In This Issue
April 2016 | Volume 4 Issue 2

Federal Law

SCOTUS: 50-50 Split Possible over Contraceptive Arrangements

By: Thompson Information Service

In oral argument, four U.S. Supreme Court Justices appeared to oppose religious objectors in a case challenging the government's opt-out procedure for employers with religious objections to covering contraceptives and family planning services.

The argument was held March 23 in Zubik v. Burwell, a case involving the Affordable Care Act's mandate on health plans to provide coverage for these services with no out-of-pocket expenses to participants and beneficiaries. The case combines separate lawsuits brought by David Zubik (a priest), the Little Sisters of the Poor (a charity run by Catholic nuns), the Roman Catholic Archdiocese of Washington, D.C., and a number of religious schools and other institutions.

The plaintiffs claim that the government's procedure for non-profit religious institutions to opt out of the birth-control mandate forced them to act counter to their sincerely held religious beliefs and violated the Religious Freedom Restoration Act. The plaintiffs' attorney, Paul D. Clement, argued that his clients were being forced to commit acts they considered sinful or pay the government large fines.

A wooden law gavel on top of two brown books

Employers with religious objections are challenging the government's opt-out procedure for covering contraceptives and family planning services

Four of the justices (Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer) appeared to contest the notion that the burden of telling another insurer or administrator to cover contraceptives without cost-sharing was substantial enough to overturn numerous lower court rulings upholding the procedure. Because Justice Antonin Scalia's recent death left eight instead of nine justices, a 4-to-4 split seemed to be a real possibility.

Justice Sotomayor contended the plaintiffs were objecting to even saying that they objected to the provision. But Clement said apart from just objecting, his clients also had to identify a payer that would provide the drugs or services, which he contended was instrumental in providing them. Sotomayor asked how this was different from conscientious objectors to the Vietnam War who had to name another soldier to serve in their place, or face jail time.

Clement said his clients would not have an RFRA grievance if the government provided contraceptive services through state-based ACA exchanges, or a Title X family planning or national contraceptive program.

Justice Ginsburg questioned why identifying an alternative payer is such a great burden on anyone's religious practice. She and Kagan also said under Clement's logic, any person who claimed to have a religious objection could block any law.

Justice Breyer noted several examples of religious people triggering a third party to act counter to their religions, in order to follow the law and/or meet societal norms.

A second attorney for the plaintiffs, Noel Francisco, said that the government is not using the least restrictive way to further its interest on his clients and other religiously oriented schools and charities, as long as it gives a total waiver of the preventive care mandate to churches and grandfathered plans. Justice Samuel Alito later agreed with his, citing grandfathered plans.

Note: In order to overrule an RFRA objection, the government has to show that its law is furthering a compelling government interest and that it is using the least intrusive means available to promote that interest.

Justices Kagan and Ginsburg said churches have a long precedent of extra protections that universities and charities do not get, and made it seem they were very unlikely to rule otherwise. Kagan, supported by Breyer, said that Congress had the right to allow special exemptions for churches, small businesses and large plans needing transitional phases.

U.S. Solicitor General Donald Verrilli said he contested that the accommodation even put a substantial burden on the plaintiffs' religious practice. He later said that even if a substantial burden was found, the government still satisfied the compelling-interest and least-restrictive tests.

Chief Justice John Roberts began challenging that proposition by asking why the government must force the plaintiffs themselves to arrange for coverage of contraceptives when there are other ways it can be done without their involvement. Roberts also agreed with Clement's characterization that the government was "hijacking" employer plans to provide these services. Clement had likened the accommodation to forcing the Little Sisters charity to set up a family planning clinic on its premises.

For more information on the ACA's coverage mandate, see Section 370 of the New Health Care Reform Law: What Employers Need to Know.


DOL Sends FLSA Overtime Rules to OMB

By: Thompson Information Service

The U.S. Department of Labor has sent its much-anticipated overtime regulations to the White House's Office of Management and Budget for final review.

OMB's website says it received the final rules March 14. The office has 90 days to review them, with an option to take a 30-day extension, but there is no required minimum review time. This could mean an earlier release date than previously expected. DOL's Solicitor of Labor Patricia Smith had said the rules would be published in July and take effect 60 days later.

The department announced the proposed rules in July 2015. If implemented as proposed, the regulations would increase the number of employees eligible for overtime at all employers by nearly doubling the compensation level currently required as part of the tests for whether an employee is exempt from the act's overtime requirements. Specifically, the current exemption threshold of $455 per week or $23,660 annually would increase to approximately $970 per week, or $50,440 annually. The proposal also would increase the threshold for highly compensated employees to $122,148 annually, and include a mechanism to automatically update the salary threshold moving forward.

The NPRM also requested input from stakeholders on possible changes to the duties test but did not propose specific changes.

The regulations likely were fast-tracked because of the upcoming election, according to one expert. "This is exactly what I would have done if I were heading the outgoing administration," said Shlomo D. Katz, counsel at Brown Rudnick LLP and contributing editor of Thompson's FLSA publications. "The White House surely remembers how, in January 2009, it retracted numerous wage-hour opinion letters that the Bush administration had forgotten to mail. In politics, there is always a payback time, so Obama's team is justified in worrying."


Paid Sick Leave: Are You Up on the Latest Requirements?

By: Thompson Information Service

The past few years have been very busy for advocates of paid leave, especially paid sick leave programs. In 2015 alone, more than six states and localities successfully pushed paid sick leave bills through their respective legislatures requiring employers, large and small, to pay employees for time spent away from work due to illness or injury. Indeed, states and localities such as Oregon, New Jersey, Massachusetts, California, Washington, D.C., New York City, Philadelphia, San Francisco, and Tacoma, Wash., to name just a few, now require employers of certain sizes to pay employees for sick time.

A women sick in bed with tissues

More states are requiring employers of certain sizes to offer Paid Sick Leave

And the nationwide trend towards mandated paid sick leave does not appear to be ending anytime soon, with Vermont's legislature already passing a paid sick leave bill which the governor has stated he will sign, and states such as Arizona and Illinois working to move similar bills through their legislatures in 2016.

Currently, there are no federal legal requirements for paid sick leave. As of January 2016, four states --- Connecticut, California, Massachusetts and Oregon --- and more than a dozen cities and jurisdictions require employers to provide paid sick leave. Details are below.

States with paid sick leave requirements


Enacting legislation: Chapter 317, 2014 Laws (Assembly Bill 1522): Healthy Workplaces, Healthy Families Act of 2014 (effective July 1, 2015)

For more information:


Enacting legislation: Public Act 11-52: Paid Sick Leave Act (effective Jan. 1, 2012)

For more information:


Enacting legislation: Employee Earned Sick Time (effective July 1, 2015)

For more information:


Enacting legislation: Chapter 537, 2015 Laws (effective Jan. 1, 2016)

For more information:

Cities and jurisdictions with paid sick leave requirements

Jersey City, N.J.

Enacting legislation: Jersey City Earned Sick Leave Ordinance (effective Jan. 24, 2014)

For more information:

Newark, N.J.

Enacting legislation: Ordinance 13-2010, officially known as "An Ordinance of the City to Promote the Overall Health and Safety of the Residents and Workers in the City of Newark by Reducing the Risk of and Spread of Communicable Disease and Contagion by Requiring a Policy of Paid Sick Leave for Workers" (effective May 29, 2014)

For more information:

In addition to Jersey City and Newark, the following eight New Jersey municipalities have enacted paid sick leave laws. They largely track the language of the Newark ordinance and are effective on the dates set forth below.

•East Orange (effective Jan. 6, 2014)
• Passaic (effective Dec. 31, 2014)
• Irvington (effective Jan. 7, 2015)
• Paterson (effective Jan. 7, 2015)
• Montclair (effective March 4, 2015)
• Trenton (effective March 4, 2015)
• New Brunswick (effective Jan. 6, 2016)
• Elizabeth (effective March 2, 2016)

New York City

Enacting legislation: Earned Sick Time Act (effective April 1, 2014)

For more information:

Oakland, Calif.

Enacting legislation: Measure FF, which mirrors San Francisco's Paid Sick Leave Ordinance (effective March 2, 2015)

For more information:

Philadelphia, Pa.

Enacting legislation: The Philadelphia Code, Chapter 9-3300 entitled "Promoting Healthy Families and Workplaces" (effective July 1, 2012)

For more information:

Portland, Ore.

Portland's sick time ordinance is superseded by Oregon's state paid sick time law, except that employers with 6 or more employees operating in the city must comply with the law, rather than 10 or more employees under the state law.

Enacting legislation: Portland Protected Sick Time Ordinance (effective Jan. 1, 2014)

For more information:

San Francisco, Calif.

Enacting Legislation: San Francisco Paid Sick Leave Ordinance (Effective Feb. 5, 2007)

For more information:

Seattle, Wash.

Enacting legislation: Seattle Paid Sick and Safe Time Ordinance (effective Jan. 1, 2012)

For more information:

Washington, DC

Enacting Legislation: Accrued Sick Leave and Safe Leave Act of 2008 (effective Nov. 13, 2008) as amended by the Earned Sick and Safe Leave Amendment Act of 2013 (effective Feb. 22, 2014)


EEOC and Others Test the Water with Sexual Orientation Discrimination Suits

By: Thompson Information Service

In an agency first, the U.S. Equal Employment Opportunity Commission has filed a pair of discrimination lawsuits based on sexual orientation on behalf of private sector employees. In each case, the plaintiffs contend they were subjected to harassment due to their sexual orientation.

The Cases

EEOC alleges in its suit against Pennsylvania-based Scott Medical Health Center that a gay male employee was repeatedly harassed by his manager who made offensive comments regarding his sexuality and private sex life and referred to him with anti-gay epithets. After the employee filed complaints, the clinic director refused to take action against the alleged harasser. The employee ended up quitting to avoid further harassment, according to the lawsuit.

In a separate suit, EEOC alleges that a male supervisor at IFCO Systems in Baltimore, Maryland subjected a lesbian employee to harassment because of her sexual orientation. In addition to making inappropriate comments regarding her orientation, the supervisor allegedly made a suggestive tongue gesture at the employee and blew her a kiss. Just days after the employee called the employee hotline and made a complaint to management about the harassment, IFCO fired her.

A women sitting on a chair at work with a man putting his hand on her shoulder

Several discrimination lawsuits seek damages for lost or diminished professional opportunities, humiliation, and more

"With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation," said EEOC General Counsel David Lopez. "While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so."

The lawsuits have been filed under Title VII of the Civil Rights Act, prohibiting sex-based retaliation and discrimination.

Federal Precedent

In its 2015 appellate ruling of an agency complaint (Baldwin v. Dep't of Transportation), EEOC previously held that, in the federal sector, sexual orientation discrimination counts as discrimination because it causes less favorable treatment of an employee because of their sex. EEOC reasoned in Baldwin that Title VII sex discrimination applies to sexual orientation discrimination because:

  • "sexual orientation" as a concept cannot be understood without reference to sex;
  • it necessarily involves treating workers less favorably because of their sex;
  • it is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and
  • sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as in same-sex marriages or other personal relationships.

Similar Non-EEOC Case

Two gay couples on staff at St. Joseph Hospital in Eureka, California also have filed a lawsuit (Rotan et al v. St. Joseph Hospital of Eureka) alleging they were discriminated against because of their sexual orientation. Nurses Pamela Hinson and Donna Rotan and lab workers Antonio Moreno and Allen McCloskey allege that they were not afforded the same rights as their straight coworkers.

Hinson and Rotan, who are married, initially worked together in the progressive care unit until Hinson was transferred to the intensive care unit. Rotan requested to be transferred there as well, but was denied. According to the complaint, she was told "such transfers would violate [St. Joseph Health - Humboldt County's] employment of relatives policy." Although the hospital later relented, Hinson and Rotan allege that their transfer offer stipulated that they accept behavioral conditions that were not required of heterosexual couples.

McCloskey and Moreno also are married. McCloskey requested a transfer to his husband's hospital laboratory in St. Joseph, only to be denied by a supervisor who also cited the hospital's "employment of relatives" policy. McCloskey eventually accepted a lab assistant job at Redwood Memorial Hospital, which is also owned by St. Joseph Health System. While working there, he observed straight couples working together on the same shifts. Further requests by McCloskey for transfer to St. Joseph have been denied.

In each event, straight couples are alleged to have been allowed to transfer units and continue working together, even in instances where one spouse supervised the other. Plaintiffs have appealed to hospital administrators to apply their policies consistently.

Attorney Benjamin Mainzer who is representing the group said in an email to Lost Coast Outpost, a Humboldt County community website, that "[i]t is disappointing for St. Joseph Health to claim two of its core values are 'dignity' and 'justice' but simultaneously treat its nurses and technicians differently based on their sexual orientation."

The suit seeks damages for lost or diminished professional opportunities, humiliation, mental anguish and distress.