Employment Law Update

1. Employment Law Update Presenters: Eric de los Santos, TrueBlue, Inc.John Nolan, Jackson Lewis, P.C. Marjory Robertson, Sun Life Financial David Stringer, The Progressive

2. Which employment law trends/issues keep you up at night? (Choose up to 3) POLL QUESTION: • FLSA Misclassification Issues • Co-employment / Joint Employer Issues • Recent NLRB Decisions • Increased Agency Enforcement & Systemic Initiatives • Leave Absence Management • Class / Collective Action Waivers • Proliferation of State Employment Laws • Background Check Compliance • Other

3. What’s New in 2016? • Recurring Themes • Co-employment / Joint Employer Liability • Impact of Recent NLRB Decisions • Proliferation of State Laws • Increased Agency Enforcement & Systemic Initiatives • What does this all mean and what should we be doing?

4. POLL RESULTS: Top 3 Employment Law Trends / Issues:

5. WAGE & HOUR UPDATE

6. Wage and Hour Legal Trends Update • Wage & Hour Issues • Wage & Hour claims represent over 90% of the employment class actions filed every year • Federal wage & hour lawsuits filed nationally have increased more than 400% since 2000, with a record high in 2015 of 8,781 • Employee Misclassification • Exempt v. Non-Exempt Status • New White Collar Exemption Regulation • Resulting in the failure to pay overtime wages, failure to provide meal and rest breaks, and to account for off-the-clock work • Expansion of joint employer liability • Pay Practices Issues Continue to Evolve Even at the State & Local Level • Arbitration with Class Action Waiver to the Rescue?

7. White Collar Exemptions Rationale for white collar exemptions: Typically earn salaries well above the minimum wage and enjoy other privileges that compensate them for longer work hours—fringe benefits, job security, advancement. Work cannot be dispersed easily to other workers. • Salary basis test: Employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed. • Salary level test: The amount of salary paid must meet a minimum specified in the regulations. • Duties test: Primary duties must involve executive, administrative, or professional duties, as defined in regulations.

8. Changes: Salary Level Will Increase • New salary level for White Collar Exemptions: equal to the 40th percentile of weekly earnings for full-time salaried workers based on BLS data: • $913 per week or $47,476 a year. • BLS began tabulating data in 2015 at the request of the DOL. • New salary level for Highly Compensated Exemption: equal to the 90th percentile of earnings for full-time salaried workers based on BLS data: • Final Rule is $134,004 per year--$2,577 per week. • HCE only requires employee to have one exempt duty, effectively amounting to anyone making more than $134,004 is exempt.

9. Changes: Salary Level Will Increase Automatically Every 3 Years Without automatic adjustment, DOL states it will be in perpetual rulemaking. Updates will occur every three years, the first to occur January 1, 2020. DOL will give 150 days notice prior to change—August 1, 2019. DOL estimates the first update will result in the salary level being set at $51,168.

10. Expansion of Joint Employer Liability • Franchisor-Franchisee relationships • DOL Focus on “Fissured” industries (i.e., industries with high levels of independent contractors and franchisees) • Independent Contractor v. Employee • NLRB and DOL “Economic Realities Test”

11. JOINT EMPLOYER LIABILITY

12. Who are Contingent Workers? Anyone your organization engages to perform work but who is not your organization’s employee. Includes • Independent Contractors • Consultants; Technical experts • You pay them directly, frequently by 1099 • Other Employer’s Employees • Staff augmentation; Outsourced labor • You pay a third-party supplier

13. What’s New This Year? Joint Employment Risks Continue to Gain Visibility Administrator’s Interpretation No. 2016-1 (Jan. 20, 2016)Fair Labor Standards Act and Seasonal Agricultural Worker Protection Act Horizontal Joint Employment, Vertical Joint Employment Potential for wage-and-hour joint liability Wage and Hour Division Fact Sheet #28N (January 2016) Joint Employment and Primary and Secondary Employer Responsibilities Under the Family and Medical Leave Act (FMLA) Labor supplier and purchaser each may have obligations under the FMLA Both employers’ workers may count toward FMLA jurisdiction for the other’s workforce

14. What’s New This Year? Joint Employment Risks Continue to Gain Visibility (cont’d) Affordable Care Act (ACA) Issues The ACA’s definition of “employee” is expansive, resting on common law employment Right to control work and working terms It can sweep in contingent workers over whom an organization exercises sufficient control Compare: janitorial service vs. IT staff augmentation Why does this matter? Applicable large employer status Employer mandate compliance status

15. What’s New This Year? Joint Employment Risks Continue to Gain Visibility (cont’d) Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015) Setting joint employer standard under the NLRA; finding indirect and “reserved right” control sufficient for joint employer relationship Green JobWorks LLC/ACECCO, LLC, 05-RC-154596 (Oct. 21, 2015) Early post-Browning decision finding no joint employment; on appeal to Board. Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016) Holding that employer consent not necessary to form bargaining units combining employer’s own employees and its joint employees (joint with labor supplier), overturning 2004 precedent.

16. What Should You Do Now? Assess your outsource staffing arrangements Do you have control? Right to control? Are there indicia of common law employment? Assess your risks Is there a bargaining unit risk? Is there an ACA employer mandate risk? Is there a risk of liability for employment practices? Take responsive actions Can you achieve similar results without control (or right of control)? Can you negotiate indemnifications with your labor suppliers?

17. NLRB YEAR IN REVIEW

18. What’s New: NLRB Year in Review ELECTIONS • Authorization Cards.Actual signatures no longer needed to support petitions for election. • Bargaining Units – Joint Employer Units. Employees of staffing companies and their customers may be joined together in a single bargaining unit (Miller & Anderson, 364 NLRB No. 39 (2016)). • Bargaining Units – Micro-Units.Specialty Healthcare upheld allowing unions great discretion in selecting a bargaining unit that is most advantageous to winning an election. See e.g., NLRB v. FedEx Freight, Inc., 2016 U.S. App. LEXIS 14593 (3rd Cir. August 9, 2016), FedEx Freight, Inc. v. NLRB, 816 F.3d 515, 521 (8th Cir. 2016).

19. What’s New: NLRB Year in Review • Continued Application of NLRB’s “Quickie Election Rule” • NLRB’s revised election procedures decreasing the amount of time between petition to election have been in effect for nearly 18 months • In the first year, average time from petition to election was decreased from 38 days to 24 days. Union win rates in initial certification elections have not increased, however, and continue to hover around 70%. Source: NLRB: https://www.nlrb.gov/news-outreach/news-story/annual-review-revised-r-case-rules

20. POLICY ITEMS • Handbook Rules. NLRB continues its critique of what it believes to be overly-broad work rules that allegedly chill protected activity. Spring Valley Hospital, 363 NLRB No. 178 (2016). • Arbitration Agreements.Despite D.R. Horton and Murphy Oil, Board continues issuing decisions finding employer violations of the Act for maintenance of a mandatory arbitration policy requiring employees to submit employment-related claims to individual arbitration as a condition of employment. • Dozens of cases involving this issue are currently pending in the appellate courts. In May 2016, the Seventh Circuit ruled in favor of the Board’s policy in Lewis v. Epic Systems, 823 F.3d 1147 (7th Cir. 2016). In August of 2016, the Ninth Circuit also sided with Board in Morris v. Ernst & Young, LLP, No. 13-16599 (9th Cir. Aug. 22, 2016) Because a circuit split exists, the issue is ripe for review in the Supreme Court.

21. CLASS / COLLECTIVE ACTION WAIVERS

22. What are they? Agreements to waive the right to litigate on a representative basis, either in a class or collective action Generally bundled with an agreement to arbitrate (rather than litigate) employment law claims In short, these agreements substitute arbitration for courtroom litigation, changing the venue and setting the procedural rules, including the rule that claims must proceed individually.

23. Why Think About this Now? AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) The FAA preempts any state law that otherwise favors class actions over individual arbitration.  In the specific case, the Court held that the FAA preempted a California law that disallowed class action waivers.  This cleared the way for class action waivers nationwide.) American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) Class action waivers are enforceable even if the practical effect is to make any litigation unlikely because the costs of bringing an individual claim exceed the expected recovery.  In short, the Court ruled that the FAA allows parties to substitute arbitration for court litigation and to set the terms of arbitration, even when those terms make it unlikely that a particular type of claim (a low-value individual claim) will be brought in the first place.  In combination, these recent cases made clear that employers (and businesses) could require employees to arbitrate and do so individually, not as a class.

24. Why Think About this Now? (Source: PACER, as reported broadly by secondary sources).

25. What’s (Not) New This Year? The National Labor Relations Board (NLRB) continues to rule that class action waivers violate the National Labor Relations Act (NLRA). The NLRB’s argument: filing a class/collective action lawsuit is a form of “concerted activity” protected by Section 7 of the NLRA, so any restraint on such filings is an unfair labor practice in violation of Section 8 of the NLRA, which prohibits employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise” of Section 7 rights. See D.R. Horton Inc., 357 NLRB 184 (2012). The counterargument: the NLRA must yield to the Federal Arbitration Act (FAA), per U.S. Supreme Court precedent requiring enforcement of validly formed arbitration agreements. See Murphy Oil U.S.A., Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015); Richards v. Ernst & Young, LLP, 744 F.3d 1072, 1075 n.3 (9th Cir. 2013); D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297 n.8 (2d Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050, 1052 (8th Cir. 2013).

26. What’s New This Year? Lewis v. Epic-Systems Corp., No. 15-2997, --- F.3d ----, 2016 WL 3029464 (7th Cir. May 26, 2016) • First U.S. appellate court to accept the NLRB’s D.R. Horton line of argument, creating a Circuit split. • Conflicts with Second, Fifth and Eighth Circuits • Accepted proposition that bringing class/collective actions is a Section 7 right; rejected argument that FAA controls. So what’s next? • U.S. Supreme Court review is widely expected Other Developments • Many state and lower federal courts have offered commentary on drafting particulars

27. What Should You Do Now? If you have adopted an arbitration program with class/collective action waivers, you should: Watch the developing law carefully, especially with respect to drafting fine points Weigh the costs and benefits of seeking to enforce your waiver If you’re in the Seventh Circuit, recognize that your waivers are not enforceable at this time If you have not adopted an arbitration program with class/collective action waivers, you should: Decide whether to jump in or wait and watch on sidelines Monitor jurisdiction-specific law for drafting tips Speak with colleagues before implementing, as there are a number of implementation issues and questions that many of us have addressed and answered already

28. LEAVE ABSENCE MANAGEMENT:YEAR IN REVIEW

29. DOL’s 2016 FMLA Employer’s Guide Highlights https://www.dol.gov/whd/fmla/employerguide.pdf • Very user-friendly comprehensive discussion of employer obligations. • Generally nothing “new” but good resource. • DOL emphasizes that managers and HR must be able to recognize FMLA-qualifying reasons for leave and properly initiate required notifications and eligibility check – employee need not make formal FMLA leave request to trigger employer obligations. • A number of cautions to employers about actions that can constitute unlawful interference, such as: • Requiring excessive proof of family relationship or in loco parentis status • If a medical certification is complete, employer may not ask for more medical information or require a doctor’s note for each absence

30. FMLA Decisions – Employer Wins REVERSING JURY VERDICT FOR EMPLOYEE: • Hartmann v. Dow Chemical Co. (6th Cir. 8/16/16) AFFIRMING SUMMARY JUDGMENT TO EMPLOYER: • Massey-Diaz v. University of Iowa Community Medical Services (8th Cir. 6/27/16) • Thomas v. Dolgencorp (“Dollar General”) (11th Cir. 3/15/16) • Massey-Diaz v. University of Iowa Community Medical Services (8th Cir. 6/27/16) • Curtis v. Costco Wholesale Corp. (7th Cir. 11/24/15) • Perry v. American Red Cross blood Services, TVA Reg. (6th Cir. 6/01/16) GRANTING SUMMARY JUDGMENT TO EMPLOYER: • Chase v. United States Postal Service (D. Mass. 03/01/16) • Jones v. Gulf Coast Health Care of Delaware, LLC (M.D. Fla 02/18/16) • Disbrow v. Oticon, Inc. (E.D. Missouri 02/04/16) • Darden v. AT&T (E.D. Missouri 01/14/16) • Capps v. Mondelez Global LLC (E.D. Pa. 11/24/15)

31. Highlights from FMLA Pro-Employer Opinions Proof of retaliatory intent by Temporal Proximity: Some courts: Temporal proximity alone between the protected activity and the adverse action is not enough to establish an inference of animus. Other courts: Employee can prove a causal link between protected activity and adverse employment action through “temporary proximity” of the 2 events. However, in order for timing alone to be enough, the temporal proximity must be “very close.” The temporal proximity must be between (1) the date of the adverse action and (2) the date an employer knew of an employee's use (or planned use) of FMLA leave --- not the date the leave ended.

32. Highlights from FMLA Pro-Employer Opinions Pretext: Different treatment of similarly situated employees. Employees can show that an employer’s proffered reason for an adverse action is “pretext”. One of the most common methods to prove pretext is to offer evidence that similarly situated employees were not treated as harshly as the employee who took FMLA leave. Courts have required exacting proof that “similarly-situated employees” were, in fact, similarly situated: Similarly situated individuals must have had the same supervisor, been subject to the same standards and engaged in the same conduct (or conduct of comparable seriousness) without any mitigating or distinguishing circumstances.

33. Highlights from FMLA Pro-Employer Opinions Pretext: Discriminatory Statements. Isolated and ambiguous comments do not support a finding of animus. Statements made by a non-decision-maker or a decision maker outside of the decision-making process cannot be the sole basis for providing pretext or retaliatory intent. Isolated or stray remarks are not probative of intent if not in “temporary proximity” to the adverse action. Distinction between comments about “taking” FMLA leave and potential “abuse” of FMLA leave. “Even assuming [employer] was skeptical of [employee’s] use of FMLA leave, ‘[n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leaves.’”

34. Highlights from FMLA Pro-Employer Opinions Issues regarding “interference” with FMLA rights Employer’s intent is immaterial to an FMLA interference claim and Employer can interfere by discouraging an employee from taking an FMLA leave. An employee’s voluntary and uncoerced acceptance of a light duty assignment while recovering from a serious health condition does not constitute interference. Nondisruptive “de minimis” communications such as short phone calls requesting the employee to pass on institutional knowledge are not interference but requiring the employee to complete work-related tasks or produce work product may be interference. Failure to comply with call-in procedures. Termination for “excessive absences” is not FMLA interference even though absences may have qualified for FMLA protection but employee did not follow call-in procedures and there were no “unusual circumstances” excusing her.

35. Highlights from FMLA Pro-Employer Opinions “Honest Belief” issues • Honest belief about misconduct will shield an employer from liability even if it is later discovered that its belief was incorrect. • Examples of misconduct that justified termination: • Employee took FMLA leave for shoulder surgery, and posted on Facebook photos of 2 trips to Busch Gardens in FLA and a trip to St. Martin while on leave. • Employer uncovered evidence that Employee either falsified company records or worked other employees “off the clock.” • Employer terminated Manager after subordinate employee told Employer that Manager said he was planning to take an FMLA leave to prevent demotion because of performance issues. • Employee on Intermittent FMLA leave for degenerative bone disease/hip pain went to pub, became intoxicated and was arrested for DUI. Employer subsequently learned of arrest and terminated employee for dishonesty about purpose of leave and abuse of FMLA leave for drinking in a bar. Employee argued that drinking in a bar is not inconsistent with having severe and debilitating leg pain. Court: even if Employer was wrong, the reason was not discriminatory

36. Other Notable FMLA Decisions Individual liability of managers and HR • FMLA individual liability claims allowed against an HR Director because she “played an important role” in and had “sufficient control” over the termination decision. Graziadio v. Culinary Institute of America (2nd Cir., 3/15/16) FMLA worksite of telecommuter is office to which employee reports – not home. [FMLA Regs. 29 USC § 2611(2)(B)(ii)] 50 Employees at same site (or w/in 75 miles) satisfied for employee who worked offsite and from home through telecommunication and reported to out-of-state Corporate office.Donahoe-Bohne v. Brinkmann Instruments (E.D. La. 6/15/16) Intermittent FMLA leave may be available to “sleep on the job” or to be relieved of mandatory overtime.-Lasher v. Medina Hospital (N.D. Ohio 02/05/16) (sleeping on the job)-Sweet v. County of Gloucester (D.N.J. 06/15/16) (Mandatory overtime)-Hernandez v. Bridgestone Americas Tire Ops. (8th Cir. 02/10/16) (Mandatory overtime) “Chronic condition” protected before diagnosis-Smith v. AS America, Inc. (8th Cir. (07/14/16) (doctor’s visits can occur after leave commences)

37. 2016 ADA DEVELOPMENTS

38. EEOC 2016 Employer’s Guide on Leaves Highlights https://www.eeoc.gov/eeoc/publications/ada-leave.cfm • Employers must consider unpaid leave as a reasonable accommodation so long as it does not create undue hardship – even if employee is not eligible for leave under the FMLA or other law or policy or has exhausted FMLA or other leave. • “Maximum leave policies” may be permissible but employers must grant exceptions when necessary as an accommodation. (EEOC v. Lowe’s $8.5 million settlement for inflexible leave policy 05/2016) • “100% healed policies” not allowed. Employer must engage in individualized analysis to determine whether or not employee can return to work with a reasonable accommodation without causing an undue hardship or resulting in a direct threat to the safety of the employee or others. • Reassignment is a potential accommodation. Employer must place a disabled employee in a vacant position for which he or she disqualified and cannot require the employee to compete with other applicants for the open position. This rule does not apply to promotions or negate uniform seniority systems. • Factors that may be considered in evaluating undue hardship include: (1) frequency of leave; (2) flexibility on when leave may be taken; (3) Whether intermittent leave is predictable or unpredictable; (4) impact on a company’s operations. • Indefinite leave is not a reasonable accommodation.

39. DOJ Final Rule on ADA Amendments Act of 2008 (ADAAA) DOJ Issued a Final Rule interpreting the ADAAAhttps://www.ada.gov/regs2016/adaaa.html Effective: 10/11/16. No surprises here: Confirms the intent of the ADAAA that the definition of disability should interpreted broadly. Expressly adds dyslexia and Attention-Deficit/Hyperactivity Disorder (ADHD) to the list of physical and mental impairments

40. ADA Decisions – Employer Wins REVERSING JURY VERDICT FOR EMPLOYEE:Vangas v. Montefiore Medical Center (2nd Cir. 05/19/16) AFFIRMING SUMMARY JUDGMENT TO EMPLOYER: • Maat v. County of Ottawa (6th Cir. 08/10/16) • Stallings v. Detroit Public Schools (6th Cir. 07/28/16) • Felix v. Wisconsin Dept. Transp. (7th Cir. 07/06/16) • Perry v. American Red Cross Blood Services, TVA Region (6th Cir. 06/01/16) • Deister v. Auto-Club Ins. Assoc. (6th Cr. 05/11/16) • Wagner v. Sherwin-Williams Company (6th Cir. 05/10/16) • Frazier-White v. Gee (11th Cir. 4/7/16) • Lang v. Wal-Mart Stores East, PP (1st Cir. 03/02/16) • Minter v. District of Columbia (D.C. Cir. 12/29/15) GRANTING SUMMARY JUDGMENT TO EMPLOYER: • Sloan v. Tate & Lyle Ingredients Americas, LLC (E.D. Tenn. 08/05/16) • Mdamu v. American Traffic Solutions, Inc. (D. Ariz. 06/28/16) • Geter v. Government Publishing Office (D.D.C. 06/23/16) • Williams v. AT&T Mobility Services (W.D. Tenn. 06/06/16) • Caporicci v. Chipotle Mexican Grill (M.D. Fla. 05/27/16) • Fiorillo v. United Technologies Corp. (D. Conn. 03/21/16) • Salazar v. Tribar Manufacturing, LLC (E.D. Michigan 03/01/16) • Fischer v. Pepper Hamilton, LLP (E.D. Pa. 01/29/16) • Green v. Bakemark USA, LLC (S.D. Ohio 01/20/16)

41. Requests for indefinite leave Where an employer has already provided an employee with lengthy period of medical leave, an extension to that leave can only be a reasonable accommodation when the duration is definite. Request for indefinite leave is not a reasonable accommodation as a matter of law Request for indefinite extension of light-duty status was unreasonable as a matter of law.

42. Impact of applications for Disability Benefits Teacher applied for disability benefits: “[A] plaintiff’s sworn assertion in an application for disability benefits that she is, for example, ‘unable to work’ will appear to negate an essential element of her ADA case – at least if she does not offer a sufficient explanation.” Teacher asked for 4 months leave but presented no evidence to explain inconsistency with Social Security Administration disability finding. Employee applied and was approved for disability benefits. Court said that while pursuit and receipt of disability benefits does not automatically estop an employee from pursuing an ADA claim an ADA plaintiff cannot simply ignore the inconsistency.

43. Reassignment/removal of job duties Employer is not required to accommodate an employee by exempting her from having to perform an essential job function. Whether a job function is essential is a question of fact that is typically not suitable for resolution on a motion for summary judgment. However, summary judgment granted where job description referred to driving as an essential function and employee admitted he spent 12-25% of his work week driving even though employer did not provide managers with company vehicles, gas allowances or liability insurance. Employee's request that a portion of her workload be reassigned to others is not a reasonable accommodation because reducing workload is not a reasonable accommodation and employee did not limit request to nonessential job functions. Reasonable accommodation does not include removing an essential function or shifting essential job functions onto others.

44. Regular attendance: An Essential function? Court held that an essential function of any government job is ability to appear for work. “The ADA ‘does not endow all disabled persons with a job – or job schedule – of their choosing.’” (quoting EEOC v. Ford Motor Co. (6th Cir. 2015) Another court noted that the 6th Circuit has long held that an employee who cannot meet the attendance requirements of the job at issue cannot be considered a qualified individual under the ADA. Whether regular attendance is an essential function depends on the nature of the job itself. Does job involve teamwork, a high level of face-to face interaction, or immediate access to documents or other information located only in the workplace? An employee who excessively violates an employer's attendance policy is not qualified as a matter of law.

45. Transfers to other Positions Employee requested reassignment to another unspecified position. Court said Plaintiff did not support request with any evidence that there was a specific, full-duty vacant position she was qualified for and could have done given her medical condition. Employers are not obliged to create a job opening so a disabled employee can work. “Record is devoid of any request by [Employee] for reassignment to another position, let alone a vacant desk job.”

46. Liability for failure to engage in the interactive process? No liability for failure to engage in interactive process where there is no evidence that a reasonable accommodation existed. Failure to participate in interactive process only actionable where a reasonable accommodation is identified. “In the absence of an accommodation request that was reasonable, [employer’s] duty to initiate the process was never triggered.” Employee bears the burden of proposing reasonable accommodations (saying she needed “an adjustment” insufficient) Statement by employee “you need to review my medical records” and that he “wanted a meeting to discuss [his] options regarding [his[condition and employment”, and “adjusting position with a different manager] not enough to constitute an accommodation request.

47. Termination for Conduct caused by disability • Courts are split as to whether termination based on conduct related to or caused by a disability constitutes unlawful discrimination. • Good discussion of case law in Felix v. Wisconsin Dept. of Transportation (7th Cir. 07/06/16) and Caporicci v. Chipotle Mexican Grill, Inc. (M.D. Fla. 05/27/16), both of which ruled that when an employee engages in behavior that is unacceptable in the workplace, the fact that the behavior is precipitated by mental illness does not present an issue under the ADA – the behavior itself justifies discharge. • Examples: • Employee with mental health disabilities found screaming “you hate me”, “you all think I’m crazy”, and “let me die” and with cut marks on right wrist, kicking and rolling on floor.(Felix) • Employee who appeared inebriated from effects of new medication for panic attacks.(Caporicci)

48. Pregnancy Accommodations • Pregnancy itself is not a disability – however, complications caused by pregnancy can be. • Pregnancy Discrimination Act: prohibits discrimination but fall short of requiring accommodation in all cases. • Young v. UPS: Complicated ruling. Employer not absolutely required to offer same accommodation to pregnant employees that it offers to non-pregnant employees -- but must have a good reason for not doing so. • State laws: Many states have – or are adopting – laws requiring pregnancy accommodations: • Most recent: Colorado; Ohio (bill pending). • Also: RI; Illinois; DE; NY; Alaska (public sector only), CT; LA; TX (public sector only); MD; NJ; Dist. Col.; Minn.; WV; Nebraska; ND; Hawaii; Utah; Philadelphia. • EEOC v. Motel 6 (8/31/16) The EEOC filed suit after Motel 6 place pregnant employee with high risk pregnancy on forced leave of absence.(https://www1.eeoc.gov//eeoc/newsroom/release/8-31-16.cfm?renderforprint=1) .

49. Medical Marijuana laws 25 States and DC have medical marijuana laws: • http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881 (site has list of states that have adopted medical marijuana laws) • States passing laws in 2016: Ohio and Pennsylvania (Illinois – 11/2015) • Marijuana is still an illegal controlled substance under federal law. • More than 50% of the laws prohibit marijuana use at work and/or provide that employers need not accommodate marijuana use at work. • Only some of the laws prohibit employment discrimination against employees who use medical marijuana (Arizona, Connecticut, Delaware, District of Columbia, Illinois, Maine, Nevada, New York, Minnesota, Pennsylvania, and Rhode Island). • Shepherd v. Kohl’s Department Stores,Inc. (E. D. Ca. August 2, 2016) (Employee who was medical marijuana cardholder tested positive for marijuana after work place accident – court granted summary judgment to employer on disability/failure to accommodate claims but not on breach of implied contract claims where employee handbook stated that employees in CA would not be discriminated against for valid medical use of marijuana)

50. Jurisdictions That Have Paid Sick Leave Laws