Washington Lawyer

Taking the Stand: Employment Law

From Washington Lawyer, September 2011

By Lawrence P. Postol

babyThe Washington metropolitan area falls under the jurisdiction of three sets of laws. For those to the north of the District of Columbia, Maryland law applies; for those to the south, Virginia law applies. And for that square in the middle, the District has its own set of laws.

For human resources professionals and employment lawyers, it can be a headache to become knowledgeable of employment laws for all three jurisdictions. While Maryland and Virginia laws are very similar to federal law, the District is much more protective of employees and places more burden on employers. Among the three jurisdictions, the three main differences come down to the District’s Family and Medical Leave Act (FMLA), paid sick leave, and expanded classes of persons protected from discrimination.

First, the District has its own set of laws pertaining to FMLA, whereas Maryland and Virginia rely exclusively on the federal act. While both the federal and D.C. FMLA require one year of service for eligibility, the other requirements and the benefits themselves differ considerably. Federal FMLA applies to employers with 50 or more employees; the employee must have worked 1,250 hours to qualify, and the benefit is 12 weeks of combined unpaid family and medical leave every year. On the other hand, D.C. FMLA requires an employer to have only 20 employees. The employee must have rendered 1,000 hours of service to be eligible for benefits—16 weeks of unpaid family leave every two years and another 16 weeks of medical leave every two years. Thus, for instance, if a pregnant woman endures complications during birth and is medically disabled for 10 weeks, she can take 26 weeks of leave—10 weeks of medical leave and an additional 16 weeks of family leave—to bond with her child.

Second, District law provides certain employees up to seven days of paid leave each year, whereas federal, Maryland, and Virginia laws offer no such benefits. Finally, when it comes to discrimination protection, Maryland and Virginia largely rely on the federal protected categories: race, color, sex, age (40 and older), disability, religion, national origin, pregnancy, and genetic information. The District goes even further—age over 18 years is protected, as is personal appearance, political affiliation, marital status, sexual orientation, gender identity or expression, family responsibilities, source of income, place of residence, and matriculation. D.C. Code § 2–1401, et seq.

Also of note, D.C. laws apply to some degree to both Maryland and Virginia employers who have employees who spend some of their time in the District. Thus, employers in the District, as well as employers whose employees wander into the District, must be aware of the added requirements of D.C. employment laws.

D.C. Family and Medical Leave Act
The District of Columbia has its own FMLA, D.C. Code § 32–501, et seq., and it is different from the federal act. In 2009 the District promulgated regulations to implement the D.C. FMLA, 4 DCMR § 1600, et seq. (D.C. register Nov. 19, 2010). The act applies to any employer who has 20 or more covered employees. A covered employee is defined as any worker who works more than 50 percent of his or her time in the District, or, if the employment is “based” in the District, who does not spend more than 50 percent of his or her time in any one state and does spend a “substantial” amount of time working in the District. 4 DCMR § 1603.5.

Covered Employers. While the regulations are not clear, it appears if an employer has 20 or more employees, but fewer than 20 are covered employees, then none of them is eligible for D.C. FMLA. 4 DCMR § 1601.5. Under the act, if a person starts leave, and during that period the employer drops below the 20–employee limit, the protected leave nevertheless continues. 4 DCMR § 1603.11.

Joint Employers. If two entities exercise “some control over the work or working conditions of the employee,” then they are joint employers. However, only the primary employer must provide the D.C. FMLA benefits; the secondary employer must accept the employee back after leave if the employee is still using leave from the primary employer, and cannot discriminate against the worker for taking leave. Most often this is the placement agency when dealing with temporary employees. 4 DCMR § 1602.

Length of Service. An employee is eligible for D.C. FMLA if he or she has worked for one year with no break in service, except for holiday, sick, or personal leave. To be eligible, the employee need not have worked for 12 months immediately before the D.C. FMLA leave, but the one–year work period should not have taken place more than seven years prior. The employee also must have worked 1,000 hours in the 12 months right before the D.C. FMLA leave. Paid holiday, sick, and vacation time count toward the 1,000 hours, as does time off for military leave under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301, et seq.; 4 DCMR § 1630. The burden is on the employer to show the employee has not worked 1,000 hours (e.g., for exempt employees who do not record their work hours). If a worker goes out on approved sick leave, and during the leave meets the 1,000 hours/one–year employment requirement, the employee will obtain D.C. FMLA protection, and the 16 weeks of leave starts then.

Available Medical and Family Leave. The D.C. FMLA allows 16 weeks of leave for medical purposes and an additional 16 weeks of leave for family purposes. 4 DCMR § 1604. The medical leave can be taken intermittently, as is medically necessary. 4 DCMR § 1605.1. The medical leave is allowed for any serious health issue, the definition of which is essentially the same as the federal definition: (i) a condition requiring at least one night of in–patient care; (2) three or more days of incapacity with at least two medical treatments—the first one must be within 10 days of the first incapacitation, and the second treatment must be within 30 days of the first incapacitation; or (b) one treatment and continuing supervised treatment (e.g., physical therapy). 4 DCMR § 1605.3(a). Pregnancy and any chronic condition also are included in the definition of a serious health condition for which medical leave can be taken. 4 DCMR § 1605.3(b)(e). Thus, if an employee is late to work because of morning sickness or an asthma attack, she is protected even if she did not see a doctor at the time. 4 DCMR § 1605. 4.

Family leave is allowed for the birth, adoption, or foster care placement of a child; for an employee permanently assuming parental duties for a child; or for an employee who needs to care for a family member with a serious health condition. 4 DCMR § 1606.4.

A family member includes any person related by blood, legal custody, or marriage; a foster child; a child who lives with the employee who permanently assumes parental responsibility; or a person who has a committed relationship with the employee and lives with, or within the last year has lived with, the employee. 4 DCMR § 1699.1. If the leave is for a child’s birth, adoption, or placement, it must be used within 12 months after the child arrives and cannot be taken intermittently, unless the employer agrees to intermittent leave, in which case the intermittent leave can last 24 months. 4 DCMR § 1606.4.

Paid Leave. An employer may require that paid leave requested due to a qualifying condition also count toward the 16 weeks of both the family and medical leave order. 4 DCMR §§ 1605.5, 1606.7. If two family members work for the same employer, their joint leave for the same reason can be limited to 16 weeks total during the two years, and no more than four weeks simultaneously. 4 DCMR §§ 1606.9–1606.11.

For exempt employees, salaries can be reduced pro rata for time off under D.C. FMLA, and they will not lose their exempt status. 4 DCMR § 1608. This is, of course, also true for federal FMLA leave.

Continuing Coverage and Job Protection. Like the federal act, D.C. FMLA requires a continuation of group health insurance coverage, with the employee continuing to pay any premium he or she paid before the leave, as well as job protection upon the employee’s return, except for certain high-level employees where the lack of a replacement would cause substantial and grave economic harm to the employer. The high-level employee must be told of the lack of restoration rights at the time his or her leave starts. 4 DCMR § 1609.

Notice of Rights. Employee rights under D.C. FMLA must be posted and included in any employee handbook or manual. If there is no handbook or manual, the notice of rights must be given to new employees as a handout. Electronic postings and electronic handouts by e–mail are permitted. 4 DCMR §§ 1613.1, 1613.2. Notices must be in language appropriate for the employee. 4 DCMR § 1613.8.

Certification and Notice Requirements. As with federal FMLA leave, if an employee requests leave, or if an employer knows an employee is out due to a qualifying event, then the employer must provide written notice within five days to the employee in the form of an eligibility letter, which includes the number of available leave hours. 4 DCMR § 1613.4. Also similar to the federal program, an employee can be required to provide medical certification within 15 days, and the employer must accept or reject the certification within five business days. 4 DCMR §§ 1613.5, 1615. If an employer doubts the validity of a certification, the employer can require a second opinion at the employer’s expense, and if that provider disagrees with the need, a third provider shall be used as a final decider, again at the employer’s cost. 4 DCMR § 1615.6–1615.8. For family leave, the employer also can require an affidavit that the employee is in fact providing care for a family member. 4 DCMR § 1615.11.

Employees must give 30 days’ notice for foreseeable leave, and notice no later than five business days after the employee’s absence begins. 4 DCMR § 1614. If medical treatment can be scheduled to avoid unduly disrupting the operations of an employer, the worker must attempt to do so, subject to the health care provider’s approval. 4 DCMR § 1614.5(b).

In calculating the 24–month period, employers can use the calendar year, any fixed period, or a rolling period from the date of absence, provided prior notice is given to employees and the same method is applied to all employees. 4 DCMR § 1616. Employers must keep annual records as to D.C. FMLA leave taken, including its cost. 4 DCMR § 1617.5. The records must, of course, be treated as confidential, kept separate from other documents, and protected by a lock. 4 DCMR § 1617.6–1617.8. Special rules apply to school employees. 4 DCMR § 1618.

Paid Leave for D.C. Employees
For years, Congress has discussed requiring paid leave for employers, but it has not acted, and is unlikely to act, in the near future. The District of Columbia, by contrast, enacted paid leave requirements in 2008. D.C. Code § 32-131, et seq.

The Accrued Sick and Safe Leave Act of 2008 requires up to seven days of paid leave, depending on the employer’s size. If an employer has 24 or fewer employees, it must provide one hour of paid leave for every 87 hours worked, but not to exceed three days a year. If an employer has 25 to 99 employees, it must provide one hour of paid leave for every 43 hours worked, but not to exceed five days a year. If an employer has 100 or more employees, it must provide one hour of paid leave for every 37 hours worked, but not to exceed seven days a year. A covered employee is anyone who works more than 50 percent of his or her time in the District. Excluded are independent contractors, students, health care workers who have a premium paid program, and restaurant wait staff and bartenders who receive tips.

Paid leave starts to accrue as soon as the employee starts work, but it cannot be used until the employee has worked one year and 1,000 hours. Paid leave can be used for anything D.C. FMLA can be used for.

Expanded Discrimination Laws
The District’s discrimination laws differ from the federal statutes in two important aspects. First, they cover significantly more protected categories. Second, the employee can sue right away—he or she need not wait for an investigation by the U.S. Equal Employment Opportunity Commission or by a state agency.

While some practitioners who have not defended discrimination cases may argue that it is not a big deal to enlarge the categories of protected classes, those who must defend discrimination cases understand the added burden. To allege discrimination, all a worker must do is (1) claim he or she is in a protected category, and (2) allege an adverse action (e.g., failure to be hired, failure to be promoted, failure to be given a raise, or termination of employment), which the employee could claim was due to his or her protected status. The more protected categories, the more options available for the employee to use in a discrimination claim against his or her supervisor.

For example, an older African American male supervisor fires an older African American male worker and replaces him with another older African American male. The employer, believing that it’s home free, thinks there can be no claim of discrimination. However, what if the supervisor is a Republican and the employee once mentioned he voted Democratic? What if both the supervisor and the replacement are single and the fired employee is married? What if the fired employee is fat and homely while the replacement is of normal weight and handsome, and the supervisor once told the employee he should lose weight for better health? The more protected classes, the more likelihood an employee can allege discrimination.

Some of the District’s extensions of the discrimination law almost seem silly. For instance, under D.C. law, if a 32-year-old supervisor fires a 19–year–old employee, and the replacement is 30 years old, the 19–year–old could claim age discrimination.

While all employers need to have realistic written annual employee evaluations, documenting all performance and discipline problems, the need is greatest in the District because of its expanded categories of protected status. Moreover, because of generous D.C. juries, employers in the District should consider a preemployment arbitration agreement or a jury waiver agreement for their employees.

Likewise, when an employee is terminated, even for cause, a good insurance policy may be to offer a modest severance package in exchange for a general release (in compliance, of course, with the Older Workers Benefit Protection Act, e.g., 21 days for the employee to consider it and seven days to revoke it). This is a low–cost alternative to expensive litigation.

Lawrence P. Postol is a partner at Seyfarth Shaw LLP. He is a 1976 graduate of Cornell Law School, where he was on the board of editors of the Cornell Law Review. Postol has successfully argued more than 25 cases before the U.S. Courts of Appeals and won two cases before the U.S. Supreme Court.

“Taking the Stand” appears periodically in Washington Lawyer as a forum for D.C. Bar members to address issues of importance to them and that would be of interest to others. The opinions expressed are the author’s own.