ADA by forcing an employee to be “100% healed” before she returns to work. For example, if a disabled employee would be able to return from a period of unpaid leave if she were permitted to work from home half time as a reasonable accommodation, the employer must permit her to do so unless it can show independently that permitting her to work from home would cause it “undue hardship.”

If you are concerned that your employer is not properly accommodating your disability, please contact Edward Feinstein or Deborah K. Marcuse for a confidential consultation.

Posted by Deborah K. Marcuse.

SCOTUS Decision Impacts Workers’ Rights

The US Supreme Court stood up for workers’ rights in its March 22, 2016 decision in Tyson Foods, Inc. v. Bouaphakeo, et al.  Writing for the majority, Justice Anthony Kennedy confirmed that class action plaintiffs may prove their case using statistical or “representative” evidence.

This decision is very important for workers’ rights.  Employers sometimes do not pay workers for time they spend “donning and doffing” (putting on and removing) protective gear.  Nurses, factory workers, environmental workers and others often use protective gear.  If an employer does not keep records of unpaid work time, the workers would not be able to recover the pay they are owed.  This Supreme Court decision helps workers to prove their claim by using statistical or representative evidence.

In Tyson, the plaintiffs were employees at the defendant’s meat-processing plant.  These workers claimed that they were not paid for time they spent putting on and taking off protective gear that was necessary to safely perform their job.  Since their employer did not keep records of the time spent putting on/taking off protective gear, the plaintiffs hired an expert to observe some employees to determine the average time spent putting on/taking off their protective gear.  The defendant argued that plaintiffs could not use this sample to prove their claims on behalf of a class of similarly situated workers at the plant.

The Supreme Court found that the Federal Rules of Civil Procedure (the rules that govern civil procedure in US district courts) do permit the plaintiffs’ use of the sample to prove claims on behalf of the class.  This decision is positive for workers’ rights throughout the United States.

The Court explained that, in this case and in many cases involving unpaid wages, it was proper to use the statistical sample to prove claims on behalf of a class.  Otherwise, the Court noted, the failure of the employer to maintain time records would exclude any worker at the plant from proving their claims and recovering wages. An individual worker could use this type of evidence to prove their claim and the Court found that the same evidence may be used to prove class claims.

In this ruling, the Court also clarified that one of its previous rulings regarding workers’ rights (the 2011 Wal Mart v. Dukes decision) did not prohibit the use of statistical sampling to prove class actions, as some employers had mistakenly argued.

Click here to review the Tyson v. Bouaphakeo opinion.

If you are concerned that your employer may not be paying you for all the work that you do, please contact Edward Feinstein or Deborah Marcuse for a confidential consultation.

Posted by McKean Evans.

The Department of Labor is Unresolved About Overtime and Electronic Devices

September 18, 2015.  The Department of Labor (DOL) is scrambling to update its policies regarding what constitutes compensable work to reflect how to handle overtime and electronic devices.

Digital labor culture is rapidly changing.  Personal electronic devices have dramatically transformed the way we do — and often cannot stop doing — our jobs. We get home from work, start up our smartphones, and then refresh our office email inbox or cast a glance at our company’s Facebook page.  We complete a bunch of seemingly insignificant, one-off tasks on our synced electronic devices.  The time spent on our electronic devices can add up quickly.

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There have been lawsuits against companies like Verizon and T-Mobile for asking their employees to keep working remotely on electronic devices after hours.  (See West v. Verizon Communications, Inc., (M.D.Fla. Sept. 10, 2009), and Agui v. T-Mobile USA Inc., (E.D.N.Y. July 10, 2009)).  Now, the big question the DOL must answer is:  When do those tasks completed on electronic devices become significant enough to be deemed work-related and thus, compensable?

In June, the DOL announced that it was to issue a request for public information on the topic of overtime and electronic devices by the end of August.  It’s been more than three months now, and no formal request has been issued.  The DOL just cannot seem to make headway on this complex issue.  The main challenge is determining what electronic devices use will count as compensable time under the FLSA for minimum wage and overtime purposes, and how to count it; versus what use is truly insignificant, or “de minimis,” in legal terms.

Once the DOL finally adopts and then publishes a rule, employers’ policies may have to change in ways that will not only affect our jobs, but also our relationship with our electronic devices (cell phones, tables, and laptops).

Companies may require their employees to limit their work-related electronic devices usage away from the workplace to avoid overtime for which they have not budgeted. Employees may have to carefully track and claim their digital overtime.  Managers and supervisors may have to monitor their off-hours communications with employees who are not exempt from FLSA overtime requirements and to set “electronic curfews” for their electronic devices.

So, is this the end of the “electronic leash,” or just the beginning of a more rewarding one?

If you believe that you are not being fairly compensated for overtime hours that you have worked, please contact FDPK’s employment lawyers.  Ask for Ed Feinstein or Sarah Martin.

Posted by Ed Feinstein.

California Uber Ride Sharing Service Drivers Win Certification

On September 1, 2015, a California federal court granted class action status in a case against Uber, a popular ride sharing service. The class action lawsuit, O’Connor, et al. v Uber Technologies, Inc., et al., is pending before Judge Edward M. Chen in the United States District Court of California.

Click here to review the decision:  Uber Class Action Ruling

Uber ride sharing service drivers alleged that Uber improperly classified them as “independent contractors” when they were actually employees.  Determining whether you are an independent contractor or an employee is very important.  The law gives employees many legal rights that independent contractors do not have.

If the Uber ride sharing service drivers are determined to have been employees, their employer would be required to pay payroll taxes; to apply minimum wage and overtime laws; and to pay Social Security taxes, workers’ compensation and unemployment insurance.

The court’s decision does not mean that the court has decided whether the Uber ride sharing service drivers will be successful in their lawsuit.  The ruling means that the lawsuit may continue as a class action on behalf of all Uber ride sharing service drivers.

This class action certification may also set a precedent as Lyft, a competing ride sharing service, faces a similar class action.

If you are concerned that your employer has classified you as an independent contractor and you believe that you should be classified as an employee, please contact our employment lawyers, Ed Feinstein or Sarah Martin.

Posted by McKean Evans.

Paid Sick Days – Pittsburgh City Council Passes Paid Sick Days Act

On August 3, 2015, Pittsburgh City Council passed an ordinance requiring most employers within the city limits to give their workers paid sick days. Employees will be able to use the paid sick days to treat their own illnesses or injuries or to care for a sick family member.

If Mayor Peduto signs the bill into law, which he is expected to do, employers with 15 or more employees will have to offer their workers at least five paid sick days a year. Employers with fewer than 15 employees will have to provide three sick days a year. Employees will accrue one hour of sick leave for every 35 hours worked and can use the sick leave after working for three months.

Employees on paid sick leave will receive their normal rate of pay, and the ordinance contains an anti-retaliation provision to punish employers who discriminate against employees for utilizing their paid sick days. An employer can be fined $100 for each violation of the ordinance.

Seasonal workers and employees state and federal employees are not covered by the law.

If the Mayor signs the Paid Sick Leave Act, it won’t go into effect for several months. In that time period, the city’s Law Department expects the Act to be challenged in court by local businesses.

Click to review City of Pittsburgh File No. 2015-1825 – Ordinance supplementing the Pittsburgh Code, Title VI, Article 1, to add a new Section 626, “Paid Sick Days Act.”

If you work in Western Pennsylvania and believe you are being discriminated against by your employer because of a disability, please contact FDPK’s employment lawyers. Ask for Ed Feinstein or Sarah Martin (412-281-8400).

Posted by Sarah Martin, August 5, 2015.