When Employee Performance/Discipline and Disability Accommodation Are Involved, Documentation is Everything.

Under the law, the Americans with Disabilities Act requires employers to engage in what is called the interactive dialogue with any employee who requests accommodation for a disability. However, in reality, the ADA rarely (if ever) appears in the workplace when an employee proactively states: “I need accommodation for my recognized disability!”

It is far more common for HR to hear rumors about an employee’s medical condition months after the employee’s supervisor began informally accommodating the employee by allowing him or her to leave work to attend appointments, or an employee with known performance problems is disciplined and in turn blames the problems on a mental or physical health condition.

Unfortunately, when a disability is present or even suspected, terminating or demoting an employee once the issue of a potential disability has been raised can be a tricky process.  At the same time, performance issues should not be ignored. In fact, the opposite is true.  Performance issues should always be carefully documented and placed in employee files.  This documentation creates a record that will offer employers protection in the event that a discrimination claim is made.

By documenting performance problems in real time, you can avoid a situation where:

  1. The supervisor gets fed up with an employee’s poor performance or the accommodation that had been informally in place;
  2. The supervisor decides to terminate; and
  3. The employee claims he or she had no history of performance issues and is being discriminated against.




WWYLD – 03/20/18 – Is There a Timeline for “Temporary?”

A few weeks ago, Angela Snyder wrote about the DOL’s new guidance regarding interns. In her article, Angela discussed considerations related to intern pay. Another issue that often arises with regard to interns is employment status—should the intern be hired as a “regular” or “temporary” employee? That’s the topic of this week’s WWYLD.

Question: Our handbook indicates that a “temporary” employee is someone who works for the organization for three months or less. A manager has asked if we can hire an employee on a temporary basis for a 4-month engagement. Are there any legal restrictions on what constitutes “temporary” employment?

In general, “temporary” is defined by the employer not the law. Legally, employees are “at will” (which means employment can be terminated at any time by either the employer or the employee) unless a contract or agreement assures otherwise.  A temporary status or probationary period does not affect the at will status.  But, there are other legal considerations for temporary employees. Let’s start there and finish with some operational considerations.

The Affordable Care Act (“ACA”): Many employers have policies that state that certain benefits, including health insurance, are not made available to temporary employees. The ACA requires that employers (with 50 or more employees) offer health insurance that is affordable and provides minimum value to their full-time employees. The ACA states that a waiting period of up to 90 days is permissible. Therefore, if a full-time (defined as working 30 or more hours/week), temporary employee remains employed beyond 90 days, he or she is legally entitled to benefits, regardless of company policy. This is one reason many employers limit temporary employment to three months or less.

Title VII: It is lawful and nondiscriminatory to provide different benefits and privileges to different employees based on employment status (regular vs. temporary, exempt vs. non-exempt, full-time vs. part-time). But an employer could open itself up to claims of discrimination if employees doing similar jobs are categorized differently and, therefore, receive different benefits and privileges. Let’s say, for example, that employee A and employee B have the same job title and both have 6-months of tenure. Employee A is “regular” and employee B is “temporary.” The employer only provides benefits to regular employees with at least 90 days of tenure. Employee B could assert a claim that he is being retained at the temporary status to avoid providing benefits, and this is an adverse action that relates to the employee’s membership in a protected class. Again, this is not to say that temporary employment, or that providing different benefits to temporary employees, is unlawful or discriminatory. Employers must ensure they have legitimate non-discriminatory business reasons for classifying employees as they do.

Operational Considerations:

  • Ensure you have well-documented policies regarding temporary employees. Consistently apply the policy.
  • Ensure you have well-written job descriptions that clearly outline the duration of the specific assignment.
  • Before the job is posted, clearly document the business need for hiring an employee on a temporary, rather than regular, basis.
  • Monitor the duration of the assignment to ensure it aligns with policy and the job description. Where the assignment goes beyond the scope of the policy/job description, consider changing the employment status—moving to regular employment or moving to termination.
  • Monitor the hours worked to ensure compliance with the ACA.


Questions about employment status? Please reach out.

Un-“PAID” Is a Better Option

Last week the U.S. Department of Labor’s Wage and Hour Division (WHD) unveiled its new Payroll Audit Independent Determination (PAID) program to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standard Act (FLSA). Below you will find the highlights of the program and our advice and recommendations on compliance.

WHD will implement this “self-audit pilot program nationwide for approximately six months” to begin in April. At the end of the six month pilot period, WHD will determine whether to make the program permanent. In the meantime, as your team contemplates this opportunity, we recommend you keep WHD’s stated goal in mind: “To ensure that more employees receive the back wages they are owed – faster.”

All FLSA-covered employers are eligible to participate in the program on a voluntary basis. The program covers potential violations of the FLSA’s overtime and minimum wage requirements including, for example, violations based on alleged “off-the-clock” work; failures to pay overtime at one-and-one-half times the regular rate of pay;  misclassification of employees as exempt from the FLSA’s minimum wage; and overtime requirements.

There are some attractive elements to the program. It enables employers to expeditiously resolve inadvertent minimum wage and overtime violations without litigation (perhaps—see below), without the payment of liquidated damages, and without civil monetary penalties. That certainly sounds attractive but there is a catch or two or three… .

For many employers, the downside of this program will outweigh the upside. For example:

  • This program does not require employees to surrender any rights.
  • If an employee chooses not to accept back payment, the employee will not release any private right of action.
  • If the employee chooses to accept the back payment, the employee will not grant a broad release of potential claims under the FLSA.
  • By allowing employers to participate in the program, WHD does not waive its right to conduct any future investigations of the employer.
  • The participating employer must pay 100% of the calculated back wages immediately, no exceptions.
  • An employer’s DOL-supervised settlement under this program does not necessarily prevent state law wage claims.

All FLSA-covered employers nationwide confront the same critical question: Does the PAID program reduce risk or increase exposure for your company? Our experience tells us that many employers will be better off conducting their own Audit outside the PAID program and under the attorney/client protection. Certainly, it would be prudent for all employers to conduct an Audit of pay practices to assess compliance under the FLSA and state wage and hour laws. Our employment law crystal ball identified these issues a few years back and led us to develop our very popular FLSA Wage and Hour and Timekeeping Audit Service and our Exempt or Non-Exempt Positions Classification Service. You can achieve compliance without the PAID program pitfalls. Please let us know how we can help. www.foleylawpractice.com or call 508.548.4888


In some jurisdictions this blog post is regarded as Attorney advertisement.

WWYLD – 03/16/18 – Time Off Under FMLA to Care for an Adult Child

Question:  An employee is requesting time off to be with her adult daughter who is having a procedure done at the hospital.  Could the employee be entitled to FMLA leave?

This employee could be entitled to FMLA leave, but the employer may request additional information to definitively determine entitlement.  The employee’s eligibility for FMLA leave will depend on the following factors:  1) whether the employee’s adult child has “serious health condition” 2) whether the employee’s adult child is “incapable of self-care;” and 3) whether the employee is “needed to care for” the child.

To be eligible for FMLA leave, an employee must work for a covered employer and:

  • have worked for that employer for at least 12 months; and
  • have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and,
  • work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

1)  Serious Health Condition

An eligible employee is entitled to up to a total of 12 workweeks of unpaid leave in a 12-month period:

  • for the birth of a son or daughter, and to care for the newborn child;
  • for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
  • to care for an immediate family member (spouse, child, or parent — but not a parent “in-law”) with a serious health condition; and
  • when the employee is unable to work because of a serious health condition.

A “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

2)  Incapable of Self Care

A “child” is defined as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or is 18 years of age or older and “incapable of self-care because of a mental or physical disability” at the time FMLA leave is to commence.

An individual will be considered “incapable of self-care” for FMLA leave purposes if he or she requires active assistance or supervision in three or more activities of daily living or instrumental activities of daily living.

  • The FMLA regulations include the following as examples of “activities of daily living”:
    • Caring appropriately for one’s grooming and hygiene
    • Bathing
    • Dressing
    • Eating
  • The FMLA regulations provide the following examples of “instrumental activities of daily living”:
    • Cooking
    • Cleaning
    • Shopping
    • Taking public transportation
    • Paying bills
    • Maintaining a residence
    • Using telephones and directories
    • Using a post office

3)  Needed to Care For

To be eligible for leave, the employee will be “needed to care for” her daughter.  The employee would be considered “needed to care for” her daughter if the daughter is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or unable to transport herself to the doctor/treatments, because of a serious health condition. “Needed to care for” also includes providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient care or home care.

Suggested Steps

With regard to #1 and #2, the employer can ask that the employee obtain documentation from the daughter’s medical provider that answers the following:

  • Dates associated with the care the daughter requires;
  • Appropriate medical facts about the condition;
  • A statement of the care the daughter requires

With regard to #3, it is permissible to ask the employee for a brief explanation of why the employee is needed to care for her daughter.  This information would come from the employee herself and does not need to be supported by a request/recommendation from a medical provider.  If this information was shared in previous communications, those communications between the employee and the employer could be adequate to support #3.

Questions about FMLA?  We can help.

When A Salary History Ban Includes More Than Just Salary…

As salary history bans continue to be enacted throughout the U.S., our clients are expressing increased anxiety over how exactly they should comply with this aspect of the pay equity trend sweeping the states.

The reason for the confusion? Most of the laws prohibit employers from requesting compensation information without specifically defining what that means.

For example, California’s version of the law prohibits employers from requesting and relying on salary history information, unless disclosed voluntarily by the applicant (without prompting), including questions about past “compensation and benefits.” In the absence of legislative guidance or regulations defining “compensation and benefits,” to avoid risk, employers should consider stock options and deferred and variable compensation as part of the broad category of salary history information.

In fact, while equal pay laws vary by state, employers looking to create a national practice or policy related to salary history should avoid questions about any form of compensation or benefits history.

In fact, while equal pay laws vary by state, employers looking to create a national practice or policy related to salary history should avoid questions related to any form of compensation or benefits history.  And, unless or until further guidance is issued to the contrary, the list below should be considered part of compensation history:

  • Salary
  • Commissions
  • Bonus
  • Equity
  • 401(k)
  • Benefits
  • Deferred and variable compensation.

Returning to California, while California’s laws now prohibits employers from asking about or relying on prior salary information in deciding whether to offer a job and setting pay, the law does permit employers to consider salary history information if an applicant, “voluntarily and without prompting,” discloses the information.

However, we caution all employers who choose to base starting salary on voluntarily disclosed information to keep in mind that the California Fair Pay Act (Lab. Code § 1197.5(a)(2)) precludes employers from relying on prior salary, by itself, to justify any gender, ethnicity or race-based disparities in pay.





Equal Pay Is Coming Your Way

Less than a handful of states do not have laws that prohibit gender-based compensation discrimination, and the federal pay equity laws have been on the books for years. California, New York and Massachusetts seem to be competing to have the most aggressive pay equity laws, with other states in the race. While this alert focuses on Massachusetts, we are happy to answer questions about your state’s equal pay laws or the federal law.

Is your company covered by the new Massachusetts pay equity law? Yes, all employers in Massachusetts with the noted exception of the federal government are covered by the new law: for-profit; not-for-profit; large and small; in all industry sectors. Unlike most employment laws, the number of individuals employed is not relevant – your company is covered.

The assessment of gender-based pay inequity in Massachusetts has changed significantly. The standard is different. The definitions are different. Exposure is different. Potential corrective measures are different. Defenses are different. The conversation about salary history and employee wages will be significantly different.

Many find that the guidance recently issued by the Massachusetts Attorney General raised as many questions as it answered. The good news is that the Attorney General’s guidance includes a basic self-evaluation tool for employers. We recommend using outside counsel as part of this process to protect your findings under the attorney-client privilege. Think of our Pay Equity Audit as a protective cloak: it shields any pay inequities you may discover, and will allow your team to make reasonable progress eliminating pay disparities without creating other distractions.

In less than four months, the Massachusetts law goes into effect and your company must be in compliance. We have been advising our clients for over a year to conduct gender-based pay equity audits to protect their organization against the new exposure and litigation from this law: Several have used our innovative Pay Equity Audit already. The Attorney General’s guidance has made it very clear that there are very few clear answers implementing this law– and that all employers should make compliance a top priority.

Our Pay Equity Audit is designed to help your Massachusetts team achieve compliance with the new law and create a rolling affirmative defense to a gender-based pay equity claim. No worries, if you are not located in Massachusetts, we have other state specific Pay Equity Audits. We stand ready to help and can be reached at questions@foleylawpractice.com or 508-548-4888.

What International Women’s Day Means for Your Business

March 8, 2018, is International Women’s Day and this year it is getting a lot of attention. Does anyone remember what went on last year? Or the prior 109 years it was celebrated? Thought not.

McDonalds is turning its Golden Arches upside down. Google is trading its logo to one highlighting 12 women artists and their stories, while also encouraging stories from other women–quite a platform. mcdonalds

Your employees are watching, listening and reading. It is time to be proactive. We have found that a combination of the traditional and non traditional approaches work best. Two examples are our firm’s Equal Pay Audit Service and our Sexual Harassment Prevention Toolkit.

International Women’s Day is a good time to examine workplace issues affecting women. We stand ready to help.

We are proud of the fact our law firm is over 50% women. Call 508-548-4888 or email us at questions@foleylawpractice.com





Has your Massachusetts business misclassified employees as independent contractors? It could be a costly error…

Courts in Massachusetts continue to strictly interpret and apply the state’s independent contractor law: the state favors employment status.  On February 27, 2018, the Appeals Court of Massachusetts (AC) ruled that GateHouse Media Massachusetts I, the publisher of the Patriot Ledger, misclassified David King, a newspaper delivery driver, as an independent contractor (2018 WL 1058352). The AC ruled that King was an employee and thereby affirmed a Norfolk Superior Court judgment against GateHouse.
As with most Court decisions in this area of Massachusetts law, the Appeals Court cited to the second prong of the independent contractor test – GateHouse was required to prove that the service furnished by King was “performed outside the usual course of the business of the employer” (M.G.L.A. 149, § 148B). GateHouse failed in that regard, as is often the case. The Court assessed Gatehouse’s evidence by looking at: (1) its own previous description of its business; and also (2) evidence of whether or not the service was necessary (not just incidental) to GateHouse’s business. As GateHouse had previously held itself out as a distributor of the newspaper, and given that the delivery drivers play a big role in distribution, the AC concluded that King was an employee.
Mr. King is one of many who have delivered the Patriot Ledger by automobile to some of the paper’s subscribers. GateHouse now faces the possibility of paying damages to other similarly situated drivers through a related class action. The newspaper is in the unfortunate spot of being the story–do not let it happen to your business.
Foley & Foley, PC offers an Positions Classification Audit service to identify potential pitfalls of independent contractors and wage and hour issues. It is an efficient and easy way to protect your business. If you would like more information about this service or any other questions, please contact (508) 548-4888 or info@foleylawpractice.com

WWYLD – 3/6/18 – Accommodations for Nursing Mothers

Question:  Can you clarify the law regarding break time for nursing mothers?  What is meant by “reasonable break time?”  Does this mean employees can take the break anytime they want, even if the department is particularly busy?

The Federal Affordable Care Act (“ACA”) created employer obligations with regard to break time for nursing mothers.  Under the ACA, an employer is required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

This section of the ACA is implemented through the Fair Labor Standards Act (“FLSA”), and applies only to “non-exempt” employees, unless state law requires otherwise.  Therefore, if you operate in a state that does not have a specific law addressing lactation or pregnancy-related accommodations, you are only legally obligated to provide break time for nursing to your non-exempt employees.  The Department of Labor “encourages employers to provide breaks to all nursing mothers regardless of their status under the FLSA.”  And, we recommend, as a best practice, that employers provide break time to all nursing mothers, regardless of whether the employee is exempt or non-exempt.

Depending on the states in which it operates, an employer may have state-specific obligations.  For example, as of April 1, 2018, Massachusetts employers must comply with the Pregnant Workers Fairness Act, which requires that employers provide reasonable accommodations for an employee’s “pregnancy or any condition related to the employee’s pregnancy,” including the need to express breast milk.  The Act indicates that accommodations may include:  a) more frequent or longer paid or unpaid breaks; and b) a private non-bathroom space for expressing breast milk.  (The Act provides a longer list of example accommodations; I’ve simply highlighted two here.)

State-specific employee protections are certainly not limited to Massachusetts.  Arkansas, California, Colorado, Connecticut, D.C., Hawaii, Illinois, Maine, Mississippi, Montana, New Mexico, New York, Rhode Island, Vermont, Virginia, and Oregon all have laws that protect workplace lactation.  (This interactive MAP provides a nice summary.)

So, how many breaks are reasonable?  For how long?  The ACA does not define “reasonable” break time and the guidance is limited.  The DOL indicates that break time should be provided “as frequently as needed by the nursing mother” and that “the frequency of breaks needed to express breast milk as well as the duration of each break will likely vary.”

While we can’t rely on this as official guidance, the US Department of Health and Human Services provides an “Employees’ Guide to Breastfeeding and Working” that indicates the following in the “When to Express Milk” section:  “Express milk for 10-15 minutes approximately 2-3 times during a typical 8-hour work period. Remember that in the first months of life babies need to breastfeed 8-12 times in 24 hours. So you need to express and store milk during those usual feeding times when you are away from your baby. This will maintain a sufficient amount of milk for your childcare provider to feed your baby while you are at work. The number of times you need to express milk at work should be equal to the number of feedings your baby will need while you are away. As the baby gets older, the number of feeding times may decrease. When babies are around 6 months old and begin solid foods, they often need to feed less often. Many women take their regular breaks and lunch period to pump.  Others talk to their supervisor about coming in early and/or staying late to make up the time needed to express milk. It usually takes 15 minutes to express milk, plus time to get to and from the lactation room.” (https://www.womenshealth.gov/files/assets/docs/breastfeeding/business-case/employee’s-guide-to-breastfeeding-and-working.pdf)

Because the frequency and duration are dictated by the needs of the employee/nursing mother, you, as the employer, are somewhat limited in what you can do.  However, there are some things to consider:

  • Minimize unnecessary breaks by requiring the use of PTO or by making them unpaid (to the extent permitted).  The law does not require that the breaks be paid, unless the employer provides paid breaks.  Even then, the employer is not required to pay for all breaks, only the number stated in the employer’s policy.  If you provide two paid breaks to your employees, nursing mothers would be allowed to take two of her nursing breaks as paid, but any beyond that could be unpaid/use PTO.  Remember, you can’t dock an exempt employee’s pay based on the quantity of work performed.  But, you can deduct from a PTO bank.
  • Talk to the employee(s).  Nothing in the law prohibits or limits an employer’s right to talk to the employee about how to most effectively schedule the breaks.  You are well within your rights to meet with this employee (or any/all employees who request additional break time) and discuss different ideas for accommodating the employee’s needs while also causing the least amount of disruption to the company.

Second Circuit Holds Sexual Orientation is Covered by Title VII

When the Supreme Court legalized gay marriage, it was clear that the tide had shifted, and employers altered their benefits and leave practices to comply with the new definition of spouse.  However, there is no Federal statute that protects against discrimination on the basis of sexual orientation or gender identity.  Over the past several years, many states have created these statutory protections, but efforts to amend Title VII to specifically protect these groups at the federal level have failed.

Instead, the courts have stepped in and found protection for discrimination against sexual orientation under the basis of Title VII’s prohibition on sex-based discrimination.  Until last year, these findings had been limited to discrimination based on sex-based stereotypes or nonconformity to gender norms (e.g. a woman did not dress in an feminine enough manner).

Late last year, in a surprise move, the Seventh Circuit, one of the most conservative courts in the country held that Title VII prohibits discrimination on the basis of sexual orientation.  The Eleventh Circuit reached the opposite conclusion, creating a split, and the Supreme Court declined to take up the Eleventh Circuit case in December.

On Monday, in a divided en banc opinion, the Second Circuit held the prohibition against gender discrimination in Title VII of the Civil Rights Act of 1964 extends to sexual orientation. The EEOC and Department of Justice made opposing arguments in the case, and the Court ultimately sided with the EEOC.  All of this means the Supreme Court may get another chance to make the ultimate determination on the issue.

If you are in a state that does not already prohibit discrimination on the basis of sexual orientation, and you are not currently including sexual orientation as a protected group in your anti-discrimination and EEO policies, it may be time to reconsider your position. The laws are changing quickly, and it is better to be out ahead than caught behind.  Not sure if you are in compliance with state and federal anti-discrimination laws?  Give us a call.