Thursday, December 17, 2015

Looking Back, Looking Forward Part 2

Last week, we looked back at 2015 changes to FLSA and NLRB guidance on employee handbooks.  This week, we’re taking a look at discrimination and leave laws.
The last year has seen important changes to and new interpretations of discrimination law   focused on extending the protections of Title VII and Title IX to the LGBT community. The EEOC has now taken the position that Title VII’s protections extend to sexual orientation and gender identity. To underscore the point, the agency launched or joined several lawsuits that raise related issues. The OFCCP began enforcing Executive Order 13762,  which prohibits federal contractors from discriminating on the basis of sexual orientation and gender identity. In a recent federal decision from the Central District of California, the court found that “sexual orientation discrimination is not a category distinct from sex or gender discrimination.”
State laws have not kept pace with the federal government’s efforts to eliminate discrimination based on sexual orientation and gender identity. Currently, 19 states prohibit such discrimination in the workplace.  We anticipate that other states may follow suit in the near future.
As they prepare for 2016, employers should recognize the impact that federal agency actions and related court decisions could have on their discrimination and harassment policies. Although only federal contractors are required to make changes at this point, employers may want to add sexual orientation and gender identity to the list of protected classes in their policies and should consider including these topics in anti-harassment training. 
Next up are the ever-changing leave laws.  California, Connecticut, and Massachusetts mandated paid sick leave in 2015, and several other states are considering similar measures. In addition, certain municipalities mandated paid sick leave for workers.  President Obama called on Congress to pass the Healthy Families Act, a measure that would allow workers to earn up to seven days a year of paid sick time that can be used to care for an ill family member. 
While new paid leaves were introduced, issues surrounding the implementation of the FMLA continued to bedevil employers in 2015.  The Department of Labor issued new forms for employers, and new cases - including some with silly fact patterns - added to the confusion surrounding the 22-year-old law.  We expect more of the same in 2016, and encourage employers to seek expert advice from an HR professional or employment lawyer when faced with FMLA questions. 
Thanks for reading The Employment Law Navigator this year.  We hope it has been helpful.  We’re going to take the next two Thursdays off, but will publish That is So Last Week recaps on Monday the 21st and Monday the 28th.  Happy holidays everyone!

Posted by 
Kate Bischoff
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