The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued guidance regarding protections for pregnant employees under federal law. The guidance, published on the EEOC’s website and linked below, states that some temporary impairments arising out of pregnancy can be considered “disabilities” under the Americans With Disabilities Act (“ADA”) which employers must reasonably accommodate.
The guidance also states that an employer’s failure to reasonably accommodate a pregnancy-related impairment could be a violation of the Pregnancy Discrimination Act (“PDA”), which is incorporated within Title VII of the Civil Rights Act (“Title VII”), to the extent the employer accommodates employees with similar limitations that are not pregnancy-related.
The EEOC’s guidance notes that pregnancy itself is not a disability covered by the ADA, but that impairments arising out of pregnancy are not necessarily excluded from coverage. The threshold inquiry is whether the impairment substantially limits a major life activity (such as standing, sitting, walking, lifting, etc.) or bodily functions or organs. However, in keeping with the mandate of the ADA Amendments Act of 2008, the EEOC’s guidance urges employers to focus on reasonable accommodations rather than on whether the impairment or condition might not be covered. Examples of reasonable accommodations listed by the guidance range from allowing the employee to take more frequent breaks, to keep a water bottle handy, or to use a stool, to temporarily reassigning the employee or altering the way the job is performed.
Of course, employers must be wary of imposing job restrictions on pregnant employees—in the absence of a request—if such restrictions could limit job opportunities. Title VII and the PDA have been interpreted to prohibit an employer from excluding an employee from a job or assignment based on pregnancy, even if the action is intended to protect the employee or her unborn child.
The timing of the EEOC’s guidance is somewhat controversial, in light of the fact that the U.S. Supreme Court recently agreed to hear a case that could decide the extent to which an employer must accommodate a pregnant employee. Nevertheless, the guidance signals clearly that the EEOC intends to make pregnancy-related job decisions a priority in its enforcement of Title VII, the PDA, and the ADA. As a result, employers should exercise caution and consult qualified employment law counsel on decisions involving pregnant employees.
The full Guidance is available here.Read More
The employment law firm of Hall, Arbery & Gilligan LLP has gained two new partners, David Allen Roberts and Rebecca Williams Shanlever, and a new counsel, Jonathan D. Letzring. The new firm, Hall, Arbery, Gilligan, Roberts & Shanlever LLP, focuses on matters related to the workplace, including litigation and advice regarding non-compete and other employment agreements, compliance with federal and state employment laws, and virtually all aspects of the employment relationship.
Dave Roberts joins the new firm after founding and managing The Roberts Firm, P.C. since 2005, where he developed a thriving boutique non-compete practice in addition to serving clients in many other areas of employment law. Prior to establishing his own firm, Roberts practiced with Greenberg Traurig, Seyfarth Shaw, and Fisher Phillips. He has nearly 18 years of employment law and litigation experience. His practice emphasizes non-compete litigation and drafting, trade secrets and unfair competition, harassment, discrimination and retaliation cases and other employment litigation and preventative matters.
Rebecca Shanlever moves her practice from Troutman Sanders LLP, where she was a partner in that firm’s Labor & Employment Section. For more than 15 years, she has been litigating employment and business disputes and advising clients on a wide variety of employment issues. Shanlever has extensive experience handling discrimination, harassment, and retaliation cases through all stages of litigation, from informal settlements and mediations to motion practice and jury trials. She also has significant experience with non-compete and related matters, including a favorable ruling in one of the first decisions involving Georgia’s new law on restrictive covenants.
In addition to the two new partners, the firm also welcomed Jonathan D. Letzring as counsel in December 2013. Jonathan is a former law clerk to the Honorable Phyllis Kravitch on the U.S. Eleventh Circuit Court of Appeals in Atlanta, and the Honorable Timothy Batten in the U.S. District Court for the Northern District of Georgia. Before joining the firm, he was an associate with King & Spalding in Atlanta. Jonathan will focus his practice on employment litigation and employment-related business disputes.
“We are extremely pleased to welcome Dave, Rebecca, and Jonathan to our team. The excellent legal skills, experience, and reputation that each of them brings to the table will enhance our ability to serve clients in virtually every industry,” said Wit Hall, the firm’s managing partner. “We are growing,” said Mr. Hall, “but we will remain intensely focused on providing first-rate, efficient, and cost-effective solutions for clients throughout Atlanta, the state of Georgia, and the southeast region.”
The predecessor firm was founded by Wit Hall, Chris Arbery, and Matt Gilligan in 2010, each of whom has focused on employment law for his entire career in private practice. The new firm currently has nine attorneys.
The firm recently was recognized in 2013 Super Lawyers Business Edition as the “Top Small Law Firm” for employment law in the state of Georgia.Read More
The firm is proud to be recognized in the 2013 Super Lawyers Business Edition as the “Top Small Law Firm” for Employment Law in the state of Georgia. Super Lawyers Business Edition is an annual resource that serves as the go-to-guide for general counsel and businesses when making legal hiring decisions. Super Lawyers is a research-driven, peer influenced rating service of outstanding lawyers and law firms who have attained a high degree of peer recognition and professional achievement.Read More
Although the Obama Administration announced last week that it will delay implementation of some employer mandate and penalty provisions of the Patient Protection and Affordable Care Act (ACA) until 2015, other requirements remain in place and on schedule.
For example, by October 1, 2013, all employers who are subject to the Fair Labor Standards Act (FLSA) (which applies to virtually all businesses with $500,000 or more in gross annual revenues) must provide a written, individualized notice to all employees advising them of the existence of and benefits available through government-sponsored Health Insurance Marketplaces (or “Exchanges”). Open enrollment for the Exchanges is still scheduled to begin on October 1, 2013.
The “Exchange Notice” must be sent to all employees, full-time or part-time, regardless of whether the employer is subject to the health insurance mandate (now delayed) and must contain certain information regarding the Exchanges, including a description of services provided and contact information. The notice also must inform employees that they may be eligible for a premium tax credit if they purchase a qualified health insurance plan through an Exchange. In addition, the notice must state that, if the employee purchases a qualified plan through an Exchange, the employee may lose any employer contribution to any employer-offered health benefits plan and all or a portion of such contribution may be excludable from federal income tax. Model language for the Exchange Notice is available on the Department of Labor website at www.dol.gov/ebsa/healthreform.
Employers must provide notice to current employees not later than October 1, 2013, and to new employees at the time of hiring beginning on that date. Beginning in 2014, the notice will be considered timely if provided within 14 days after the date of hire.
Employers also will be subject to other requirements regarding benefits and reporting, including health plan coverage and design mandates, provisions for pre-existing conditions and waiting periods, distribution of benefits and coverage summaries, and W-2 reporting of insurance benefits provided. So far, these requirements remain on schedule for 2014.
For more information, contact Chris Arbery.Read More
The most recent term of the U.S. Supreme Court yielded a number of key decisions affecting employment law. Following is a brief summary of a few of these decisions with the key legal points they establish or affirm.
University of Texas S.W. Med. Ctr. v. Nassar: An employee claiming retaliation under Title VII of the Civil Rights Act must show that the adverse employment action would not have occurred “but for” the protected activity engaged in by the employee. This holding is based on a strict reading of the statutory language providing a more rigorous standard of proof for retaliation claims than for discrimination claims, which require a showing that the protected factor was only a “motivating factor” in the employer’s decision.
Vance v. Ball State University: In order for an employer to be vicariously liable for the acts of a supervisor (such as sexual harassment), the supervisor must have authority to take “tangible employment actions” such as hiring, firing, promoting, or demoting employees. This decision rejected the view of the Equal Employment Opportunity Commission (EEOC), which promoted a much broader definition of “supervisor” for purposes of establishing employer liability.
Genesis Healthcare Corp. v. Symczyk: Dismissal of a collective action under the Fair Labor Standards Act was upheld, affirming the appellate court’s ruling that the claims were rendered moot by the employer’s offer of judgment before the filing of a motion for conditional certification. However, in order for an offer of judgment to render a case moot, it must include the entire amount of the plaintiff’s unpaid wages, attorneys’ fees, costs, and expenses (potentially a substantial amount), and even then dismissal is not guaranteed.
American Express Co. v. Italian Colors: An agreement with an arbitration and class action waiver clause may be enforceable under the Federal Arbitration Act (FAA) even if the cost of arbitration exceeds the potential recovery. This decision (not an employment case but potentially applicable in such cases) continues a trend upholding enforcement of agreements between consenting parties to arbitrate claims arising under state or federal law. However, this does not guarantee that every arbitration agreement will be enforced; some agreements could be deemed “unconscionable” under state law.
For more information, contact Matt Gilligan.Read More
As of July 1, 2013, all private employers in Georgia with 11 or more employees must use E-Verify, the federal online system for confirming whether new hires are legally authorized to work in the United States. This requirement has been in place for the last year and a half for larger employers, following passage of Georgia’s Immigration Reform and Enforcement Act of 2011 (IREA). All employees who work at least 35 hours per week count toward the new coverage threshold of 11 employees.
The Georgia legislature also recently expanded the IREA to require the use of E-Verify by private employers contracting with public entities to provide labor or services of $2,500.00 or more, regardless of the number of employees. By adding “or services” to the statute’s original language, the legislature expanded the law’s reach beyond providers of physical labor and construction to providers of services such as information technology, accounting, or auditing. The requirement also applies to all subcontractors and sub-subcontractors.
The new Georgia law states that a public employer shall not enter into a contract with a private company unless the company registers and participates in E-Verify. To ensure compliance, the private employer’s bid or contract to provide labor or services must include a signed, notarized affidavit attesting that it uses E-Verify, that it will continue to use E-Verify, and that it will ensure that all sub-contractors will do the same. The affidavit must include the company’s federal work authorization user ID number and date of authorization.
Lastly, before any county or municipality in Georgia issues a business license, occupational tax certificate, or other document required to operate a business, the business applicant must provide an affidavit that it uses E-Verify, employs fewer or 11 employees, or is otherwise exempt from the E-Verify requirement. The affidavit also must include the affiant’s work authorization user ID number and date of authorization.
For more information, contact Chris Arbery.Read More
Hall, Arbery & Gilligan LLP partner Wit Hall has years of experience advising clients about federal government contract requirements including the drafting of affirmative action plans (AAPs), defense of compliance reviews and glass ceiling audits, and general compliance with Office of Federal Contract Compliance Programs (OFCCP) regulations.
We can help you navigate OFCCP rules, regulations, and procedures. Our firm can determine whether your organization is a covered contractor under Executive Order 11246 and its regulations; develop AAPs; train human resources and staffing personnel on compliance obligations; defend your organization during a compliance review or audit; and represent your organization during negotiation of conciliation agreements or defense of an OFCCP enforcement action.Read More
Many employers would be surprised to learn not only that undocumented workerscan sue for unpaid overtime under the federal Fair Labor Standards Act (FLSA), but also that company supervisors, officers, directors, and owners can be personally liable for such damages. In Lamonica et al. v. Safe Hurricane Shutters, Inc. et al. (No. 07-cv-61295), the federal 11th Circuit Court of Appeals (covering Georgia, Florida, and Alabama) recently held that two salaried workers were entitled to recover back pay, liquidated damages, and attorneys’ fees from their employer, a hurricane shutter installer, and two of the company’s owners. At trial, the plaintiffs were found to be non-exempt workers who were entitled to overtime.
The Court rejected arguments by the employer and two individual owners that the workers should be precluded from recovering back pay because one or both were undocumented aliensand allegedly used false social security numbers to obtain the jobs. Regardless of any alleged wrongdoing by the workers, the Court held, the employer still was responsible for payment of wages under the FLSA for work already performed. The Court distinguished a previous decision by the U.S. Supreme Court, Hoffman Plastic Compounds, Inc. v. NLRB (2002), which held that undocumented workers could not recover back wages for wrongful termination because they were not entitled to the job in the first place. In that case, the 11th Circuit observed, the workers had not already performed work for which they were seeking compensation.
Further, even though the two owners were minority shareholders and were not present in the workplace for more than a few days or weeks each month, the Court held that they had “sufficient control of the company’s financial affairs to cause the corporation to compensate or not to compensate employees in accordance with the FLSA,” and therefore they could be deemed “employers” along with the company. As a result, the Court held that the owners/board members were individually and personally liable to the plaintiffs.
This case highlights the importance to business owners and managers alike of ensuring that all employees are properly classified (as either exempt or non-exempt from overtime requirements) and compensated under the FLSA. Overtime pay requirements are applied rigidly and are the source of a surprisingly large amount of employment litigation. The best way to avoid such litigation is to have a qualified employment attorney conduct a privileged audit of pay practices, including an evaluation of all positions as either exempt or non-exempt.Read More
February 2013 – Two of the founding partners of Hall, Arbery & Gilligan LLP (Wit Hall and Chris Arbery) have been recognized as 2013 “Georgia Super Lawyers” as published by Atlanta Magazine. According to the selection committee, Super Lawyers are those who have “achieved excellence in their practice” and are selected based on peer recognition and professional achievement.Read More
February 2013 – Hall, Arbery & Gilligan LLP recently obtained dismissal of all claims in an employment case against its client, a nationwide retailer, on a successful motion to dismiss. The plaintiff, a former employee of the retailer, filed a complaint alleging various tort claims including intentional infliction of emotional distress, invasion of privacy, and tortious interference with business relations. The Superior Court of Cobb County, Georgia, granted the motion to dismiss on February 11, 2013.Read More