The FLSA overtime case filed on behalf of 704 current and former Vermont state employees is before the United States Court of Appeals for the Second Circuit in New York. The case, known as Sheila Coniff et al., on behalf of themselves and those similarly situated v. State of Vermont et al., Docket No. 13-4198-cv, (2d Cir.), challenges the state’s practice of providing straight time overtime instead of time and one half overtime to employees once they reach pay grade 23.  The class of employees are from the corrections, judiciary, non-management and supervisory bargaining units.  All parties have fully briefed the case and oral argument in New York City should take place later this Fall.  Thereafter the Court will issue a decision.  Once we receive notice of the date and time for oral argument we will post that information so that state employees can attend if they wish.  Tom Somers, lead counsel for the class, says he welcomes any state workers to join him at the argument.

The federal court in Burlington ruled that the State was immune from suit under the Fair Labor Standards Act because of an ancient legal doctrine known as sovereign immunity.  In other words, the State argued that it was above the law that private employers must obey, and the trial court agreed.  The trial court also ruled that the state employees were “salaried”, which is required for an employee to be exempt from overtime, despite the fact that employees are not paid unless they work or have accrued leave, all earned on an hourly basis. Somers says, “We are optimistic about our chances with the Second Circuit. While I have high regard for Judge Sessions who ruled against us in the trial court, his ruling contains many legal mistakes which we believe the Second Circuit will not make.”

If anyone would like an electronic copy of the briefs filed by the parties in the 2d Circuit, please contact Kathy Bonilla in Somers’ office at 802-863-1191 or by email at kbonilla@bpflegal.com.

To the Americans with Disabilities Act and to the Family Medical Leave Act

In the early 1990’s, two major pieces of employment legislation were passed by Congress – the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”). In 2008, Congress and the Department of Labor made significant changes to the ADA and the FMLA. The changes to the ADA go into effect on January 1, 2009, and the changes to the FMLA go into effect on January 16, 2009.

FMLA

The FMLA changes are extensive, and will require employers to make both policy and procedural changes. The new FMLA regulations involve significant changes in the manner in which employees are notified of their FMLA rights, how paid time off interfaces with unpaid FMLA leave, and how medical certifications and fitness for duty certifications are reviewed or required. These new rules may necessitate changes in various policies your company already has, including: paid time off; compensation policies (including bonuses that relate to attendance); light duty policies; policies and procedures for notifying employees of FMLA rights and designating leave as FMLA leave; and processes for obtaining medical certification, receiving follow up medical information, and obtaining fitness for duty documentation.

The new FMLA regulations also create a new category of leave regarding military family leave entitlements. These entitlements can be summarized as follows:

• Up to 12 weeks of leave for certain qualifying exigencies arising out of a covered military member’s active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation; and
• Up to 26 weeks of leave in a single 12-month period to care for a covered service member recovering from a serious injury or illness incurred in the line of duty while on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave during the single 12-month period.

You can learn more about the FMLA changes and the new regulations by going to the website specifically set up by the DOL to inform the public of the final regulations, at http://www.dol.gov/esa/whd/fmla/finalrule.htm. A fact sheet is available through the site which highlights some of the changes. There will also be new forms relating to the grant of FMLA leave and to the medical certifications. Those revised forms can be obtained by downloading a copy of the final rule.

ADA

The changes to the ADA will likely require less in the way of policy change. However, they will require a change in the process by which an employee’s assertion of ADA coverage should be evaluated, and whether reasonable accommodations are necessary. The ADA changes were prompted by a number of Supreme Court decisions which Congress perceived to be narrowing the intended scope of the ADA. The most significant ADA changes are as follows:

• • The EEOC was charged with revising its ADA regulations that define the term “substantially limits” to clarify the broader meaning of that term originally intended by Congress;

• The definition of the term “major life activities” was expanded by including two non-exhaustive lists:
• § the first list includes activities that the EEOC has already recognized (such as walking) as well as activities that EEOC has not specifically recognized (such as reading, bending, and communicating);
• § the second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
• The amendments clarify that an “impairment” that is episodic or in remission is a “disability” if it would substantially limit a major life activity when active;
• The amendments state that “mitigating measures” (such as medication, prosthetics, etc.) other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
• The new law provides that an individual subjected to an action prohibited by the ADA (such as failure to hire or promote) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is transitory and minor. In addition, the amendments provide that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and
• The new law makes clear that the definition of “disability” should be interpreted broadly, which will likely result in the application of the ADA’s protections to a larger number of employees.

These are just highlights of the new laws and regulations in these major areas. The specific applications of these mandates to your company and to your policies and procedures cannot be fully explained in this one article. However, it should be the subject of some self-examination by your Human Resources and Management teams The Labor and Employment Law team at Bergeron, Paradis and Fitzpatrick, LLP has already drafted revisions to various common employment policies relating to these changes in the law. We would be happy to assist your company, either by answering any questions you have about how these changes will impact your business, or by helping you to update your current personnel policies and practices. We look forward to working with you.

BP&F is not rendering any legal, accounting or other professional opinions by way of the above article.

While BP&F has exercised reasonable care to ensure the accuracy of the information, no representation or warranty is made as to such accuracy. Due to the rapidly changing nature of the law, information contained in this article may become outdated. In no event is BP&F liable for any direct, indirect, consequential or other damages resulting from and/or related to the use of this article. If you would like to speak with a BPF attorney about the subject matter of this article, please contact us at 802.863.1191.