ERISA’s “Overlapping Fields of Fire” Preempt Wisconsin’s Family and Medical Leave Act


Wisconsin’s Family and Medical Leave Act (“WFMLA”), requires that employers allow employees six weeks of unpaid leave following “[t]he birth of an employee’s natural child,” and that employers allow an employee to substitute “paid or unpaid leave of any other type provided by the employer” for the unpaid leave provided by the law. However, in a recent decision, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) held that the WMFLA is preempted to the extent it would require the payment of short-term disability benefits contrary to the terms of an ERISA plan. The Sixth Circuit decided that the WMFLA was directly in the crosshairs of express and implied preemption under ERISA that “are so broad as to overlap, laying down converging fields of fire whose intensity is greatest upon a single point: the one held by a state law that purports to mandate the payment of benefits contrary to the terms of an ERISA plan.” Continue reading this entry

Ban the Ban-the-Box? Proposed Law May Clarify Background Check Dilemma in Regulated Industries


On the heels of the Equal Employment Opportunity Commission’s (EEOC) increased scrutiny regarding criminal history questions during the hiring process and the wave of new state ban-the-box laws, Congress has proposed legislation that actually protects certain employers when they seek to comply with the laws that regulate their industries. The “Certainty in Enforcement Act of 2014” would prevent the EEOC, state agencies and plaintiffs’ attorneys from claiming that certain employers are engaged in an unlawful employment practice when acting in accordance with federal, state or local laws. The proposed legislation notes that covered employers may include, but are not limited to, those engaged in health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties. Continue reading this entry

Recent Case Reminds Companies That, Though Much Embattled, Independent Contractor Classifications Can Be Valid


The dividing line between employees and independent contractors has been a hot topic in employment law for several years. In addition to the interest the federal government has taken in possible misclassification of employees, employers can also be subject to civil suits under the Fair Labor Standards Act (“FLSA”) and/or state employment law. In fact, litigation related to the FLSA has increased dramatically in the last few years. However, a New York federal court recently threw out a class action claim under the FLSA and the New York Labor Law (“NYLL”), giving some indication that while independent contractor challenges are notoriously difficult for employers to prevail upon, when a business is careful to observe the formalities and necessities of the independent contractor relationship, court still recognize its validity. Continue reading this entry

Ch Ch Ch Ch Changes: New VETS-4212 Report Means More Changes for Federal Contractors


Ch-ch-ch-ch-changes. David Bowie’s familiar refrain has become the motto of federal contractors everywhere as they struggle to keep pace with the numerous regulatory changes and enforcement initiatives currently being advanced by the Office of Federal Contract Compliance Programs (“OFCCP”) and other Department of Labor (“DOL”) divisions. As previously reported, amended regulations regarding affirmative action obligations relative to protected veterans and individuals with disabilities took effect in March 2014. Since that time, contractors have been bombarded with numerous executive orders and proposed rules mandating an increase in the minimum wage paid by certain covered contractors, requiring transparency in compensation and prohibiting retaliation against employees who discuss compensation, requiring the collection of summary compensation data, prohibiting contractors from discriminating on the basis of sexual orientation and gender identity, and requiring contractors to identify labor and employment law violations. Now federal contractors are faced with yet another change. Continue reading this entry

EEOC’s Changed Conception of Pregnancy Spawns New Litigation — and Important Reminders for Employers


Earlier this year, we noted that that the Equal Employment Opportunity Commission (“EEOC”) issued somewhat controversial enforcement guidance regarding pregnancy discrimination. It has now become evident that this enforcement guidance was a precursor of what was to come, as the EEOC has just filed two new lawsuits alleging pregnancy discrimination. According to its press releases, one suit alleges an employer terminated a farm worker shortly after she disclosed she was pregnant, citing fears for her safety and liability even though the employee’s doctor had cleared her to perform the job without medical restrictions. The other suit alleges an employer terminated two employees after learning they were pregnant; the EEOC noted that the owner allegedly made “negative comments” about the pregnancies. This new litigation reiterates the EEOC’s increased focus on pregnancy discrimination claims; it has filed several other pregnancy discrimination lawsuits in the last few months, and the EEOC has filed over 45 lawsuits involving pregnancy discrimination since 2011. Continue reading this entry