Archive for March, 2015

Shifting the Burden for Pregnancy: That’s Clear, Right?

On Wednesday, March 25, 2015, the Supreme Court issued its decision in Young v. United Parcel Service. Those of us that are employment lawyers have been anxiously awaiting this decision because it is going to clear up just what we have to do with light duty and pregnant employees. You see, there has been some confusion under the federal law regarding what, if any, duty an employer had to provide light duty work to pregnant employees when that same employer provided light duty work to other employees. It has been pretty common for an employer to provide light duty work to employees who were, say, hurt on the job, but not provide light duty work to any employee who was hurt off the job. Is that OK? Well, Young was going to clear all that up and answer that question.

Not so fast, my friend.

OK, what did the Court do? Well let’s start with the issue before the Court. The Pregnancy Discrimination Act (the “Act”) amended Title VII to say that discrimination because of pregnancy was discrimination because of sex. Simple enough, right? But it doesn’t stop there. The Act also says that an employer must treat “women affected by pregnancy the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). Now, that does not come out and say you have to provide accommodations for pregnant employees who are limited because of their pregnancy like the ADA does about disability, but it’s as close as you can get without actually saying it, now isn’t it? And this second clause of the Act is the one the Court was dealing with in Young.

And what the Court did in interpreting this second part of the Act was first reject the arguments made by both sides in the case.   Ms. Young (and the United States by the way) argued that this second part of the Act essentially meant that if you accommodated anyone, you had to accommodate a pregnant employee who is similarly impaired. No, said the Court, that is creating what the Court called a “most favored nation” approach for pregnant employees and Congress could not have meant that.   And that means that the recent EEOC Guidance on Unlawful Discrimination Against Pregnant Workers has to be reworked. And the EEOC knows it. UPS, on the other hand, argued that this second clause really only helped define that pregnancy discrimination equals sex discrimination. And the Court rejected this out of hand for reasons we don’t have to get into.

Well, what is the answer? The Court held that the way to determine if Ms. Young was discriminated against was to apply the McDonnell Douglas burden shifting analysis. Simple enough for an employment lawyer, we have been using this to litigate employment cases for years. So, says the Court, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Act’s second clause may make out a prima facie case by showing:

. . . that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’

Id. at 20-21. The burden or production then shifts to the employer to show a legitimate, nondiscriminatory reason for its decision, and if the employer does so, the employee can still prevail by showing that the “legitimate, nondiscriminatory reason” is actually a pretext for intentional discrimination.

Easy enough. Been there, done that. But wait a minute. Just a couple of things to point out here. First, when discussing the “legitimate, nondiscriminatory reason” the Court noted:

But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.

Id. at 21. Does that mean we can’t continue to have a policy that provides light duty to only those who are hurt on the job? Not sure, because that was not the case here. In this case, UPS provided light duty to a number of categories of workers including those hurt on the job, those “disabled” under the ADA, and those who lost their DOT certification to drive. Might it be different if ONLY those hurt on the job got light duty? It might, it might. After all, the Court did say:

Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong. . . .

Id.

But the Court didn’t stop there either. When discussing how a plaintiff might survive summary judgment the Court noted:

We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.

Id.

What the Court did here essentially was apply a really tried and true method for litigating discrimination complaints to the Pregnancy Discrimination Act but with a bit of a disturbing twist. Justice Scalia in his dissent points out:

Normally, liability for disparate treatment arises when an employment policy has a ‘discriminatory motive,’ while liability for disparate impact arises when the effects of an employment policy ‘fall more harshly on one group than another and cannot be justified by business necessity’. . . . In the topsy-turvy world created by today’s decision, however, a pregnant woman can establish disparate treatment by showing that the effects of her employer’s policy fall more harshly on pregnant women than on others.

Young, (Scalia, dissenting at 8).

OK, that’s all clear, right? You know just what to do, right? No? Here is what you do. If you have a policy that provides benefits to one class of employees, say, a light duty policy that only applies to employees hurt on the job, and pregnant employees don’t get the same benefit, we need to talk. So give us a call.

The regular rate exclusions: well, you showed up. I guess that’s worth something.

Editor’s Note:  OK you guys know how much I have really enjoyed Emily’s work on this blog but I have to give her a bit of constructive criticism here.  Don’t you think a better way to start this thing would have been “I woke up, got out of bed, dragged a comb across my head . . . ” etc. etc.?  Those of you that are old enough are all singing the Beatles’ “A Day In the Life” right about now, aren’t you?  Well, in fairness to Emily, she’s pretty young, and she may not even know who the Beatles are, then again one of them is singing with Kanye so. . . Maybe?  Anyway, we will leave it the way she wrote it.  Thanks again Emily for all of your hard work.

You get up in the morning. You drag yourself out of bed, into the car, and go to work. After all that, there is no work for you to do. The FLSA does not in any way require that employers compensate employees for coming in when there is no work to do if no hours are actually worked. Many employers do offer “show-up” or “reporting” pay for this situation, whether it be part of a collective bargaining agreement or as a voluntary benefit. Also, a few state laws require reporting pay: check with your labor attorney for details. Similarly, employers may offer “call-back” pay for cases where an employee is called back after the employee’s regular hours. Again, it’s not required by the FLSA, but it’s a relatively common term in a collective bargaining agreement.

The extra payments for showing up or being called back or reporting are not payment for hours worked, and so can be excluded from the regular rate. Of course, any part of the payment that is compensation for hours worked must still be included.

For example, say I get paid $10.00 per hour, but my employer and I have an arrangement where if I show up and there is no work to do, I will get paid for at least three hours of time. One day I show up and there is only one hour of work to do, so I do the hour of work and get paid $30.00. I worked for one hour, so $10.00 of the $30.00 is compensation for hours worked, which must be included in the regular rate. The other $20.00, however, is payment for hours not worked, and so need not be considered when calculating the regular rate. However, that $20.00 also cannot be credited towards overtime compensation since it is not payment for hours worked.

Back when I was a toy store salesperson, (I told you I was a toy store salesperson when we talked about bonuses and you were just as fascinated then as you are now) if the store needed extra help, there was a bargaining process to try to get us to come back in. Usually the currency was food, alcoholic beverages, or the use of the boss’s boat. Once it was to be allowed to take on the most coveted job in the store for the next day, which was to go out to a field, set up a bunch of kites, and supervise them all day. It all sounds like fun and games until a 12-foot ghost delta (that is a kite for those of you that aren’t geeks like me) is falling out of the sky and you have to keep it from hitting the horrified bystander children. I think call-back pay would have been a better option.  So this was fun (OK not really, but I got credit for it) and maybe Steve will “let” me do it again (but I hope not) so until then. Thanks, and now back to this blog’s regularly scheduled author.