nova shrm january 2015 legal report

8/9/2019 NOVA SHRM January 2015 Legal Report

1/9

DOJ Extends Protection ToEmployees Based On Gender

Identity; 2014 District ofol!m"ia #e$ Employment %a$s

By: Lawrence P. Postol, Vice President For Legislative Affairs

[email protected]

D! "#tends Protection $o "mployees Based n %ender &dentity

Attorney %eneral 'older anno(nced in Decem)er, *+- that the ./. Department of

!(stice will ta0e the position in litigation that the protection of $itle V&& of the 1ivil 2ights Act of

34- e#tends to claims of discrimination )ased on an individ(al5s gender identity, incl(ding

transgender stat(s.

&n a memorand(m released )y the ./. Department of !(stice, 6$reatment of $ransgender

"mployment Discrimination 1laims nder $itle V&& of the 1ivil 2ights Act of 34-,7 Attorney

%eneral 'older concl(des that 6after considering the te#t of $itle V&&, the relevant /(preme

1o(rt case law interpreting the stat(te, and the developing 8(rispr(dence in this area, & have

determined that the )est reading of $itle V&&5s prohi)ition of se# discrimination is that it

encompasses discrimination )ased on gender identity, incl(ding transgender stat(s.7

&n the memo, 'older informed all Department of !(stice 1omponent 'eads and nited

/tates Attorneys that the Department will no longer assert that $itle V&&5s prohi)ition against

discrimination )ased on se# e#cl(des discrimination )ased on gender identity per se, incl(ding

transgender discrimination. &n doing so, 'older reverses a previo(s Department of !(stice

position on this topic.

9-3-v.*4


2/9

$he memo clarifies the 1ivil 2ights Division5s a)ility to file $itle V&& claims against state

and local p()lic employers on )ehalf of transgender individ(als. ote, however, that the

Department of !(stice does not have a(thority to file s(it against private employers.

evertheless, vario(s legal protections e#ist for employees in the private sector, incl(ding for

employees of government contractors.

&t sho(ld also )e noted that ; states have e#tended their nondiscrimination laws to

protect people )ased on se#(al orientation and gender identity.

*+- District of 1ol(m)ia ew "mployment Laws

ne legislative )ody in the District of 1ol(m)ia has )een )(sy this year . . . the D1

1o(ncil has enacted a corn(copia of new stat(tes in *+- that address many hot )(tton

employment iss(es


3/9

for e#pressing )reast mil0 proper seating light d(ty 8o) assignments temporary transfer to a

less stren(o(s position modifying e(ipment modifying wor0 sched(le and e#c(sing an

employee from heavy lifting.

An (nd(e hardship is defined as 6any action that re(ires significant diffic(lty in the

operation of the employer5s )(siness or significant e#pense on the )ehalf of the employer when

considered in relation to factors s(ch as the sie of the )(siness, its financial reso(rces, and the

nat(re and str(ct(re of its operation.7 An employer may also re(ire medical certification

regarding the need for reasona)le accommodations, provided it does so for other sit(ations

involving temporary disa)ilities >e.g., D1EFLA leave, ADA reasona)le accommodations, etc.?.

Violations of this law incl(de:

G 2ef(sal to ma0e reasona)le accommodations

G 2etaliation against an employee that re(ested an accommodation

G Denying employment d(e to the employer5s need to ma0e reasona)le accommodations

G Forcing an employee to accept an accommodation that is not necessary or

G 2e(iring an employee ta0e leave instead of offering an accommodation.

"mployers m(st post and maintain a notice of PP=FA rights in "nglish and /panish.

"mployers m(st also provide written notice to all new employees (pon hire and to all e#isting

employees within *+ days after the Act5s enactment date. Finally, employers also m(st provide

written notice to any employee that notifies the employer of her pregnancy or other condition

covered )y the Act, within + days of receiving s(ch notice.

"nforcement. PP=FA actions may )e )ro(ght in co(rt or thro(gh an administrative

complaint to the District of 1ol(m)ia Department of "mployment /ervices. Penalties for

violations incl(de )ac0 pay, 8o) reinstatement, attorney fees and costs, along with civil penalties

9-3-v.*4


4/9

ranging from H,+++ to H*,+++ per offense and an additional penalty of (p to H9+ per day for

each day an employer fails to provide the re(ired notice of rights. ota)ly, there is no stated

stat(te of limitations for claims (nder the PP=FA.

=age $heft Prevention Amendment Act of *+- >6=$PAA7?

$he =$PAA, which is pro8ected to ta0e effect on !an(ary -, *+9, significantly

modifies D15s vario(s wage laws.

ew Pay otice 2e(irements. =ithin 3+ days of the law5s effective date, employers

m(st provide every e#isting employee a written notice, in "nglish and in the employee5s primary

lang(age, containing:

G $he employer5s name and any 6d)a7 names it (ses

G $he employer5s main office or principal )(siness place address

G $he employer5s telephone n(m)er

G $he employee5s rate of pay, )asis of that rate incl(ding )y the ho(r, shift, day, wee0,

salary, piece, or commission, any allowances claimed as part of the minim(m wage, incl(ding

tip, meal or lodging allowances, or overtime rate of pay, e#emptions from overtime pay, living

wage, e#emptions from the living wage, and the applica)le prevailing wages

G $he employee5s reg(lar payday and

G Any other information deemed material and necessary )y D1.

ew employees m(st receive this notice (pon hire once the law goes into effect. $he

notice m(st )e amended whenever the a)ove information changes for a given employee >e.g.,

changes in pay rates?. $he notice m(st )e signed and dated )y the employer and the employee.

D1 will iss(e a template notice within 4+ days of the law5s effective date, altho(gh it is not yet

-9-3-v.*4


5/9

0nown whether it will provide any nonC"nglish templates. Fail(re to comply with the Act5s

notice re(irements s()8ects employers to fines of H9++ per employee.

odifications $o ther D1 =age Laws. $he law also amends the =age Payment and

=age 1ollection Law >6=P=1L7?, the Living =age Act >6L=A7?, the inim(m =age

2evision Act >6=2A7?, and the Accr(ed /ic0 and /afe Leave Act >6A//LA7? in several

respects:

G $he =P=1L now re(ires )oth FL/A e#empt and nonCe#empt employees to )e paid at

least twice a month and within one )(siness day following invol(ntary terminations >e#cl(ding

employees responsi)le for handling employer monies?.

G %eneral contractors are 8ointly and severally lia)le for their s()contractors5 =P=1L,

L=A and A//LA violations, and fail(re to pay wages (nder the =2A, altho(gh

s()contractors generally m(st indemnify general contractors for damages ca(sed )y s(ch

violations.

G "mployers li0ewise are 8ointly and severally lia)le for their staffing agencies5 =P=1L,

L=A, =2A and A//LA violations, with the staffing agency re(ired to indemnify its client

)arring an agreement to the contrary.

G egligent =P=1L and =2A violations are now p(nisha)le as misdemeanors.

G $here is a new, streamlined administrative process for =2A, L=A, A//LA and

=P=1L administrative complaints, and each stat(te now allows for a private ca(se of action

with remedies incl(ding )ac0 pay and reinstatement and, for the =2A, tre)le damages.

99-3-v.*4


6/9

G Any )(siness fo(nd g(ilty or lia)le in any 8(dicial or administrative proceeding of

committing or attempting to commit willf(l violations of these laws cannot )e iss(ed a license to

do )(siness for the threeCyear period following the violation.

G 1lass actions are now more via)le given that 6similarly sit(ated7 employees are now

defined as two or more persons employed )y the same employer at some point d(ring the

applica)le stat(te of limitations period who allege one or more violations that raise similar

(estions as to lia)ility and see0 similar relief. "mployees cannot )e considered dissimilar

simply )eca(se they see0 different amo(nts in damages or have different 8o)s.

G "mployers cannot retaliate against any employee who does or is )elieved to have done

any of the following:

G ade a complaint to his employer, the ayor, the D1 Attorney %eneral, any federal or

District employee, or any other person, that the employee reasona)ly )elieves in good faith that

his employer has violated any provision of the =P=1L, =2A or the L=A

G &nitiated or is a)o(t to initiate a proceeding (nder the law

G Provided information to the ayor, the D1 Attorney %eneral, any federal or District

employee, or any other person regarding a violation, investigation or proceeding (nder the law

G $estified or is a)o(t to testify in an investigation or proceeding (nder the Act or

G therwise e#ercised rights (nder the law.

G 2etaliation is pres(med to have occ(rred if an adverse action is ta0en against the

employee within 3+ days of any of the a)ove protected activities. "mployees can )ring a civil

action or file an administrative complaint asserting a retaliation claim (nder any of these stat(tes.

"mployers fo(nd lia)le for retaliation will )e s()8ect to a variety of penalties, incl(ding

49-3-v.*4


7/9


8/9

G Any information prod(ced )y or on )ehalf of the applicant to show his or her

reha)ilitation and good cond(ct since the offense.

An applicant that )elieves an adverse action was impermissi)ly ta0en )ased on a criminal

conviction has + days from the time of the adverse action to re(est the employer provide a

copy of all records o)tained in its consideration of the applicant. $he employer then has + days

to provide these records and also provide the applicant with a notice of his or her right to file an

administrative complaint with the D1 ffice of '(man 2ights.

"nforcement. $here is no private right of action (nder the law, meaning an aggrieved

person m(st file an administrative complaint with the D1 ffice of '(man 2ights. Penalties for

employers violating the law range from H,+++ to H9,+++ depending on the employer5s sie, with

half of the penalty going to the complainant.

"arned /ic0 and /afe Leave Amendment Act of *+

$he Basics. As originally reported, this law, which officially too0 effect on Fe)r(ary **,

*+- )(t was not added to the District )(dget (ntil cto)er *+-, significantly amended and

e#panded the protections afforded to wor0ers )y the D1 Accr(ed /ic0 and /afe Leave Act of

*++;. 1overage was e#tended to resta(rant wait staff and )artenders who receive grat(ities, tips,

or commissions, who can accr(e (p to five >9? days of leave each year >paid at the minim(m

wage rate? regardless of the employer5s sie, as well as to temporary employees and employees

wor0ing at an employer thro(gh a staffing company.

2ather than having to wait a year and wor0 at least ,+++ ho(rs to accr(e leave,

employees can now immediately accr(e leave (pon hire for (se after 3+ days of employment.

"mployees rehired within * months, or employees ret(rning to the District after having )een

;9-3-v.*4


9/9

transferred o(t of the District, can immediately access any accr(ed leave remaining from their

prior employment or time wor0ing in the District.

"mployers m(st retain records doc(menting ho(rs wor0ed and leave ta0en )y employees

for three >? years. Fail(re to maintain these records creates a pres(mption of a violation if a

disp(te arises regarding an employee5s entitlement to leave.

"nforcement. $he amended law now allows for a private right of action for the first time.

Also, the antiCretaliation provisions have )een dramatically strengthened )y adding a

pres(mption of retaliation any time an employer ta0es an adverse action against an employee

within 3+ days of the employee engaging in activity protected )y the law.

&n all, *+- was an (nprecedented year of employment law change for District

employers. 1ompanies with employees in the District need to (nderstand these new laws, train

their managers and modify their policies and proced(res to ens(re compliance with the

increasingly comple# we) of D1 employment laws and ens(re a tr(ly 'appy ew Jear

K *+9 )y Lawrence Postol

&f yo( have any (estions a)o(t the information in this article, yo( may eCmail r. Postol at [email protected] call him at *+*C;*;C9;9.

Disclaimer: $his newsletter does not provide legal or other professionalservices. $his newsletter is made availa)le )y the lawyer p()lisher for ed(cational

p(rposes only as well as to give yo( general information and a general(nderstanding of the law, not to provide specific legal advice. By reading thisnewsletter yo( (nderstand that there is no attorneyCclient relationship )etween yo(and the newsletter p()lisher. $he newsletter sho(ld not )e (sed as a s()stit(te for

competent legal advice from a licensed professional attorney in yo(r state.

39-3-v.*4

nova shrm january 2015 legal report

Documents