On July 16, 2020, the DOL issued new model FMLA notices and forms with a June 2020 revision date.  The look of the notices and forms are somewhat different from previous versions but there are not a lot of substantive changes.  The DOL also issued some FAQs in connection with the release of the updated forms explaining that the FMLA does not require the use of any specific form or format, and that even though the DOL revised the FMLA forms to make them easier to understand, the revised forms convey and collect the same information which can be provided in any format.

The DOL’s FAQs also address the following questions:

Can my employer require me to provide a new certification, using the revised form, when I have already provided the required FMLA information using the old certification form?

No. You can provide the required information contained on a certification form in any format. If you used the old certification forms to provide your employer with the required FMLA information, you do not have to provide your employer with the same FMLA information using the revised certification forms.

Can my employer make changes to the FMLA forms?

Your employer may use the WHD prototype forms or create their own version of the forms containing the same basic information. However, an employer that requests a medical certification may request only information that relates to the serious health condition for which the current need for leave exists, and no information may be required beyond that specified in the FMLA regulations. See 29 CFR 825.306, 29 CFR 825.307, and 29 CFR 825.308.

Do I have to use my employer’s certification forms?

Employers must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying. The employer cannot refuse:

    • A fax or copy of the certification;
    • A certification that is not completed on the employer’s standard company form; or
    • Any other record of the medical documentation, such as a communication on the letterhead of the healthcare provider.

The expiration date of the DOL forms has passed, are they still effective?

Yes. The content of the information contained within the optional-use DOL form is still applicable, regardless of the expiration date. The expiration date on the DOL forms is related to the collection of information as required by the Office of Management and Budget (OMB), and not relevant to the content of the required information.

Where do I send the completed certifications or notices?

Do not send any completed certifications or forms to the U.S. Department of Labor, Wage and Hour Division. The employer should provide the required notices to the employee seeking leave. Completed certification forms should be given to the employee to provide to the employer, as it is the employee’s responsibility to provide the employer with the completed certification.

For more information about the DOL’s updated FMLA notices and forms, or to obtain copies, go to: https://www.dol.gov/agencies/whd/fmla/forms.

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these challenging times.  If we can assist you in any of your employment law needs, feel free to reach out to us.

The California Department of Public Health (“CDPH”) issued its “COVID-19 Employer Playbook” on July 24, 2020 in an effort to provide employers with a comprehensive guide related to COVID-19 as employers reopen their business. According to the CDPH, by following the Employer Playbook, employers will be able to do their part in reducing the risk and spread of COVID-19 in the workplace, and ensure that California businesses stay open. The subjects covered in the Playbook include how to open safely; what to do if there is a case of COVID-19 in the workplace; worker education; and enforcement and compliance. The Playbook contains many links to various employer and worker resources, as well as case studies to help illustrate the importance of implementing proper social distancing and safety measures.

You can obtain a copy of the CDPH’s Employer Playbook at: https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and yours health and safety during these challenging times.  If we can assist you with your employment law needs, please feel free to reach out to any one of us.

The U.S. Supreme Court handed down two decisions yesterday that affect religious employers.

In the first, Our Lady of Guadalupe School v. Morrissey-Berru, the Court held that the “so-called ministerial exception” applies more broadly, preventing courts from intervening in disputes between schools “with a religious mission” and any “teacher [entrusted] with the responsibility of educating and forming students in the faith.” The Supreme Court reversed two decisions by the Ninth Circuit Court of Appeals (our federal appellate circuit in California), where the religious employers had won summary judgment in the trial court, only to have those judgments reversed by the Ninth Circuit.

Instead of the Ninth Circuit’s narrow definition, the Supreme Court emphasized the breadth of its prior description of the ministerial exception, which “should apply to any ’employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” The Court also repeatedly admonished lower courts to be aware that judges are unlikely “to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition” and not to “second-guess” religious employers’ explanation of their employees’ role, which “would risk entanglement in religious issues.”

This decision provides a strong platform for religious employers facing employment discrimination claims, and lower courts (which had already ruled in both of these employers’ favor) will certainly get the message that the ministerial exception should be applied broadly.

In the second decision, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court held that two regulations promulgated by the U.S. Departments of Health and Human Services, Labor, and the Treasury under the Patient Protection and Affordable Care Act of 2010 (sometimes called “Obamacare,” but which I will call the “ACA,” for short) were validly enacted. The regulations in question exempted employers with “sincerely held religious beliefs” or “sincerely held moral objections” from complying with other regulations issued under the ACA requiring health insurance plans to provide coverage for all Food and Drug Administration-approved contraceptive methods (i.e., birth control).

The states of Pennsylvania and New Jersey sued, alleging the rules violated the ACA and failed to comply with the required procedures for implementing new regulations (like the immigration regulations regarding “Dreamers” that the Supreme Court recently invalidated on procedural grounds). Initially, a federal district court issued a nationwide injunction prohibiting courts from granting employers relief based on the exemptions, which the Third Circuit affirmed, finding the Departments lacked the authority to issue the regulations and had a bad attitude about the notice and comment process. The Supreme Court found the two birth control exemptions were authorized by the ACA and free from procedural defect, reversing the lower courts and upholding the exemptions for employers.

 

Weintraub Tobin’s 2020 Labor and Employment Seminar and Training schedule has been recently updated and is now available.  Click here for a pdf version of the schedule.

If you have any questions on any of our seminars or would like to inquire about private, custom-tailored training, please contact:

Ramona Carrillo

(916) 558-6046

rcarrillo@weintraub.com

In the midst of the COVID-19 pandemic, an economic crisis that is predicted to be as bad as the great depression, and unrest over racial inequality and police brutality that is giving birth to a global movement for social change, the U.S. Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia (Case No. 17–1618) on June 15, 2020 and announced with finality that an employer who fires an individual merely for being gay or transgender violates Title VII.   The decision was a shock to some and long overdue for others.  Regardless of one’s political or social leanings, it is without question that the decision is an important one that will have far reaching consequences throughout the country.

Summary of Facts and Lower Court Rulings.

The Bostock case is actually a consolidation of three separate cases. In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. The Supreme Court granted review of the cases and its decision puts to rest the split of authority between the Circuits as to whether Title VII protects LGBTQ employees from discrimination in the workplace.

Supreme Court Analysis.

Justice Neil Gorsuch wrote the majority opinion (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan).  In a direct and no-nonsense fashion, Justice Gorsuch said that few facts were needed to appreciate the legal question the Court faced:

Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.

The Court said that with this in mind, their “task is clear.”  The Court had to determine the ordinary meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” To do so, the Court said it had to orient itself and examine the key statutory terms in Title VII when adopted in 1964, and examine the impact of those terms on the cases before them considering the Court’s precedents.

The only statutorily protected characteristic at issue in the cases and which the parties dispute was based on, is “sex.”  The employers claimed that the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees countered by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. However, candidly, the Court said that the parties’ debate over the meaning of “sex” in 1964 is not the real focus of the analysis.  According to the Court, the question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of” sex but it doesn’t matter if other factors besides sex contribute to the action.  Also, when analyzing a discrimination case under Title VII, the focus is not on class or group (men v. women) treatment, but rather individual treatment.

Prior precedent has made clear that Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” (Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).  The Court said that the statute’s message for the cases before it was equally simple and momentous: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” 

To help illustrate its reasoning, the Court provided a number of hypotheticals.

  • “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”
  • “Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

As the Court pointed out, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. Also, it doesn’t matter that when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. For example, the Court said consider this hypothetical:

  • “Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee.”

The Court said the same is true in the cases before it.  “When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play – both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”

Finally, an employer musters no better a defense by responding that it is equally happy to fire male and female employees  who are homosexual or transgender. According to the Court, “Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII.”

The Bostock decision ends years of conflicting decision between federal Circuit courts as to the coverage of Title VII protections against discrimination for LGBTQ employees.  For those employers who are not located in a state that already provided those protections under state law, now is the time to ensure that policies, practices, and trainings address these protections.

The employment lawyers at Weintraub Tobin have years of experience counseling, training, and defending employers in all areas of employment law, including harassment and discrimination under Title VII and California law.  Please reach out to us if we can assist you in your employment law compliance.