Discussion

The Wage and Hour Division of the U.S. Department of Labor recently issued an Opinion Letter addressing whether an employee may use intermittent Family and Medical Leave Act (FMLA) leave to work a reduced number of hours per day (or week) for the duration of their leave entitlement. The inquiry indicated that employees were required to work more than eight hours per day and working overtime was not optional.

The Opinion letter stated that where an employee is unable to work more than eight hours in a regularly scheduled day because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement.

The Opinion Letter highlighted the differences between the FMLA and the Americans with Disabilities Act (ADA), but acknowledged that an employee may be entitled to invoke the protections of both laws simultaneously. Where an employee qualifies under both the FMLA and ADA, requirements from both laws must be observed and applied in a manner that assures the most beneficial rights and protection to the employee.

Finally, the Opinion Letter reiterated FMLA entitlement for employees who are regularly scheduled to work more than eight hours per day. FMLA provides that an employee is entitled to 12 workweeks of leave per year. If an employee is regularly scheduled to work more than 40 hours per week, they are entitled to more than 480 hours of FMLA per 12-month period.

Action Items

1. Review the Opinion Letter here.
2. Have FMLA and ADA policies reviewed for compliance.
3. Have appropriate personnel trained on FMLA eligibility and entitlement.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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. © 2023 ManagEase

Discussion

In Polina Milman v. Fieger & Fieger P.C., the Sixth Circuit Court of Appeals ruled an employee’s request for unpaid leave under the Family and Medical Leave Act (FMLA) is protected activity and subject to protection against retaliation even if the employee was ineligible for FMLA leave. A request that raises the question of a potential right to FMLA leave is sufficient. Here, the employee was an attorney at a law firm and requested permission to work remotely due to the start of the COVID-19 pandemic. The employee was concerned about working in person as her son was vulnerable to infection and was exhibiting symptoms of COVID-19. She was denied her remote work request, so she then requested to take unpaid leave without mentioning the FMLA. Human Resources instead allowed her to work from home for a few days. When the plaintiff did not return to the office after the remote work allowance ended, she was terminated. She then sued for FMLA retaliation and state law claims.

In its ruling, the Court said that an employee did not have to make a specific request for leave in order to be protected from retaliation. It was enough that the request raised the question of a possible right to FMLA leave even if the employee ultimately was not eligible for FMLA leave. The employer, not the employee, has the burden of collecting enough information to determine whether the leave complies with the requirements of the FMLA. Here, the employee expressed sufficient legitimate FMLA concerns like needing to attend to her child’s health issues at the onset of the COVID-19 pandemic. These concerns are enough to raise the issue of whether the request reasonably may fall under the FMLA. Also, the employer’s offer of an alternative accommodation to work from home was an indication that the employer was aware of the plaintiff’s request. Employers should review their obligations under the FMLA and determine whether an employee qualifies for leave. Employers should also discuss any potential adverse actions contemplated against an employee requesting leave with their legal counsel.

Action Items

1. Review procedures for responding to and managing leave requests.
2. Have appropriate personnel trained on the requirements.
3. Discuss potential adverse actions against employees requesting leave with legal counsel.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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. © 2023 ManagEase

Discussion

In Chamber of Commerce v. Bonta, the Ninth Circuit Court of Appeals, on rehearing, ruled AB 51 is preempted by the Federal Arbitration Act (FAA). In 2020, AB 51 prohibited employers from requiring employees to enter into arbitration agreements as a condition of employment in which employees waived the right to litigate claims under the Fair Employment and Housing Act (FEHA) and the California Labor Code. As a result of a legal challenge, the Ninth Circuit previously upheld AB 51 indicating that AB 51 applied before an arbitration agreement was entered into but not after, an “oddity that an employer subject to criminal prosecution for requiring an employee to enter into an arbitration agreement could nevertheless enforce that agreement once it was executed.” Subsequently, after a request for rehearing en banc, and following the U.S. Supreme Court ruling in Viking River Cruises v. Moriana also involving FAA preemption over California arbitration agreements, a Ninth Circuit panel reviewed this case again and came out with a different result.

Specifically, state rules that burden or invalidate the formation of arbitration agreements hinder the FAA. The FAA not only governs applicable arbitration agreements but also encourages them as an alternative to litigation. The court’s ruling was based on conflict preemption which means a state law either creates an unacceptable obstacle to the accomplishment and execution of the full purposes and objectives of Congress or makes it impossible to comply with both state and federal requirements. Following this rationale, the court found AB 51 made the formation of an arbitration agreement invalid and gave no purpose or meaning to the FAA. Although AB 51 did not expressly ban arbitration agreements, it did place a severe burden on contract formation through civil and criminal penalties imposed on employers. The court stated that the threat of penalties is intended to have a deterrent effect and inhibits an employer’s willingness to create an arbitration contract with employees.

Additionally, Congress intended to place arbitration agreements on the same footing as other contracts, and AB 51 defeated that purpose. The court noted AB 51 singled out arbitration agreements as unlawful contracts although employers are able to enter into nonnegotiable contracts, for example, relating to compensation or drug usage. Under this ruling, employers can continue to use mandatory arbitration agreements, absent additional appeals.

Action Items

1. Review arbitration agreements with legal counsel for compliance.
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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. © 2023 ManagEase

Discussion

The long-awaited regulations for the California Privacy Rights Act (CPRA) have been sent to the Office of Administrative Law and appear to be ready to go into effect this spring. Despite the lack of final regulations, the CPRA’s amendments to the California Consumer Privacy Act (CCPA) went into effect on January 1, 2023. These amendments removed the exemption for workforce personal information to be exempt from the CCPA consumer data privacy amendments. Workforce members include California applicants, employees, and independent contractors. The CPRA applies to all businesses (regardless of location) with annual gross revenues exceeding $25 million or who buy, sell, or share consumers’ personal information at certain thresholds.

Workforce members are entitled to certain consumer rights regarding their personal information: 1) the right to know what personal information is collected and how it is used; 2) the right to correct incorrect personal information; 3) the right to delete personal information; 4) the right to opt-out of the sale or sharing of sensitive personal information; 5) the right to limit the use of sensitive personal information; and 6) the right to be free from retaliation or discrimination for the exercise of these rights. These rights have certain limitations, especially in an employment setting. Employers, for example, do not have to comply with a rights request if the information needs to be retained to comply with other applicable laws. Employers should not wait for the final regulations to be approved to move ahead with compliance since there are a number of complicated requirements.

Employers will need to complete a data inventory of all of their workforce personal information. This includes locating the data, and identifying the storage format, storage method, and storage location as well as the physical location. This process must also be repeated amongst any vendors or third parties with whom employers share or sell any workforce personal information. Once personal information is identified, it must be categorized based on its type and business purpose or use as stated in the CPRA. Employers also need to create and update privacy policies as well as notices to provide to workforce members at the point personal information is collected. Contracts with third parties must also include language referencing the third parties’ obligations under the CPRA.

Employers must create an internal process for directing workforce members who want to exercise their consumer rights to the submission methods for such requests and responding to a rights request. In addition, employers must train the employees responsible for managing workforce personal information and responding to rights requests on the basic requirements of the CPRA as well as its specific privacy policy, notice requirements, and rights request submission and response methods. Employers must retain records relating to any rights request submissions and responses for 24 months or as required under other applicable law.

Although the final regulations have yet to go into effect, employers should work with their legal counsel now to implement the requirements. Many of the obligations under the CPRA require specific knowledge about each individual business’ personal information collection, use, and storage practices.

Action Items

1. Locate and map all workforce personal information.
2. Draft notices of collection and privacy and retention policies for workforce personal information.
3. Train appropriate personnel on directing workforce members on how to exercise their consumer rights and responding to rights requests.
4. Review notices, policies, procedures, and third-party contracts with legal counsel.
5. Review the CPPA’s website for more information.
6. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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. © 2023 ManagEase