By: Joshua Friel

Yesterday, the United States Supreme Court issued a 6-3 ruling in which it held that Title VII of the Civil Rights Act of 1964 (“Title VII”) also covers homosexual and transgender employees.  Title VII generally applies to all employers with 15 more than employees.  The ruling can be summed up with the following quote from the decision:

The Supreme Court consolidated three separate appeals, two from gay men and one from a transgender woman, all three of whom alleged that their former employers fired them in violation of Title VII’s prohibition on discrimination on the basis of sex.  In all three cases, the employers admitted that their discrimination was on the basis of the former employee’s sexuality or gender identity but disputed that the discrimination was on the basis of sex.

The Supreme Court found that it is, “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  The Supreme Court reasoned in the case of the two gay men, they were not fired simply for being attracted to men, they were fired because they were men who were attracted to men, and therefore, the discrimination was based on the sex of the employee.  In the case of the transgender woman, the Court found that the discrimination was not simply because she identified as a woman, but because she was biologically a man who identified as a woman.

We are advising our corporate clients to take the following steps to ensure compliance with the law and avoid potentially costly lawsuits:

1. Revise harassment and discrimination policies. Although the Supreme Court found that discrimination on sexual orientation and gender identity are already included within the definition of “sex” for Title VII, Employers should include specific provisions in their harassment and discrimination policies to guide management and employees on how the law applies and help create an atmosphere which does not tolerate such discrimination or harassment.
2. Provide non-discrimination and harassment training. This ruling is a significant change in the way Title VII is interpreted.  The Supreme Court took the case, in part, because the various Circuit Courts of Appeals which heard these cases came to different conclusions.  Even among the Supreme Court, there were three justices which dissented from the majority.  If Judges can get it “wrong” so too can employers trying to follow the law.  The majority opinion is now law, so training on this decision is necessary to help Employers follow the law and prevent potentially costly violations.
3. Consult with counsel on any employment decisions which may violate Title VII. In the past, employers have successfully defended discrimination against homosexuals and transgender people by arguing that discrimination on the basis of those characteristics was not covered by Title VII.  As with other areas of employment law, we are likely to see the ripples of this decision in harassment and hostile work environment claims as well.  Your counsel will be keeping up to date on these decisions and will be in the best place to advise you on complying with the law.

The Supreme Court’s decision was a surprise to many observers, especially since it was written by conservative, President Trump-appointed Justice Neil Gorsuch.  The three employers who were defendants in the consolidated case felt confident enough in their decisions to fire their employees on the basis of sexual orientation that each employer admitted the basis for their firing decisions, and then defended their decisions all the way to the Supreme Court.  The ambiguity in the law undoubtedly has discouraged many potential plaintiffs from pursuing a case, and lawyers from taking such cases.

However, now that the Supreme Court has addressed this issue, it is expected that more employees will bring claims under Title VII, and lawyers will be lining up to take those cases.  It is more important than ever for employers to know how to comply with Title VII to avoid costly litigation.

By: Megan E. Ray

The Families First Coronavirus Response Act (FFCRA) passed the U.S. Senate by a vote of 90-8, on March 18, 2020 and was signed into law by the President later that same day.  The full text of the law can be found here:

https://www.congress.gov/bill/116th-congress/house-bill/6201/text?q=%7B%22search%22%3A%5B%22hr6201%22%5D%7D&r=1&s=1

The FFCRA provides employees with paid sick leave through the use of two new laws,  the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA), both of which are effective through December 31, 2020.

Not later than 7 days after the date of enactment of this Act (which is 3/18/20), the Secretary of Labor shall make publicly available a model of a notice that each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted.  Specific provisions of the FFCRA is outlined below.

The Emergency Family and Medical Leave Expansion Act (EFMLEA)

The EFMLEA amends the Family and Medical Leave Act of 1993 (FMLA) on a temporary basis to provide up to 10 weeks of protected PAID leave to eligible employees for a coronavirus related reason.  This includes being unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to coronavirus.

Under the EFMLEA, the first two weeks of an employee’s FMLA leave remain unpaid, but for the next 10 weeks, eligible employees (those who have been employed with the employer for at least 30 calendar days) will receive two-thirds pay while on leave.  If an employee has any paid personal, sick or medical leave days, they can use those paid leave days during the two weeks of unpaid leave under the EFMLEA.

The EFMLEA’s requirements apply to all employers with fewer than 500 employees and its benefits are only in effect until December 31, 2020.

The rights provided to employees under the FMLA, including prohibition on retaliation, apply to the EFMLEA.

The EFMLEA technically applies to businesses with fewer than 50 employees.  However, a special provision in the Act gives the Department of Labor explicit authority to create regulations that would exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern.

Under the traditional FMLA law, employees who take FMLA leave are entitled to restoration of the same or equivalent position upon return.  FFCRA amends this requirement and instead states that this requirement shall not apply with respect to an employee of an employer who employs fewer than 25 employees if the following conditions are met:

1. The employee takes leave under this act,
2. The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer
   1. that affect employment; and
   2. are caused by a public health emergency during the period of leave.
3. The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.
   1. If the reasonable efforts of the employer fail, the employer makes reasonable efforts during the “contact period” to contact the employee if an equivalent position becomes available.
      1. The “contact period” means the 1-year period beginning on the earlier of
         1. the date on which the qualifying need related to a public health emergency concludes; or
         2. the date that is 12 weeks after the date on which the employee’s leave commences.

The Emergency Paid Sick Leave Act (EPSLA)

The EPSLA is the second law contained in the FFCRA that provides paid leave.  Specifically, EPSLA provides full-time employees up to 80 hours (two weeks) of paid sick leave if they are unable to work at the office or from home because:

• the employee is quarantined, either by the government or a health care provider,
• the employee is experiencing symptoms and is seeking a diagnosis,
• the employee is caring for someone under quarantine,
• the employee is caring for a child because schools or places of care have closed, or
• the employee is experiencing conditions substantially similar to the symptoms exhibited by the coronavirus.

Part-time employees can also receive paid sick leave, but it will be limited to the average number of hours that the employee works over a two-week period.  In the case of an employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken leave under this Act, the employer shall use the following in place of such number:

• “A number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.
  • If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”

The amount of leave pay will be equal to the employee’s regular rate of compensation, unless the employee is caring for a child or family member affected by the coronavirus. In that case, it will be two-thirds of the employee’s regular pay.  If the leave is used for themselves because the employee is quarantined or experiencing symptoms, the FFCRA requires the worker receive be paid the full rate of pay capped at $511 per day.  If the employee is using the paid leave to care for someone else, the worker is entitled to two-thirds of the regular rate of pay capped at $200 a day.

Employees are required to provide notice as is practicable where the need for leave is foreseeable.  Paid sick time provided to an employee under this Act shall cease beginning with the employee’s next scheduled work shift immediately following the termination of the need for paid sick time.  Paid sick time under this section shall not carry over from one year to the next.  An employer may not require, as a condition of providing paid sick time under this Act, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.

The paid sick time shall be available for immediate use by the employee for the purposes described in the Act, regardless of how long the employee has been employed by an employer.  An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.

The EPSLA also has provisions barring employers from discriminating in any way against an employee who takes advantage of benefits provided by the EPSLA.  Employers are also prohibited from retaliating against an employee who files a complaint or initiates a proceeding under the EPSLA.

If an employer violates the EPSLA, it will be subject to penalties as outlined by the Fair Labor Standards Act (29 USC § 216-217).  This includes fines, imprisonment, damages to the employee amounting to double the unpaid wages and reasonable attorney’s fees and court costs.

The EPSLA also exempts employers with 500 or more employees and sunsets on December 31, 2020.  However, the EPSLA does not have a provision telling the Department of Labor to create regulations that would exempt small businesses, such as those with fewer than 50 employees.

Employer Reimbursement

The Act provides for a series of refundable tax credits for employers providing paid emergency sick leave or paid FMLA.  The credits are as follows:

• A refundable tax credit for employers equal to 100 percent of wages required to be paid by the Emergency Family and Medical Leave Expansion Act that are paid by an employer for each calendar quarter.
  • The tax credit is allowed against the tax imposed by section 3111(a) or 3221(a) (the employer portion of Social Security taxes).
  • If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit is refundable to the employer.

• A refundable tax credit for employers equal to 100 percent of qualified paid sick leave wages required to be paid by the Emergency Paid Sick Leave Act that are paid by an employer for each calendar quarter.
  • The tax credit is allowed against the tax imposed by section 3111(a) of the Internal Revenue Code (the employer portion of Social Security taxes).

These new laws take effect “on or before April 2, 2020”.  If you have questions regarding how these new laws will affect your business, our team of employment lawyers would be glad to help.

By Joshua Friel

Estate planning is the process of determining what happens to you and your property if you become disabled or when you die.  Planning ahead of time enables you to make choices regarding your property and your health instead of those choices being made for you by a court.  Estate planning can be divided into two broad categories: planning for your life and planning for your death.

Planning for your Life

Many people experience a period of disability or incapacity in their life.  Here, disability or incapacity occurs when a person is not able to make decisions for themselves and does not necessarily refer to a physical disability.  Disability can include short periods of time, such as when you are under anesthesia during surgery, or longer periods of time for people with Alzheimer’s or dementia.  The important question to ask yourself is, “When I cannot make decisions for myself, who do I want to make those decisions?”.  There are three documents that can appoint someone you choose to make those decisions and explain what choices you want made:

1. A power of attorney for health care decisions empowers a trusted person of your choice to make decisions about your medical treatment.
2. A power of attorney for financial decisions empowers a trusted person of your choice to make decisions about your finances.
3. A living will or advanced directive explains your wishes for what treatment you want, and what treatment you do not want, and when to end life support. Making those decisions now, for yourself, can save your loved ones the difficult decision.

Planning for your death – probate

Most people are more familiar with estate after someone has died, also known as a decedent’s estate.  If the deceased does not have a will, or if there is property that remains in the name of the deceased person upon their death, that property must be probated.  If you have a will, that will must be filed with the court to become accepted, and the estate must be administered, which is the process of collecting money owed to the decedent, paying debts of the decedent, and distributing property.  If you do not have a will, and your property remains in your name upon your death, Missouri law has default rules about where property will go.

Probate is a public proceeding, which means that most of the filings will be public records.  There will often be a notice published to notify creditors to file a claim if you still owe money upon your death.  In addition, probate can be costly.  There are filings fees for probate, publication fees, and attorney fees.  If that does not sound good to you, keep reading for some alternatives.

Planning for your death – avoiding probate

Missouri has several laws that permit you to make a binding designation to say who gets your property upon your death.  These “non-probate transfers” enable you to choose where your property goes after you die, while bypassing the need to probate the estate in court.  There are different types of documents depending on the type of property you want to avoid probate.

Real estate: can be transferred to those you choose using a beneficiary deed that is recorded with the county recorder.  A beneficiary deed is revocable as long as you are alive, so you can still change your mind about who you want to give the property to, or if you decide to sell.

Titled vehicles: vehicles, including ATV, trailers, boat/vessel and motors, that must be registered can be transferred upon your death with a “title on death,” “transfer on death” or “TOD” designation.  This designation will make sure the vehicle goes to the person you named on the title and will avoid probate.

Financial accounts:  these accounts, including retirement, investment, savings, and checking, allow you to designate a “pay on death” or “POD” beneficiary.  Your financial institution will have forms you can use to make this designation.

Tangible personal property: for your tangible property that does not fit in the above categories, you can use a beneficiary bill of sale.  This document must be signed before you die, and will automatically transfer the property listed on the document to the person(s) of your choice without needing to be probated.

Trust Planning

A trust is a document that lays out rules for what happens to your property and is another method of avoiding probate.  A trust can come in many forms including living trusts, special needs trusts, and testamentary trusts.  Trusts can be drafted to provide both for your living wishes, such as what happens if you are disabled, and for what you want to happen to your property after you die.

Conclusion

Thinking about your own death or disability is not a pleasant thought for anybody.  But there are things you can do now to make sure that your wishes are honored, and the burden is lessened for your loved ones.  The experienced attorneys at Andereck, Evans, Lewis, Figg & Battagler can help you plan for the future and put your mind at ease.