Yesterday the Arizona Supreme Court issued a death knell to the pending legal challenge to Prop. 206. As you will recall from our blog post, last November our citizenry passed a referendum that raised the minimum wage and imposed mandatory paid leave on employers. The minimum wage hike took effect in January, while the paid leave provision becomes effective in July. The ensuing legal challenge to Prop. 206 found no traction, and met its demise yesterday when the Court unanimously rejected the appeal. Given the exigencies of the situation, the Court issued its ruling without a supporting opinion, but promised to publish an actual opinion when ready to do so. It appears that Prop. 206 is the law of the State, and only constitutional/political solutions remain. In the meantime, hello minimum wage hikes and paid leave.
By Bill Wright
By creatively patching together scheduled days off, vacation days, and personal holidays, and then switching a shift, the plaintiff put together 21 days off. Unfortunately, he was still scheduled for one shift right in the middle of the time off. He and his wife flew to Cape Town, and when his work shift rolled around, he called in to claim previously approved intermittent FMLA leave. He called in the middle of the night US time and so no one asked any questions, but his use of FMLA was flagged as questionable two different ways – first because it was for one shift in the middle of 21 days off and second because it coincided with his wife’s vacation from the same employer.
When he returned to work, human resources questioned him. He couldn’t seem to recall the relevant events at first, but eventually recounted that he had been trying to find a flight home for his shift and suffered a recurrence of his condition; consequently, he legitimately used FMLA time. The employer disbelieved him and fired him for FMLA fraud.
Tellingly, when the plaintiff sued, he did not bring an FMLA interference claim. That seems like what he’d do if he had actually used FMLA leave. Instead he filed only an FMLA retaliation claim. The court granted the employer summary judgment because “it seems perfectly logical” for the employer to conclude the employee “did not want to interrupt his Cape Town vacation to come back for one day of work,” and there was no evidence that the allegation of fraud was a pretext for FMLA retaliation.
At issue in the case was the thoroughness of the employer’s investigation. Here, HR let the employee write a statement, with union support, and asked for documentation to support his story. Under the circumstances, the decision was “reasonably informed and considered.” Sharif v. United Airlines, Inc., No. 15-1747 (4th Cir. Oct. 31, 2016)
By Lori Wright Keffer
On September 7, 2015, President Obama issued an executive order that will require federal contractors and subcontractors to provide their employees with up to seven or more paid sick leave days a year. The Order gives requirements for accrual, carryover, and payout of the leave, including that: (i) employees must accrue at least 1 hour of paid sick leave for every 30 hours worked (up to at least 56 accrued hours); (ii) unused paid sick leave hours carry over to the next year; but (iii) employers don’t have to pay employees for unused accrued sick leave upon termination. Employees may use the leave to care for themselves, a family member, or even a loved one, or for absences resulting from stalking, sexual assault, or domestic violence. For additional information regarding the specific requirements and conditions of the Order, see https://www.whitehouse.gov/the-press-office/2015/09/08/executive-order-establishing-paid-sick-leave-federal-contractors.
Stay tuned for the details. The Secretary of Labor will issue regulations by September 30, 2016 and the Order is to apply to federal contracts entered into after January 1, 2017. Non-federal contractors should also beware, as this looks like another example of the Administration laying the groundwork to expand federal contractor requirements to all employers over time.
See our other previous posts warning Federal Contractors:
Federal Contractors Beware – Part 1
Federal Contractors Beware – Part 2
Federal Contractors Beware – Part 3
Federal Contractors Beware – Part 4
Federal Contractors Beware – Part 5
Federal Contractors Beware – Part 6
Federal Contractors Beware – Part 7