Employers fight to keep up with employment law changes

PA Business Central 

Family leave, sexual harassment, sexual orientation discrimination, overtime salary threshold and duties tests, employer health care insurance and related tax reporting requirements, mandatory drug testing, executive compensation, disability benefits claims procedure, contraceptive coverage, legal marijuana use, the proper classification of workers as independent contractors or employees, salaried or hourly, paid or unpaid interns: all are among the labor and employment issues that employers have long been grappling with.

Discrimination based on sexual orientation and gender identity

The latest change in employment law came on March 7 when The Sixth Circuit Court of Appeals in Cincinnati, Ohio, which covers Kentucky, Michigan, Ohio and Tennessee, held that discrimination against transgender/LBGTQ employees is discrimination based on sex, and therefore, it violates Title VII of the Civil Rights Act of 1964. The court held the opinion in the case EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. of Detroit, Michigan.

When the plaintiff, Aimee Stephens, began working as a funeral director, he presented himself as a male and was named Anthony Stephens. Stephens was fired after she informed the funeral home that she would no longer be presenting as a male but would transition and dress as a female. The funeral home argued that Stephens’ continued employment would negatively impact its business clients, and the change in sexual orientation violated the Christian values of the funeral home’s owner. The three-judge panel concluded that the funeral home could not use the Religious Freedom Restoration Act to justify such discrimination, and decided in favor of Stephens.

Two weeks earlier, in a 10-3 decision, the Second Circuit Court of Appeals in NYC, whose territory covers Connecticut, New York and Vermont, ruled that Title VII of the Civil Rights Act of 1964 covered sexual orientation discrimination. In its case, Zarde v. Altitude Express, the plaintiff sued his former employer, Altitude Express, a skydiving business, alleging that he was fired based on his sexual orientation. The trial court dismissed Zarde’s Title VII claim, finding that it was not covered by the Act. Zarde appealed to the 2nd Circuit Court of Appeals, and after hearing the plaintiff’s case, the court issued an opinion in favor of the plaintiff.

The court provided three chief reasons why Title VII protects employees from discrimination based upon sexual orientation:

(1) The court found that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” – meaning, a person’s sexual orientation can’t be defined without identifying their sex or gender.

(2) The Supreme Court had already ruled that Title VII bars employers from taking adverse actions against employees based upon their failure or refusal to conform to “gender norms.” The judges’ opinion noted that “homosexuality represents the ultimate case of failure to conform to gender stereotypes.” Consequently, discrimination against homosexual employees based on their sexual orientation amounts to “sex stereotyping,” a practice prohibited by Title VII.

(3) The courts have routinely held that “associational discrimination” is an illegal practice prohibited under Title VII. Consequently, that same prohibition should apply to discrimination against individuals based upon their association with partners of the same sex.

“The second and sixth circuits were only two federal courts of appeal out of 13 to hold the opinion that Title VII includes prohibition against sexual orientation discrimination there are other circuit courts that haven’t addressed the issue yet, and some that are sticking to the old standard, that Title VII does not include discrimination of the basis of sexual orientation,” said Stephen Antonelli, shareholder in the Employment and Labor Services Group and the Litigation Services Group of Babst Calland, headquartered in Pittsburgh.

“So, it’s certainly an issue that’s going to continue to be litigated in the courts, but while it’s being sorted out, many employers have already come out and said that they are not going to discriminate on the basis of sexual orientation — not every employer has done that, but many have taken the step and are trying to get out ahead of the law.”

Family and Medical Leave Act

Another pending employment law issue is the set of changes the Trump Administration plans to make to the Family and Medical Leave Act, which currently provides certain employees with up to 12 weeks of unpaid, job- protected leave per year and requires their group health benefits be maintained during the leave. FMLA was enacted to help employees balance their work and family responsibilities by letting them take “reasonable unpaid leave” for family and medical reasons. It also addressed concerns of employers about losing work days, and it promoted equal employment opportunity for men and women.

FMLA applies to all public agencies, public and private elementary and secondary schools and companies with 50 or more employees. These employers must provide eligible employees with up to 12 weeks of unpaid leave each year for any of the following reasons:

• for the birth and care of the newborn child of an employee

• for placement with the employee of a child for adoption or foster care

• to care for an immediate family member — spouse, child or parent — with a serious health condition

• to take medical leave when the employee is unable to work because of a serious health condition.

The U.S. is the only industrialized country that does not guarantee workers paid family leave. During his presidential campaign, Donald Trump became the first Republican ever to propose a paid family leave plan: six weeks of guaranteed paid maternity leave for birth mothers.

“We can provide six weeks of paid maternity leave to any mother with a newborn child whose employer does not provide the benefit,” said Trump at a campaign rally in Aston, Pennsylvania.

The plan, which was drafted by the president’s daughter, Ivanka, excluded fathers and adoptive parents, which some criticized as being unfair to working women. During his first State of the Union address in January, President Trump again called for a policy of paid family leave, which was met with loud applause and a standing ovation from many in attendance, including Vice President Mike Pence and House Speaker Paul Ryan.

The 2018 federal budget proposes an increase in mandatory spending of $19 billion during the next decade to establish a paid family leave program. If approved by Congress, all new parents, including those who adopt, will receive six weeks of paid family leave.

“Certainly, there are some employers who already provide their employees with paid leave, but currently they are not required to do so in the FMLA, and it doesn’t matter if it’s a new mother or a new father who wants to take an unpaid leave of absence after the birth of a child or a recent adoption,” said Antonelli.

“Employers who pay for such leaves do so as a benefit to attract good employees.”

Pre-employment Drug Testing

An average of 13 people died from drug overdoses each day in Pennsylvania in 2016. The opioid crisis has caused more Pennsylvania employers to drug screen job applicants. Out of every 100 Pennsylvania manufacturing job applicants, 32 either fail or refuse to take a drug test. A federal study estimated that prescription opioid abuse cost the economy $78.5 billion in 2013, but that figure does not include the broader impact on businesses from factors such as loss of talent, increased sick days and lost productivity.

“Some employers ask for a post-offer medical exam, and the clients I’ve been working with who require this do it for safety sensitive positions, and so there’s always been an emphasis on safety,” said Antonelli.

National Small Business Compliance Pulse Survey

To better understand the concerns small businesses have over workplace issues, the National Small Business Compliance Pulse Survey conducted phone interviews with 300 small business employers across the U.S. The participants were chiefly those responsible for employee recordkeeping and HR tasks in workplaces with 5-100 employees. Among the key findings, the study reported that nearly 74% of small businesses felt that federal, state and local employment laws were becoming increasingly complex. When looking only at the responses from business owners and CEOs, that number jumped to 86%.

Businesses owners have been turning to employment law attorneys to navigate the changing currents of employment law, to understand it and ensure that their companies come into compliance with the law.

“At least once a year, or when there’s a major shift in employment law, employers should take a fresh look at their policies and procedures and their handbook and update them accordingly as the law changes,” said Antonelli.

“Realistically, employee handbooks can’t always cover every situation or answer every question about an employer’s policies, so whenever employers are initially drafting their handbook or revising it, they should be sure to add a provision to the handbook, reserving the right to add or change or cancel the policies at any time.

“They should also maintain a copy of the handbook within each of their offices, and keep a copy on the internet so employees can also review it online.”.

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