Today's Technology for Tomorrow's Firm.
Issue link: https://cpapracticeadvisor.epubxp.com/i/825759
18 MAY 2017 ■ www.CPAPracticeAdvisor.com RICHARD D. ALANIZ Senior Partner Alaniz Schraeder Linker Faris Mayes, L.L.P. ralaniz@alaniz-schraeder.com THE LABOR LAW ADVISOR The EEOC's Increased Focus on Leave Policies In recent years, the EEOC has focused intensely on employers' leave policies, alleging that many companies' leave policies violate the ADA and filing numerous lawsuits over the past several years. In a press release following a large settlement with Verizon Wireless for $20 mil- lion, the EEOC stated, "an inflexible leave policy may deny workers with disabilities a reasonable accom- modation to which they're entitled by law—with devastating effects." Similar settlements the agency has reached include: Pactiv LLC for $1.7 million, Interstate Distributor for $4.85 million, Supervalu for $3.2 mil- lion, and Sears for $6.2 million. And in the EEOC's most updated Strategic Enforcement Plan, the agency makes clear that it intends to continue to police employers' leave policies. Given the priority that employ- ers' leave policies have been given by the EEOC over the last several years and in the agency's updated enforcement agenda, now would be a good time for employers to review and revise as needed any leave or no fault absence policies. THE EQUAL EMPLOY- MENT OPPORTUNITY COMMISSION The EEOC is the federal agency responsible for enforcing federal laws that make it illegal to dis- criminate against a job applicant or employee because of that person's race, color, religion, sex, national origin, age, disability, or genetic information. Most employers are covered by EEOC-enforced laws. In Fiscal Year 2016, the last year for which complete statistics are avail- able, there were a total of 91,503 Charges of Discrimination filed with the agency. Of these, 28,073, or over 30%, alleged violations of the ADA. And this number has only risen in recent years. For example, in 2005 there were only 14,893 Charges alleging disability discrimination filed. This trend is likely to continue. EMPLOYER LEAVE POLI- CIES AND THE EEOC Most employers have leave of absence policies that are routinely used by employees who need to be away from work for one reason or another. In the majority of cases the needed leave is related to a medical condition of the employee or a close family member. The federal govern- ment and numerous states mandate leave for qualifying reasons through such laws as the Family and Medi- cal Leave Act ("FMLA") and similar state laws. Normally, they provide up to 12 weeks of unpaid leave for the birth or adoption of a child, the serious illness of the employee or an immediate family member, and for other similar reasons. For example, under the FMLA even longer leave is mandated for certain circumstances related to the military service of a close family member. Under most of these laws, at the conclusion of the leave, the employee must be rein- stated to their prior position or to a substantially similar job if theirs is no longer available. "Substantially similar" has been ruled to be similar in pay, status, schedule, and other such characteristics. FMLA leave is mandatory for most employers with 50 or more employees, and many state laws track the FMLA's requirements. In addition to FMLA leave, most employers also provide other leave, usually of a specified period, to employees who have need of an extended period away from work. Many employers cap such extended leave at some maximum amount, frequently one year, at the end of SEVERAL YEARS AGO, the Equal Employment Opportunity Commission ("EEOC"), the federal agency that enforces the nation's anti-discrimination laws, filed suit against AutoZone, Inc., accusing the auto parts retailer of violating the Americans with Disabilities Act ("ADA") by allegedly firing employees who took too much time off for disability-related absences. According to the Complaint, AutoZone failed "to make exceptions to a 'no fault' attendance policy for their [employee's] disability-related absences, and discharged them as a result." The case is still pending before a federal judge in Illinois, but it reflects a broader trend on the part of the EEOC.