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Paid Sick Leave

April 25, 2017

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Paid Sick Leave

April 25, 2017

Authored by: Lily Kurland

While no federal law requires employers to provide employees with paid sick leave benefits, such an obligation does exist under certain state and municipal laws, including but not limited to those in Connecticut, California, Illinois, Massachusetts, Oregon, Vermont, Washington, D.C., Seattle, and New York City.

The scope of each of these laws, however, varies greatly. For example, while Connecticut’s law generally only applies to hourly workers in certain “service” occupations, California’s law generally applies to all employees, including temporary employees, who work in the state for 30 or more days per year. The consequences for failing to comply with the relevant state or municipal law likewise vary, with certain locales providing employees with their own private right of action.

In order to determine what, if any, paid sick leave obligations it has, employers should be sure to familiarize themselves with the following information:

  • The states or municipalities that have laws requiring paid sick leave;
  • The types of industries and/or employers to which each applicable law applies;
  • What, if anything, an employee must do to qualify for paid sick leave benefits under each applicable law;
  • The type and amount of paid sick leave to which an employee is entitled under each applicable law;
  • How paid sick leave benefits are accrued under each applicable law;
  • The purposes for which paid sick leave may be used under each applicable law; and
  • Whether paid sick leave benefits must be paid out upon termination under each applicable law.

Bryan Cave LLP has a

Getting More Bang for Your Buck With Separation and Settlement Agreements

All employers, at one time or another, will provide terminated employees with a severance payment for a release of all claims that employees may have against the employer, as well as other promises.  Too often, employers blindly “copy and paste” language from old agreements that may contain outdated provisions that no longer comply with current law, or that were tailored to a factual setting different from the situation they are currently facing.  Employers should review their standard settlement agreements, with the following non-exhaustive items to bear in mind.

Timing of Execution.   An employee may not release future claims, i.e., claims that have not yet accrued.  Employers sometimes provide severance agreements to departing employees while they are still employed.  If the employee signs while employed, waiving any past claims, the waiver would not apply to any claims that accrue after the employee’s execution of the agreement.  Thus, if the employee is subjected to improper conduct after executing the agreement (but while still employed), or does not receive a bonus or some other benefit to which the employee believes he or she is entitled, the employee’s release would not be a defense to such a claim.  Accordingly, the employer should present the separation agreement to the employee on the last day of employment or after the employee has been terminated.  In the alternative, the employer may present the separation agreement to the employee while employed, but include language in the agreement that requires the employee to sign the agreement after the employee

Early Dismissal Strategies When Dealing With a Dishonest Plaintiff

April 19, 2017

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Dishonest plaintiffs can make it difficult, and in some cases impossible, to successfully move for summary judgment. Indeed, a dishonest plaintiff who understands the legal landscape can easily defeat summary judgment by claiming that there exists “direct evidence” of discrimination in the form of an admission by management that the challenged employment action was motivated by discriminatory animus (e.g., “my supervisor told me he was firing me because of my age”).

While there sometimes is nothing that can be done about a dishonest plaintiff other than attack his/her credibility in front of a jury, it is critical to ensure that that all early dismissal strategies are explored before reaching the dispositive motion stage of case. These early dismissal strategies include examination of plaintiffs’ representations in their post-employment bankruptcy petitions and in forma pauperis (“IFP”) applications.

Those new to employment litigation may be surprised by the percentage of plaintiffs that file for bankruptcy and/or seek IFP status. It is not uncommon for plaintiffs to have filed for bankruptcy following the termination of their employment. Nor is it uncommon for plaintiffs, especially those proceeding pro se, to request permission from the court to proceed without the payment of a filing fee (i.e., to proceed in forma pauperis). Of course, these mechanisms serve an important function in society, and this post is not intended to discourage their use by honest litigants. Rather, this article outlines defense strategies for dealing with dishonest litigants who seek the discharge of their debts in bankruptcy and/or the

Avoiding State Law Pitfalls (Part 1 of 4)

April 19, 2017

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This is the first hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

Navigating the treacherous waters of federal employment law is not easy. Well-intentioned employers can unknowingly violate some of the more complicated (albeit well-known) laws like the Family & Medical Leave Act and the Americans With Disabilities Act due to a lack of familiarity with the applicable regulations or the case law interpreting them. When an employer has operations in multiple jurisdictions, the analysis becomes even more complex due to circuit splits on pivotal issues.

With so much to worry about on the federal front, it is no wonder that human resources personnel, in-house counsel, and outside counsel often do not spend sufficient time and resources staying apprised of some of the more obscure state laws on the books. If you are reading this article, you almost certainly have internal or external clients relying on you to give them accurate advice whether the applicable statute is federal or state, well-known or obscure, recently-passed or decades old. The purpose of this article is to highlight the importance of this obligation through four different hypothetical examples over the next few weeks of well-intentioned employers violating unfamiliar state laws.

For purposes of the hypothetical examples, assume you are in-house counsel for a large restaurant chain with operations throughout the United States. You do not have human resources personnel in each state, and you often are called upon to render advice regarding the legality of various employment decisions.

Scenario

FMLA Administrators: Have You Checked Out The DOL’s Website Lately?

If you are responsible for administering any aspect of your company’s Family and Medical Leave Act (“FMLA”) policy, from handling leave requests and paperwork to training managers on FMLA compliance, consider spending some time on the U.S. Department of Labor’s FMLA webpage (https://www.dol.gov/whd/fmla/).

The DOL has undertaken efforts to make its FMLA webpage much more user-friendly, for both employees and employers. The FMLA homepage now includes clear links and easy access to:

  • General Guidance materials (such as FAQs and separate employee and employer guides);
  • Fact Sheets (topics range from the meaning of “in loco parentis” to joint employer responsibilities);
  • E-Tools (interactive online tools and presentations about the FMLA);
  • Posters (including the new FMLA poster issued in April 2016; use of the new poster is not yet required, but the information in the new poster has been streamlined and simplified);
  • Forms (consider making it a practice to pull FMLA notices and certification forms from the website each time they are needed, so as to ensure you are using the most recent forms);
  • Interpretive Guidance (such as DOL opinion letters on thorny topics);
  • Law and Regulations (if you’re looking to go directly to the source!).

You’ll likely find it worth your while to spend some time reviewing the above FMLA materials.

We will continue to post FMLA blogs from time to time on Bryan Cave’s L&E blog. You can also find FMLA blogs from the past several years on

Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 1 of 3)

This post (the first of three) discusses common errors made by employers when terminating employees, all of which can be easily avoided.

Mistake No. 1: Offering an Older Employee a “Retirement” Package

Well intentioned employers sometimes are tempted to characterize a performance-based, involuntary termination of an older employee as a “retirement.” However, the mere mention of the word “retirement” in connection with a termination decision, even when offering an enhanced severance package, can lead to liability under the Age Discrimination in Employment Act (the “ADEA”).

Interestingly, the original version of the ADEA excluded from coverage employees who were 70 years old or older, as well as employees who were under the age of 40. Accordingly, employers could force employees to retire at age 70 under the original version of the ADEA without facing liability. However, the ADEA was amended in 1986 to remove the exclusion for employees who were 70 years old or older. Thus, with the exception of employees in safety-sensitive positions (e.g., pilots, firefighters, and police officers), employers generally may not force an employee to retire due to age.

Despite this well-settled law, some employers mistakenly believe that they can force an older employee. Perhaps this confusion stems from the original version of the ADEA, or may it is because the prohibition against age discrimination is not intuitive. Indeed, unlike other protected traits that have no bearing on one’s ability to perform the job in question (e.g., race, sex, and national origin), there sometimes is a correlation between

Reducing Exposure to Attorneys’ Fees Awards Through Use of Rule 68 Offers of Judgment (Part 1 of 2)

April 12, 2017

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Sooner or later, a defense attorney will find himself or herself defending an employment lawsuit involving a clear statutory violation or a very bad fact pattern that almost surely will result in a jury verdict in favor of the plaintiff-employee. In these situations, the obvious strategy is to resolve the lawsuit through a settlement. This is because the value of the claim and the defendant-employer’s corresponding exposure continue to increase throughout the course of litigation in the form of back pay accrual and both parties’ attorneys’ fees, since the vast majority of federal and state employment laws contain an attorney fee-shifting provision requiring the defendant to pay a successful plaintiff’s attorneys’ fees (in addition, of course, to the defendant-employer’s contractual obligation to pay its own attorneys’ fees). And although a prevailing plaintiff is entitled to his/her costs and attorneys’ fees under these statutes, a successful defendant is entitled only to its costs (e.g., filing fees, court reporter fees, etc.) and not an award of attorneys’ fees.

These one-sided fee-shifting provisions dramatically alter the settlement posture of employment cases. Unlike litigation in other contexts in which the litigation process reduces the value of the plaintiff’s claim through the accrual of attorneys’ fees that cannot be recouped even if the plaintiff prevails, a plaintiff in an employment case has every incentive to litigate a strong claim through trial because the plaintiff has a statutory entitlement to an award of reasonable attorneys’ fees if a plaintiff’s verdict is obtained.

The following hypothetical illustrates

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