2019 has brought a flurry of new leave and accommodation laws. In fact, in the first 8 months of 2019, more than 20 new laws in this area have passed. The states that passed new laws, expanded or otherwise amended existing leave and accommodation laws, or had new laws go into effect this year include: California, Colorado, Connecticut, District of Columbia, Kentucky, Illinois, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Utah and Washington.
Another employer has felt the wrath of the Equal Employment Opportunity Commission (EEOC or Agency) over what the Agency describes as an "inflexible 12-week maximum leave policy." Tallahassee Memorial Healthcare, Inc, has agreed to pay $375,000 to a class of employees to settle allegations that the policy violates the Americans with Disabilities Act (ADA). The settlement also resolves allegations that when employees with disabilities requested additional leave beyond the FMLA, Tallahassee Memorial denied the requests instead of engaging in an interactive process with each individual to determine if he or she could be accommodated. This, too, runs afoul of the ADA. The EEOC has long made clear its position on inflexible leave policies, stating that employers "must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer."
A common challenge for employers of nonexempt employees who receive quarterly or annual nondiscretionary bonuses is how to factor such bonuses into the employees’ regular rates of pay and calculate the appropriate overtime premiums due to those employees. The U.S. Department of Labor’s Wage and Hour Division (WHD) has issuedOpinion Letter FLSA2019-7, which discusses how employers may account for overtime pay as part of annual and quarterly nondiscretionary bonuses. Because there are different ways to structure nondiscretionary bonuses—some requiring retroactive recalculation and others not—employers should carefully consider the terms of bonus plan to ensure a generous bonus plan does not lead to significant legal exposure related to overtime violations.
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