June Updates

U.S. Supreme Court Ruling Revises Statute of Limitations on Constructive Discharge Claims

Effective May 23, 2016, the U.S. Supreme Court stated in Green v. Brennan that the statute of limitations for a Title VII constructive discharge claim begins on the date an employee gives notice of resignation, rather than the date of the last alleged unlawful employment practice conducted by the employer.

In a constructive discharge claim, a former employee alleges that the employer engaged in discriminatory/retaliatory conduct resulting in working conditions so intolerable that the employee felt forced to resign.  Previously, employees had 180 days after the alleged unlawful employment practice occurred to file a claim with the Equal Employment Opportunity Commission (“EEOC”); 45 days for a federal employee.  With the new ruling, employees will now have a significantly wider window to file a claim by delaying their resignation.

Employers should be sure to follow through on complaints of discrimination, harassment and retaliation in the workplace.  Document follow-up activities that ensure the perceived hostile work environment has improved; it may be helpful if later faced with a constructive discharge claim.

EEOC Doubles Poster Violation Penalty Fine

Effective July 5, 2016, the Equal Employment Opportunity Commission (“EEOC”) is increasing the fine for failure to post the federally-required nondiscrimination notice.  The fee is more than doubling from its current $210 to $525.  Further adjustments or increases may take place in the future and are required to be finalized by January 15 of each year.

Employers can satisfy this requirement by posting the consolidated notice, “EEO is the Law,” available for free on the EEOC website.

EEOC Provides Guide for Using Leave as a Reasonable Accommodation under ADA

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently published a guide regarding the intersection of employer-provided leave and the Americans with Disabilities Act (“ADA”).  The resource document, available on the EEOC website, emphasizes that employees with disabilities must be given equal access to employer-provided leaves on the same basis as all other similarly-situated employees.

Further, unless undue hardship exists, employers must consider providing unpaid leave to employees with disabilities as a reasonable accommodation, even if the employer does not normally offer a leave benefit or if the employee is not eligible for leave under their policy.  The resource document offers guidance on multiple aspects of leave procedures; employers should take the time to review their own leave policies and procedures in conjunction with the guide.

California Businesses Now Have Time to Fix Accessibility ADA Violations

Effective May 10, 2016, SB 269 limits frivolous lawsuits against California employers regarding construction-related accessibility violations by giving organizations the opportunity to fix identified violations before a lawsuit is filed.  California employers will now have 120 days from receipt of a Certified Access Specialist (“CASp”) report to correct any violations identified in the report.

This measure provides employers the opportunity to make corrections without being immediately subject to statutory penalties or litigation costs from predatory lawsuits.  Employers who receive a CASp report should take care to address the identified violations during the new 120 day window to avoid liability or potential litigation.

California Paid Sick Leave Coverage Expanded to In-Home Workers

Effective July 1, 2018, California’s Paid Sick Leave law has been expanded to cover providers of in-home supportive services, who were formerly exempt from the sick time regulation.  The in-home worker must work in California for 30 or more days from date of hire to become entitled to paid sick days.  Paid sick time for in-home supportive service workers will be gradually phased in: covered in-home workers are entitled to a minimum of eight hours/one day of leave per 12-month period beginning July 1, 2018, increasing to 16 hours/two days when California’s minimum wage reaches $13/hour, and finally to 24 hours/3 days of leave when the minimum wage reaches $15/hour.

Los Angeles, CA Doubles Paid Sick Leave, Effective July 1, 2016

We previously reported on the Los Angeles City Council’s vote to approve a new ordinance doubling Los Angeles employee’s paid sick leave rights from the statewide 24 hours per year to 48 hours. The ordinance has finally been published and is available online here.  The new paid sick time requirements are effective July 1, 2016 for Los Angeles employers of 26 or more,  and July 1, 2017 for smaller employers of 25 or fewer employees.

Contact ManagEase at (888) 230-3231 for assistance in revising handbooks or policy documents concerning increased paid sick time rights.

Santa Monica, CA’s Paid Sick Leave Implementation Delayed to 2017

Santa Monica’s Paid Sick Leave Ordinance, which expands certain benefits beyond California’s statewide version, has been delayed until January 1, 2017.  The revised effective date accommodates a much longer phase-in period, giving employers more time to prepare for implementation.  Employers of 25 or fewer employees will be required to provide 32 hours of paid sick time on January 1, 2017, increasing to 40 hours by January 1, 2018.  Larger businesses of 26 or more employees must provide 40 hours starting January 1, 2017, increasing to 72 hours by January 1, 2018.

The amended Ordinance also provides that sick time accrual begins on the date of hire, rather than 90 days after hire.  Lastly, the amended Ordinance explicitly allows employers to frontload sick leave.

Georgia: Franchisors are not Employers of Franchisees or Franchisees’ Workers

Effective January 1, 2017, the “Protecting Georgia Small Business Act” provides that neither a franchisee, nor a franchisee’s employee, will be considered an employee of a franchisor.  This provision, however, does not apply to Georgia’s workers’ compensation provisions. The Act appears to be in direct response to the Browning-Ferris ruling in August 2015, where the NLRB greatly expanded its definition of “joint employer.”  Affected employers should consult with a labor law attorney for how the Act may be affected by the NLRB’s ruling, and for questions pertaining to workplace policies and procedures.

Many Tennessee Employers Soon Required to Use E-Verify

Effective January 1, 2017, Tennessee employers of 50 or more employees must use E-Verify to determine worker eligibility for employment.  The Tennessee Lawful Employment Act (“TLEA”), originally signed into law in 2011, provided employers the option to either use E-Verify or to retain certain identifying documents from an employee to establish the right to work.  On January 1, 2017, that document retention option will no longer be in effect. Additionally, the law reduces the time employers have to remedy a non-compliance finding from 60 days to 45 days.  Covered Tennessee employers who do not currently use E-Verify should begin the enrollment process prior to the effective date to prepare for the new regulation.

Vermont Passes Ban-the-Box Legislation

Effective July 1, 2017, Vermont’s H.261 prohibits employers from inquiring into criminal history on initial job applications. Employers can only inquire into criminal history during an interview or after a prospective employee “has been deemed otherwise qualified for the position.” Positions where federal or state regulations automatically disqualify candidates based on criminal convictions are exempt from this law. If an employer does inquire into a candidate’s criminal history, and the candidate is still otherwise eligible for the position under applicable federal or state law, the candidate must be allowed to explain the circumstances regarding any conviction, including post-conviction rehabilitation.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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