Tuesday, January 27, 2015

House Democrats Introduce Bill to Give Federal Employees Paid Parental Leave

Following President Obama's calls during his annual State of the Union Address to provide paid leave for employees in both the private and public sectors, a group of Democrats in the House yesterday proposed a bill that would provide federal employees with six (6) weeks of paid leave for purposes related to the birth or adoption of a child. 

From the Washington Post article on the proposed legislation:
Currently, federal employees are eligible for 12 weeks of unpaid parental leave and can substitute paid sick and annual leave for part or all that unpaid time. Agencies additionally may advance leave for those purposes to employees who have accumulated an insufficient amount; the memo essentially removed the discretion they had over whether to grant such requests. 
Federal employees receive 13 days of sick leave a year with no limit on how much they can build up. They also get between 13 and 26 days of annual leave per year, depending on their length of service, but generally can carry no more than 30 days of it from one year to the next. Advanced leave amounts to borrowing against leave to be earned in the future. 
The momentum for such legislation in the private sector is still dim, if not non-existent.  This is at least an admirable step in Congress.

Wednesday, January 21, 2015

Massachusetts Amends Maternity Leave Law to Provide Greater Protections to Employees

Earlier this month, the former Governor of Massachusetts, Deval Patrick, signed into law “An act relative to parental leave,” amending and replacing the Massachusetts Maternity Leave Act (“MLA”). 

The original MLA provided eight (8) weeks of protected leave to female employees for the birth or adoption of a child, but, under the new law, protected leave is now extended to male employees as well.  The law applies to employers with six (6) or more employees and eligible employees only need to work for the employer for three (3) months. 

The new MLA may also may cover eligible employees beyond the eight-week leave period. According to the Act, if an employer agrees to provide parental leave for longer than eight weeks, the employer shall not deny the employee his or her rights under this section (including reinstatement), unless the employer clearly informs the employee in writing prior to the commencement of the leave and prior to any subsequent extension of that leave. Specifically, the employer must inform the employee that taking longer than eight weeks of leave will result in the denial of reinstatement or loss of other rights and benefits.

Additional changes to the MLA include:
  • If both parents work for the same employer, they are entitled to eight weeks in the aggregate for the birth or adoption of the same child;
  • While employees still must give at least two weeks’ notice prior to taking leave and returning from leave, the new law contains an exception for employees to provide notice “as soon as practicable” if delay is for reasons beyond the employee’s control;
  • Employers may decide whether the leave is paid or unpaid; and
  • Employees who have a child placed with them pursuant to a court order are also covered.
(Hat tip to Nixon Peabody for the news on this new law).

Thursday, January 15, 2015

Can My Employer Deduct From My Paycheck/Dock My Pay?

A very common question people have is whether their employer may deduct from their pay, or, dock their pay, for things like stolen items, mistakes, cash register shortages, damage to equipment, etc.  The answer is two-fold.

The Fair Labor Standards Act ("FLSA") is the federal legislation that applies to all employers in the United States and it allows for deductions from an employee's pay (nonexempt employees, that is) so long as it does not cut into the employee's minimum wage (currently $7.25/hour) or overtime pay.  Otherwise, the employer may make any deductions to their benefit.  Do note, however, that the FLSA does allow for deductions that do affect an employee's minimum wage or overtime pay for things like state and federal taxes, social security, and child support orders.

Since federal legislation doesn't protect employees much from paycheck deductions, it is then left for the individual states to pass legislation to restrict such.  In Wisconsin, employees have been protected from certain deductions since 1931 per Wis. Stat. section 103.455.    Subject to three (3) exceptions, Wis. Stat. sec. 103.455 provides: 
“No employer may make any deductions from the wages due or earned by any employee, who is not an independent contractor, for defective or faulty workmanship, lost or stolen property or damage to property.” According to the Wisconsin Supreme Court, the law “is aimed at preventing employers from using coercive economic power to shift the burden of a work[-]related loss from the employer to the employee.”
The three (3) exceptions are:
1)  unless the employee authorizes the employer in writing to make that deduction, or2)   unless the employer and a representative designated by the employee determine that the defective or faulty workmanship, loss, theft or damage is due to the employee's negligence, carelessness, or willful and intentional conduct, or3)  unless the employee is found guilty or held liable in a court of competent jurisdiction by reason of that negligence, carelessness, or willful and intentional conduct.
If an employer in Wisconsin violates Wis. Stat. sec. 103.455, the statute provides a remedy of "twice the amount of the deduction or credit taken in a civil action brought by the employee."  Thus, employers ought to tread very lightly when considering docking an employee's pay in Wisconsin.

Wednesday, January 14, 2015

7th Circuit Finds Employer That Included Employee's EEOC Complaint in SEC Filings Enough to Show Retaliation

In a case out of the Eastern District of Wisconsin, the Court of Appeals for the Seventh Circuit has reversed a grant of summary judgment in a case whereby a plaintiff, Celia Greengrass, sued her former employer, International Monetary Systems Ltd. ("IMS"), alleging that they retaliated against her when they named her in their annual SEC filings and casted her complaint as "meritless," which showed to prevent Greengrass from obtaining new employment.

The district court granted summary in favor of IMS stating that Greengrass lacked evidence showing a causal link between her EEOC filing and the alleged retaliatory act.  In reversing the lower court, the 7th Circuit held that Greengrass did make out a prima facie case of retaliation by demonstrating that she engaged in a statutorily protected activity when she filed her EEOC charge, that IMS engaged in an adverse employment action when it listed her name in its SEC filings, and that there was sufficient evidence for a rational trier of fact to find that IMS listed her name because Greengrass filed the EEOC charge.

As is the case in most employment law cases, the devil lies in the details of the facts and it wasn't JUST the fact that IMS mentioned the plaintiff in their SEC filing that got them in trouble.  In 2008, IMS did not mentioned Greengrass' EEOC complaint in their 2008 SEC disclosures, which, the court believed was due in large part to an email sent by IMS' general counsel whereby the company appeared confident it could avoid a "large damages award," because, without the EEOC's involvement, Greengrass "likely [would not] have the resources for a lengthy court fight."  Thus, the 7th Circuit concluded, a reasonable jury could conclude that IMS decided to retaliate against her not when she filed her charge, but when IMS saw that the EEOC was taking the charge seriously, and that the retaliation occurred in its next scheduled SEC filing in April 2009 when it did name Greengrass' complaint.

The Court also held that Greengrass presented evidence of animus as well because a reasonable jury could interpret IMS' general counsel's email as evincing a disdain for the EEOC process and animus against Greengrass for filing her complaint.

The case is Celia Greegrass v. International Monetary Systems Ltd., Case No. 13-2901 (7th Cir. Jan. 12, 2015)