Contact Us
Subscribe to this blog via RSS
Join us on LinkedInCategories
- FTC
- Emotional Support Animals
- Service Animals
- Employee Agreement
- Remote Work
- Federal Trade Commission
- LGBTQ
- Minors
- United States Department of Justice ("DOJ")
- Work from Home
- Arbitration
- Workplace health
- Trade Secrets
- Corporate
- Center for Disease Control
- Americans with Disabilities Act ("ADA")
- FFCRA
- Opioid Epidemic
- Occupational Safety and Health Administration (“OSHA”)
- COVID-19
- Families First Coronavirus Response Act
- H.R.6201
- Health Care Law
- IRS
- Paid Sick Leave
- Temporary Leave
- Treasury
- Coronavirus
- Worker Misclassification
- Labor Law
- Overtime
- Kentucky Unemployment Insurance Commission
- Sexual Harassment
- FMLA Retaliation
- Overtime Rule
- Employer Wellness Programs
- Genetic Information Nondiscrimination Act ("GINA")
- Kentucky minimum wage
- Minimum wage
- Employee Benefits
- Employment Discrimination Laws
- Employment Non-Discrimination Act ("ENDA")
- ERISA
- Human Resource Department
- Independent Contractors
- OSHA
- Overtime Pay
- Paid Time Off ("PTO")
- Sick Employees
- Wage and Hour
- ADA Amendments Act of 2008 (“ADAAA”)
- Adverse Employment Action
- Americans with Disabilities Act
- Civil Rights
- Compliance
- Copyright
- Department of Labor ("DOL")
- EEOC
- Employee Handbook
- Employee Misconduct
- Employment Law
- Fair Labor Standards Act (FLSA)
- Family and Medical Leave Act (“FMLA”)
- Intellectual Property
- Kentucky Civil Rights Act (“KCRA”)
- National Labor Relations Act (NLRA)
- National Labor Relations Board (NLRB)
- Pregnancy Discrimination Act
- Social Media
- Social Media Policies
- Title VII of the 1964 Civil Rights Act
- U.S. Department of Labor
- U.S. Equal Employment Opportunity Commission (“EEOC”)
- Uncategorized
- Union
- Volunteer
- Work for Hire
- Young v. UPS
- Amazon
- Bring Your Own Device
- BYOD
- Department of Health and Human Services
- Federal contractors
- Kentucky Labor Cabinet’s Occupational Safety and Health Program (KOSH)
- Portal-to-Portal Act of 1947
- Security Checks
- Security Screening
- U.S. Supreme Court
- Cloud
- Creech v. Brown
- EEOC v. Hill Country Farms
- Equal Employment Opportunity Commission v. Kaplan Higher Education Corp.
- Lane v. Franks
- Micro-unit
- Non-exempt employees
- Specialty Healthcare & Rehabilitation Center of Mobile
- "Ban-the-box"
- Bullying
- Citizens United v. Federal Election Commission
- Compensatory time off
- Conestoga Woods Specialties v. Sebelius
- Consumer Credit Protection Act (“CCPA”)
- Crystalline Silica
- Davis-Bacon and Related Acts
- Drug-Free Workplaces
- Earnings
- Illness and Injury Reports
- Job applications
- Kentucky Department of Workers’ Claims
- Kentucky Wage and Hour Act
- McNamara O’Hara Service Contract Act
- Mine Safety and Health Administration ("MSHA")
- NFL Bullying Scandal
- Northwestern
- Payroll
- Permissible Exposure Level ("PEL")
- Sebelius v. Hobby Lobby Stores
- Senate Bill 157
- Shazor v. Prof’l Transit Mgmt.
- Violence
- Wage garnishment
- Web Content Accessibility Guidelines
- Whistleblower
- WorkSmart Kentucky
- 2013)
- At-will employment
- Berrier v. Bizer
- Chapter 11 Bankruptcy
- Chenzira v. Cincinnati Children’s Hospital Medical Center
- COBRA
- Companionship services
- Defamation
- Defense of Marriage Act (“DOMA”)
- EEOC v. Fabricut
- EEOC v. The Founders Pavilion
- Ehling v. Monmouth-Ocean Hospital Service Corp.
- Employee of the Month Programs
- Endorsements
- Federal Stored Communications Act (“SCA”)
- Freedom of Speech
- Giant Food LLC
- Government employees
- Government shutdown
- Health-Contingent Wellness Programs
- HIPAA
- Home Health Care Workers
- Jury duty
- KYSHRM 2013
- Madry v. Gibraltar National Corporation
- Mandatory vaccination policies
- Maternity Leave
- Medical Exams
- Megivern v. Glacier Hills Incorporated
- Motivating Factor
- Obesity
- Online Defamation
- Participatory Wellness Programs
- Pennington v. Wagner’s Pharmacy
- Pension Plans
- Private employers
- Reference checks
- SHRM
- Small Business Administration (SBA)
- Social Media Ownership
- Supervisor
- Tangible employment actions
- Title VII retaliation cases
- Troyer v. T.John.E Productions
- Unfair Labor Practice
- United States v. Windsor
- University of Texas Southwestern Medical Center v. Nassar
- Vance v. Ball State University
- Contraceptive Mandate
- Employee Arrests
- Employee Forms
- Employee Hazards
- Employee photographs
- Employee Training
- Employer Group Health Plans
- Employer Mandate
- Employment Practices Liability Insurance
- Federal Workplace Agencies
- FICA
- Form I-9
- Gatto v. United Airlines and allied Aviation Services
- House Labor and Industry Committee
- Kentucky’s Whistleblower Act
- KRS 391.170
- Litigation
- Municipal Liability
- Online Account Protection
- Patient Protection and Affordable Care Act
- Play or Pay
- Posting Requirements
- Public Sector Liability
- Record Retention
- Religious Employer
- Right to Work Bill
- Sequester
- Severance Pay
- Supplemental Unemployment Compensation Benefits
- Tax Refund
- Telecommuting
- U.S. Citizenship and Immigration Services
- United States v. Quality Stores
- White v. Baptist Memorial Health Care Corp.
- Wilson v. City of Central City
- Crisis Management
- Federal Department of Labor
- Job Description
- Job Requirement
- Kentucky Labor Cabinet
- Labor and Pensions ("HELP")
- PhoneDog v. Kravitz
- Social Networking Online Protection Act (SNOP)
- Social Privacy Laws
- Strategic Enforcement Plan (SEP)
- Workplace Politics
- Business Insurance
- Class Action Waivers
- Communications Decency Act
- Criminal Background Checks
- Employee Contracts
- Employee Performance Reviews
- Employee Personnel Files
- Federal Arbitration Act (FAA)
- Hiring and Firing
- Hosanna-Tabor Opinion
- Informal Discussion Letter (“EEOC Letter”)
- Insurance Coverage
- Internet & Media Law
- Internet Defamation
- National Labor Relations Act
- Non-Compete Agreement
- Retaliation by Association
- Salary Threshold
- Unemployment Benefits
- Uniformed Services Employment and Reemployment Rights Act
- USERRA
- Workplace Discrimination, Harassment and Retaliation
Enforcement and Retaliation of New Paid Leave Provisions – Crucial Concerns for Employers
While the new paid sick leave and Family and Medical Leave Act (“FMLA”) expansion law contains a small carrot for employers in the form of tax credits for those required to pay for sick leave and expanded FMLA leave, it also contains a couple of fairly substantial sticks. Accordingly, employers should carefully consider any adverse employment actions they take at this time with respect to employees who take leave.
Enforcement of Paid Sick Leave
The new law’s paid sick leave mandates are enforced by a provision that states that employers who fail to provide or pay the required sick leave are considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act (“FLSA”). Employers may be on the hook for damages in the amount of the unpaid leave, and other damages such as the employee’s attorney’s fees for the lawsuit to collect the unpaid leave.
The new law’s paid sick leave mandates are enforced by a provision that states that employers who fail to provide or pay the required sick leave are considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act (“FLSA”). Employers may be on the hook for damages in the amount of the unpaid leave, and other damages such as the employee’s attorney’s fees for the lawsuit to collect the unpaid leave.
Notably, the new law does not impose a willfulness requirement for there to be a violation – you fail to provide the paid sick leave, you have committed a violation, whether you intended to or not. If the failure to pay is willful, the penalties under the FLSA are a fine of not more than $10,000, and if the violator has a prior conviction of such a violation, up to six months in prison.
Enforcement of FMLA Expansion
While the new law does not add new penalties for failure to provide paid FMLA leave under the new provisions, as this is an addition to the FMLA itself, regular FMLA penalties apply. Employers who fail to provide this leave are liable to the employees for damages equal to the amount of any wages, salary, or benefits that would be denied or lost by the violation and any monetary losses sustained by the employee, plus interest. Additionally, employer may also be investigated by the Department of Labor for violations.
Retaliation
This may be the most concerning part for employers – willful retaliation against employees for taking this paid sick leave, for filing a complaint related to the leave, or for instituting any proceeding or testifying in any proceeding related to the leave is strictly prohibited. Employers may not discipline, terminate or in any way discriminate against employees for taking the paid leave. Willful violations are subject to the same penalties set out for FLSA violations, but the clear line of “failure to pay for sick leave” above isn’t quite as solid where retaliation is concerned. Any adverse employment actions taken by employers against employees who have taken paid sick leave need to be well-documented to prove the reasons for taking the action are not merely pretextual.
Enforcement of FMLA Expansion
While the new law does not add new penalties for failure to provide paid FMLA leave under the new provisions, as this is an addition to the FMLA itself, regular FMLA penalties apply. Employers who fail to provide this leave are liable to the employees for damages equal to the amount of any wages, salary, or benefits that would be denied or lost by the violation and any monetary losses sustained by the employee, plus interest. Additionally, employer may also be investigated by the Department of Labor for violations.
Retaliation
This may be the most concerning part for employers – willful retaliation against employees for taking this paid sick leave, for filing a complaint related to the leave, or for instituting any proceeding or testifying in any proceeding related to the leave is strictly prohibited. Employers may not discipline, terminate or in any way discriminate against employees for taking the paid leave. Willful violations are subject to the same penalties set out for FLSA violations, but the clear line of “failure to pay for sick leave” above isn’t quite as solid where retaliation is concerned. Any adverse employment actions taken by employers against employees who have taken paid sick leave need to be well-documented to prove the reasons for taking the action are not merely pretextual.
These are difficult times for employers. Contact the experienced employment law attorneys at McBrayer today.
Jason R. Hollon is an Associate of McBrayer law. His law practice primary focuses in the areas of employment law, employment litigation, civil investigations and estate and trust litigation. He is in the firm's Lexington office and can be reached at jhollon@mcbrayerfirm.com or at (859) 231-8780, ext. 1147.
Services may be performed by others.
This article does not constitute legal advice.
