All posts by Cindy Isaak

NEW GUIDANCE: NYC Publishes Model Policy for NYC Lactation Room Law

The New York City Commission on Human Rights (NYCCHR)  has released their model policies for the New York City lactation room law,  which went into effect on  March 18, 2019.  Local Law 185 and Local Law 186 , which passed in 2018 require:

  • Employers to provide employees with lactation accommodations,
    • Including a lactation room where employees can pump breast milk,
    • A reasonable time in which to pump breast milk.
  • Employers to have a written lactation policy that meet specific requirements under the law and employers must provide the policy to all new employees.

Continue reading NEW GUIDANCE: NYC Publishes Model Policy for NYC Lactation Room Law

NEW CASE: Failing to Provide Lactation Accommodations Cost One Employer 1.5 Million Dollars

As part of the passage of the Affordable Care Act, the Fair Labor Standards Act (FLSA) was amended in March of 2010 to require most employers to provide nonexempt employees nursing mothers a “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the 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 an employee to express breast milk.”

As a result, nursing mothers have legal protections that allow them to express breast milk in the workplace.  Employers must comply or face potential consequences which may include liability under Title VII of the Civil Rights Act of 1964 as demonstrated by a recent jury verdict in Delaware. Continue reading NEW CASE: Failing to Provide Lactation Accommodations Cost One Employer 1.5 Million Dollars

NEW CASE: Ignoring Employees’ Sexual Harassment Complaints Costs One Employer $11 Million

In a recent case (Meadowcroft and Brown v. Silverton Partners, Inc.), two winery employees, Megan Meadowcroft and Amanda Brown, alleged they had been sexually harassed by their supervisor, General Manager Pinero throughout their employment.

Specifically, Brown had complained that Pinero has flirted flirted with her constantly (which was unwelcome and made her feel uncomfortable).  She further claimed that Pinero had touched her in an inappropriate manner.

Meadowcroft had complained that Pinero made sexually explicit gestures and sexual comments to her.  She further complained that Pinero had physically touched her by putting his hands on her waist and under her buttocks while she was working.  Finally, Meadowcroft complained that Pinero had told her that she could be a manger if she had sex with him. Continue reading NEW CASE: Ignoring Employees’ Sexual Harassment Complaints Costs One Employer $11 Million

Intermittent FMLA For Chronic Health Conditions? Doctor’s Notes May Be Required

Generally, when an employee takes a medical leave of absence, treatment by a medical provider is often assumed.  The frequency of the employee’s doctor’s visits is rarely scrutinized.

According to a recent Pennsylvania federal court decision in Watkins v. Blind and Vision Rehabilitation Services of Pittsburgh that is not always a wise approach. When evaluating FMLA entitlements, the importance of verifying the employee’s continuing medical treatment cannot be ignored.

Watkins who worked for Blind and Vision Rehabilitation Services (BVRS) as an employment specialist was a military veteran who suffers from PTSD.  Watkins was injured in July of 2015 when someone fired multiple bullets at the car she was driving.  Along with damages to her car, including tires shot out out and a shattered window, a bullet just missed her head, lodging itself in the driver’s side headrest.  The random act of violence triggered Watkins PTSD symptoms. After the incident, she had difficulty functioning, experienced, anxiety, irritability, and stress.  Additionally, Watkins was fearful of leaving her home and suffered from a loss of concentration.

In June of 2016 Watkins began experiencing performance issues, including submitting inaccurate client information for financial reimbursements.  She was issued a notice of unsatisfactory work performance.  Watkins was told to submit the necessary information to remedy the situation.  She did not, was further counseled and performance issues continued.  On July 5, Watkins did not report to work to complete backlogged paperwork saying she was having a mental health emergency.  On July 6, BVRS received a letter from Watkins medical provider stating she was being treated for PTSD and given a return to work date as July 7.  Watkins did not return to work as per her medical provider’s letter and instead had only sporadic attendance thereafter.  Eventually, Watkins was terminated for job abandonment.

Watkins sued BVRS alleging they had failed to provide her with FMLA benefits to which she was entitled.  BVRS asked the court to dismiss the case on summary judgment, in part because Watkins could not produce evidence that she had a serious health condition, (being a requirement) that would entitle her to the protections of FMLA.  Because Watkins was never admitted to a hospital or had inpatient treatment, she had to show she was receiving continuing medical treatment from a healthcare provider for her serious medical condition.

The court recognized that PTSD can be a chronic aliment continuing over extended periods of time.  Under FMLA, Watkins had to additionally show that she was receiving continuing treatment for PTSD.  This would mean periodic visits to a  medical provider at least twice a year.  Even though Watkins testified that she had been in treatment for seven years and in the beginning,  she had seen her medical provider regularly, she admitted that the visits were now on an as needed basis. Ultimately because Watkins could not establish that she visited a medical provider at least twice a year for PTSD, Watkins could not show that she had a serious medical condition and was entitled to FMLA leave.

Take away?

Employers should look carefully at the certification form completed by an employee’s healthcare provider, when an employee requests FMLA for their own serious medical condition.  There are two questions an employer will want answers to regarding whether or not the employee will qualify for an FMLA leave:

  • Does the provider identify a period of hospitalization or identify recent dates of treatment?
  • Does the medical provider state that the employee will need periodic visits with a medical provider at least twice a year?

A negative answer to those questions could indicate that the employee does not qualify for FMLA leave. That being said, it is important to consult with your HR professional and or legal counsel before denying FMLA leave.

NEW CASE: Limits Wage and Hour Liability for Payroll Service Providers in California

In a recent case (Goonewarden v. ADP, Inc.), the California Supreme Court unanimously held that a payroll service provider cannot be held liable for errors the payroll service provider makes when issuing payroll check to employees on behalf of the companies with whom it contracts.  The Court also found that payroll service providers do not owe a duty of care to employees to ensure the Labor Code and wage orders are followed.

The Case

Following her termination from her employment, the plaintiff filed a lawsuit claiming that her former employer had failed to pay her properly during her employment and, subsequently, terminated her for bringing these problems to the employer’s attention.  Ultimately, the plaintiff also included the company’s payroll service provider (ADP) as a party to the lawsuit claiming that ADP violated the California labor code because it failed to provide her with adequate documentation and records regarding her compensation.

ADP challenged its inclusion in the lawsuit, claiming that, as a third party, the plaintiff could not sue ADP for problems arising from the contract between ADP and the employer (in legal terms, the plaintiff was not a “third party beneficiary” to the contract and has no standing to maintain a claim against ADP).

The California Supreme Court agreed with ADP and found that the plaintiff could not be considered a third-party beneficiary of the contract between her employer and ADP, and therefore could not maintain a breach of contract, negligence, or negligent misrepresentation claim against ADP.

This decision suggests that California courts may be skeptical of holding contractors liable under the third-party beneficiary doctrine in cases brought by the employees of parties to which they have service agreements.

Additionally, this case is significant in the fact the Court demonstrated that it is hesitant to expand the maze of wage and hour law compliance. Employers should stay involved in all payroll activities and do their due diligence to ensure that payrolls are accurate and compliant.

Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

When administering FMLA , employers are generally advised to run FMLA concurrently with other leaves for which the employee may be eligible– as this practice prevents leave stacking.

However, when drafting FMLA policies, how an employer handles the use of paid leave during FMLA is commonly overlooked.  While most leave policies require employees to use their earned vacation, sick or PTO time concurrently with FMLA leave, employers tend to overlook the FMLA regulation that prohibits employers from requiring employees to use paid leave during FMLA.

Employers should consider how to handle situations where an employee who is requesting FMLA also has some type of paid leave available for his or her use. Continue reading Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

West Virginia Will Allow Employees To Carry Guns in their Vehicles

On March 21, 2018, West Virginia passed the Business Liability Protection Act (Act) which will limit the ability of an employer to prohibit an employee or customer from lawfully possessing a firearm locked in the individual’s personal vehicle located in a company parking lot.  Prior to passage of this law, employers and property owners in West Virginia could prohibit the carrying or concealing of firearms on any property under his or her domain.  This law creates an exception to those rights.  Employers should begin preparations to comply with this law which will take effect June 8, 2018.

What the New Law Does

Beginning June 8, 2018 West Virginia employers may not:

  • Prohibit any customer, employee or another person lawfully on the premises from storing a lawfully possessed firearm inside of a privately-owned vehicle in a company parking lot as long the firearm is out of view and locked inside the vehicle;
  • Ask employees or customers about the presence of a firearm locked inside a vehicle in a company parking lot;
  • Perform an actual search for a firearm within a vehicle in a company parking lot; or
  • Condition employment on an employee’s agreement not to keep a firearm locked inside his or her vehicle or concealed carry license status.

Additional facts

This law will only apply to privately-owned vehicles and will not affect an employer’s ability to prohibit firearms inside company-owned, rented, or leased vehicles.  Additionally, the law does not limit an employer’s ability to prohibit firearms in other areas of the employer’s premises.  Employers who comply with the law are also protected from any civil lawsuits arising out of their actions or inactions taken in order to comply with the law (e.g., an employer will not be civilly liable if a shooting occurs because an employee lawfully possessed a firearm in his or her personal vehicle).  Similarly, the law does not create any new obligations or expand on an employer’s existing duty to provide a safe workplace. Continue reading West Virginia Will Allow Employees To Carry Guns in their Vehicles