Only "Reasonable" Documentation May be Sought to Support Accommodations Requested Under the EEOC's Proposed PWFA Regulations

Belatedly following up the summary of the EEOC’s proposed Interpretative Guidance for the EEOC’s proposed PWFA regulations, I am finally addressing permitted documentation which an employer may request and/or require when an employee seeks an accommodation – such as temporary elimination of an essential job function or a leave of absence – under the PWFA.    As with the ADA, the employer can request documentation in certain circumstances before granting an accommodation.  However, if as discussed below, the documentation requested is unreasonable, then the employer has no defense to delaying or denying the accommodation and can even be found liable for coercion or retaliation, etc. in violation of the PWFA.  Unlike the ADA, the employer may not require the employee to be examined by a healthcare provider of the employer’s choosing.  Like the ADA, the information provided must remain confidential. 

Documentation may not be requested when the limitation and need for accommodation are “obvious.”  The EEOC explains this exception as follows:

For example, when an obviously pregnant worker states or confirms they are pregnant and asks for a different size uniform or related safety gear, both the limitation and the need for the accommodation are obvious, and “known” under the statute, and the employer may not require supporting documentation. 

If the pregnancy is obvious, and the worker states or confirms that they are pregnant, but the limitation related to the pregnancy or parameters of a potential accommodation are not, the employer may only request documentation relevant to the accommodation. For example, if a worker who is obviously pregnant, states or confirms that they are pregnant, and asks to avoid lifting heavy objects, it may be reasonable for the employer to request documentation about the limitation such as the extent of the lifting restriction and its expected duration, but not about the pregnancy itself.  Similarly, if an obviously pregnant employee requests the reasonable accommodation of leave related to childbirth and recovery and states or confirms that they are pregnant it may be reasonable for the employer to require documentation regarding the amount of time the worker anticipates needing to recover from childbirth, but not reasonable to require documentation of the pregnancy itself.

Documentation may not be requested when the employee has already provided sufficient documentation and/or information to substantiate her limitation and need for an accommodation. The EEOC explains this exception as follows:

If a worker has already provided documentation stating that because of their recent cesarean section, they should not lift over 20 pounds for two months, the employer may not require further documentation during those two months because the employee has already provided the employer with sufficient information to substantiate that they have a limitation and need a change at work.

Documentation may not be requested when the employee seeks one of the four mandatory accommodation previously discussed.    As the EEOC explains:

 

 . . . . . : (1) carrying water and drinking, as needed; (2) taking additional restroom breaks; (3) sitting, for those whose work requires standing, and standing, for those whose work requires sitting; and (4) breaks, as needed, to eat and drink. It is not reasonable to require documentation, beyond self-attestation, when a worker is pregnant and seeks one of the four listed modifications because these are a small set of commonly sought accommodations that are widely known to be needed during an uncomplicated pregnancy and where documentation would not be easily obtainable or necessary. As noted above, particularly early in pregnancy, employees and applicants are less likely to have sought or been able to obtain an appointment with a health care provider for their pregnancy. Further, they may not be able to obtain an appointment with a health care provider repeatedly on short notice for every limitation, as each becomes apparent. The Commission notes that this position is consistent with the overarching goal of the PWFA to assist workers affected by pregnancy to remain on the job by providing them with simple accommodations quickly.

Documentation also may not be requested when the accommodation involves lactation.    As the EEOC explains:

. . . .  As the initiation of lactation around birth is nearly universal, the Commission considers the fact of breastfeeding obvious, such that it will not be reasonable for an employer to require documentation regarding lactation or pumping. Pragmatically, the Commission notes that health care providers may not be able to provide documentation regarding whether a worker is pumping, nor the types of accommodations needed in order to pump breast milk.  Of course, not all workers can or choose to breastfeed; those who do elect to breastfeed do so for widely varying lengths of time. Although the proposed rule states that it is generally not reasonable for an employer to require supporting documentation for lactation or pumping, an employer will not violate the proposed rule simply by asking the employee whether they require an appropriate place to express breastmilk while at a worksite. Employee confirmation—or a simple request to pump at work—is sufficient confirmation.

The relevant language of the proposed regulation is as follows:

1634.3(l) Supporting documentation. (1) A covered entity that decides to seek supporting documentation from a worker who seeks an accommodation under the PWFA is limited to requiring documentation that is reasonable under the circumstances for the covered entity to determine whether to grant the accommodation. The following situations are examples of when requiring supporting documentation is not reasonable under the circumstances:

(i) When the known limitation and need for reasonable accommodation are obvious and the employee confirms the obvious limitation and need for reasonable accommodation through self-attestation;

(ii) When the employee or applicant already has provided the covered entity with sufficient information to substantiate that the employee or applicant has a known limitation and that a change or adjustment at work is needed;

(iii) When the employee or applicant is pregnant and the reasonable accommodation is one of those listed in paragraphs (j)(4)(i) through (iv) of this section and the employee has provided a self-attestation; or

(iv) When the covered entity requires documentation other than self-attestation from the employee or applicant regarding lactation or pumping.

(2) When requiring supporting documentation is reasonable under the circumstances, the covered entity is limited to requiring reasonable documentation. Reasonable documentation means documentation that is sufficient to describe or confirm the physical or mental condition; that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and that a change or adjustment at work is needed.

(3) A covered entity may require that documentation comes from the appropriate health care provider in a particular situation, which may include, but is not limited to, doctors, doulas, midwives, psychologists, nurses, nurse practitioners, physical therapists, lactation consultants, occupational therapists, vocational rehabilitation specialists, therapists, and licensed mental health providers. The covered entity may not require that the employee or applicant seeking the accommodation be examined by a health care provider selected by the covered entity.

(4) The rules protecting confidential medical information in the Americans with Disabilities Act, 42 U.S.C. 12111 et seq., apply to medical information received by a covered entity under the PWFA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Columbus Publishes Text of New Salary History Ban Ordinance

In March, the Columbus City Council enacted a new ordinance prohibiting most local employers from seeking information about salary history from job applicants beginning on March 1, 2024.   The text of the ordinance has recently been posted online by creating new chapter 2335.  The ordinance is based on the historical disparity in wages between men and women (without regard to the different jobs held, such as the wage differential between construction and childcare jobs) and the belief that requesting salary history perpetuates perceived past wage discrimination.  Applicants who believe that their rights under this new ordinance have been violated may filed a Charge within six months with the City’s Community Relations Commission under Ordinance §2331.05. 

The ordinance applies to any job for wages which will be performed anywhere within the City limits when the application will be processed, solicited, received or considered within the City limits by an employer with at least 15 employees (but not any governmental employer other than the City of Columbus itself).  The ordinance does not apply to independent contractors, but does apply to temporary, seasonal, part-time and contingent work paid with wages, salary or commission.

Employers may not inquire in writing or verbally of the applicant or a prior employer about the applicant’s salary history, which includes wages, salary, benefits or other compensation, but does not include productivity measures, such as revenue generated, sales or other production goals.

There are exceptions for when the “applicant” is already employed by the employer or was recently employed by the employer, when the employer is relying on a federal or state statute for inquiring and relying upon salary history, when the employer receives an unprompted disclosure of an applicant’s salary history, and when a collective bargaining agreement determines the compensation rate.

Civil Penalties (starting at $1,000) may be imposed for violations of the ordinance after a hearing. 

The relevant language of the ordinance and potential penalties are here:

SECTION 1. That Chapter 2335 of the Columbus City Codes is hereby enacted to read as follows:

Chapter 2335 - PROHIBITED SALARY HISTORY INQUIRY AND USE

2335.01 – Definitions

(A) "Applicant" means any person applying for employment to be performed within the geographic boundaries of the City of Columbus, and whose application, in whole or in part, will be solicited, received, processed, or considered in the City of Columbus, regardless of whether the applicant is interviewed.

(B) "Employer" means an individual, firm, limited liability company, partnership, association, labor organization, corporation, or any other entity whether or not organized for profit, that employs fifteen (15) or more persons on a qualifying wage, commission, or other compensation basis within the City of Columbus. “Employer” includes job placement and referral agencies and other employment agencies when such agencies operate on behalf of an entity that otherwise meets the definition of “Employer”. “Employer” does not include any unit of local, state, or federal government, except the City of Columbus.

(C) "Employment" means any occupation, vocation, job, or work, including but not limited to, temporary and seasonal work, part-time work, contracted work, contingent work, work on commission, and work through the services of a temporary or other employment agency for which the applicant is to receive wages or a salary. Employment does not include work as an independent contractor.

(D) "Inquire" means to communicate any question or statement to an applicant, an applicant's current or prior employers, or a current or former employee or agent of the applicant's current or prior employers, in writing or otherwise, for the purpose of obtaining an applicant's salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant's salary history, but does not include informing the applicant in writing or otherwise about the position's proposed or anticipated salary or salary range.

(E) "Salary history" includes the applicant's current or prior wage, benefits, or other compensation. "Salary history" does not include any objective measure of the applicant's productivity such as revenue, sales, or other production reports.

2335.02 - Purpose The purpose and intent of this chapter is to elevate the best practices for hiring that promote pay equity. The practices addressed in this chapter can, if used, perpetuate issues of systemic discrimination related to the wage gap and wealth gap for women, especially women of color. To promote pay equity across the workforce in the City of Columbus, the following prohibitions are established.

2335.03 - Unlawful discriminatory practices regarding the use of salary history.

(A) Except as otherwise provided in division (B) of this section, an employer shall not do any of the following:

(1) Inquire about the salary history of an applicant for employment;

(2) Screen job applicants based on their current or prior wages, benefits, other compensation, or salary histories, including requiring that an applicant's prior wages, benefits, other compensation or salary history satisfy minimum or maximum criteria;

(3) Rely solely on the salary history of an applicant, except as provided in division (C) of this section, in deciding whether to offer employment to an applicant, or in determining the salary, benefits, or other compensation for such applicant during the hiring process, including the negotiation of an employment contract;

(4) Refuse to hire or otherwise disfavor, injure, or retaliate against an applicant for not disclosing salary history to an employer.

(B) Notwithstanding division (A) of this section, an employer may, without inquiring about salary history, engage in discussion with the applicant about their expectations with respect to salary, benefits, and other compensation, including but not limited to unvested equity or deferred compensation that an applicant would forfeit by resigning from their current employer.

(C) The prohibitions contained in this section shall not apply to any of the following:

(1) Any actions taken by an employer pursuant to any federal, state, or local law that specifically authorizes the reliance on salary history to determine an employee's compensation;

(2) Applicants for internal transfer or promotion with their current employer;

(3) A voluntary and unprompted disclosure of salary history information by an Applicant;

(4) Any attempt by an employer to verify an applicant's disclosure of non-salary related information or conduct a background check, provided that if such verification or background check discloses the applicant's salary history, such disclosure shall not be solely relied upon for purposes of determining the salary, benefits, or other compensation of such applicant during the hiring process, including the negotiation of a contract;

(5) Applicants who are re-hired by the employer within three years of the Applicant's most recent date of termination of employment by the Employer, provided that the employer already has past salary history data regarding the Applicant from the previous employment of Applicant;

(6) Employee positions for which salary, benefits, or other compensation are determined pursuant to procedures established by collective bargaining;

(7) Federal, state, and local governmental employers, other than the City of Columbus.

2335.04 - Complaint Procedure An applicant may file a complaint with the Community Relations Commission under Section 2331.05(A) alleging that an employer has engaged in or is now engaging in any violations of section 2335.03.

2335.05 - Civil Penalties Upon an administrative finding of violation by the commission, an employer may be subject to civil penalties outlined in Section 2331.05(B).

2335.06 - Severability If any provision or section of this chapter or the enforcement of any such provision or section is held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect or render invalid or unenforceable any other provision or section of this chapter. To this end, each of the provisions and sections of this chapter are severable.

2335.07 - Effective Date This Chapter shall take effect on March 1, 2024.

SECTION 3. That Section 2331.05 of the Columbus City Codes is hereby amended as follows:

2331.05 Complaint procedure.

(A) Whenever it is alleged in a complaint, in writing, by a person or aggrieved organization, hereinafter referenced to as "complainant," that any person, employer, employment agency, or labor organization, hereinafter referred to as the "respondent," has engaged in or is engaging in any unlawful discriminatory practices as defined in Title 23, Chapter 2331 and Chapter 2335 of the Columbus City Codes, or upon its own initiative, in matters relating to such discriminatory practices, the community relations commission staff may initiate a preliminary investigation. Such complaint shall be filed with the community relations commission within six (6) months after the alleged unlawful discriminatory practices are committed.

(1) If the community relations commission staff determines after such investigation, that there is no reasonable basis to believe that unlawful discriminatory practices have been or are being engaged in, staff may recommend to the community relations commission that the complaint be dismissed. If the commission approves, staff shall notify the complainant that it has so determined, and the complaint will be dismissed.

(2) If the community relations commission staff determines, after such investigation, that there is a reasonable basis to believe that unlawful discriminatory practices have been or are being engaged in, they shall endeavor to eliminate such practices by informal methods of conference, conciliation, and persuasion.

(a) If after such investigation and conference the community relations commission staff is satisfied that any unlawful discriminatory practice of the respondent will be eliminated, staff may recommend to the community relations commission that it treat the complaint as conciliated. If the commission agrees, staff shall notify the complainant that the complaint will be dismissed.

 (b) If the community relations commission staff fails to effect the elimination of such unlawful discriminatory practices or to obtain conciliation of the matter, or, if the circumstances warrant, in advance of or during any such preliminary investigation or endeavors to conciliate the matter, the community relations commission may refer the complaint to the City Prosecutor to evaluate for criminal prosecution. This subdivision shall not apply to complaints filed under Chapter 2335.

(c) If the community relations commission staff fails to effect the elimination of such unlawful discriminatory practices or to obtain conciliation of the matter and no referral to the City Prosecutor to evaluate for criminal prosecution is then pending, the community relations commission may direct staff to issue and cause to be served upon the respondent a notice of a finding of administrative violation and imposition of civil penalty. The notice shall notify the respondent of the right to request an administrative hearing before a hearing officer appointed by the community relations commission to contest the finding of administrative violation. Failure to request an administrative hearing within fifteen (15) days of receipt of the notice of violation shall constitute a waiver of the right to a hearing.

(B) If a hearing officer is appointed, the hearing officer shall have the authority to:

(1) Conduct an administrative hearing;

(2) Provide to all the parties, witnesses, and the Community Relations Commission timely notice of the hearing date, time, and location;

(3) Direct the exchange of discovery;

(4) Set, change as necessary, and timely communicate to the parties such reasonable procedural rules as the hearing officer shall deem appropriate including:

(a) A member of the Community Relations Commission staff shall have the burden of going forward with the presentation of evidence. All parties shall have the right to appear and be heard in person, or by legal counsel, to present their case.

(b) All parties shall have the right to: offer and examine witnesses and present evidence in support of their case; cross examine adverse witnesses; and proffer evidence into the record if its admission has been denied.

(c) Testimony shall be given under oath.

(d) The hearing officer shall make recommendations on all matters of evidence. In so doing, the hearing officer is not strictly bound by the rules of evidence. The hearing officer may ask questions of any witness at any point in the proceedings and may set time and other limitations for each side in the presentation of evidence. A record of proceedings shall be kept. Parties seeking a stenographic record shall acquire such stenographic record at their own expense.

(5) Except as otherwise prescribed by law, the hearing officer shall submit to the Community Relations Commission a written report setting forth the hearing officer's findings of fact and conclusions of law and a recommendation of the action to be taken by the Commission.

(a) If the Hearing Officer finds, by a preponderance of the evidence, that respondent did engage in, or continues to engage in, an unlawful discriminatory act or practice under this chapter as noticed in the finding of administrative violation, the Hearing Officer's report shall so indicate by recommending that the finding of violation be upheld.

(b) If the Hearing Officer finds that the evidence presented failed to support the finding of violation, the Hearing Officer's report shall so indicate by recommending that the finding of administrative violation be overturned and the complaint dismissed.

(c) The final report of the Hearing Officer may not include any orders for reinstatement of employment, refund of monies paid, other mitigation of damages, or any other orders for corrections or sanctions, except as provided in this section.

(6) A copy of the Hearing Officer's written report and recommendation shall, within five days of the date of filing thereof, be served upon the respondent or respondent's attorney, by certified mail. The respondent may, within ten days of receipt of the copy of the written report or recommendation, file with the Community Relations Commission written objections to the report and recommendation, which objections shall be considered by the Community Relations Commission before approving, modifying, or disapproving the recommendation. The Community Relations Commission may grant extensions of time to the respondent within which to file such objections. No recommendation of the Hearing Officer shall be approved, modified, or disapproved by the Community Relations Commission until ten days after the service of the report and recommendation as provided in this section. The Community Relations Commission may order additional testimony to be taken or permit the introduction of further documentary evidence.

(7) The Community Relations Commission, by majority vote, may approve, modify or disapprove the recommendation from the Hearing Officer by written decision which shall become effective upon service to the affected parties, unless otherwise stated in the Community Relation Commission's decision.

(8) The final decision of the Community Relations Commission may be appealed pursuant to the provisions of R.C. Chapter 2506.

(B) Civil Penalties

(1) Upon an administrative finding of violation by the commission, a civil penalty in an amount not to exceed one thousand dollars ($1,000) may be imposed;

(2) Upon an administrative finding of violation by the commission, if the violator has been found to have committed one violation of this Chapter during the five-year period immediately preceding the date on which a complaint was filed with the community relations commission, a civil penalty in an amount not to exceed two thousand five hundred dollars ($2,500) may be imposed;

 (3) Upon an administrative finding of violation by the commission, if the violator has been found to have committed two or more violations of this Chapter during the five-year period immediately preceding the date on which a complaint was filed with the community relations commission, a civil penalty in an amount not to exceed five thousand dollars ($5,000) may be imposed;

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Duh! Employee Handbook's Arbitration Clause Cannot Be Enforceable If Handbook Explicitly Disclaims Being an Enforceable Contract.

 

Last week, the Hamilton County Court of Appeals reversed an employer’s motion to dismiss and compel arbitration because the arbitration “clause” was contained in an employee handbook, which specifically said that it was not a binding contract and was illusory since the employer could change the terms at any time without the employee’s assent.  Bauer v. River City Mtge., L.L.C., 2023-Ohio-3443. “Because the acknowledgement form disavowed any binding force and provided [the employer] with the authority to amend the employee manual at any time without notice to [the employee], we hold there was no meeting of the minds here. And absent mutual assent, the employee handbook was merely a unilateral statement of rules and policies which did not create any contractual obligation and rights.”

According to the Court’s opinion, the plaintiff employee signed the Handbook Acknowledgement, which explicitly stated that Handbook could be changed at any time at the employer’s discretion without notice and that it was not intended to form an implied or express contract.  One of the policies required employees to arbitrate any dispute with the employer.   The plaintiff filed suit after being fired, claiming that she had been subjected for years to discrimination and sexual harassment.  The employer moved to dismiss and compel arbitration based on the employee handbook.  The trial court dismissed the complaint due to the arbitration policy.

The appellate court reminded the parties that:

As in all contracts, express or implied, both parties must intend to be bound. Absent mutual assent, a handbook becomes merely a unilateral statement of rules and policies which create no obligation and rights.

The Court distinguished prior court decisions where the handbook acknowledgement specifically referenced the arbitration requirement and the employee’s consent to it.  Unlike those cases, the handbook acknowledgement in this case said nothing about mandatory arbitration; on the contrary, it referred only to how the handbook was not an enforceable contract.

Further, the employer’s reservation of rights to unilaterally modify the handbook policies without notice or consent rendered any such contract illusory. “Many courts have ‘found that permitting an employer to unilaterally amend or terminate an arbitration agreement without notice renders the agreement illusory.”’

Defendants rely heavily on Ohio’s strong policy favoring arbitration to argue the employee manual was a binding contract. But this policy is not triggered when a broad disclaimer of contractual obligations indicates the parties never agreed to arbitrate. Further, the presumption in favor of arbitration is useful in resolving ambiguities in the language of an arbitration provision. . . . .But here, no such ambiguities exist, as the acknowledgement form clearly and unequivocally disclaims any contractual obligations. Defendants’ reliance on Ohio’s strong policy favoring arbitration is therefore misplaced.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Employee Was Not Entitled to Incentive Bonus for Prior Year Unless Still Employed in March as Provided in Contract

Near the end of August, the Ohio Court of Appeals affirmed an employer’s summary judgment on claims of “breach of contract, detrimental reliance, unjust enrichment, and fraud” arising out of the refusal of employer to pay out a $50K incentive bonus earned in the prior year because the plaintiff was not still employed at the time the bonus was payable.  Rusu v. Carter-Jones Lumber Co., 2023-Ohio-2927.  The Court agreed that the parties’ contract provided that the employee was not entitled to the incentive bonus unless he was still employed at the time the bonuses were paid out every year in March.  In short, the employee did not earn the bonus unless all of the conditions of the agreement were satisfied:  certain profit targets were achieved in the calendar year AND he was still employed at the time the bonus was paid every March. 

According to the Court’s opinion, the plaintiff was hired in 2016.  The terms of his offer letter specified that he would be eligible for an incentive bonus.  The addendum, which the plaintiff signed, provided that to receive the bonus, the plaintiff must still be employed when the bonus was paid out in March.  If his employment ended for any reason before the bonus was paid in March, he would not receive any portion of the bonus.  The plaintiff also admitted that he had been paid the incentive bonus each March that he was employed.  However, he was terminated on January 10, 2020 and was not paid any portion of the 2019 incentive bonus that he asserted he had already earned.   He then filed suit.

The plaintiff argued that it was inequitable for him to forfeit his bonus on January 10 after he had already earned it the prior year.  He argued that his situation was akin to when another employer’s bonus policy provided “the employee was entitled to a bonus based on the calendar-year profit when that year’s audit was completed.”  In that case, the court had concluded that the policy caused the employee to lose his bonus “based solely on the fortuitous timing of the completion of the audit procedures, which procedures could in no way alter the profit or bonus actually earned.”  The Court rejected the analogy because in this case agreement was specific about how long he had to remain employed and it was not a vague or uncertain date in the future:

However, here, the addendum specifically set forth that the bonus would be distributed in the following March. Thus, the timing of the bonus distribution was not “fortuitous,” but instead was a specific term of the agreement. Moreover, the Ohio Supreme Court has held that “[a] person competent to contract who, pursuant to a written agreement with another has performed services, is entitled to compensation therefor only in accordance with the terms of such bargain, in the absence of fraud, illegality or bad faith.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Proposes To Increase Exempt Salaries to $55K/year from $35K/year

 At the end August, the federal Department of Labor announced that it was proposing on September 8 to amend 29 C.F.R. 541.600 of the Fair Labor Standards Act regulations to increase the minimum salary for exempt employees from approximately $35K/year to $55K/year.  Under the proposed regulation, employees could not be classified as exempt from the FLSA (under the white collar exemptions for executive, administrative and professional employees) unless they were paid a guaranteed salary of at least $1,059 per week.  In other words, employees would be entitled to be paid overtime compensation whenever they work more than 40 hours in a week if they are paid less than $1,059 per week.   The minimum threshold for highly compensated employees will similarly be increased to $143,988/year from the current $107K in the proposed amendment of 29 C.F.R. §541.601.    The proposed regulation would also automatically adjust the minimum salary threshold every three years.  The DOL will accept comments about the rule for 60 days (or until November 7).  A similar regulation was proposed near the end of the Obama Administration, but was enjoined by a federal court and was later withdrawn.