Changes on the Horizon for Federal Job Training Programs

Federal job training programs can expect a big overhaul, thanks to President Obama who signed legislation on July 22 that is intended to streamline a tangled web of programs. In 1998, Congress passed the Workforce Development Act. The law provided money to states and cities for job retraining. In 2011, in an investigation by the Government Accountability Office, it was discovered that the federal government spent $18 billion a year on 47 separate job training programs run by nine different agencies, many of which were overlapping or duplicative.

The new law, entitled The Workforce Innovation and Opportunity Act, aims to reduce the bureaucracy of the 1998 law and provide state and regional officials with more flexibility in how they use the job training money. In addition, the new law requires a “job-driven checklist” to ensure money is used effectively and will provide workers with “data-driven tools” to give them better information about career prospects. The bill received overwhelming bipartisan support in both the House and Senate.

In signing the law, President Obama stated, “They [workers] enroll, they get trained for something. They’re not even sure whether the job is out there, and if the job isn’t out there, all they’re doing is saddling themselves with debt, oftentimes putting themselves in a worse position. Every job seeker should have all the tools they need to take their career into their own hands.”

President Obama Rally

 

According to the White House, more than 21 million people make use of federal training programs annually, including veterans, the unemployed, people with disabilities and young workers. If you are an employer and have questions about any of the numerous federal laws affecting your workforce, such as the Americans with Disabilities Act or Title VII, consider contacting the

B. Johnson

 

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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US Supreme Court Will Review Important Case Affecting Pregnant Workers, Part II

On Monday, details about the case Young v. UPS were discussed. Young was a part-time UPS driver who, after becoming unable to lift heavy packages due to her pregnancy, was denied her request for light duty. She alleges that UPS violated the law by failing to provide her the same accommodations as it provided to nonpregnant employees with physical disabilities who were similar in their ability to work. After the District Court and Fourth Circuit Court of Appeals both found for UPS, Young petitioned filed a petition for certiorari with the Supreme Court. UPS, however, responded to the petition with an argument that the 2008 amendments to the Americans with Disabilities Act (“ADA”) could render the case moot.  The actions that led to the suit occurred in 2006 – before the amendments to the ADA were made.

The regulations under the Americans with Disabilities Act Amendments Act (“ADAAA”) broadens the definition of “disability” to include afflictions of limited duration, which could serve to make the issue raised in Young’s challenge under the Pregnancy Discrimination Act irrelevant. According to UPS, “If courts construe the ADA (as amended) to cover pregnant workers subject to lifting restrictions like petitioner’s, that statute, unlike the PDA, would expressly require accommodation.” That may be the case, but we will have to see how the Supreme Court weighs in, when it considers it later this later.

The Court’s decision to take the case is timely, as President Obama is calling on Congress to act on the Pregnant Workers Fairness Act. Additionally, the EEOC has had its eye on pregnancy discrimination in the last couple of years. In 2012, the agency resolved a record number of pregnancy discrimination cases – recovering more than $14 million in settlements for victims. This is no surprise, as the EEOC’s Strategic Enforcement Plan for FY 2013-2016 cautioned that the commission would be ramping up its focus on pregnancy discrimination allegations.

If you are an employer and are presented with a request for accommodation by a pregnant worker, consider contacting counsel before acting for further information on federal and state laws. We will be following the Young v. UPS case and inform you of the Court’s ruling once an opinion is rendered.

Cindy Effinger

 

 

 

 

 

Cynthia L. Effinger is an Associate of  McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 316.

This article is intended as a summary of state and federal law and does not constitute legal advice.

 

 

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US Supreme Court Will Review Important Case Affecting Pregnant Workers

The U.S. Supreme Court has just agreed to review Young v. UPS, a decision that will determine whether and to what extent an employer must provide pregnant employees with work accommodations, such as light duty, that are given to other workers with disabilities.

The Plaintiff, Peggy Young, a part-time UPS driver, became pregnant in 2006 and was told by her doctor not to lift objects weighing more than 20 pounds for the first half of her pregnancy and more than 10 pounds thereafter. Young subsequently requested a light duty assignment from UPS, but the request was denied. Because lifting more than 20 pounds was an essential function of her job, UPS did not allow Young to continue working; instead, she took unpaid leave and returned after giving birth. She then sued UPS, claiming that UPS violated the Pregnancy Discrimination Act (“PDA”).

The PDA of 1978 is one sentence that amends Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on a number of factors including sex, by providing that “(1) The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions; and (2) women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” (emphasis added).

UPS’s workforce is unionized; thus, a collective bargaining agreement dictated terms of employment. This agreement specifically outlined to whom accommodations could be provided: people with disabilities covered by the Americans with Disabilities Act, workers who had experienced on-the-job injuries and those who had lost their Department of Transportation certification. In her suit, Young emphasized the second clause of the PDA, arguing that UPS violated the law by failing to provide her the same accommodations as it provided to nonpregnant employees with physical disabilities who were similar in their ability to work.

Both the U.S. District Court for the District of Maryland and the Fourth Circuit found the company policy to be lawful under the PDA because “where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA.” The Fourth Circuit’s ruling in UPS’ favor is at odds with a 1996 Sixth Circuit decision that allowed a similar PDA claim to move forward. See Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996). The split makes the issue ready for Supreme Court review. For more on interesting information on this case, including why the Plaintiff’s argument might be already moot, check back on Wednesday.

Cindy Effinger

 

 

 

 

 

Cynthia L. Effinger is an Associate of  McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 316.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Don’t Get Burned With Teens Working During Summer Months

Ah, summer. Crowded pools, yards in need of tending, restaurants overflowing with customers – all present the perfect work opportunity for teenagers. For employers, hiring a seasonal or temporary workforce of teenagers comes with a few extra things to keep in mind. The federal law controlling child labor is the Fair Labor Standards Act, but Kentucky also has its own set of child labor laws with which employers must comply. As the summer heats up, remember these things to avoid getting burned with legal troubles:

  • Employers are required to verify that teens are above the age of 14. This can be done through the request of birth certificates or drivers licenses.
  • Some occupations are prohibited for anyone under 18, such as mining, logging or roofing. In addition, operating certain machinery (such as a forklift, a deli meat slicer, or a power-driven circular saw) may be prohibited by state or federal law.
  • Teens ages 16 and 17 may work as many hours as they wish during the summer, but 14 and 15 year-olds may only work 8 hours per day and 40 hours per week while school is not in session.

If you are an employer and have questions about teenagers working for your business, contact a McBrayer employment law attorney.

Amy Cubbage

 

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

 

 

 

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DOL Proposes New Meaning for “Spouse” for FMLA Purposes

On June 20, the Department of Labor (“DOL”) proposed regulations to amend the Family and Medical Leave Act’s (“FMLA”) definition of “spouse.” Current FMLA regulations define a spouse as “a husband or wife defined or recognized under State law for purposes of marriage in the state where the employee resides, including common law marriage in States where it is recognized.” (emphasis added). The DOL is proposing to move from a “state of residence” rule to a rule based on the “place of celebration” (i.e., where the marriage was entered into). The proposed definition specifically includes same-sex marriages and reads as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into, or in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

If the proposed rule is made final, it means that an eligible employee in a legal same-sex marriage will be permitted to take FMLA leave for his or her spouse or family member, regardless whether the state that the employee resides in recognizes same-sex marriage.

The DOL’s proposed change was not a surprise, considering the June 2013 decision in United States v. Windsor, in which the United States Supreme Court struck down section 3 of the Defense of Marriage Act, which limited the definition of marriage to opposite-sex unions and “spouse” to individuals of the opposite sex who are married. The Windsor decision did not invalidate section 2 of the Defense of Marriage Act, which permits states to refuse to recognize same-sex marriages performed in other states.

Following the on the heels of the DOL’s proposal, on July 1, U.S. District Judge John G. Heyburn II concluded that Kentucky’s prohibition on same-sex marriage violates the Equal Protection Clause by treating same-sex couples differently than heterosexual couples. Heyburn previously struck down Kentucky’s ban on recognizing same-sex marriages from other states and countries, but he put the implementation of that ruling on hold. The decision will likely be appealed. In addition, the U.S. 6th Circuit Court of Appeals has scheduled arguments on rulings from Ohio, Michigan, Kentucky and Tennessee in a single session, on Aug. 6. The cases are unique and involve different facts, but each deals with whether statewide gay marriage bans violate the Constitution.

While it is too early to know what will be the end result with the recent Heyburn ruling or the slew of cases to be heard in the Sixth Circuit Court of Appeals, it is highly likely the DOL’s proposed definition will become law. Employers, especially those in states that do not recognize same-sex marriage, should keep an eye on the development so that they can revise and implement policy and procedures to be compliant with federal law.

The proposal was published in the Federal Register on June 27 and interested parties can submit written comments on the proposal at www.regualtions.gov until August 11, 2014.

Amy Cubbage

 

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

 

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Have You Conducted a Mid-Year Performance Review?

As we find ourselves halfway through 2014, I suggest that employers pause to consider conducting a mid-year performance review. Many employers meet their annual review process with a certain amount of dread and, thus, doing it twice seems rather painful. There are, however, compelling reasons to conduct a bi-annual review for your workforce. Let’s consider a few of the positive things that come from this practice:

It forces feedback.

As an employer, you should be routinely providing feedback to employees – positive and, if so warranted, negative. The everyday running of a business can put this priority on the backburner. A formal, mid-year evaluation makes it impossible to avoid certain issues or save conversations for a later date. Employees who receive an honest and thorough evaluation mid-year will be less surprised at the end of the year. If an employee is not performing to standards, a mid-year review is an opportunity to ensure that the employee is fully aware of expectations and document poor performance. For those that are doing well, it reinforces the fact that you notice their work. The fact is that employees appreciate knowing how they are doing. You may be pleasantly surprised at how a one-on-one conversation can rejuvenate a workforce and put everyone back on the right track.

It addresses problems and creates new opportunities.

Too often, annual reviews involve looking through the rear-view mirror. What did you do this year for the company? What could you have done better? These conversations do not have to occur in past-tense. Mid-year reviews can discover roadblocks, create new projects, and focus on a forward-thinking process, rather than carry with them the wrap-up, assessment attitude that occurs later in the year.

Practice Makes Perfect

Yes, the evaluation process can be anxiety-laden, for employers and employees alike. But, by engaging in the process bi-annually, everyone can become more comfortable with it. Mid-year evaluations can serve as a blueprint and even a less formal run-through for the final evaluation. Surprises can be minimized and efficiency can be maximized.

Why wait until December to gauge how your workforce and business is operating? Mid-year performance reviews can give you, and your employees, valuable information now.

Preston Worley

 

 

 

 

 

 Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached at pworley@mmlk.com or at (859) 231-8780.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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U.S. Supreme Court Gives Increased Protection to Government Employees

The Supreme Court recently ruled unanimously that government employees who testify about public corruption are protected by the First Amendment. The case, Lane v. Franks, [1]centered on a public employee, Lane, who worked at an Alabama community college where he led the school’s program for at-risk youth.

While working for the community college, Lane discovered a state representative was on the program’s payroll, despite doing no work for the program. Lane terminated the representative’s employment, and subsequently, the representative was indicted by federal authorities on corruption-related charges. Lane testified, under subpoena, at the representative’s trial in 2008. In 2009, Lane was fired from the college. Lane sued the community college president individually and in his official capacity alleging that the official violated his First Amendment protections.

The college president argued that Lane’s sworn testimony was not protected by the First Amendment because it was based on information that he gathered from his role as a state employee, not as a private citizen. The lower courts agreed with the college president, determining that Lane acted in his official capacity when firing the state representative and had acted in the same capacity when testifying at her trial. The Supreme Court disagreed and stated that Lane testified “as a citizen on a matter of public concern.” According to Justice Sotomayor, “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.”

The ruling means that government employees should feel more protected when stepping forward with whistleblower-type information. Both public and private employers should exercise caution when taking negative actions against an employee who has complained of or filed a charge of discrimination, or participated in some kind of investigation or proceeding, as the action could be considered retaliatory. If you are an employer and would like more information about lawful termination practices, contact a McBrayer employment law attorney today.

 

[1] No. 13-483 (2014).

Luke Wingfield

 

 

 

 

 

 Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

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