“Good Faith vs. Retaliation” in Sexual Discrimination Retaliation Cases

In Villa v. Cavamezze Grill, LLC, 858 F.3d 896 (2017), the U.S. Court of Appeals for the Fourth Circuit considered whether the an employer’s good faith belief in an employee’s misconduct could serve as a defense to a retaliation claim. In this case, the plaintiff told her employer that employees were offered money in exchange for sex. The employer investigated the specific allegations and came to a good faith determination that the plaintiff was lying, and she was terminated. The plaintiff subsequently filed a complaint alleging retaliation under Title VII.

Title VII’s anti-retaliation provision makes it illegal for an employer to retaliate against employees for opposing or participating in a complaint process against any of its employees. The first part, known as the “opposition clause,” prohibits discrimination when the employee has opposed any employment practice made unlawful by the statute. The second part, known as the “participation clause,” prohibits discrimination when an employee has made a charge, testified, assisted, or participated in an investigation, proceeding, or hearing under Title VII.

The Court noted that Title VII retaliation claims  require proof that the desire to retaliate was the “but-for cause of the challenged employment action,” that is, that the employee was terminated because he or she engaged in protected activity. The Court rationalized its decision, holding that the facts the employer actually perceived matter, and held that if an employer, due to a genuine factual error, never realized that its employee engaged in protected conduct, then the employer did not act out of a desire to retaliate against an employee. The Court noted that evidence of an obviously improper investigation could show that the claimed employee conduct was actually a pretext for terminating an employee for protected activity, but the plaintiff had already conceded that this was not the case. Based on the facts in this case, the Court found that the plaintiff failed to show that her employer was motivated by a desire to retaliate against her for engaging in conduct that was protected.

This case demonstrates the importance of having appropriate policies in place to fully investigate allegations of sexual harassment and discrimination. Employers should thoroughly investigate any allegations of harassment and document both the basis for any conclusions and the basis for any actions taken subsequent to the investigation. An employer needs to be able to justify its actions in terminating an employee, and ensure that the reason for termination is not actually a pretext for retaliation against the employee.

 

U.S. Department of Labor Reverses “Joint Employer” Standard

The U.S. Department of Labor recently announced its departure from the Obama-era “joint employer” standard.  The joint employment standard relates to an interpretation of the Federal Fair Labor Standards Act (“FLSA”), which dictates the standards and circumstances in which a business could be liable for various wage-law violations.  In 2016, the Department of Labor issued guidelines with a broader interpretation of the term “joint employment” to include a company that had “indirect control” over workers.  The broader interpretation in 2016 caused significant concerns for businesses, particularly those utilizing the franchise business model.

Additionally, the Department of Labor also withdrew guidance related to independent contractor classifications.  In 2015, the Department of Labor issued a statement noting that many workers are improperly identified as independent contractors, when they should be classified as employees and entitled to various protections under the law.  The 2015 guidance was intended to help make more workers eligible for minimum wage coverage, overtime, and other protections.

The current shift away from the 2015 and 2016 guidance is generally favorable to businesses.  Proponents of this change believe that the language implemented in 2015 and 2016 guidance was too ambiguous and opened the door to excessive litigation.  Many business owners believe the prior guidance is easier for companies to understand and comply with.  Specifically, franchisors are pleased with the shift back to “direct control” as the standard for determining whether a franchise is a joint employer.  Franchise owners have argued that the  Obama-era standard made it difficult to create new jobs.

Proponents of the 2105 and 2016 guidelines argued that the broader language of the joint employment benefits for workers, and to prevent employers from avoiding paying for unemployment insurance or payroll taxes.

The guidance issued by the Department of Labor does not have a binding effect, but it provides insight as to the Department’s goals and priorities.  The Department of Labor’s recent guidance changes signal a more employer-friendly approach than the previous administration had taken.

Massachusetts “High” Court Finds Wrongful Termination in Medical Marijuana Case

On July 17, 2017, the Massachusetts Supreme Court held that an employee who was terminated after she tested positive for marijuana could sue her employer for disability discrimination. In the case of Barbuto v. Advantage Sales and Marketing, LLC, an employee brought suit against her employer for disability discrimination. At the outset of her employment, the plaintiff was required to take a mandatory drug test and advised the employer that she uses medical marijuana to treat her Crohn’s disease, for which she held a valid prescription pursuant to Massachusetts law. The plaintiff alleged that she did not use marijuana on a daily basis, nor did she use marijuana before or during work. The plaintiff worked one day before being terminated for testing positive for marijuana. The representative of the employer who terminated the plaintiff advised that the employer follows federal law regarding marijuana use.

The employer argued before the Massachusetts Supreme Court that because marijuana is illegal under federal law, there is no obligation for an employer to accommodate an employee’s use of medical marijuana. The employer relied on similar cases throughout the country that support this proposition, which have consistently held that an accommodation for medical marijuana is not required to be provided by the employer. Courts in states including California, New Mexico, Oregon, Washington, Montana, and Colorado have all held that there is no duty for private employers to accommodate the use of medical marijuana, and that employers may terminate employees for positive drug testing.

In a decision that is the first to go against the tide of national cases finding that accommodation for medical marijuana is not required, the Court in Barbuto found that an employee could sue an employer for disability discrimination for failure to accommodate medical marijuana use, and that an accommodation for medical marijuana use is not facially unreasonable. The Court held that because the plaintiff’s physician opined that marijuana is the most effective treatment for her condition, and that any other permissible medication would have been less effective, an exception to the employer’s drug policy to permit medical marijuana use was a facially reasonable accommodation. The Court also cited the text of the Massachusetts medical marijuana act, which declares that patients shall not be denied “any right or privilege” on the basis of medical marijuana use. Accordingly, the Court determined that if accommodation of medical marijuana was treated as a per se unreasonable accommodation, the employee would effectively be denied the “right or privilege” to reasonable accommodation for medical marijuana use.

The Court made clear that use of marijuana before or during work continues to be impermissible. Furthermore, the Court was also careful to note that the plaintiff may not ultimately prevail on the merits of her disability discrimination case, and remanded this matter to the Superior Court for further consideration of the issue of whether accommodating the plaintiff’s medical marijuana use would cause an undue hardship on the employer’s business.

This case is significant because it is the first time a state’s high court has ruled that employees who use medical marijuana may have protection from termination from their employment. This decision is a marked departure from other cases on this issue to date, which have all relied on marijuana’s status as a Schedule I controlled substance under federal law to hold that employees who use medical marijuana are not protected from adverse employment actions. Maryland courts have not weighed in on this issue, and there are no explicit employment protections for medical marijuana use in Maryland’s medical marijuana statute. As this case is so recent, it is unclear whether the decision of the Massachusetts Supreme Court represents an aberration from the rest of the country on this issue or whether this case will signal a new trend in medical marijuana litigation

For more information on this article, contact Sarah Lemmert at slemmert@fandpnet.com.

Maryland Law Updates

“Equal Pay for Equal Work” Maryland Labor and Employment § 3-301

Effective October 1, 2016, this law prohibits employers from “providing less favorable employment opportunities” based on sex or gender identity. Examples of “less favorable employment opportunities” include anything from assigning an employee to a less favorable career track or position, failing to provide information about promotions, or limiting or depriving an employee of opportunities that would otherwise be available to the employee but which are not offered because of sex or gender identity.

Employers are prohibited from paying one wage to an employee of one sex or gender identity at a rate less than the rate paid to another employee of a different sex or gender identity so long as both employees work in the same establishment and perform work of comparable character or work in the same operation, business, or of the same type.

To adjust for any unlawful wage disparity, employers are not permitted to reduce any employee’s wages. If an adjustment is necessary for compliance, the employer may only increase an employee’s wages. Of course, the law does permit wage variances in certain scenarios: a seniority system, a merit increase system, jobs requiring different skills or regular performance of different duties or services, work performed on different dates and/or times, a system measuring performance based on quality/quantity/production, and education, training, or experience.

In addition, House Bill 1004 established an Equal Pay Commission on June 1, 2016. The Commission will be responsible for collecting and reviewing data from employers for wage disparities considering factors such as race, sex, or gender identity. The Commission will also be responsible for recommending practices for equal pay for equal work and assisting in enforcement.

Montgomery County Sick Leave Paid Law

Effective October 1, 2016, employees working in Montgomery County are entitled to paid sick leave which will accrue at a rate of 1 hour for every 30 hours that employee works within the County. Those working for businesses with five or more employees are entitled to a maximum of 56 hours of earned paid sick leave annually. Those working for businesses with less than five employees are entitled to a maximum of 32 hours of earned paid sick leave annually and 24 hours of unpaid sick leave. An employee may ‘carry over’ up to 56 hours. Only employees working more than eight hours each week are covered by the legislation.

Many businesses, including some of the largest employers in Montgomery County, will be unaffected by this law as they already offer their employees at least 56 hours of paid sick leave annually. Paid sick leave does not mean the employee has to be sick, other reasons include caring for a family member or child care when schools and daycare facilities are closed. Montgomery County employers must determine how many hours of sick leave they are granting their employees to ensure compliance with the new local law.

National Guard Employment Rights Maryland Public Safety § 13-307

Effective October 1, 2016, members of the National Guard whose employment rights have been violated may bring a civil suit for economic damages. A court may order such damages upon a finding that the employment and/or reemployment rights were violated. This state law is in addition to the rights already granted to members of the National Guard under federal law.

New Competition for Non-Compete Agreements

In October 2016, the White House issued a “State Call to Action on Non-Compete Agreements.” The Call to Action notes that nearly one in five US workers have entered into a non-compete agreement, and roughly one in six of those workers are without a college degree. The Call to Action urges state legislatures to pass laws that curb the use of non-compete agreements because research revealed that “states that strictly enforce noncompete agreements have lower wage growth and lower mobility than states that do not enforce them.”

The White House proposed three different ways that legislatures can reduce misuse of noncompete agreements. First, the White House proposed that certain categories of workers should not be eligible for non-compete agreements, such as workers who are unlikely to possess trade secrets or workers who were laid off or terminated without cause. Second, the White House encouraged greater transparency by only upholding non-competes that were proposed prior to the acceptance of a job offer or promotion. Finally, the White House proposed policies that would make agreements that contain unenforceable provisions entirely void, in order to incentivize employers to draft more reasonable non-compete agreements.

In Maryland, a non-compete agreement will only be enforced if it meets the following four requirements: “(1) the employer must have a legally protected interest, (2) the restrictive covenant must be no wider in scope and duration than is reasonably necessary to protect the employer’s interest, (3) the covenant cannot impose an undue hardship on the employee, and (4) the covenant cannot violate public policy.” Recently, in Seneca One Finance, Inc. v. Bloshuk, No. RWT 16-cv-1848, 2016 WL 5851626, (D. Md. 2016), the United States District Court for Maryland held that provisions of a non-compete agreement for an employee who had worked as a purchasing manager for a company involved in purchasing structured settlement annuities and deferred payment plans for lump sum payments was overbroad. In the Bloshuk case, a purchasing manager was responsible for managing the day-to-day relationships with structured settlement annuitants and building relationships with prospective customers. It was alleged that prior to her resignation, Ms. Bloshuk discouraged a potential customer of Seneca One, and once Ms. Bloshuk began working at her subsequent employer, she solicited the business of the customer she discouraged from engaging with Seneca One. The non-compete agreement in the Bloshuk case read as follows: “While [employee is] employed by Seneca One and for 12 months after the termination of [her] employment for any reason, [she] will not directly or indirectly, for [herself] or on behalf of any other person or entity, engage in the same or similar business as Seneca One in any of the markets in which Seneca One has provided products or services or formulated a plan to provide products or services.”

The Court found the non-compete agreement to be overbroad for a number of reasons. First, it noted that the agreement prevented Ms. Bloshuk from engaging directly or indirectly in the same or similar business as Seneca One. The Court noted that Seneca One conducted business across the United States, and by preventing her from working for similar businesses or competing indirectly, Seneca One’s non-compete clause was overbroad. In fact, the Court stated, “the provision at issue here is not reasonably necessary to protect any goodwill that Ms. Bloshuk created with customers and serves only to limit her potential employers.” The Court also found the non-competition agreement to be overbroad in geographic scope. The Court stated that “Any attempt to enforce a non-competition provision that prohibits a former employee from pursuing her chosen career anywhere in the country is legally troublesome at best.” The Court further noted that “Courts interpreting Maryland law have at times found non-competition provisions lacking a geographic limitation to be reasonable. But these provisions have generally been more narrowly tailored as to the scope of activities prohibited.” The Court ultimately dismissed Seneca One’s claims that Ms. Bloshuk breached her non-competition agreement.

In light of the White House’s Call to Action and the Bloshuk opinion, it would be prudent for employers that utilize non-compete agreements to consider revisiting the procedures for entering into non-compete agreements (i.e. making the agreements available to new hires when the offer of employment is made) as well as narrowly tailoring non-compete language to protect the goodwill created with customers or to dissuade the misuse of trade secrets, in order to strengthen the chances of the non-compete agreement being held as valid. There certainly remain scenarios in which non-compete clauses are necessary to protect the interests of the employer. However, employers should be aware of recent movements and decisions that reduce the enforceability of such contracts.

Recent Case Law Gives Insight on Employer “Rights” and “Responsibilities” Under the FMLA

Recent decisions of the U.S. Court of Appeals for the Fourth Circuit have provided guidance for employers as to their rights and responsibilities under the Family Medical Leave Act (FMLA).

Employers’ Responsibilities

On June 28, 2016, the Court issued its opinion in the case of Vannoy v. The Federal Reserve Bank of Richmond, in which it held that an employer may be liable for a violation of the FMLA even if it grants an employee’s request for medical leave. The Court found that a defective “Rights and Responsibilities” notice which omitted information about the right to reinstatement may have interfered with the employee’s understanding and exercise of his rights under the FMLA.

Vannoy, an employee of the Federal Reserve Bank of Richmond, was battling depression and alcoholism. The bank was aware of this condition and made efforts to accommodate his condition. In November 2010, Vannoy was hospitalized for psychiatric treatment where it was recommended that he complete a 30-day inpatient rehabilitation program. Around this time, the bank granted his request for one month of leave under the FMLA (which was submitted as an application for short term disability). The bank sent Vannoy a notice of his FMLA rights and responsibilities, but the notice did not include any reference to job protection rights under the FMLA. Vannoy returned to work with a doctor’s note before the expiration of the month of approved FMLA leave and did not enter into the recommended inpatient treatment program. Vannoy testified that he was fearful that taking extended time off from work would result in termination. Vannoy was subsequently terminated after failing to report for a three-day work assignment in Baltimore. In his suit against the bank, Vannoy claimed that he would have stayed on leave longer if he was aware of his restoration rights.

The Fourth Circuit reversed the district court’s finding of summary judgment in favor of the bank, and held that there was sufficient evidence to show that Vannoy would have exercised his rights under the FMLA differently had he known his job would be protected. Thus, the Fourth Circuit found that the evidence presented was sufficient to show prejudice to Vannoy for the bank’s failure to provide the requisite notice of the right to reinstatement under the FMLA.

Employers’ Rights

On October 31, 2016, the Court decided the case of Sharif v. United Airlines, Inc., holding that the termination of an employee for fraudulently using FMLA leave is not considered “retaliation” under the FMLA. Sharif, an employee of United, took a scheduled vacation with his wife (also a United employee) from March 16 through April 4, 2016. Sharif was unable to obtain approval for his scheduled shift on March 30, 2016, and on the morning of March 30, 2016, Sharif called United and requested intermittent FMLA leave pursuant to an existing FMLA certification for an anxiety disorder. United noticed the suspicious timing of the FMLA request for the only shift Sharif was scheduled to work in the middle of his vacation and mounted an investigation. Upon questioning, Sharif provided a number of inconsistent stories regarding his understanding of his schedule that day, including suffering a panic attack and an inability to secure a return flight back to the United States. Upon receiving notice of United’s intent to terminate his employment in light of the FMLA abuse and lying during the investigation, Sharif decided to retire. Subsequently, Sharif filed suit against United, alleging retaliation for his use of FMLA leave.

The Fourth Circuit upheld the district court’s granting of summary judgment in favor of United. The Court relied on the FMLA’s implementation of regulations that an employee who fraudulently obtains FMLA leave is not protected by the Act’s provisions. The Court stressed the importance of preventing the FMLA from being abused and held that United had made a “reasonably informed and considered” decision before terminating Sharif.

These recent Fourth Circuit cases it make clear that employers should be fully aware of both their rights and responsibilities under the FMLA in order to avoid costly litigation. While the Court has confirmed an employer’s right to terminate employees after a thorough investigation into FMLA abuse, it has also confirmed that employers should always ensure compliance with FMLA requirements in issuing notices to employees regarding their rights under the FMLA.

“Exempt” is Over: A Review of the New Regulations for “Overtime-Ineligible” Employees

As featured in Behind the Wheel, a quarterly publication of the Maryland Motor Truck Association.  By Bert Randall and Matthew Kuspa

The U.S. Department of Labor (“DOL”) has issued new overtime regulations which are currently scheduled to go into effect on December 1, 2016. In Maryland alone, an estimated 79,630 currently nonexempt employees (1.9% of the working population) will become entitled to overtime under the new regulations.

Under the old regulations, executive, administrative, or professional employees (EAPs) were generally “exempt” from overtime if they performed certain job duties (the “duties test”) and were paid a salary (the “salary basis” test) of not less than $455 per week (the “salary level” test). Highly compensated employees (HCEs) were exempt from overtime if they were paid at least $100,000 and passed a “minimal duties” test, meaning that they customarily and regularly performed at least one of the exempt duties of an exempt EAP.

Under the new regulations, the DOL will now refer to nonexempt employees as “overtime-protected” or “overtime-eligible,” and exempt employees will be referred to as “overtime ineligible” or “not overtime-protected.” The new regulations do not make any changes to the duties tests for either EAPs or HCEs, however, the salary levels will be raised substantially for both overtime-ineligible EAPs and HCEs. Finally, in meeting the new standard salary level for overtime-ineligible EAPs, employers will be allowed to include non-discretionary bonuses and make “catch-up” payments as needed.

Raising the Salary Levels

The DOL has set the new “standard salary level” for EAPs at the 40th percentile of full-time salaried workers in the lowest-wage Census Region in the United States. Based on data from 2015, the standard salary level will increase from $455 per week to $913 per week (or from $23,660 per year to $47,476 per year), effective December 1, 2016.

The salary level for HCEs will also change, and will now be set to the 90th percentile of full-time salaried workers nationally. Based on census data from 2015, the new salary level for HCEs will be $134,004, also effective December 1, 2016.

Part of the purpose of tagging the salary levels to census data is to allow for “automatic updates” to the salary levels for EAPs and HCEs. The first update to the salary levels will take effect on January 1, 2020, and salary levels will be updated every three years thereafter. The DOL will calculate the new salary levels based on data from the second quarter of the year preceding the update, and will post the new salary levels at least 150 days prior to each update (or August 4th of the preceding year).

Bonuses and “Catch-Up” Payments

Employers are now permitted to count nondiscretionary bonuses, incentives, and commissions toward up to 10% of the standard salary level for overtime-ineligible EAPs. Examples of such “non-discretionary” payments include bonuses that are announced to employees to encourage them to work more steadily, rapidly, or efficiently (in other words, bonuses tied to productivity or profitability), and bonuses designed to encourage employees to remain with the employer. Examples of “discretionary” bonuses include unannounced bonuses or spontaneous rewards for specific acts.

In order to be counted toward the standard salary level, non-discretionary bonuses must be paid at least quarterly. In some situations, the bonuses may be less than expected and an EAP’s weekly salary plus bonuses for the quarter will not equal or exceed one-quarter of the yearly salary level. In such a case, the DOL will permit employers to make a “catch-up” payment no later than the pay period after the end of the quarter to raise the employee’s salary to the standard salary level.

Motor Carrier Exemption

Section 13(b)(1) of the Fair Labor Standards Act, also known as the “motor carrier exemption,” continues to provide an overtime exemption for employees regulated by the Department of Transportation (DOT). Drivers who transport goods across state lines and certain other employees whose duties may affect the safety of motor vehicles in interstate commerce generally fall within DOT jurisdiction and are not entitled to overtime under FLSA, even if they also work on intrastate routes. The new regulations do not affect the motor carrier exemption. Under Maryland law, state overtime law does not apply to employees regulated by the Department of Transportation.

Options for Employers

Employers may increase the salary of newly overtime-eligible employees to keep the employee exempt from overtime. This may be a good option for employees who have salaries slightly under the new exempt salary level.

Employers may also choose to keep salaried employees that will now be overtime-eligible at the same rate of pay and pay overtime as needed. There is no requirement that employers convert employees from salaried to hourly in order to pay overtime. Employers may instead calculate an employee’s rate of pay by dividing the total pay for the employee in any workweek by the total number of hours actually worked, and use that rate to pay the salaried employee overtime.

Preparing for the Change

In preparing for the change on December 1, 2016, employers should consider:

  • Identifying employees who are at or near the new standard salary level,
  • Preparing early by having salaried employees who are newly “overtime-eligible” track their time in anticipation of the change,
  • Developing policies for tracking time for employees who work remotely and/or are issued a company computer or cell phone, and
  • Evaluating bonuses to determine whether they are “discretionary” or “non-discretionary” and reviewing and adjusting their compensation schemes and policies accordingly.

Private employers may also refer to guidance issued by the DOL on the final overtime rule (available at https://www.dol.gov/). Whether employees are “exempt,” “overtime ineligible,” or “not overtime-protected,” employers will have to pay much closer attention to employee compensation and overtime work as the regulations continue to update.

Editor’s Note: On November 22, 2016, a federal judge in the Eastern District of Texas issued a nationwide injunction halting the new overtime regulations until the court rules on challenges against the validity of the regulations.

What does this mean for employers? For now, the overtime rule will not take effect as planned on December 1, 2016 but it could still be implemented at some point in the future. Employers may continue to follow the existing overtime regulations until a final decision is reached, but should be aware that there is a possibility that the rule could be enforced retroactively, and should carefully track the hours of employees who will be affected by the changes. Those employers who have already reclassified employees have the option of proceeding forward with implementation of the new rules.

 

New Case Law Aids Employers in Recognizing Title VII Retaliation

As the Equal Employment Opportunity Commission regularly reminds us, retaliation is the most frequently alleged form of discrimination. A recent decision from the United States District Court for the District of Maryland, Stennis v. Bowie State University, provides an instructive interpretation of the law by addressing an alleged case of retaliation under Title VII.

Stennis, a former professor at Bowie State University, filed a complaint alleging that the University unlawfully retaliated against her after she voiced concerns that her supervisor was discriminating against certain students on the basis of their gender and sexual orientation. After raising her concerns, she alleged that her supervisor sent her “threatening and intimidating” emails and reduced her teaching duties and departmental roles. The supervisor was also part of the department’s faculty review committee, which voted against recommending Stennis for tenure.

Despite the non-recommendation, Stennis received tenure on June 1, 2014. She alleged that the hostilities from her supervisor continued, and she resigned on August 15, 2014. Stennis then filed a charge of discrimination on August 20, 2014, five days after she resigned, alleging retaliation and constructive discharge.

After Stennis filed her complaint in federal court, Bowie State filed a motion to dismiss her claim. As the court noted in addressing the motion to dismiss, an employee bringing a charge of retaliation must allege that: “(1) he engaged in a protected activity; (2) the employer took an adverse employment action against him; and (3) a causal connection existed between the protected activity and the asserted adverse action.”

As to the first element, the court reviewed the two types of protected activity: participation activities and opposition activities. Participation activities are those activities which arise from participating in an EEOC complaint, such as making a charge of discrimination or participating in the investigatory process. However, the EEOC process must have commenced in order for an employee to be protected under the participation clause. Since Stennis did not file her charge until after she resigned, she could not claim that Bowie State was “retaliating” against her, because the complaint process had not yet begun.

Opposition activities, generally, are activities which oppose an employer’s illegal discriminatory Franklin & Prokopik 3 A Professional Corporation employment practice. Among other things, opposition activities may include refusing to obey an order because of a reasonable belief that it is discriminatory, or complaining or protesting about an employer’s alleged employment discrimination. In this case, however, the activity that Stennis opposed was discrimination against students, not employees. Since Equal Employment Opportunity laws do not protect non-employee students, Stennis’ activities were not opposition activities and were not protected under Title VII.

As to the second element, the court noted that adverse employment actions are only those which cause significant injury or harm. Stennis alleged that her supervisor acted with hostility toward her and erected barriers to her tenure application. As the court noted, Stennis’ complaints included vague references to threatening and intimidating emails, allegedly unwarranted criticisms of her tenure dossier, and a non-recommendation for tenure. Under the circumstances, the court found that these allegations amounted to no more than unactionable “personal slights.”

While Stennis’ complaints of a reduction in duties and responsibilities could be actionable, she failed to show that these reductions caused her significant harm. Stennis alleged that her supervisor’s actions had the combined effect of reducing her professional standing and hindering her tenure capacity. However, she ultimately received tenure regardless, and remained in high enough professional standing to obtain another teaching position at Coppin State University. Likewise, the granting of tenure showed that the allegations did not rise to the level of constructive discharge, which “occurs when an employer deliberately makes an employee’s working conditions intolerable and thereby forces him to quit.”

As this case demonstrates, the line between an actionable claim and a non-actionable claim for discriminatory retaliation is not always clear, and in some cases may even depend on the stage of the complaint at the time of the alleged discrimination. As a practical matter, this case is an excellent reminder for employers that participation activities and opposition activities are protected under the law, and a reminder to recognize such activities when they arise and refrain from retaliation.

For more information about this article, please contact Matthew G. Kuspa at 410.230.3051 or mkuspa@fandpnet.com.

Washington, D.C. Adopts Paid Parental Leave Bill

On December 20, 2016, the District of Columbia City Council passed the Universal Paid Leave Act (UPLA), one of the nation’s most expansive parental leave laws. The new legislation grants all full-time and part-time workers eight weeks of paid leave following childbirth, adoption or fostering of a new child. The law also provides for six weeks paid leave to assist ailing family members and two weeks paid leave for personal medical emergencies.

The law, which passed by a “veto-proof ” 9-4 vote, only includes private sector workers and excludes federal and city employees. There is no residency requirement for employees to qualify under this law; employees can reside in other cities and states and only need to be employed in the District of Columbia to be eligible. The leave program will be funded by a payroll tax increase of 0.62%. Eligible employees will receive 90% of their weekly wages with a cap at $1,000.00 per week. D.C. will begin collecting the increased payroll tax from employers in 2019 and will begin paying benefits under the UPLA to employees in 2020. The measure passed over opposition from the District of Columbia Chamber of Commerce and Mayor Muriel Bowser, who expressed concern regarding the taxation of D.C. businesses to benefit workers who largely live outside of the city and the logistics of the administration of the plan. Unless overridden by Congress, the act will become law.

The federal Family Medical Leave Act provides up to 12 weeks of unpaid leave during a 12 month period to care for a newborn, adopted or foster child, to care for a sick family member or for personal medical reasons. Data from the Bureau of Labor Statistics National Compensation Survey indicates that 12% of private sector workers in the U.S. have paid family leave

D.C.’s Universal Paid Leave Act represents one of the nation’s most generous paid parental leave laws and may signal a trend across the country. D.C. joins California, New Jersey and Rhode Island in offering paid family leave and New York’s 12-week paid parental leave law that becomes effective on January 1, 2018. The state of California and the city of San Francisco have also recently expanded parental leave laws. Additional paid leave legislation has been introduced or is being pursued in many other states throughout the country. Further, the national trend toward paid sick leave laws has also been gaining momentum at both the state and local levels. Whether the trend in paid sick leave will translate to increased passage of paid family leave legislation remains to be seen.

For more information about this article, please contact Sarah S. Lemmert at 410.230.3075 or slemmert@fandpnet.com.