Week In Review

March 28, 2016

NC Enacts Legislation to Bar Local Government Anti-discrimination Protections Based on Gender Identity, and Regulation of Wages and Hours
North Carolina Governor Pat McCrory has signed legislation that will bar and negate any state or local law extending anti-discrimination protections in employment and public accommodations to transgender individuals. In particular, the measure rolls back a Charlotte ordinance, finalized by its city council on February 22, which extends anti-discrimination protections to LGBT individuals in the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations in a place of public accommodation to LGBT individuals. That ordinance permits use of public restrooms that are consistent with an individual’s gender identity. The legislation also limits employment discrimination protections currently based on “sex” to expressly mean “biological sex.”

The legislation also bans local government regulation of minimum wages, hours, benefits and other conditions of employment. The legislation preempts and supersedes any ordinance, regulation, resolution or policy adopted or imposed by any unit of local government that regulates or imposes any requirement on employers pertaining to compensation of employees, such as wage levels, hours of labor, payment of earned wages, benefits, leave, or well-being of minors in the workforce.

Human Resources Director Can Be Held Personally Liable Under FMLA
A federal appellate court has held that a Human Resources Director (HRD) can be held personally liable, under a broad reading of what constitutes "an employer" under the FMLA. Under the FMLA, an "employer" includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." The Court held that because the employer’s HRD had: reviewed employee’s FMLA paperwork; determined its inadequacy; controlled employee’s ability to return to work and under what conditions; and had sent employee nearly all Company communications about employee’s absence, including her termination letter, the HRD could be found to be an "employer," and thus, could be liable.

The employee worked for employer for 5 years before she told her supervisor that she would need to leave work because her 17 year old son had been hospitalized as a result of previously undiagnosed Type I diabetes. Employee left work on June 6 and returned on June 18. Employee submitted a medical certification supporting her need for leave to care for her son on June 27, 9 days after she returned to work. That same day, her 12 year old son fractured his leg playing basketball and underwent surgery for the injury. Employee informed her supervisor that she would need leave to care for her younger son and that she expected to return the week of July 9, "at least part time." When July 9 arrived, the supervisor asked for an update on her status. Employee responded that she would need to work a reduced, three-day work week until mid-to-late August but could return to work on July 12 if that schedule were approved. Employee’s supervisor then referred the matter to the Human Resources Director. What followed was a series of unanswered calls and e-mail exchanges about a medical certification, and a proposed meeting that never was scheduled. The Court characterized the Human Resources Director’s requests for "paperwork" as "oblique." On September 11, after two months of miscommunications, employer terminated employee "for abandoning her position."

Here are some noteworthy points made by the Court: (1) an employee is not required to provide a medical certification at the time of request for leave, and in fact does not need to provide one at all unless and until one is specifically requested by the employer; (2) at the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of the employee’s failure to provide adequate certification; (3) an employer’s handbook stating that it requires medical certification to justify a leave does not meet the "specific request" requirement – an employer must give notice of the certification requirement each time leave is requested, or it waives the right to require one; (4) the employer should request the certification at the time the employee gives notice of the need for leave or within five business days thereafter; (5) an employee has fifteen days after the request for certification to provide it; (6) the employer must advise an employee whenever the employer finds a certification incomplete or insufficient, "and shall state in writing what additional information is necessary to make the certification complete and sufficient"; and (7) the employer is expected to responsibly answer questions from employees concerning their rights and responsibilities under the FMLA.

SESCO recommends that clients review all applicable policy and practices to ensure compliance. For assistance, contact us at 423-764-4127 or by email at sesco@sescomgt.com