Compliance Memos: May 2018

DMEC Staff@Work

Compliance Memos_May 2018Long Legal Contest to Cap Leave as Accommodation

On April 2, the U.S. Supreme Court refused to review a ruling by the 7th Circuit U.S. Court of Appeals rejecting “multimonth” (more than two months) leave as an accommodation under the Americans with Disabilities Act (ADA). For now, Severson v. Heartland Woodcraft applies only in the 7th Circuit’s states of Illinois, Indiana, and Wisconsin. Last August, a month before the Severson ruling, United Parcel Service (UPS) paid $2 million to settle a 10-year legal battle with the Equal Employment Opportunity Commission (EEOC) over UPS’ rigid 12-month leave cap. Yet two months later, after Severson, EEOC Acting Chair Victoria Lipnic said leave can be an ADA accommodation, but “the idea that it can go on and on forever is problematic.” Lipnic made these comments last October at the Association of Corporate Counsel annual meeting. According to the petition to review Severson, extended leave as an accommodation is accepted by the 1st, 6th, 9th, and 10th Circuits. Other circuits may be more favorable venues for litigation to put a cap on leave as an accommodation under the ADA.

Compliance Questions Over Massachusetts Equal Pay Act

Laws requiring equal pay for comparable work can be a compliance challenge. According to Massachusetts, the first state to pass an equal pay law in 1945, women working full time earn only 84.3% of what men earn in that state. The state passed the Massachusetts Equal Pay Act (MEPA) in 2016, which takes effect on July 1, 2018. MEPA provides an affirmative defense for any employer that has conducted a good faith, reasonable self-evaluation of its pay practices and taken steps to correct any impermissible disparities within three years of MEPA passage and before any legal action has been filed. To assist employers with this self-evaluation, the state office of the attorney general (OAG) provides a “Pay Calculation Tool.” Reviewing the tool, employment law firm Jackson Lewis commented, “The Tool can help organize relevant data and be used to conduct basic self-evaluations. As the OAG Guidance makes clear, however, the Tool is not appropriate for larger pay groups or sophisticated pay systems. Therefore, most employers should not rely on the Tool alone to meet their obligations under MEPA.” For more details about MEPA compliance, visit https://www.jacksonlewis.com/publication/massachusetts-equal-pay-act-calculation-tool-what-employers-need-know.

Low Cost Impact from New York City Paid Sick Leave Law

Employers experienced nominal impact, negative or positive, from the New York City Earned Sick Time Act, according to a study of the Act’s first two years, conducted by the Center for Economic and Policy Research of The City University of New York. Concerning employee retention, the study found that “virtually no employers reported any change in turnover.” On productivity, more than 94% of employers reported that ‘the paid sick days’ law had no effect on business’ productivity,” with 2% reporting that productivity increased, and 4% reporting that productivity decreased. On reducing the number of sick employees reporting to work, the study found that 92% of employers reported no change in the spread of illness in the workplace, while nearly 7% reported that the spread of illness decreased. Fully 90% of employer respondents reported no change in the number of employees coming to work sick, with increases and decreases reported equally at 5% each. To learn more about the study and the impact of the city’s paid sick leave law, visit http://cepr.net/images/stories/reports/nyc-paid-sick-days-2016-09.pdf.