Who, What, Why . . .

Who does it apply to: The law applies to all employers with 15 or more employees.

What is the issue: It is against the law to discriminate against an employee or a prospective employee based on a disability the person has, or that you view them as having (even if they don’t). The prohibition extends not just to hiring and firing, but to any discrimination in any significant term and condition of employment.

What is more, employers are required to reasonably accommodate any employee or prospective employee to assist that person in completing his/her job duties so long as the accommodation does not create an undue hardship on the business. Reasonable accommodations range from special keyboards for employees with carpal tunnel, to specialized monitors for employees with vision issues, and everything in between. What may be a reasonable accommodation is limited only by the imagination of the parties, what technology and devices are available, and the cost or hardship to the employer of implementing the accommodation.

What is a “disability”. . . under the law: Everyone has a personal view of what “disabled” means, but personal views do not count in the eyes of the government. The law defines disability as a physical or mental impairment that substantially limits one or more major life activities which may be permanent or temporary. Employers must be careful, however. Treating or “regarding” someone as though they have a disability is just as though the person actually has whatever malady the employer treats them as having. And, after changes in the law in 2009, almost anything can be a disability so employers should err on the side of viewing any malady as a temporary or permanent disability.

How does reasonable accommodation work: The process of accommodating an employee should be an interactive process. The employer and the employee are each required to work together to come up with solutions to accommodate the disability without undue hardship to the business. The goal is to help the employee to be able to perform the “essential functions” of the employee’s job so that the profitable relationship between employee and employer may continue. The process may involve consulting with a disability specialist and physicians to determine what can be done at what cost. And, be careful, too quickly deciding the accommodation creates an undue hardship on your business. The government’s view of an undue hardship is likely to be far higher than your own.

What are these “essential functions”: In any job there are critical or essential functions the employee was hired to perform and less critical functions the employee performs, which the employer could assign to another employee, if necessary. An employer can terminate a disabled employee or refuse to hire a disabled applicant if that person cannot perform the essential functions of the job even with accommodation. An employer cannot adversely affect a disabled person who cannot perform a non-essential function that can be assigned to another employee. For example, a person with a bad back who occasionally lifts a box of paper for the copier cannot be fired if the company can get another employee to do it.

What if I need a prospective employee to take a physical: A prospective employee’s capacity to handle the work sometimes is not obvious from looking at them. A person may look okay on the outside to be a lifeguard, but you need to know how well they swim, and whether they can carry an injured person back to shore. To protect against disability discrimination, employers are required to consider all other hiring factors before administering the physical and make an offer of employment conditioned only on the result of the physical examination.

What constitutes discrimination: By now a familiar refrain in EH editions, there are two basic types of violation – direct mistreatment and disparate impact. Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of a disability, it can be actionable.

Disparate impact remains more subtle. If an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting disabled workers more significantly than others. This is less likely in a disability situation, but it can happen.

What if my employee violates without consent: Also, a familiar refrain in EH editions on discrimination. Employers may be liable for the actions of their employees who commit discriminatory acts without the employer’s knowledge.

What if no accommodation works: If the employer and the employee engage in an interactive effort to find a reasonable accommodation and come up empty or discover the solutions are just too hard on the business to make them workable, the employer may terminate the relationship. Because of the risk of
a claim, however, it is strongly recommended that the employer consult a qualified employment attorney to be sure they have done everything possible before terminating the relationship.

Common Situations:

You’re outta here: Bob, who is blind, is called into his manager’s office and let go from the company. Bob’s manager is a nonconfrontational person. Instead of explaining to Bob that he is being fired for totally screwing up a major project, she tells him that the company is experiencing financial difficulty and cannot afford him anymore. She thinks this will be a softer blow and certainly will make for an easier termination meeting. Bob carries a chip on his shoulder about his disability and is convinced he was let go because of his blindness, so he files a disability discrimination claim. Bob’s employer is off the hook because disability wasn’t a factor, right? Hopefully, but the employer has made it much more difficult. When the lawyer explains the real reason Bob was let go, it will look like the employer is lying and a jury could infer discrimination.

But, that’s impossible: Derek runs Oil Express, an oil and gas drilling company. Henry, an employee of the company, is injured severely in an accident at a site. He is no longer able to use his right arm. Derek feels for Henry, but does not think Henry can return to work after he returns from worker’s comp leave. He spends some time on the internet looking for solutions, and asks Henry for his thoughts. Henry does not know where to start. Feeling he met his obligations, Derek lets Henry go. Henry files a claim. Did Derek do anything wrong? Maybe. Spending a little time on the internet is likely not enough to meet the requirement of working interactively. There are organizations that help answer these questions for employers at little or no cost. The Texas Department of Assistive and Rehabilitative Services, for example, can provide guidance to inexperienced employers.

What should I do:

Good: Establish a written policy notifying employees to bring disabilities requiring accommodation to the company. Be careful not to assume an employee’s health issue is a disability until the employee complains about it. Work with any disabled employee to find a reasonable accommodation – and be careful – a reasonable accommodation may be a period of unpaid time away from work for treatments.

Better: The above and train one employee to be knowledgeable about the ADA and address all complaints to that person to get a better result. Be wary of harassment or segregation. A disabled employee may still make a claim even with accommodation if the employer harasses or ostracizes him or her.

Best: All of the above and create job descriptions outlining the “essential functions of the job” and any physical requirements of the job. This will set the standard in case a claim for disability is made. Carefully sanitize job postings to avoid unnecessarily leaving out disabled persons.

On November 17, a federal jury returned a verdict against AutoZone in favor of a single plaintiff for the insane amount of $185,000,000.00 in punitive damages. The plaintiff alleged gender and pregnancy-related harassment, discrimination, and retaliation. On November 19, a federal judge in the U.S. District Court for the Southern District of California upheld the jury’s verdict and finding on punitive damages. The case is entitled Juarez v. AutoZone (Case No. 3:08-CV-00417). An appeal will surely be filed.

Ms. Juarez was employed as an AutoZone store manager. Ms. Juarez alleged that when she became pregnant the district manager harassed her and attempted to force her resignation. She complained to AutoZone human resources department, but alleged that nothing was done. She further alleged that despite her complaints to human resources, she was demoted to parts manager while AutoZone promoted less qualified males. As a result of her perceived discrimination, Ms. Juarez filed a charge of discrimination with the California Department of Fair Employment and Housing and also filed suit. Subsequently, she was terminated and claimed that AutoZone retaliated against her for filing her charge and her lawsuit. The jury believed Ms. Juarez and returned a verdict in her favor finding that AutoZone was liable for discrimination, harassment, and retaliation. She was awarded $872,719.52 in compensatory damages and a whopping $185,000,000.00 in punitive damages.

While this is an extreme example, employer’s need to realize that there is real money at stake in a single plaintiff discrimination, harassment, or retaliation case. These cases must be taken seriously from the time a charge is filed with a state agency or the EEOC. As a practical matter, employers need to take measures in the workplace to avoid these claims ever being brought. A good employee handbook outlining an employer’s discrimination, retaliation, and harassment policies and a consistent application of those policies will certainly aid in prevention. While I doubt that the $185 million punitive damages award will hold up on appeal, it certainly should serve as an eye opener for employers across the country.

The EEOC is back at it! This time it has targeted corporate wellness programs and is challenging the legality of such programs under the ADA. The EEOC contends that the biometric testing and health risk assessments are “disability-related inquiries and medical examinations” that are not job-related and consistent with business necessity and, therefore, violate Title I of the ADA. The EEOC is focusing on the voluntary element of employee’s participation in a wellness program. Because while it is permissible for an employer to conduct a truly voluntary medical examination, it is illegal to force an employee to submit to such testing involuntarily, absent some statutory exception for the testing.

The EEOC is arguing that an employee should not have to submit to a medical examination in order to avoid a monetary penalty such as having to pay his full insurance premium or some cancellation fee. Where steep penalties are imposed for failing to participate in the wellness program, the wellness program is arguably involuntary, certainly in the eyes of the EEOC.

Employers should be careful when starting or managing a corporate wellness program. While this area is not settled by any means, these decisions will be an important guide for employers. To be safe, employers should make sure that when an employee elects not to participate in a wellness program they are not punished or penalized.


This month, our e-notification linked to the blog rather than the PDF of our Employer Handbook article.  Sorry.  If you are saving copies of the PDFs (hint, hint), please click here


Who, What, Why . . .

Who does it apply to: It is up to you. A business with two employees might benefit from an employee handbook. A business with 100 might function fine without one. There are no legal rules about when a handbook must be created.

Can I do it myself: Yes, certainly, but there are many pitfalls and many things to consider. Whatever an employer does, they must be careful to make policies that are consistent with their practices, and, of course, the law. Nothing is worse than downloading something off the internet that might follow the laws of another state and which is inconsistent with your goals and practices.

What policies should I include: That also is up to you, but I would consider these the most important:

  • Discrimination, Harassment, Disability, and EEO. The most legally significant issue a small business can address is the prohibition of discrimination among employees. Some of the discrimination laws don’t kick in until an employer has 15 or 20 employees, but at least one kicks in with just one employee. The policy needs to address both the prohibition and reporting.
  • Holidays, Vacation, Sick, or PTO. This issue is not as legally significant as it is practically important. The first couple of employees may be handled one way, but after a while, many businesses seem to struggle with consistency.
  • Family Medical Leave. This topic is only third because it doesn’t apply to a business with under 50 employees. Family medical leave is complicated to get right, and a written policy is the first step toward doing so.
  • Employee Dating. This is always a hot topic. I generally recommend employees not be permitted to fraternize and insist that supervisors, at least, not be permitted to date subordinates.
  • Employment At-will. If you employ people on an at-will basis (see the EH edition on this topic) it is important to confirm that nothing in the handbook creates a contract of employment for a period of time and that all employees are still at-will unless otherwise notified in writing.
  • Performance and Discipline. Consistency in these areas is important to protect against discrimination claims. Employers should lay out their disciplinary policy so there are no questions about the employer’s rights to terminate. I recommend leaving yourself the right to terminate for any issue if you feel it is important rather than using a regimented progressive policy.
  • Privacy. Make sure employees know that you can install video cameras, and search anywhere you like, including their desks, phones, and company email accounts.
  • Worker’s Comp. Whether you are a subscriber or not, consider addressing what employees need to do if they are injured on the job. You have legal obligations to report injuries within a certain period whether you are covered by the act or not.
  • Exceptions and Revisions. Always reserve the right to make changes without warning and clarify that there may be policies of the business which are not covered by the handbook – otherwise it would be as thick as a phone book.
  • Wage Deductions. Clarify in advance what deductions may be made from pay so the employees cannot cry foul. Examples include uniforms, damage to company property, theft, and repayment of loans.

What else should I address: Beyond these key topics the second tier policies are:

  • Military Leave. It is important to let employees know you follow the law regarding time off for deployment or for National Guard or Reserve duty.
  • Benefits. Provide an explanation of the types of benefits you offer employees including insurance and 401(k).
  • Bereavement. Let employees know what they can expect if they lose a relative. Who are they entitled to take time off for and what time do they get.
  • Jury Duty and Voting. Employees are legally granted the right to participate in both without losing their job. Define your policy and whether the employee’s time away from work for either is paid.
  • Accidents Involving Employees and Others. Cover what employees should do if they, a co-worker, or a third-party are injured in the workplace or while working.
  • Tracking Hours, Lunches, and Breaks. Let employees know when they are expected to be at work, when they get breaks, and how to keep track of their hours so that you stay out of overtime trouble.

Is a full handbook necessary: No. In fact, I imagine the first employee handbooks were collections of policies that someone decided to organize into a book. A business can get along with individual key policies set out in a way that all employees can find them.

Do I need employees to sign that they read it: It is a good idea to have employees sign a document acknowledging receipt of the handbook and confirming they have read it. This will help in the event the employee makes a claim about something covered by the handbook.

Are paper copies necessary: I advise clients that an electronic copy handbook is preferred. Store the handbook on an intranet or send a copy out to every employee by email. Using an electronic handbook makes editing the handbook much easier – no need to print a whole new copy for everyone or send out an addendum.

What should I do:
Good: Create policies that are important until you feel a handbook is necessary. Cover the basics.

Better: Build an employee handbook that meets your needs and reflects your actual practices. A handbook that reflects your ideal workplace (as opposed to how you actually do business) may be more hurtful if you find yourself in a dispute with a former employee.

Best: All of the above and go beyond a basic acknowledgement of receipt. Have the employees confirm their agreement to searches of their space, drug testing, employment-at-will, patent rights, their worker’s compensation election, and wage deductions. It may also be a good document to use for getting an agreement for periodic driving record checks and release of liability for references.

On September 25, 2014, the EEOC filed lawsuits in Florida and Michigan accusing employers of discriminating against transgendered employees. These are the first two cases ever filed seeking to protect transgender workers under Title VII.

In the Florida Case, EEOC v. Lakeland Eye Clinic,  the EEOC claims that Lakeland terminated an employee, Branson, in violation of Title VII. Specifically, the lawsuit alleges that “[a]t the time of hire, Branson presented as male (e.g., used the male name ‘Michael,’ wore male attire, and otherwise appeared to conform to traditional male gender norms).” During the course of employment, however, Branson began identifying herself as a female, and presented herself as female. She also informed Lakeland that she was undergoing a gender transition and was in the process of legally changing her name from Michael to Brandi. Lakeland claimed that Branson’s position was being eliminated.  The EEOC, however, alleges that Branson was discriminated against because of sex when she was terminated because she was replaced by a male in the same position two months later.

The Michigan Case is similar to the Florida case. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., a funeral home fired an employee who presented himself as male at the time he was hired but was terminated two weeks after the employee notified her employer that she planned to undergo a gender transition and planned on presenting herself as female—wearing female clothes and conforming to female gender roles. In the lawsuit, the EEOC alleges that the employer terminated the employee by “telling her that what she was ‘proposing to do’ was unacceptable.”

Two years ago I wrote about the EEOC’s position on protecting transgender employees.  These cases are proof the EEOC was serious.  If successful, the EEOC will have legal precedent to rely upon to pursue employers under a broader definition of “sex discrimination” under Title VII. Employers must think twice before terminating an employee for making the decision to change gender. I strongly recommend employers check with counsel to obtain guidance about how to proceed if this issue presents itself.

From the time that S. Truett Cathy opened his first Chick-Fil-A in 1946, he made the decision to close his restaurants every Sunday to give his employees “an opportunity to rest, spend time with family and friends, and worship if they choose to do so.”  When I heard the news that S. Truett Cathy passed away yesterday, his management philosophy reminded me of an employment law enacted by Texas lawmakers in 1993 requiring retailers to give their employees a weekly break for worship or rest.

Specifically, retail stores cannot force an employee to work seven consecutive days without giving the employee one day off to worship or rest. Like the ADA, retail stores must also accommodate the religious beliefs of employees unless it would impose an undue hardship on the business of the stores.

If a retailer denies an employee a day off to worship, they’ll need to hire a criminal lawyer to defend the Class C Misdemeanor that they could be charged with. If, however, the employee volunteers to work and signs a written statement to that effect, the employer has an affirmative defense to prosecution.

In my last post, I suggested that employers not set out on a mission discover each employees religious beliefs. This remains true in this setting as well. Retailers should consider giving employees a random day off, unless they request a specific day off. If an employee requests a specific day off, remember that you should accommodate the employee’s request unless it would impose an undue hardship on the store’s business.

Who, What, Why . . .

Who does it apply to: According to the Patient Protection and Affordable Care Act, all employers with more than 50 employees nationwide are required to comply. Employers with less than 50 employees may not comply if it would be an undue hardship.

What am I supposed to do: Employers must offer reasonable time for breaks to nursing mothers who need to express milk and must provide an appropriate space to do so.

Who is entitled to the breaks: Employees who are not exempt from overtime. (See the EH Edition on Overtime Exemptions for more information on that topic). Employers are not required to offer the breaks to exempt employees.

How many breaks per day must be given: There is not a specific requirement in the law. The employer must offer a break “each time the employee has need to express the milk.” According to the US Department of Health and Human Services (“DHHS”), an average employee will have the need to express milk two to three times per day for 15 to 20 minutes excluding set up and take down time and the convenience of the location. Employers should err on the side of caution granting as much time as necessary.

Do I have to pay: Strictly speaking, no. Non-exempt employees may be asked to clock out unless they use an already offered, paid, work break for lactation. Employers who choose to offer lactation breaks to exempt employees, however, may not dock their pay for the time.

What type of space is required: The law requires that the space be shielded from view and free from intrusion by co-workers and the public. The space may be temporary and created when needed by an employee. A lock is not required, but is suggested to avoid intrusion. It is important to note, however, that the space must be offered in any location where an employee requiring lactation breaks is stationed – even if there is only one employee at the location.

How long do I have to offer breaks: Breaks must be offered up to one year following the birth of the employee’s child.

What is sufficient to show “undue hardship”: As noted above, employers with fewer than 50 employees nationwide who show undue hardship may opt out of the Act. There have been no cases reported on this subject yet, but employers must at least show “significant difficulty or expense, when considered in relation to size, financial resources, nature or structure of the employer’s business.” The Department of Labor (“DOL”) openly states it believes this to be a stringent standard available in very limited circumstances.

Are there any signs to post: There are no employer posting or notice requirements in the law. The DOL encourages employees to provide advance notice to their employers so the employer can prepare for compliance. Employers can likewise ask a pregnant employee whether she intends to take lactation breaks after the baby is born.

Is there any upside: While many employers will perceive this as one more encroachment upon their ability to get work done, there may be tangible monetary benefits other than helping employee morale. According to the DHHS, employers are likely to have lower health insurance claims because breastfed infants have up to three times fewer medical visits. Turnover rates are likely to be lower because 86-92% of breastfeeding employees return to work when offered lactation break options versus 59% otherwise.

Common Situations:

Ewww, not there: Commodes Unlimited is splitting at the seams with staff. There are very limited spaces available to offer for worksite lactation breaks. The company puts a lock on the women’s restroom to create the space. It complies with the law in every respect . . . except one. The law specifically states the space for lactation breaks cannot be a restroom. Sanitation is a concern.

Seriously? How can I do that: United Parcel Express has delivery drivers in trucks all day, every day. Janet, a delivery driver, has recently returned from having a child and would like to express milk. The company has more than 50 employees, but no real means to provide a space. What is it supposed to do? Comply. The law has no pity for inconvenient businesses. I searched on-line to try to find ideas for a scenario like this. The only thing I found about shipping companies was a UPS driver’s use of dressing rooms in various shops along her route. That hardly sounds compliant. Through a little looking, I did discover there appear to be “Workplace Lactation Consultants” who may be able to help with troublesome situations.

What should I do:

Good: Consult with employees who plan to return to work after giving birth. Work toward a mutually agreeable solution. If you have buy-in from the employee, you are unlikely to have a complaint from the employee or the DOL. Create a temporary place to meet the employee’s needs and offer adequate time for the employee to express milk daily. If you plan to claim undue hardship, please consult with your legal counsel about the appropriate path.

Better: Create a permanent space for employees to express milk. Consult with a lactation consultant to work through more difficult workplace scenarios such as traveling employees.

Best: Consider becoming a recognized Texas “Mother-Friendly Business.” In addition to the requirements of the federal law, employers only have to add access to a clean, safe water source and a sink in the space and a hygienic place to store expressed milk to meet the standard.

The Fifth Circuit Court of Appeals recently updated employees’ guide to southern manners. Don’t worry, employees should still say “yes ma’am” and “no ma’am.” But you know the old saying that you should never discuss politics or religion at work? Well employees better forget that saying ever existed. Not only should employees discuss their religion at work, they should make their religious beliefs known to management when religious accommodations are necessary. Yes. You read that right. Employees should tell their bosses about their specific religious beliefs to establish their inclusion in a protected class.

In Nobach v. Woodland Village Nursing Center, Inc., et al., the Fifth Circuit ruled that if a company’s decision makers involved in an employee’s termination are unaware of the employee’s religious beliefs, then the company cannot be liable for religious discrimination. Nobach, a certified nurse’s aide at Woodland Village Nursing Center, was terminated for refusing to pray the rosary with a patient. Nobach refused because she was a former Jehovah’s Witness and still held many of the same beliefs.

Unfortunately, Nobach made a big mistake. She didn’t discuss her religious beliefs with her boss. I know most people are thinking, “well of course she didn’t!” But the Court held that because the managers involved in her termination were not made aware of her religious beliefs until after her termination, they could not have discriminated against her based on those beliefs. So the Fifth Circuit overturned her sizeable monetary award granted by a jury.

Employers, I’m not suggesting that you go out on a “witch hunt” and attempt to identify the religious beliefs of all of your employees. I’m suggesting quite the opposite. While most employers know not to ask about these sensitive issues in an interview, if a current employee does not tell you about their religious beliefs or need for a religious accommodation, DON’T ASK! This is one case where what you don’t know actually can’t hurt you. If you’re not aware of someone’s inclusion in a protected class—age, sex, religion, race, color, ethnicity, pregnancy, military status, disability, genetic information, and national origin—then it will be hard for a court to find that you to discriminated against an employee without knowledge of their protected status. Now you can’t turn a blind eye or bury your head in the sand. But some classes are more discreet than others. Obviously, if an employee is wearing a burqa and refuses to pray the rosary – you probably have some idea that the employee was may be Muslim (and, hence against her religious beliefs).

That said, employers need to have open lines of communication with management teams. If a manager learns about someone’s religious beliefs, national origin, or other inclusion in a discreet protected class, there needs to be policies and procedures in place that require reporting up the food chain. Such policies will allow upper management to avoid unlawful discrimination and protect the company from potential lawsuits.

For those who missed it, “Losing My Religion” is the title of a 1991 REM song.  I forget that some people who read this won’t be of my vintage.

Who, What, Why . . .

Who does it apply to: The law applies to all employers with 15 or more employees.

What is the issue: Title VII was passed in the 1960’s to protect against discrimination based on race, color, religion, sex or national origin. Since that time, other laws have been passed adding protection against discrimination toward other groups. The Pregnancy Discrimination Act (“PDA”) was passed in 1978 to modify Title VII to specifically protect against discrimination based on . . . you guessed it . . . pregnancy.

What am I required to do: Employers are required not to discriminate against employees on the basis of “pregnancy, childbirth, or related medical conditions.” More specifically, employers are required not to treat an employee adversely because of these characteristics in relationship to any significant aspect of employment.

What constitutes a violation: There are two kinds of violations – direct mistreatment and disparate impact.  

  • Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of pregnancy by failing to hire, firing, demoting, or any other type of significant slight someone might dream up, it can be actionable as pregnancy discrimination.
  • Disparate impact is more subtle. If an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting pregnant workers more significantly than others. An employer policy that employees who like pickles and ice cream together must be fired, is not discriminatory on its face because it may affect any worker. That said, conventional wisdom suggests that pregnant women like strange food combinations during pregnancy. This facially neutral rule has a disparate (greater) impact on pregnant workers and may create a claim for discrimination against the employer as to all pregnant employees. Of course, in the real world, the policy, the violation, and the impact will likely be much more subtle so these claims are often much more complicated to bring.

What if my employee violates without my consent: Choose carefully who you place in charge. Employees placed in positions of authority with the power to control the circumstances of other employees are not personally liable. Their liability is placed with the employer even if the employee acts without authority. The same is true of independent contractors (whether properly characterized or not) placed in positions of authority over employees.

Hasn’t this law been in the news lately: Why, yes. Yes it has. The Equal Employment Opportunity Commission (“EEOC”) recently issued new “guidance” for employers regarding the scope of protection for women under the PDA. Even though the PDA does not provide any of these protections in writing and pregnancy is not a “disability,” the EEOC has decided it will enforce the PDA as though pregnant employees must be given the same protections a disabled person is provided under the Americans with Disabilities Act (“ADA”). 

Specifically, the EEOC now insists that employers “reasonably accommodate” pregnant employees. For example an employer would need to redistribute non-essential functions of the pregnant employee’s job duties to others, modify a pregnant employee’s work schedule to take more breaks, or modifying equipment or seating to make the workspace more comfortable for pregnant employees. Additionally, the EEOC wants employers to implement light duty policies for pregnant workers to allow for different job duties during pregnancy or an altered work schedule.

Do I have to follow the EEOC guidance: Yes and no. While the EEOC’s guidance will probably not stand up in court as the law exists right now, it will cost a lot of money to fight it. Plus, there is a law proposed in Congress now entitled the Pregnant Worker Fairness Act which would essentially make the EEOC’s guidance law. In a year or so, the legal requirements will likely match the EEOC’s guidance so it can’t hurt to start abiding by the rules now.

Common Situations:

Maternity Leave: Doulas United is a small, Austin based, company providing pregnancy coaching for expectant mothers. Natasha, one of the company’s coaches, has, herself, become pregnant. When the time comes for Natasha to have her baby, she asks for maternity leave to care for her new child. Operating on a bit of a double standard, Doulas tells her the company just can’t afford to grant her time off. If she leaves to care for her newborn, her position will be given to someone else. Natasha makes a claim under the PDA. Is she in for a payday? Nope. The PDA only prevents discrimination. Doulas does not have 50 employees so the federal Family Medical Leave Act (which grants up to 12 weeks unpaid leave) does not apply. With no maternity leave law in Texas, Doulas can let Natasha go without creating a legal issue if she fails to return immediately to work.

Take that, EEOC: Anger Management Trainers, Inc. (“AMT”) hates government intervention and refuses to kowtow to the EEOC’s new guidance. When Sue asks for a new keyboard and desk set up as a reasonable accommodation of her pregnancy-related carpal tunnel syndrome, AMT management tells her to jump in a lake. Has AMT jumped into troubled waters? Unfortunately, yes. Even though the EEOC’s guidance is not law and won’t likely stand up in court at this time, Sue’s request is protected under the ADA. All pregnancy related illnesses are likely disabilities within the meaning of that law and reasonable accommodation must be afforded the employee.

Octomom: Billy operates Billy Bob’s Breeding, a thoroughbred horse breeder. Lilly has been a rising star in the company, but has become pregnant and plans to have more children. Billy, a father himself, treats Lilly perfectly during pregnancy and gives her three month’s maternity leave even though his company is not required to do so. Billy even pays Lilly ½ wages during her leave. When she returns, Billy welcomes her back into the company. Months later, however, when it comes time to choose a manager for the company so Billy can take more time off, Billy selects a male employee who is barely qualified. He just doesn’t feel that he can count on Lilly to handle the reigns with her new baby and plans for a bigger family. Has Billy erred? Yes. Even though he treated Lilly properly during pregnancy and immediately after, he cannot retaliate against Lilly for her pregnancy and plans for a large family.

What should I do:

Good: Count up your workers every few months to know whether the law applies to you. Once you have more than 15, institute an anti-discrimination policy including pregnancy discrimination.

Better: In addition to developing a policy, control who is permitted to interview and make material decisions about employees to be sure they are aware of the concerns of pregnancy and other discrimination.

Best: In addition to the items above, create job descriptions for each position. Use the job descriptions to prepare advertisements for positions, to ask objective interview questions, and to create a uniform and objective performance review system to avoid accidentally discriminating against someone based on pregnancy.

Who, What, Why . . .

Who does it apply to: All employers who are subject to the Fair Labor Standards Act, which is virtually every employer.

What is the issue: Employers are required to count certain time spent traveling toward an employee’s hours worked each week unless the employee is exempt from overtime. (For more information on who is exempt from overtime, see the Exemptions edition). The problem is that not all time must be counted and the rules can be quite tricky.

Is the drive from home to work covered: Let’s start at the beginning of the day (and the end). Of course, most of you are thinking the commute to the office can’t possibly count.  Like many legal issues – it depends. In it’s simplest form, compensable travel time starts when work begins whether that is picking up food for the office or sitting in traffic on a conference call. If the Department of Labor (DOL) considers the travel “for the employee’s benefit” it does not count. If, on the other hand, the DOL considers the travel to be “for the employer’s benefit,” it does count. The Common Situations section will help you understand this point better.

What if the employee drives a company car: If the employee drives to a business location to pick up a company vehicle before heading out to the first job of the day, their time starts to count as soon as they get in the vehicle.  If the employee drives the company vehicle to and from home, and from home to work or business calls, the time is treated like a regular commute and does not count.  On the other hand, if the employee drives the vehicle to pick-up co-workers or materials on the way to work, the time counts as soon as the employee leaves home.

How is travel during the workday treated: Once an employee arrives “at work” (whether that be a jobsite, first call, or office) any additional travel during the day up to the end of the workday or last call of the day is counted.  This time is clearly for the employer’s benefit with the possible exception of driving to and from a meal break location.

Who gets paid for time in a carpool: Again, it depends.  If a group of employees decide on their own to carpool, the time does not count.  If the employees take their own vehicles to a common location to ride in a bus or other vehicle to a jobsite, the bus driver is on the clock, but the riders may not be.  If the riders are not obligated to use the company vehicle their ride time does not count.  There is some question about whether ride time counts if the employees are unable to drive directly to the ultimate destination themselves – perhaps to a construction site or factory.  Check with your employment counsel in that situation.

What about travel out-of-town: Out-of-town travel is generally broken down into two categories: “special” trips all in a day’s work and longer trips, usually overnight.  If an employer sends an employee out of their usual work area for a special one-day project, the company must pay for the travel to and from that site, less the employee’s usual commute.  If the employee travels to the airport to fly to another town, the flight time to and from the location counts, but the drive to the airport does not.

If an employee is sent out-of-town multiple days for work, travel time that is outside of their usual work time is counted.  Hence, an employee who usually works Monday – Friday, 8 to 5 will be paid for all time (including the drive to the airport since it is not a regular workday) on a Sunday to arrive for a Monday meeting. The employee will also count time in a plane or other mode of transportation returning to his home location.  Travel of this type can also be complicated.  Check with your employment counsel about more complicated situations such as an employee leaving early to visit friends in the destination location.

How is travel overseas treated: Overseas travel is complicated and beyond the scope of this edition. Check with your employment counsel about travel time of this type.

Does on-call or emergency travel change anything: Employees required to travel outside of their normal work hours to a location other than their primary work location must be paid travel time to and from the location.  Employees called in to their primary work location after hours are not paid for travel to the location.  It is an odd dichotomy, but those are the DOL’s rules.

Common Situations:

Donut stop: Maggie stops for donuts on the way into work just to be nice to her co-workers.  Even though she made a stop for the benefit of her co-workers, her employer did not require it, so the time is not counted.  What if Maggie’s boss decides to reimburse her after she shows up with the donuts?  The stop was still of Maggie’s own volition, so it does not count.  Now, what if Maggie’s boss asks her to stop and pick up a case of coffee at the grocery store and Maggie still decides to buy the donuts for her co-workers?  Now it counts because Maggie is making a stop for her employer’s benefit.  How much of Maggie’s 45-minute commute counts, though?  That is up to Maggie.  If she stops at the grocery store five minutes from her house, 40 minutes count.  If she stops at the grocery store 5 minutes from the office, only five minutes count.  The same would be true if Maggie’s boss asked her to make the stop on the way home.

Hitching a ride: Sylvia lives 15 minutes from Maggie, just off Maggie’s regular route to work.  If Maggie stops to pick Sylvia up, does that count as work time?  It depends.  If Maggie’s boss asks her to pick Sylvia up, the time counts. If Maggie is just being a good co-worker, the time does not count.  Either way it doesn’t count for Sylvia.  Now, what if Sylvia completes a report for work that her boss has been waiting on during the ride?  This time, Sylvia must count the time.  Simply because she is not in the office and is using time that would otherwise be her commute, does not mean she loses the time.

Travel here, there and everywhere: Joe works for Cable Two as an installer.  He was given a fully equipped truck to drive each day.  For the company’s convenience, Joe is allowed to drive the truck home each night so he can go straight to his first call each day and from his last call home. You might think Joe’s day starts the moment he leaves the house. Not true. Because Joe is allowed to drive the vehicle home for his convenience, he does not start counting time until he arrives at his first call of the day and his time stops when he starts home from his last call every day.  The fact that Joe reports to different locations at the beginning of each day and drives home from a different location does not make the time count.  This is true even if the drive time is different each morning and evening.  There are situations where employees drive two to four hours for their first job each day and none of that time counts toward the employee’s hours for the week.  That said, it may be hard for the employer to keep employees under those circumstances.

Ride and work: Calvin rides from an assembly point each day on a bus into the plant where his construction company is performing an upgrade.  The ride is about 30 minutes each way. Initially, Calvin and his co-workers could listen to music or talk on their phones during the ride.  Over time, Calvin’s supervisor figured out he could save time when the employees arrive at the jobsite by using the ride to go over the day’s assignments.  Is the ride compensable?  Of course – it is used for the employer’s benefit.  It is not a novel circumstance for a situation like this to naturally arise.  The head office starts with an approach designed to comply with the law and someone with no understanding of the rules decides to be more efficient.  Oops.  Now you’ve got a problem.

What should I do:

Good: Analyze all the common situations for your business and determine the compensability of employees’ time.  Act on your determinations accordingly.  Plan travel away from home locations or overnight in advance to be sure that you handle it appropriately. There may not be time to get advice of counsel after the employee returns and before their paycheck is due.

Better: As you can tell from this edition, there are many situations in which you may find yourself. When in doubt, consult an attorney.