Category: Employment Articles

Attorneys for Fired Worker Claim Text Message was Timely Notice of Need for Leave

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Counsel for a former Pennsylvania juvenile probation officer who alleged that the state fired her in violation of the ADA and FMLA for not giving enough notice of her leave to undergo IVF told the Third Circuit that texting her supervisor a few days prior to the treatment was adequate notice for her employer to accommodate her leave.  The employee had found out on June 5, 2017, that her embryo transfer would take place five days later.  She texted her supervisor the same day and requested leave the following day.  The employer fired the employee after she took the leave.  The employee then sued, alleging that the employer was required to provide the leave for the employee’s IVF embryo transfer, in accordance with the FMLA and ADA.

In court, the employee argued that the laws were silent on how far in advance someone has to request Family and Medical Leave Act and Americans with Disabilities Act leave.  The employee’s attorneys argued that she did not know when her embryo transfer would occur and, thus, the employee was unable to inform the department of her procedure until it was actually scheduled.  The Third Circuit pushed back on the employee’s position, asking the employee whether she could have at least provided notice to her employer that she was undergoing IVF and would need to take leave at some point in time that was unknown.   The attorney for the state argued that even though the employee’s procedure date was a “moving target,” she knew it would happen and should have notified her employer.

Employers dealing with employee leave issues for any disability or medical reasons should tread carefully.  The employer in this case might ultimately prevail; that is to be determined.  However, the cost and time lost defending the lawsuit are reasons enough to diligently examine all options before terminating an employee who had requested leave due to the medical reasons.  Such terminations are almost always “high risk” terminations and need to be carefully considered before execution. 

Reminder: I-9 Flexibilities End on July 31, 2023

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As a reminder, the U.S. Department of Homeland Security (DHS) and Immigration Customs and Enforcement (ICE) has announced that employers will be required to comply with all I-9 requirements by July 31, 2023, irrespective of the temporary regulatory waivers from compliance that were permitted during COVID.  In effect, all employees onboarded using remote verification must have in-person physical verification of their identity and employment eligibility documentation used for their Form I-9 by August 30, 2023.

Employers that onboarded employees “remotely” since the COVID pandemic began must catch up by August 30 and complete physical re-verification of these individuals employment authorization documents.   For employers that have remote employees, there is no prohibition on utilizing a designated represtnative or agent of the employer for purposes of completing Section 2 of the I-9 Form.  The designated representative may be an adult family member, friend, notary public (but not one who is being paid to perform this service), or other designated person to act as an agent.  Ultimately, however, the employer bears responsibility for any errors in this process, so employers should exercise some diligence in selecting a designated representative. 

When the physical reverification is conducted, the designated representative or company official must review the documentation. If the same employer representative reviewed the documents virtually and in person, one should note “COVID-19 Documents – physically examined on (date) by (name)” in the Form I-9, Section 2 “Additional Information” field. However, if the employer representative who virtually verified the documents will not be the same as the person physically examining the Employment Authorization and identification documentation, one needs to complete a new Section 2 of the Form I-9 and attach it to the old Form I-9.

Employers, You can Continue to use Outdated FMLA Forms

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June 30, 2023, has come and gone, but the Family and Medical Leave Act (FMLA) forms with that expired date can still be used, according to the U.S. Department of Labor (DOL).

Under the FMLA, eligible employees of covered employers may take unpaid, job-protected leave for specified family and medical reasons, such as pregnancy, chronic health conditions or the care of a family member with a serious health condition.  Employers use the forms to comply with the notice requirements under the Act and to request medical certification from an employee’s health care provider.  The five optional-use forms from the DOL are still applicable, regardless of the expiration date, the DOL noted on its website.

“The content of the information contained within the optional-use DOL form is still applicable, regardless of the expiration date,” said Edwin Nieves, a DOL spokesman. “The expiration date on the DOL forms is related to the collection of information as required by the Office of Management and Budget, and not relevant to the content of the required information.” The DOL is mandated to review the forms and notices every three years.

Employers are not required to use the DOL’s forms, which are only model versions. They may use their own forms if they provide the same basic notice information and require only the same basic certification information.   “Employers must accept a complete and sufficient certification” of the employee’s need for FMLA leave, “regardless of the format,” the DOL said. The employer cannot refuse:

  • A fax or copy of the certification.
  • A certification that is not completed on the employer’s standard company form.
  • Any other record of the medical documentation, such as a communication on the letterhead of the health care provider.

“The employer cannot reject a certification,” the DOL noted, “that contains all the information needed to determine if the leave is FMLA-qualifying.”

Unemployment Rate Edges Lower, NY Employers Receive Additional UI Tax Charges

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According to the Society for Human Resources Management, U.S. employers added 209,000 new jobs in June, below economists’ expectations for the month, and unemployment rate fell to 3.6 percent.

In New York, New York employers have been receiving letters from the Unemployment Insurance Board which demand additional payments for the “IAS Surcharge.” As a reminder, the surcharge is intended to replenish the State’s UI fund, and make up for the fact that the New York State Department of Labor entirely depleted the UI fund by paying out so many benefits during the pandemic. (As we had written on other occasions, the State’s Comptroller found that the Department of Labor errors caused the State to pay out “an estimated billions of dollars” in UI benefits.) The State’s website explains the reasons for the IAS Surcharge that employers will have to pay this year, and potentially for many years to come:

“In March 2020, the federal government passed the CARES Act, creating several pandemic unemployment programs to support out-of-work Americans impacted by the COVID-19 pandemic. As New York State hit unemployment levels not seen since the Great Depression, the Department of Labor would go on to pay more than $105 billion dollars in unemployment and pandemic unemployment benefits between March 2020 and September 2021. As a result of this unexpected emergency, the Unemployment Insurance (UI) Trust Fund was depleted. Like dozens of states around the country, New York State borrowed funds from the federal government to maintain UI and pandemic benefits while the pandemic programs were in effect.

During periods in which there is an outstanding federal loan, New York State law requires contributing employers to pay an annual Interest Assessment Surcharge, or IAS. Beginning in June 2023, employers who make unemployment insurance contributions will be notified of the 2023 IAS amount due. Payment of the IAS is due within 30 days of the date of this notice. Unless the Federal government chooses to abate all or part of the interest incurred or the principal balance amount is repaid with no more interest accrued, businesses will be required to make annual IAS payments until all interest has been fully paid off.”

US DOL Tip Credit Rule Stays, Says a Federal Judge

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The U.S. Department of Labor’s rule limiting subminimum-wage payments to tip-earning workers is permissible under federal labor law, a Texas federal judge ruled on Thursday, declining restaurant industry groups’ competing bid for a win and renewed request to block the law. The rule, which took effect in December 2021, allows employers to pay tipped wages for no more than 30 consecutive minutes when a tipped worker is engaged in a nontip-producing task and also disallows tipped wages if a worker spends more than 20% of their workweek on tip-supporting work.  The law also requires employers to pay full minimum wage, not a tipped wage, for nontipped duties like maintenance work, and put time limits on when employers can pay workers subminimum wages when they are engaged in side work that does not produce tips, such as a bartender preparing garnishes or a server cleaning the dining room. 

Restaurant and other industry groups sued to block this rule, arguing that the Department misconstrued the FLSA in promulgating the rule.  However, the judge agreed with the U.S. Department of Labor, finding that the Department’s rule was a “permissible construction” of the tip credit statute, which allows employers to pay workers subminimum wage based on the expectation they will make up the earnings in tips.  The restaurant association is likely to appeal the court’s decision.  In the meantime, employers are expected to adhere to the Department’s rule. 

Food Delivery Giants Seek to Block NYC Wage Law for Delivery Workers

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Food delivery giants DoorDash and Grubhub asked a New York state court to block implementation of a New York City rule that would raise wages for delivery workers, arguing that the regulatory process was flawed.  The rule at issue would compel delivery companies to either pay workers $20 per hour they spend logged into food-delivery apps or $33 per hour spent making deliveries. The rule, which is set to take effect July 12, is the result of the New York City Council’s 2021 passage of Local Law 115, which authorized the City’s Department of Consumer and Worker Protection (“DCWP”) Bureau to study the pay and working conditions of food delivery workers and issue new minimum pay rules for the industry.

Grubhub and DoorDash accused the DCWP of neither studying the issue accurately nor applying its learnings fairly. The companies said that the rule was largely built on survey data of delivery workers that was subjective and biased.  “DCWP merely swept aside all criticism of the surveys claiming without citation to any authority … that it had ‘reviewed the methodological critiques provided in comments but was not persuaded that the survey is inappropriate,” the companies said. “These conclusory statements do nothing to remedy any … systemic methodological failures.”

The companies also criticized the City’s decision to exempt companies like Instacart that primarily service grocery and convenience stores, rather than restaurants, from the new wage rule. Local Law 115 directed the DCWP to study the working conditions of all food delivery workers, the companies said, not to target specific firms or subindustries for reform.

The companies also said that the rule’s goal of compensating workers for all time spent on call, not just time spent delivering food, was irrational. In contrast to employees, who, under the Fair Labor Standards Act, are entitled to pay while waiting for work assignments, the companies said app-based delivery workers are free to work for competitors, complete personal chores or just hang out between deliveries.

“App-based workers choose to log in to petitioners’ systems entirely on their own; they are not under the platform’s control; and they have independent authority to accept, deny, or ignore offers … as they please,” the companies said. “DCWP’s attempt to analogize its rule to FLSA requirements is irrational.” The companies asked the court to immediately block the city from enforcing its wage rule, as well as completely vacate and annul it.

U.S. Supreme Court Modifies Test for Religious Accommodations in the Workplace

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On June 29, 2023, the United States Supreme Court issued its decision in Groff v. Dejoy, in which the Court announced a heightened standard for employers attempting to demonstrate that an employee’s request for religious accommodation under Title VII would impose an undue hardship on its business.  All HR Departments and employer operators should take note of this decision because it is likely to require them to grant more religious accommodation requests than they had granted in the past.

In Groff, the Supreme Court held that an employer must demonstrate that an employee’s request for religious accommodation would impose a substantial difficulty or cost to its business operations before rejecting such request. This holding marks a departure from over 45 years of precedent, which held that any request for religious accommodation that created more than a de minimis cost – a low bar —would constitute an undue hardship on an employer.

In Groff, a former United States postal worker requested not to work Sundays because of his religious practices. The Postal Service denied the employee’s request, citing the requirements of the business and difficulties in scheduling, including needing to schedule other employees to cover the employee’s shifts, as an undue hardship. The District Court and the Third Circuit Court of Appeals sided with the employer, holding that the Supreme Court’s decision in Trans World Airlines allowed the employer to deny a religious accommodation where it could demonstrate that doing so would impose more than a de minimis cost, and therefore an undue hardship, to its business.

The Supreme Court disagreed with the Third Circuit’s reliance on this prior interpretation of Trans World Airlines, and instead explained that courts needed to determine whether an employer would be required to incur substantial difficulty or costs to implement an employee’s request for religious accommodation. Though employers have long been aware of their obligations to accommodate an employee’s religious beliefs under Title VII, they have understood their obligations to be something less than that of an undue burden under the Americans with Disabilities Act. The Supreme Court’s decision changes the standards by which employers will evaluate religious accommodation requests in a way that more employees are likely to qualify for religious accommodations when they previously would have been denied.

Covered Employers Must Update their EEOC Poster

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The Equal Employment Opportunity Commission (EEOC) has updated the mandatory jobsite poster “Know Your Rights: Workplace Discrimination is Illegal.”  The EEOC laws apply to employers with 15 or more employees.

The June 27, 2023 version of the EEOC’s poster includes the latest employee protections under the Pregnant Workers Fairness Act. The EEOC Know Your Rights poster summarizes the Federal laws prohibiting job discrimination based on a host of factors including retaliation or litigation activities. The poster also informs workers how they can file complaints if they feel they have experienced discriminatory practices.

While the laws requiring the EEOC posting do not indicate a deadline for updating it at your workplace, employers are urged to “display the new one within a reasonable amount of time” according to the EEOC Poster FAQs.

IRS Issues Warning about ERC Credits

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The Internal Revenue Service (IRS) is continuing to caution employers about claiming the Employee Retention Tax Credit (ERTC), noting that there have been aggressive and unlawful tactics by various ERC filing services.  The IRS is aware that a number of these providers are persuading ineligible businesses to seek and obtain the ERC credit.  As a result of these unscrupulous business practices, the IRS has committed to “step up” enforcement action regarding ERTC claims.  The IRS is expected to focus on employer eligibility, substantiation of financials underlying the eligibility determination and claim, and a review of any amended returns by the employer. Penalties range from 20% for errors in accuracy to 75% if the IRS detects fraud.

The statute for the ERTC permits civil action by the IRS for two years after the refund is issued. The statute of limitations for fraud or misrepresentation, however, extends to five years.

Reminder: NY Paid COVID Sick Leave is still in Effect

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A number of employers have inquired whether the New York State paid sick leave legislation is still in effect, in view of the lifting of the federal Public Health emergency.  Unfortunately, the New York Paid COVID Sick Leave, which is codified in the Supplemental Paid Leave and COVID-19 Paid Family Leave Law, does not have an expiration date.  Thus, unless the Legislature amends the law, employers will be obligated to continue providing and paying for COVID sick leave.  However, while the statute requires employers to provide “up to 14 days” (for “large” employers), note that the amount of leave granted to an employee is based on Centers for Disease Control and Prevention (CDC) isolation and quarantine guidelines, which are regularly changing (and the recommended amount of sick leave for infected employees is decreasing).