On November 16, 2018, the Austin-based 3rd Court of Appeals declared Austin’s paid sick and safe leave ordinance unconstitutional. Specifically, the court held the ordinance is preempted by the Texas Minimum Wage Act and is, therefore, unconstitutional.

The Austin ordinance has been under attack since its inception. The Travis County District Court originally denied a temporary injunction against the ordinance. The ordinance (which was scheduled to take effect October 1, 2018) was then temporarily blocked by the appeals court in August 2018, to give itself time to issue a ruling on the appeal.

The November 16 ruling ordered the district court to grant a temporary injunction against the ordinance.  Although the court of appeals’ decision requires a temporary injunction (because that was the issue on appeal), the court ordered “further proceedings consistent with [the appeals court’s] opinion” that the ordinance is preempted by state minimum wage law.

For additional information about the status of the ordinance, or other leave management issues, please contact the Jackson Lewis attorney with whom you regularly work.

Just a few months ago, we wrote about a case where a federal district court denied summary judgment to an employer who had asserted that attendance at work was an essential job function. The Court held that although regular attendance at work was set out in the job description, that was not enough to obtain summary judgment. In a slight twist, today we discuss a case in which the court focused on the adequacy of the job description itself and found it lacking. For that reason and others, it denied the employer’s motion for summary judgment.
In Ammons v. Chicago Board of Education, the dispute centered on Plaintiff’s plantar fasciitis and her request to sit for brief periods of time while working as a security officer in a troubled school. The school district wanted the Plaintiff to “walk constantly” and therefore denied her requested accommodation of a chair and desk where she could rest her feet for ten minutes of every hour. In her lawsuit the Plaintiff disputed that constant walking was an essential job function.
The School Board moved for summary judgment on the essential function issue. To determine whether constantly walking is an essential function, the court considered (1) the employee’s job description; (2) the employer’s opinion; (3) the amount of time spent performing the function, (4) the consequences for not requiring the individual to perform the duty, and (5) past and current work experiences.
The court concluded that there were material factual disputes concerning whether constant standing and walking are essential functions of the security officer position. The court turned first to the job description and noted that it did not specify how much standing and walking is required, leaving that specific issue open to interpretation. While the job description required security officers to perform sweeps and actively respond to fights or other issues in the school that threaten the safety of students, staff, and/or guests, the Court found that “it is not clear from the record that a security officer who sits for a few minutes each hour cannot perform these tasks. The Court also found that because one of the job description’s listed duties is “maintaining an orderly post and remaining at the post at all times unless otherwise directed by a supervisor,” this suggested that for some period of time the security officer is expected to remain in one stationary place.” The Court found, therefore, that the job description was not sufficient to carry the District’s burden under the first factor.
The Court also found the second factor—The Employer’s Opinion—to be inconclusive. The School District relied on its policy (adopted three years prior to the claim) that all security officers would no longer be allowed to sit while on duty “because a seated security officer has reduced capacity to respond to security threats.” Notwithstanding this policy, the court found that because there was testimony in the record that other security officers had not been disciplined for occasionally sitting while on duty, there was “still a factual dispute about whether the administration at the school actually applied the policy to all security officers.”
Finally, the Court found that there were material questions of fact surrounding the final three factors.
This case serves as a reminder that job descriptions need to be reviewed regularly to make certain that essential functions are clearly spelled out and that the requirements are uniformly enforced with all employees. Although this will not guarantee success at the summary judgment stage, its absence will almost certainly make summary judgment very difficult.

The Americans with Disabilities Act (“ADA”) includes within its definition of “discriminate,” an employer’s failure to provide a reasonable accommodation to a qualified individual with a disability.  But, is a failure to accommodate standing alone—absent an adverse employment action—enough to establish an ADA failure-to-accommodate claim?  For example, if an employer fails to accommodate a wheelchair-bound employee by refusing to move her office a few feet closer to the entrance, has the employer violated the ADA?  In this scenario, assuming the facts show that traveling the extra distance is just a mere inconvenience, the answer likely depends on whether an adverse employment action is a required element of a failure-to-accommodate claim.

Some courts, such as the Seventh Circuit, have stated that an adverse employment action is not a required element of a failure-to-accommodate claim.  EEOC v. AutoZone, Inc., 630 F.3d 635 (7th Cir. 2010).  Recently, however, in Exby-Stolley v. Bd. of County Commissioners, Case No. 16-1412 (Oct. 11, 2018), the Tenth Circuit disagreed and held that an adverse employment action is a necessary component of all discrimination claims under the ADA, including those based on a failure to accommodate.

In Exby-Stolley, the plaintiff, a health inspector, broke her arm, which limited her ability to conduct inspections and perform other job functions.  As a result, she was temporarily given a part-time office job with the same pay (when worker’s compensation benefits were included).  When she asked the County to create a new position for her, it denied her request but, according to testimony it presented, the County did not fire her or make any other changes to her employment status.  County employees testified that they were planning to continue to look for ways to accommodate the plaintiff, but she resigned before other accommodations could be explored.  The plaintiff filed an ADA claim for failure to accommodate, and the County argued to the jury that the plaintiff could not establish an ADA discrimination claim because she did not suffer an adverse employment action.  The trial court instructed the jury that the plaintiff had to prove she suffered an adverse employment action to prevail on her failure-to-accommodate claim.  The jury returned a verdict for the County after finding the plaintiff did not prove that she suffered an adverse employment action.

On appeal, the Tenth Circuit rejected the plaintiff’s argument that the jury instructions were erroneous and definitively held that an adverse employment action is a component of all ADA discrimination claims—even claims for failure to accommodate.  The Tenth Circuit focused on the language of §§ 12112(a)-(b) of the ADA and held that those subsections read together require an adverse employment action to establish any type of ADA discrimination claim.

This holding that an adverse employment action is a required element of failure-to-accommodate claims means plaintiffs litigating in the Tenth Circuit, and potentially elsewhere, have one more hurdle to clear when asserting such claims.  However, employers should be mindful of the fact that most courts, including the Tenth Circuit, liberally construe the phrase “adverse employment action,” and whether conduct rises to the level of an adverse employment action is often a fact-intensive inquiry.

Since the FMLA came into existence, employers have been advised, where possible, to run FMLA concurrently with other leaves. Doing so prevents leave stacking. When reviewing FMLA policies, a common oversight we see is how employers handle the use of paid leave during FMLA. While the policies require employees to use earned vacation, sick or PTO time concurrently with FMLA leave, some overlook a nuance in the FMLA regulations that prohibits employers from requiring employees to use paid leave during FMLA.

FMLA leave is generally unpaid, and during unpaid FMLA leave an employer can require that employees use paid leave. The FMLA regulations provide, however, if during FMLA leave an employee also receives benefits, in any amount, from a disability plan or workers’ compensation, the FMLA leave is not unpaid. Because the FMLA’s general rule permitting employers to require employee substitution of paid leave only applies to unpaid FMLA, during periods of FMLA when any income replacement is received, employers cannot require employees to substitute paid leave. This exception to the FMLA general rule applies regardless of the amount of income replacement received.

For example, if an employee taking FMLA is also receiving disability benefits that replace two-thirds of their income, the employer may not require that the employee use PTO (or other paid leave) to make up for the one-third of income not covered by the disability benefits. The employee can, however, be required to use paid leave during a waiting period before disability benefits are received, because the limitation is triggered by the receipt of income replacement benefits.

This issue was at the center of Repa v. Roadway Express, Inc., 477 F.3d 938 (7th Cir. 2007). In that case, Alice Repa suffered an injury that required surgery and a six-week absence from work. During the leave Repa received a weekly $300 disability benefit through a third-party disability plan. While she was on FMLA, her employer required her to use vacation and sick leave. Repa sued seeking to have her sick leave and vacation benefits restored. Repa was awarded summary judgment as the Court held that an employer’s ability to require an employee to substitute paid leave during FMLA is limited if, during FMLA leave, the employee also received disability benefits. While Repa, during her FMLA leave, could have been provided the opportunity to elect to substitute paid leave at the time she was also receiving disability benefits, it was unlawful for her employer to require the substitution of her vacation and sick time.

For those wanting to take a closer look, substitution of paid leave is addressed in 29 C.F.R. § 825.207 of the FMLA regulations.

While this limitation is not new, it is commonly overlooked. Employers should review their FMLA policies to ensure they properly administer the substitution of paid leave, and be aware that some state family and medical leave laws also regulate the substation of paid leave. Jackson Lewis can assist with FMLA or state leave issues, training and policy review.

California Governor Jerry Brown signed into law Assembly Bill 1976, expanding California employer obligations respective to employee lactation accommodation. Under preexisting California Labor Code section 1031, an employer was required to make available a private location, other than a toilet stall, for an employee to express milk for an infant child, and provide employees with a reasonable amount of break time to do so. Recently signed Assembly Bill 1976 amends Labor Code section 1031 providing that the private location be a place other than a bathroom, when reasonable.

Assembly Bill 1976 also outlines when temporary lactation locations may be sufficient. An employer may satisfy its obligations under the section by showing that:

  1. Operational, financial, or space limitations render the employer unable to provide a permanent lactation location;
  2. The temporary location is private and free from intrusion while an employee expresses milk;
  3. While an employee expresses milk, the temporary location is used only for lactation purposes; and
  4. The temporary location otherwise meets the requirements of state law for lactation accommodation.

The amendment also specifically provides for agricultural settings. An agricultural employer, as defined in Labor Code Section 1140.4, must provide an employee wanting to express milk with a private, enclosed, and shaded space, including, but not limited to, an air-conditioned cab of a truck or tractor.

As amended, Labor Code section 1031 will press employers to make reasonable efforts to provide an employee with the use of an area, other than a bathroom, to express milk. The location is to be near the employee’s work area and afford the employee privacy. The area where the employee normally works may be appropriate if it otherwise meets the requirements set out in the statute. When an employer can demonstrate that providing a private area other than a bathroom would impose an undue hardship on the employer—when considered in relation to the size, nature and structure of the employer’s business—the employer need only make reasonable efforts to provide an employee with the use of a private area other than a toilet stall.

Assembly Bill 1976 was one of two lactation accommodation bills that passed both houses and made their way to the Governor’s desk. Yet Governor Jerry Brown vetoed Senate Bill 937 which proposed extensive requirements for lactation rooms.

Employers should reach out to the Jackson Lewis attorney they normally work with to evaluate their lactation accommodation obligations.

Under the Family Medical Leave Act, eligible employees are entitled to take time off for due to a “qualifying exigency” arising from the deployment of the employee’s spouse, parent, or child for active military duty to a foreign country. Examples of “qualifying exigencies” include attendance at military events, making childcare arrangements arising from a military member’s covered active duty, making or updated financial and legal arrangements to attend a military member’s absence on covered active duty, and accompanying the military member during a rest and recuperation leave during deployment.

Currently California employees who wish to receive pay during leave for a qualifying exigency would need to use their own accrued vacation or paid time off hours. However, beginning January 1, 2021, an employee can apply for wage replacement benefits from the State of California Paid Family Leave insurance program during such a leave. Employees applying for benefits may be required to provide a copy of any active duty orders or other documentation issued by the military to support a request for benefits.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eighteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not recognizing when you might trigger the FMLA by being an “integrated employer”

The FMLA applies to employers with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. However, separate companies will be considered to be part of a single employer for FMLA purposes if they meet the “integrated employer” test set forth in the FMLA regulations.

The integrated employer test includes the factors of: (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership/financial control. 29 CFR §825.104(c)(2). When this test is met, employees of all entities making up the integrated employer will be counted in determining employer FMLA coverage and employee eligibility. Smaller employers in particular should be cautious.

In one case, the Supreme Court of Nebraska affirmed that two companies owned by the same person were integrated and an FMLA employer. A terminated employee filed suit against both companies, alleging FMLA violations. One company had 38 employees and the other had 17 employees, each below the 50-employee threshold. Common management was met where the owner made high-level management decisions for both companies and directed management of each company, who implemented his instructions. There was significant interrelation between operations because the two companies shared office space and some personnel; used the same bookkeeper and IT support person; the same project manager oversaw construction projects for both companies; and there was a common payroll process. The employees of one company reported to the other company’s premises to be dispatched to specific work locations. There were also several examples of employees moving between companies to meet overall labor needs. Finally, the owner owned 100 percent of one company and was the primary shareholder of the other company. Therefore, the employer was indeed an integrated employer under the FMLA, and subject to FMLA obligations. Pierce v. Landmark Mgmt. Grp., Inc., 2016 Neb. LEXIS 88 (S.Ct. Neb., June 24, 2016).

By contrast, the Third Circuit Court of Appeals recently affirmed that two companies owned by the same person were not an “integrated employer.” A former employee filed suit against both companies alleging FMLA violations. Each company had less than 50 employees. While the same person owned both companies, and could presumably hire or fire employees at either company, each company had separate managers who did not have authority in the other company. Each company also had separate offices, equipment, and records. Even though the owner had an office at each company’s location, and some employees periodically performed work or services for the other company, the Court stated this was insufficient to establish interrelated operations. While the owner had authority to hire and fire, he refrained from interfering with the direct manager’s decision to terminate the employee. Regarding common ownership, the Court decided that the common ownership, in itself, did not translate into the two entities having a corporation/division relationship. Kieffer v. CPR Restoration & Cleaning Services, LLC, 2018 U.S. App. LEXIS 12560 (3d Cir., May 15, 2018) (non-precedential opinion).

As these cases illustrate, this is a fact-intensive analysis. Small employers should carefully analyze business operations against the FMLA “integrated employer” test factors to determine whether they might actually be a covered under the FMLA.

With the rise in lawsuits under Title III of the ADA regarding accessibility of websites, Courts have been framing how such claims fit into the law’s requirements for accessibility at places of public accommodation.  The U.S. District Court for the Southern District of Florida recently provided additional clarification in Gomez v. Knife Management, LLC (S.D. Fla. Sep. 14, 2018).  The Defendant owns and operates a chain of restaurants.  There is no dispute that the restaurants are places of public accommodation covered by the ADA.  Defendant also maintains a website with information about the restaurants.  Plaintiff alleged that he was unable to fully utilize the website because he is vision impaired and portions of the website are not readable by screen reader software.  However, Plaintiff did not allege that he attempted to visit one of the restaurants, that he intended to visit one in the future, or that the website impeded his ability to access the restaurants or the goods and services they offered.

There have been many decisions evaluating how a website could fall under the ADA’s coverage of public accommodation the way that a physical “brick and mortar” store or restaurant would be covered.  Courts in the 11th Circuit require some nexus between the website and access to the physical location such that the ADA would prohibit a website from impeding a disabled person’s full use and enjoyment of the physical location.  It is not enough for an individual to claim that the website only denied access to information about the physical location.  An individual would have to show that he/she was an unable to access the website and an intent to patronize the physical location again if there was access to the website.  An individual could also state a claim if he/she could show that the website impeded their ability to access to the physical locations or the goods or services offered there.

In this case, the Plaintiff did not claim he intended to visit the restaurant in the near future or ever for that matter.  He also did not allege that the website impeded his ability to access the restaurant.  The claims were dismissed because he only claimed that he “attempted to access” the website “but was unable to…enjoy full and equal access…and/or understand the content.”  As such, access to the website was not tied to his access to the restaurant.  With no nexus between the website and the ability to access to the physical location Plaintiff lacked standing to bring his ADA claims.

Despite this decision, we do not expect the wave of website accessibility cases to slow down anytime soon.  While the Court concluded that the Plaintiff’s allegations were insufficient in this case, it also provided a road map for what must be alleged to state a valid claim.  Any Company operating a place of public accommodation must therefore remain vigilant with regard to the accessibility of its website.

Are you tired of the Cook County Earned Sick Leave roller coaster, yet?

Last Tuesday, the Village of Northbrook, Illinois, became the most recent Cook County municipality to opt back in to the Cook County Earned Sick Leave Ordinance, joining Western Springs, which — as we previously reported — did an about-face in April and reversed its prior decision to opt-out of the Ordinance.  Beginning January 1, 2019, covered employers with employees in Northbrook will be required to comply with the Ordinance and provide eligible employees with one hour of paid sick leave for every 40 hours worked.

Although the Village of Wilmette also recently reconsidered its prior decision to opt-out of the Ordinance, it ultimately reaffirmed its original decision. However, the issue will be presented to Cook County voters in the upcoming election on November 6.  It is unclear whether the will of the voters and/or the recent decisions of Northbrook and Western Springs to opt back in to the Ordinance will spur similar action by other Cook County municipalities.

Be on the lookout for further updates after the election.

A recent Middle District of Florida decision granted the Defendant’s Motion to Dismiss Plaintiff’s claims for relief under Title III of the ADA based on Plaintiff’s lack of standing to bring such claims.  In Kennedy v. Cape Siesta Motel (MD FL Oct 4, 2018) the Plaintiff claims she encountered architectural barriers upon her visit to a motel in Brevard County, Florida.  The Plaintiff lives about 175 miles from the motel but has a second home about 79 miles from the motel which she visits two to three times a month.  On those occasions she would drive through Brevard County.  Plaintiff alleged she “plans to return to Brevard County frequently within the next few months” and those plans include returning to the property “in the near future to avail herself of the goods and services made available.”  The Defendant moved to dismiss arguing Plaintiff has no standing to bring her ADA claims because she lives 175 miles from the property, visited at most on only three occasions, and lacks definite plans to return.  The Court granted Defendant’s Motion to Dismiss and evaluated the four factors used to determine standing as follows:

 1. Proximity to the subject property: Plaintiff has one home 175 miles from the property and another 79 miles from the property.  That distance negates the likelihood of future injury.  The occasional travel through the county does not alter this conclusion because there is no indication that her travel through this large county brings her near the hotel or that she would be spending the night there to break up the trip.  Plaintiff argued that the “proximity” test is inappropriate and should not be applied in the context of a hotel but the Court explicitly rejected that argument. 

2. Past patronage: The Court found this factor was met by Plaintiff since she made up to three prior visits.

3. Definite plan to return:  Plaintiff failed to demonstrate a definite plan to return.  She states generically that she plans to return to the property “in the near future to avail herself of the goods and services made available” but the Court held that these are just “generic statements” of a “some day plan.” Plaintiff’s general plan to return to Brevard County often does not change the analysis.  It is a large county and there was no “concrete and realistic plan that Plaintiff will return to the property.”

4. Frequency of travel near the business:  Plaintiff did not meet this factor even though she has a second home and travels through the county in which the property is located when going from her primary home to her second home.  There was no indication that she would travel near the property when driving through the county.

 This case provides a helpful analysis and application of law for Defendants seeking to challenge Title III claims based on standing and it is not necessarily limited to cases involving hotel properties.